b'Applicability of Post-Employment Restrictions\non Dealing with Government to Former Employees\nof the Government Printing Office\nThe Governm ent Printing Office (GPO) is neither a part o f the Executive Branch nor an\nindependent agency o f the United States for purposes of restrictions on post-employm ent\nactivities o f certain government officers and employees set forth in 18 U.S.C. \xc2\xa7 207. Rather,\nGPO is a unit of the Legislative Branch. Accordingly, officers and employees of GPO are not\nsubject to the post-employment restrictions of 18 U.S.C. \xc2\xa7 207.\nSpecial employees of the GPO are also excluded from coverage o f the post-employment restric\xc2\xad\ntions, although special employees o f the Executive Branch would be covered. Because\nrestrictions o f \xc2\xa7 207 do not apply to regular officers and employees o f the Legislative Branch,\nit is extremely doubtful that Congress intended them to apply to special employees o f that\nbranch.\n\nFebruary 26, 1985\nM\n\nem orandum\n\nG\n\nO p in io n\n\nfor th e\n\novernm ent\n\nIn s p e c t o r G e n e r a l ,\n\nP r in t in g O f f ic e\n\nThis responds to your request for our opinion whether 18 U.S.C. \xc2\xa7 207,\nwhich restricts the post-employment activities of government officers and\nemployees within its coverage, applies to former employees of the Government\nPrinting Office (GPO).1 Specifically, you asked us to consider whether the\nGPO is an \xe2\x80\x9cindependent agency of the United States\xe2\x80\x9d for purposes of 18 U.S.C.\n\xc2\xa7\xc2\xa7 207 and 208.2 In an informal letter to the General Counsel of GPO, the\nOffice of Government Ethics (OGE) addressed this same question in 1982.\nOGE concluded that \xc2\xa7 207 does not apply to former GPO employees because\nthe GPO is a part of the Legislative Branch and the Legislative Branch is not\nsubject to \xc2\xa7 207. After reviewing the legislative history and the laws governing\nthe GPO, we conclude that GPO is not an \xe2\x80\x9cindependent agency of the United\nStates\xe2\x80\x9d for purposes of \xc2\xa7\xc2\xa7 207 and 208. Therefore, for the reasons discussed below,\nwe agree with OGE that 18 U.S.C. \xc2\xa7 207 does not apply to employees of the GPO.\n1 Section 207 is the crim inal conflict o f interest statute governing post-em ploym ent activities of govern\xc2\xad\nm ent em ployees. In broad terms, it prohibits form er em ployees from undertaking representational activities\nbefore federal agencies, on behalf o f som eone other than the governm ent, w ith respect to m atters in w hich the\nform er em ployee participated personally and substantially w hile in governm ent service (a lifetim e ban) or\nthat fell under the em ployee\xe2\x80\x99s official responsibility in the last year o f governm ent service (a tw o-year ban).\nFor certain senior-level em ployees, \xc2\xa7 207 also establishes a o ne-year ban on representational activities before\nthe em ployee\xe2\x80\x99s form er agency o r certain com ponents o f that agency. Section 207 is supplem ented by\nextensive regulations issued by the O ffice o f Governm ent Ethics. See 5 C.F.R. Part 737.\n2 18 U.S.C. \xc2\xa7 209 also applies to officers and employees o f an \xe2\x80\x9cindependent agency of the United S tates.\xe2\x80\x9d\n\n55\n\n\x0cBy its terms, \xc2\xa7 207 applies to any person who has been \xe2\x80\x9can officer or\nemployee of the executive branch of the United States Government, of any\nindependent agency o f the United States, or o f the District of Columbia.\xe2\x80\x9d In\ncontrast, other conflict o f interest provisions expressly apply to officers and\nemployees in the Executive, Legislative and Judicial Branches. See, e.g., 18\nU.S.C. \xc2\xa7\xc2\xa7 203, 205. W e are not aware of any discussion in the legislative\nhistory o f the revision o f the conflict of interest laws in 1962 or the amend\xc2\xad\nments made to \xc2\xa7 207 by the Ethics in Government Act of 1978, Pub. L. No. 9 5 521, 92 Stat. 1864, regarding the specific application of \xc2\xa7 207 or the other\nconflict o f interest laws to the GPO.3 However, the legislative history of Title V\no f the Ethics in Government Act indicates unequivocally that Congress in\xc2\xad\ntended \xc2\xa7 207 to restrict the post-employment activities o f officers and employ\xc2\xad\nees o f the Executive Branch (as well as the District of Columbia and the\nindependent agencies), see S. Rep. No. 170, 95th Cong., 1st Sess. 31,47, 151\n(1977), reprinted in 1978 U.S.C.C.A.N. 4216, 4247, 4263, 4367; H.R. Conf.\nRep. No. 1756,95th Cong., 2d Sess. 73 (1978), reprinted in 1978 U.S.C.C.A.N.\n4381,4389, but not the post-employment activities of employees o f the Legis\xc2\xad\nlative or Judicial Branches, see S. Rep. No. 170 at 151, 1978 U.S.C.C.A.N. at\n4367 (\xe2\x80\x9cOfficers and employees o f the Legislative and Judicial Branch of the\nGovernment are not covered by this Tide.\xe2\x80\x9d).\nM oreover, this Office previously has interpreted the post-employment pro\xc2\xad\nhibitions in \xc2\xa7 207 to apply solely to officers and employees in the Executive\nBranch. See Memorandum to Honorable William E. Casselman II, Legal\nCounsel to the Vice President, from Robert G. Dixon, Jr., Assistant Attorney\nGeneral, Office o f Legal Counsel (June 13,1974) (18 U.S.C. \xc2\xa7\xc2\xa7 207-209 apply\nsolely to employees in the Executive Branch); Letter to Charles E. Blake from\nLeon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel\n(Apr. 8, 1974) (\xc2\xa7 207 applies only to Executive Branch officers and employees\nand does not restrict post-employment activities of former legislative employ\xc2\xad\nees); cf. \xe2\x80\x9cConflict o f Interest \xe2\x80\x94 18 U.S.C. \xc2\xa7 207 \xe2\x80\x94 Applicability to the\nGeneral Accounting Office,\xe2\x80\x9d 3 Op. O.L.C. 433 (1979) (\xc2\xa7 207 applies to Gen\xc2\xad\neral Accounting Office because o f the unique statutory definitions regarding\nthe GAO). Accordingly, we examine whether the GPO is an independent\nagency or part o f the Legislative Branch for purposes of \xc2\xa7 207.\nThe GPO was created in 1860, J. Res. of June 23, 1860, 12 Stat. 117, after\nextensive debate over the relative merits of a contract system of public printing\nversus the establishment of a GPO. At that time, the government employed a\ntariff system, or fixed price schedule. The contract system had been tried in the\npast but had been rejected because it was fraught with partisan abuses, particu3 The introductory phrase in \xc2\xa7 207(a) (as am ended by T itle V o f the Ethics in Governm ent Act), which\ndescrib es the form er o fficers and employees to whom \xc2\xa7 207 applies, is identical to the introductory phrase in\n\xc2\xa7 207 as first enacted in 1962. The House rep o rt on the 1962 law describes \xc2\xa7 207(a) (and \xc2\xa7\xc2\xa7 208 and 209) as\napplying to o fficers and em ployees o f the \xe2\x80\x9cexecutive branch\xe2\x80\x99* o r an \xe2\x80\x9cindependent agency,\xe2\x80\x9d w ithout further\nelaboration. S e e , e.g .t H .R. R ep. No. 748, 87th Cong., 1st Sess. 11, 12, 13, 2 3 ,2 4 (1961). The Senate report\ndescribes \xc2\xa7\xc2\xa7 2 0 7 ,2 0 8 and 209 as applying to present and fo rm er governm ent em ployees only in very general\nterm s. See S. R ep. N o. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962 U .S.C.C.A.N. 3852.\n\n56\n\n\x0clarly with regard to the printing for the executive departments. Congress saw\nthe ability to have its own materials printed more expeditiously and less\nexpensively as a primary advantage of a Government Printing Office. See\ngenerally H.R. Rep. No. 249, 36th Cong., 1st Sess. (1860); Cong. Globe, 36th\nCong., 1st Sess. 2478, 2482-87,2489, 2500-05, 2507, 2511-13 (1860) (House\ndebate); id. at 3057-62 (1860) (Senate debate).\nCourts have described the GPO as a \xe2\x80\x9clegislative unit performing a support\nfunction for Congress.\xe2\x80\x9d Lewis v. Sawyer, 698 F.2d 1261, 1262 n.2 (D.C. Cir.\n1983) (Wald, J., concurring). Its \xe2\x80\x9cprime function is to support Congress by\npublishing for distribution legislative journals, bills, resolutions, laws, reports,\nand numerous other documents; this type of \xe2\x80\x98informative\xe2\x80\x99 activity, \xe2\x80\x98operating\nmerely in aid of congressional authority to legislate,\xe2\x80\x99 fits a \xe2\x80\x98category of\npowers\xe2\x80\x99 that the Supreme Court considered within Congress\xe2\x80\x99 dominion.\xe2\x80\x9d Id. at\n1262 (quoting Buckley v. Valeo, 424 U.S. 1, 137-43 (1976) (per curiam)); see\nalso Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982); H entoff v.\nIchord, 318 F. Supp. 1175, 1180 n.3 (D.D.C. 1970); United States v. Allison,\n91 U.S. 303, 307 (1875). The Comptroller General has also recognized that, as\na general matter, the GPO is within the Legislative Branch of government. 36\nComp. Gen. 163, 165 (1956); 29 Comp. Gen. 388, 390 (1950).\nThe Congressional Joint Committee on Printing (JCP) retains supervisory\ncontrol over a host of GPO\xe2\x80\x99s functions. See, e.g., 44 U.S.C. \xc2\xa7 103 (power to\nremedy neglect, delay, duplication, and waste); id. \xc2\xa7 305 (approval of GPO\nemployees\xe2\x80\x99 pay);4 id. \xc2\xa7 309 (revolving fund available for expenses authorized\nin writing by the JCP); id. \xc2\xa7 312 (requisitioning of materials and machinery\nwith approval of the JCP); id. \xc2\xa7 313 (examining board consisting of GPO\npersonnel and a person designated by the JCP); id. \xc2\xa7 502 (approval of contract\nwork); id. \xc2\xa7 505 (regulation of sale of duplicate plates); id. \xc2\xa7\xc2\xa7 509-517 (ap\xc2\xad\nproval of paper contracts); id. \xc2\xa7 1914 (approval o f measures taken by the Public\nPrinter to implement the depository library program); see also Lewis v. Sawyer,\n698 F.2d at 1263. This relationship to Congress appears to preclude a conclu\xc2\xad\nsion, either in fact or as a constitutional matter, see INS v. Chadha, 462 U.S.\n919 (1983), that the GPO is not an arm o f Congress.\nThe appointment of the Public Printer by the President with the advice and\nconsent of the Senate, see 44 U.S.C. \xc2\xa7 301, is not inconsistent with a conclu\xc2\xad\nsion that the GPO is a Legislative Branch unit. The President\xe2\x80\x99s appointment\npower under Article II of the Constitution is not limited to the Executive\nBranch. For example, the President appoints federal judges and also a number\nof legislative officers, such as the Comptroller General, the Librarian of Con\xc2\xad\ngress, and the Architect of the Capitol.\nIn a 1979 opinion, this Office concluded that the General Accounting Office\n(GAO) is an \xe2\x80\x9cindependent agency\xe2\x80\x9d within the meaning of 18 U.S.C. \xc2\xa7 6 and is\ntherefore subject to \xc2\xa7 207, even though it is generally considered to be part of\nthe Legislative Branch. See 3 Op. O.L.C. 433 (1979). This conclusion resulted\n4 Although G PO em ployees hold positions in the com petitive service, they are not covered by the civil\nservice classification scheme. S ee 5 U.S.C. \xc2\xa7 5102(c)(9); Thompson, 678 F.2d at 264.\n\n57\n\n\x0cfrom the unique statutory definitions regarding the GAO. The term \xe2\x80\x9cagency\xe2\x80\x9d as\nused in \xc2\xa7 207 includes \xe2\x80\x9cany department, independent establishment, commis\xc2\xad\nsion, administration, authority, board or bureau of the United States or any\ncorporation in which the United States has a proprietary interest, unless the\ncontext shows that such term was intended to be used in a more limited sense.\n18 U.S.C. \xc2\xa7 6 (emphasis added).5 Significantly, unlike the GPO, the GAO is\nspecifically defined as an \xe2\x80\x9cindependent establishment\xe2\x80\x9d for purposes of Title V\no f the Ethics in Government Act. See 5 U.S.C. \xc2\xa7 104.\nO ther language in our 1979 opinion concerning the GAO suggests that a\ndetermination that an entity is in the \xe2\x80\x9cLegislative\xe2\x80\x9d Branch is not dispositive of\nwhether or not its officers and employees are subject to the conflict of interest\nprovisions set forth at 18 U.S.C. \xc2\xa7\xc2\xa7 207,208 and 209. See 3 Op. O.L.C. at 43536. W hen read in context, however, that language serves merely as a gloss on\nour conclusion that the GAO is an \xe2\x80\x9cindependent agency\xe2\x80\x9d under \xc2\xa7 207 by\nstatutory definition, a conclusion we are unable to reach with respect to the\nGPO.6\nIn your request, you note that the definition of \xe2\x80\x9cspecial Government em\xc2\xad\nployee\xe2\x80\x9d in 18 U.S.C. \xc2\xa7 202, for purposes of \xc2\xa7\xc2\xa7 203, 205, 207, 208, and 209,\nincludes officers and employees of the Legislative Branch. The legislative\nhistory of the conflict of interest laws reveals that Congress intended to create a\ncategory of special government employees for whom the restraints upon regu\xc2\xad\nlar government employees would be relaxed. This category would permit the\ngovernment, primarily the Executive Branch, to bring in part-time or intermit\xc2\xad\ntent advisers and consultants with less difficulty. See H.R. Rep. No. 748, 87th\nCong., 1st Sess. 4 -5 (1961); S. Rep. No. 2213, 87th Cong., 2d Sess. (1962),\nreprinted in 1962 U.S.C.C.A.N. 3852, 3854\xe2\x80\x9456, 3864 (views of Sen. John A.\nCarroll). The House bill did not make employees of the Legislative Branch\neligible for classification as special government employees. See H.R. Rep. No.\n7 4 8 ,87th Cong., 1st Sess. 13-14 (1961). The Senate saw no reason for omitting\nthem and amended the definition of special government employee accordingly.\nSee S. Rep. No. 2213, 87th Cong., 2d Sess. (1962), reprinted in 1962\nU.S.C.C.A.N. 3852, 3857.\nAs you have pointed out, \xc2\xa7 207 does apply to special government employ\xc2\xad\nees. W e believe, however, that it would be inconsistent with the legislative\npurpose o f minimizing the obstacles faced by an agency requiring the part-time\nor temporary services of advisers and consultants to construe \xc2\xa7 207(a) and (b)\nas applying to special government employees in the Legislative Branch, given\nthat that section does not apply to regular Legislative Branch employees. We\n5 A lthough this expansive definition w o u ld appear to include all governm ental entities, the legislative\nhistory o f \xc2\xa7 207 m akes clear that for purposes o f that section, the statutory definition o f \xe2\x80\x9cagency" does not\ninclude L egislative B ranch agencies such a s the GPO.\n6 The G overnm ent Printing Office Standards o f C onduct, w hich are not published in the Code o f Federal\nR e g u la tio n s, state (a t P art 6 ) that 18 U .S .C . \xc2\xa7\xc2\xa7 2 0 7 -2 0 9 relate to the ethical conduct of GPO employees.\nG overnm ent Printing O ffice, Instruction 655.3 (Feb. 23, 1973). W e have not been asked and do not reach the\nquestion w hether those provisions of the G P O Standards o f C onduct are invalid in light o f our conclusion that\n\xc2\xa7\xc2\xa7 2 0 7 -2 0 9 do not apply to the GPO.\n\n58\n\n\x0cdoubt that Congress could have intended such an incongruous result. Rather,\nwe construe the definition of \xe2\x80\x9cspecial Government employee\xe2\x80\x9d in 18 U.S.C.\n\xc2\xa7 202 as not changing the scope of coverage of any of the substantive sections.\nTherefore, we believe that those conflict of interest provisions that apply to\nspecial government employees apply only to those special government employ\xc2\xad\nees in the branch or branches of government within the coverage of the particular\nsubstantive section. Compare 18 U.S.C. \xc2\xa7\xc2\xa7 203,205 with id. \xc2\xa7\xc2\xa7 207-209.\nFor the reasons set forth above, we conclude that 18 U.S.C. \xc2\xa7 207 does not\napply to officers and employees of the GPO, an entity within the Legislative\nBranch of government.\nR\n\nalph\n\nW . T arr\n\nActing A ssistant Attorney General\nOffice o f Legal Counsel\n\n59\n\n\x0c'


b"Attorney\xe2\x80\x99s Fees for Legal Service Performed Prior to Federal\nEmployment\n18 U .S.C . \xc2\xa7 2 0 5 p rohibits a C ivil Division attorney from receiving attorney\xe2\x80\x99s fees for w ork in a case\nagainst the U nited States perform ed prior to federal em ploym ent w hen the right to paym ent depends\non a finding o f liability and aw ard against the U nited S tates that takes place after the attorney\xe2\x80\x99s\nentry into fed eral em ploym ent.\n\nFebruary 11, 1999\nM\n\nem orandum\n\nD\n\nO\n\np in io n f o r t h e\n\nepartm ental\n\nE\n\nt h ic s\n\nO\n\nD\n\nir e c t o r\n\nf f ic e\n\nYou have requested our opinion whether an attorney in the Civil Division\n(\xe2\x80\x9c Civil attorney\xe2\x80\x9d ) may seek or accept attorney\xe2\x80\x99s fees for work in a case against\nthe United States that she performed before becoming a federal employee.*\nAlthough you have specifically asked whether 18 U.S.C. \xc2\xa7203 would raise a bar,\nwe do not address that issue, because we have concluded that, whether or not\n\xc2\xa7203 applies, 18 U.S.C. \xc2\xa7205 prohibits the Civil attorney from receiving such\nfees.\nI.\n\nYour question arises from work that the Civil attorney performed in connection\nwith an employment case that she handled in 1996 and 1997. See Memorandum\nfor Randolph Moss, Acting Assistant Attorney General, Office of Legal Counsel,\nfrom Mary Braden, Director, Departmental Ethics Office, Justice Management\nDivision, Re: Request fo r Legal Opinion Regarding the Application o f 18 U.S.C.\nSection 203 to Acceptance of Attorneys Fees fo r Work Performed Prior to Service\nas Department o f Justice Employee (Jan. 12, 1999) (\xe2\x80\x9c Braden M emo\xe2\x80\x9d ). The work\noccurred before her service as an attorney with the Civil Division began in March\n1998. Id. at 1.\nIn the case in question, the Civil attorney represented an employee of the\nDepartment o f Commerce who challenged his separation from the Department\npursuant to a reduction in force. Id. The Civil attorney\xe2\x80\x99s client lost his challenge\nto the separation before an administrative law judge and also on appeal to the\nM erit Systems Protection Board ( \xe2\x80\x9c Board\xe2\x80\x9d ). Following the unsuccessful appeal\nto the Board, the Civil attorney \xe2\x80\x9c provided no further representational services\nto her former client after January 1997.\xe2\x80\x9d Braden Memo at 1. However, the client,\nhim self an attorney, pursued a pro se appeal o f the Board\xe2\x80\x99s decision to the United\nStates Court of Appeals for the Federal Circuit. See id. The Federal Circuit\n\xe2\x80\x99 E d ito r\xe2\x80\x99s N o te 1 F o r privacy reasons, m aterial has been redacted from this opinion th at m ight identify the Civil\nD iv isio n attorney.\n\n42\n\n\x0cAttorney's Fees fo r Legal Service Performed Prior to Federal Employment\n\nreversed the Board\xe2\x80\x99s decision on the ground that it was not supported by substan\xc2\xad\ntial evidence.\nAs we understand the facts, the Civil attorney\xe2\x80\x99s retainer agreement with her\nclient provided that he would \xe2\x80\x9c pay her a discounted hourly rate of $200, up to\na maximum of $10,000 (50 hours).\xe2\x80\x9d Id. Under the agreement, the attorney\xe2\x80\x99s\nrecovery of additional fees would be \xe2\x80\x9c contingent upon [the] client prevailing in\nthe case and being awarded attorney\xe2\x80\x99s fees.\xe2\x80\x9d Id. The retainer agreement covers\nonly the proceedings before the Board. Id. As the Civil attorney has explained,\n\xe2\x80\x9c [t]he retainer agreement . . . expressly excluded the filing of any notice of\nappeal or of any appellate proceedings before any tribunal other than the [Board].\xe2\x80\x9d\nMemorandum for Randolph Moss, Acting Assistant Attorney General, Office of\nLegal Counsel, from Civil attorney, Re: Request fo r an Ethics Opinion at 2 n.l\n(Oct. 30, 1998) (\xe2\x80\x9c Civil attorney\xe2\x80\x99s Memo\xe2\x80\x9d ). In all, the attorney performed 365.34\nhours of legal services to her former client and received compensation, under the\nretainer agreement, for 50 hours. Braden Memo at 1.\nIn light of the Federal Circuit\xe2\x80\x99s ruling, the Civil attorney advises that her client\n\xe2\x80\x9c is now entitled to petition the [Board] for an award of attorney\xe2\x80\x99s fees both to\nreimburse himself for the money he has already paid to me (i.e., the \xe2\x80\x98cap\xe2\x80\x99 amount)\nand to finally compensate me for the additional 315 hours I expended upon his\nbehalf in 1996.\xe2\x80\x9d Civil attorney\xe2\x80\x99s Memo at 4. The attorney states that the retainer\nagreement authorized her \xe2\x80\x9c to seek fees from the defendant pursuant to the fee\nshifting statute should the matter settle or should plaintiff prevail.\xe2\x80\x9d Id. at 2. She\nnotes that a retainer agreement of this type, which contains a fee \xe2\x80\x9c cap\xe2\x80\x9d with\na right to recover an additional amount only if the client prevails, is typical in\nthe field of employment law where the substantive statutes providing the basis\nfor employment claims contain fee shifting provisions that allow plaintiffs to\nrecover attorney\xe2\x80\x99s fees from the defendants. Id.\nII.\nBased on previous opinions of the Office of Legal Counsel (\xe2\x80\x9c OLC\xe2\x80\x9d ), your\noffice has advised the Deputy Designated Agency Ethics Official in the Civil Divi\xc2\xad\nsion that 18 U.S.C. \xc2\xa7203 would forbid the Civil attorney from recovering the\ncontingent portion of the fees that she is owed under the retainer agreement.\nBraden Memo at 2. Under \xc2\xa7 203, any officer or employee of the executive branch\nwho, \xe2\x80\x9c otherwise than as provided by law for the proper discharge of official\nduties, directly or indirectly . . . demands, seeks, receives, accepts, or agrees to\nreceive or accept any compensation for any representational services, as agent\nor attorney or otherwise, rendered or to be rendered either personally or by\nanother\xe2\x80\x9d during the employee\xe2\x80\x99s federal service is guilty of a crime. 18 U.S.C.\n\xc2\xa7 203(a) (1994).\n43\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nIn providing your advice, you noted that it is \xe2\x80\x9c \xe2\x80\x98the longstanding view of the\nOffice of Legal Counsel that \xc2\xa7203 prohibits an individual entering government\nemployment from maintaining a contingent interest in fees recoverable in a pro\xc2\xad\nceeding involving the United States.\xe2\x80\x99 \xe2\x80\x9d Braden Memo at 2 (quoting Memorandum\nfor Charles F.C. Ruff, Counsel to the President, from Dawn Johnsen, Acting\nAssistant Attorney General, Office of Legal Counsel, Re: Proposed Nomination\nat 2 (Jan. 28, 1998)). You advised that our office\xe2\x80\x99s interpretation \xe2\x80\x9c reflects the\nconclusion that a contingent fee covers the entire representation up to the payment,\nthat the amount remains uncertain until then, and that the fees thus compensate,\nin part, for representational services performed after the employee began working\nfor the United States.\xe2\x80\x9d Id.\nIn the present case, you did not find \xe2\x80\x9c any basis to distinguish [the Civil attor\xc2\xad\nney\xe2\x80\x99s] situation from previous ones in which OLC found that \xc2\xa7203 barred accept\xc2\xad\nance of compensation by federal employees for services they performed prior to\ntheir government service.\xe2\x80\x9d Id. at 3. You explained that \xe2\x80\x9c it is undisputed that\nany recovery in addition to the $10,000 cap her client was obligated to pay was\nentirely contingent on the case being appealed, and of her client prevailing on\nappeal.\xe2\x80\x9d Id. Because \xe2\x80\x9c [t]he final stages of the appeal and the court\xe2\x80\x99s decision\ntook place after she was a federal employee,\xe2\x80\x9d you concluded that OLC\xe2\x80\x99s prior\ninterpretation o f \xc2\xa7 203 foreclosed her recovery of the outstanding, contingent por\xc2\xad\ntion. Id. As you explained, \xe2\x80\x9cbased on OLC\xe2\x80\x99s view that contingent fees are based\nin some part on representations that continue until the contingency is fixed, unless\nshe were to have agreed to a fixed sum from her former client irrespective of\nthe outcome of the case, we did not see any way to distinguish her situation\nfrom those in which OLC has found Section 203 to prohibit acceptance of pay\xc2\xad\nments for work done prior to federal employment.\xe2\x80\x9d Id. at 3.\nIn her own submission to our office, the Civil attorney has disputed the conclu\xc2\xad\nsion that 18 U.S.C. \xc2\xa7203 would prohibit her recovery of the contingent portion\nof the fees under the retainer agreement. See Civil attorney\xe2\x80\x99s Memo, supra. She\ncontends that she has \xe2\x80\x9c rendered no \xe2\x80\x98services\xe2\x80\x99 to [her client] while serving as\na federal employee.\xe2\x80\x9d Id. at 5. She argues instead that she seeks recovery only\nfor hours she worked more than a year before joining the Department of Justice,\nthat those hours are documented, that she had no role in the appeal of her client\xe2\x80\x99s\ncase to the Federal Circuit, and that \xe2\x80\x9c any fee petition submitted to the [Board]\nwould merely iterate time sheet entries and seek fees based upon total hours\nworked times a fixed hourly rate o f $200.00.\xe2\x80\x9d Id. at 4\xe2\x80\x945. As a result, she contends\nthat her situation differs from the typical contingency fee case, \xe2\x80\x9c wherein the\nattorney seeks to recover a percentage of the ultimate monetary award.\xe2\x80\x9d Id. at\n6. Here, she contends, she seeks only to \xe2\x80\x9c recover on a quantum meruit basis\nfees at a fixed hourly rate for identifiable hours worked in 1996.\xe2\x80\x9d Id.\n44\n\n\x0cAttorney's Fees fo r Legal Service Performed Prior to Federal Employment\n\nm.\nWe do not address whether 18 U.S.C. \xc2\xa7203 would allow the Civil attorney\nto recover the attorney\xe2\x80\x99s fees at issue, because we conclude that, in any event,\n18 U.S.C. \xc2\xa7 205 bars recovery.\nSection 205, among other things, prohibits any officer or employee of the execu\xc2\xad\ntive branch from \xe2\x80\x9c receiv[ing] . . . any share of or interest in\xe2\x80\x9d a \xe2\x80\x9c claim\xe2\x80\x9d against\nthe United States, \xe2\x80\x9c in consideration of assistance in the prosecution o f such\nclaim.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(1) (1994). The Civil attorney thus could not receive\nany part of attorney\xe2\x80\x99s fees that might now be awarded to her client if (1) those\nfees represent, or constitute a portion of, a \xe2\x80\x9c claim against the United States\xe2\x80\x9d\nand (2) the payment to the attorney would be \xe2\x80\x9c in consideration of assistance in\nthe prosecution\xe2\x80\x9d of such claim. Id.\nThe petition for attorney\xe2\x80\x99s fees is a demand for the payment of money by the\nUnited States, and such a demand falls within the core meaning of the phrase,\n\xe2\x80\x9c claim against the United States.\xe2\x80\x9d See H.R. Rep. No. 87-748, at 21 (1961); S.\nRep. No. 87-2213, at 11 (1962) (citing United States v. Bergson, 119 F. Supp.\n459 (D.D.C. 1954)); United States v. 679.19 Acres o f Land, 113 F. Supp. 590,\n593-94 (D.N.D. 1953); Bayless Manning, Federal Conflict o f Interest Law 88\n(1964); see also Acceptance o f Legal Fees by United States Attorney, 6 Op. O.L.C.\n602, 603 (1982) (arguing for broader meaning) (\xe2\x80\x9c 1982 OLC Opinion\xe2\x80\x9d ); Prosecu\xc2\xad\ntion o f Claims by Retired Army Officers, 40 Op. Att\xe2\x80\x99y Gen. 533, 534 (1947)\n(same). The more difficult question under the statute is whether the payment of\nfees to the Civil attorney from such an award would be \xe2\x80\x9c in consideration of assist\xc2\xad\nance in the prosecution of such claim.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 205(a)(1) (emphasis added).\nA proper resolution of this question requires us to determine the meaning of the\nstatutory phrase \xe2\x80\x9c claim against the United States.\xe2\x80\x9d\nThere are two possible meanings of that phrase as it relates to the fee petition.\nThe first possibility would be to classify the fee petition as a \xe2\x80\x9c claim against the\nUnited States\xe2\x80\x9d that is distinct from, and independent of, the broader challenge\nto the Department of Commerce\xe2\x80\x99s separation of the Civil attorney\xe2\x80\x99s client on\nwhich the petition for the attorney\xe2\x80\x99s fees award would ultimately rest. The second\npossibility would be to classify the fee petition as a portion of the relief that\nwould be available to her client incident to his broader \xe2\x80\x98 \xe2\x80\x98claim against the United\nStates\xe2\x80\x9d challenging the Department\xe2\x80\x99s separation determination.1\n'W e do not address in this opinion w hether such a broader challeng e w o u ld constitute a \xe2\x80\x9c claim ag a in st the\nU nited S ta te s\xe2\x80\x9d under \xc2\xa7 2 0 5 in the absence o f an accom panying dem and for m o n etary relief W e n ote that P ro fesso r\nB ayless M anning, in his treatise on the crim inal conflict o f interest law s, recognized that the p h rase \xe2\x80\x9c claim against\nthe U nited S tates\xe2\x80\x9d should be construed w ith due consideration o f th e fact that a claim that the U n ited States g o v ern \xc2\xad\nm ent had im properly discharged one o f its em ployees could give rise to a variety o f m onetary and n on-m onetary\nrem edies from am ong w hich the pla in tiff w ould be free to select H e explained th at \xe2\x80\x9c even the n arrow est co n c ep tio n \xe2\x80\x9d\no f a claim against the U nited States, a conception that w ould require a claim to b e accom panied by a dem an d\nfo r m oney, \xe2\x80\x9c m ay cause difficulties\xe2\x80\x9d in such cases because o f the ties betw een n g h ts and rem edies for the violation\no f th o se n g h ts. M anning, supra at 87. H e noted, for exam ple, that, u n d er the p red ecesso r statute to \xc2\xa7 2 0 5 , a g o v em C o n tm u ed\n\n45\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nUnder the first classification of the fee petition, there would be a substantial\nargument that \xc2\xa7205 would not constitute a bar to the Civil attorney\xe2\x80\x99s receipt of\nall of the fees from the award, even though it would bar her receipt of a portion\nof such fees. The reference in \xc2\xa7205 to \xe2\x80\x9c such claim \xe2\x80\x9d would, on this view, refer\nonly to the fee petition, rather than to the broader challenge to the unlawful separa\xc2\xad\ntion. That is, the fee petition would constitute the relevant \xe2\x80\x9c claim.\xe2\x80\x9d Under this\nunderstanding, while the attorney would be barred by \xc2\xa7 205 from receiving any\nfees that constituted consideration for her assistance in the prosecution of the fee\npetition, she would not be barred by \xc2\xa7205 from receiving the share of the fee\naward that constituted consideration for her assistance in the prosecution of the\nchallenge to the unlawful separation.2\nUnder the second classification o f the fee petition, however, \xc2\xa7 205 would appear\nto constitute a bar to her receipt of any of the fees. On this view, the fee petition\nwould not constitute a distinct and independent \xe2\x80\x9c claim against the United States\xe2\x80\x9d\nin its own right that would be severable from the underlying challenge to the\nDepartment of Commerce\xe2\x80\x99s decision regarding her client\xe2\x80\x99s employment. It would\nmerely constitute a portion of the relief that would be available incident to the\nemployee\xe2\x80\x99s broader \xe2\x80\x9c claim against the United States\xe2\x80\x9d challenging the unlawful\nseparation by the Department of Commerce. Under this view, \xc2\xa7 205 would bar\nthe attorney\xe2\x80\x99s receipt of the fee award because she clearly would be receiving\nthe fee award \xe2\x80\x9c in consideration o f \xe2\x80\x99 her assistance in the prosecution of the chal\xc2\xad\nlenge to the allegedly unlawful separation.\nIn our view, the fee petition is more properly classified as a demand for money\nincident to the employee\xe2\x80\x99s broader challenge to the unlawful separation than as\na distinct \xe2\x80\x9c claim against the United States.\xe2\x80\x9d This classification appears to accord\nwith the understanding of both the attorney and the client that the petition for\nthe fee award was inextricably bound up with the underlying challenge to the\nseparation decision. The Civil attorney\xe2\x80\x99s submission shows that, from the outset,\nher client\xe2\x80\x99s challenge to his separation from the Department of Commerce con\xc2\xad\ntemplated a request for monetary relief in the form of attorney\xe2\x80\x99s fees. The submis\xc2\xad\nsion shows further that the attorney was not only aware that an award of attorney\xe2\x80\x99s\nfees was among the types of relief statutorily available to her client if his challenge\nto the separation succeeded, but also that she made sure that her retainer agreement\nprovided that she would receive any attorney\xe2\x80\x99s fees award that her client might\nbe entitled to recover as a consequence of his prevailing on the unlawful separa\xc2\xad\ntion claim.\nm en t em p lo y ee m ight b e \xe2\x80\x9c forbidden . . to a s s is t a form er em ployee in a proceeding fo r rein statem en t\xe2\x80\x9d because,\nalth o u g h no m o n e y w as so u g h t in the proceeding for reinstatem ent, the pro ceed in g could \xe2\x80\x9c lead to a claim fo r back\np ay \xe2\x80\x9d Id. T hus, P ro fesso r M an n in g stated th a t it w as an open question w h eth e r even a claim that d id n ot include\na d em an d fo r m o n e y should be deemed a \xe2\x80\x9c c la im against the U nited S ta te s\xe2\x80\x9d so long as it could lead to such a\nd e m a n d Id.\n2 A s w e have m e ntioned, w e d o not ad d ress in this opinion w hether \xc2\xa7 2 0 3 w ould im pose an in d ep en d en t bar\nto th e re c e ip t o f any such fees.\n\n46\n\n\x0cAttorney's Fees fo r Legal Service Performed Prior to Federal Employment\n\nIn addition, the statutory provisions that govern the award of attorney\xe2\x80\x99s fees\nin employment cases such as her client\xe2\x80\x99s treat the determination of liability and\nthe award of attorney\xe2\x80\x99s fees as if they were indivisible components of a single\nclaim. Under the provisions, the client could be entitled to attorney\xe2\x80\x99s fees only\nas a \xe2\x80\x9c prevailing party,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7701(g)(1) (1994), and thus these provisions\nmake the fee award contingent upon a determination regarding the merits of the\nchallenge to the unlawful discharge in this case. The statute further provides that\nthe adjudication of the fee petition shall be made by the same decision makers\nthat determine the liability issue, and that the award shall be made \xe2\x80\x9c in the interests\nof justice,\xe2\x80\x9d id., a standard that appears to contemplate the adjudicators\xe2\x80\x99 consider\xc2\xad\nation of the representation that had been provided in the underlying challenge.\nIndeed, the Board styles the consideration of a motion for attorney\xe2\x80\x99s fees as an\n\xe2\x80\x9c Addendum proceeding\xe2\x80\x9d to the liability phase, 5 C.F.R. \xc2\xa7 1201.203(b) (1998),\nand because such a proceeding may cover compensatory and consequential dam\xc2\xad\nages, too, id. \xc2\xa7 1201.204(c)(2), it is hard to view the \xe2\x80\x9c Addendum\xe2\x80\x9d as anything\nother than the next phase of a single proceeding on a single claim.\nA separate provision of the relevant attorney\xe2\x80\x99s fee statute, which applies to peti\xc2\xad\ntions for awards resulting from certain types of employment claims, lends addi\xc2\xad\ntional support to the conclusion that the fee petition should not be understood\nto constitute a \xe2\x80\x98\xe2\x80\x98claim against the United States\xe2\x80\x99 \xe2\x80\x99 that is distinct from the challenge\nto the unlawful separation. See 5 U.S.C. \xc2\xa7 7701(g)(2) (1994). The provision states\nthat for certain employment claims, the fee petition should be governed by the\nprovisions of 42 U.S.C. \xc2\xa7 2000e-5k (1994). See 5 U.S.C. \xc2\xa7 7701(g)(2). Those\nprovisions, in turn, equate the attorney\xe2\x80\x99s fees that may be awarded for such\nemployment claims with the \xe2\x80\x9c costs\xe2\x80\x9d of bringing the underlying claims. See 42\nU.S.C. \xc2\xa7 2000e-5k. The reference in 5 U.S.C. \xc2\xa7 7701(g)(2) to 42 U.S.C. \xc2\xa72000e5k, which describes the fee award as covering the \xe2\x80\x9c costs\xe2\x80\x9d of the underlying\nemployment claim, suggests that the drafters of the statute governing the attorney\xe2\x80\x99s\nfees award in this matter conceived of the petition for such an award as being\nincident to the underlying claim for relief from the wrongful discharge rather than\nas a distinct claim in its own right. That suggestion accords with a construction\nof \xc2\xa7 205 that would deem the fee petition to be an aspect of the underlying chal\xc2\xad\nlenge to the separation determination rather than an independent claim.\nWe note that the 1982 OLC Opinion suggested that a quantum meruit payment\nto a federal employee for work he had performed before entering the government\nmight, under the circumstances, have been consistent with \xc2\xa7205. 6 Op. O.L.C.\nat 603-04. There, however, the lawfulness of the payment depended on estab\xc2\xad\nlishing that the employee had \xe2\x80\x9c eliminated his interest in the claim\xe2\x80\x9d against the\nUnited States by turning his interest into a non-contingent right to recover from\nhis succeeding counsel. Id. at 604. Here, by contrast, the Civil attorney\xe2\x80\x99s right\nto payment depended on a finding of liability, which was contingent when she\nentered the government, and still depends on an award against the government\n47\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nby the Board. A payment to her thus would be a share of a claim against the\nUnited States.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n48\n\n\x0c"


b'NOAA Corps Eligibility for Professional Liability\nInsurance Costs Reimbursement\nMembers of the NOAA Commissioned Corps may constitute qualified employees eligible for\nprofessional liability insurance cost reimbursement under a federal appropriations statute, if they\notherwise satisfy the statutory definition for \xe2\x80\x9claw enforcement officer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d or \xe2\x80\x9cmanagement official.\xe2\x80\x9d\n\nJanuary 19, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF COMMERCE\nThis responds to the Department of Commerce\xe2\x80\x99s letter of May 15, 2000,\nrequesting our opinion as to whether members of the National Oceanic and\nAtmospheric Administration\xe2\x80\x99s (\xe2\x80\x9cNOAA\xe2\x80\x9d) Commissioned Corps (\xe2\x80\x9cCorps\xe2\x80\x9d)\nconstitute \xe2\x80\x9cqualified employees\xe2\x80\x9d eligible for reimbursement for professional\nliability insurance costs authorized by the Treasury and General Government\nAppropriations Act, 2000, Pub. L. No. 106-58, 113 Stat. 430, 477 (1999). See\nLetter for Randolph Moss, Acting Assistant Attorney General, Office of Legal\nCounsel, from Andrew J. Pincus, General Counsel, Department of Commerce\n(May 15, 2000) (\xe2\x80\x9cDOC Letter\xe2\x80\x9d). We conclude that NOAA Corps members who\notherwise satisfy the statutory definitions for law enforcement officers, supervisors, or management officials constitute \xe2\x80\x9cqualified employees\xe2\x80\x9d who are eligible\nfor such reimbursement. While we conclude that being a member of the uniformed\nservices as defined in 5 U.S.C. \xc2\xa7 2103(3) does not preclude eligibility for this\nbenefit, we do not reach the application of this statute to the Armed Forces as\ndefined in 5 U.S.C. \xc2\xa7 2101(2).\nI.\nIn 1996, as part of the Omnibus Consolidated Appropriations Act for Fiscal\nYear 1997, Congress enacted legislation authorizing the reimbursement of\n\xe2\x80\x9cqualified employee[s]\xe2\x80\x9d of the government for up to one-half the costs incurred by\nsuch employees for professional liability insurance. Treasury, Postal Service, and\nGeneral Government Appropriations Act, 1997, Pub. L. No. 104-208, div. A, sec.\n101(f), \xc2\xa7 636(a), 110 Stat. 3009, 3009-314, 3009-363 (1996) (\xe2\x80\x9cTreasury Act\xe2\x80\x9d). 1 As\n\n1\nFor brevity and clarity, we will sometimes refer to the reimbursement provisions in section 636 of\nthe Treasury Act, as amended, as the \xe2\x80\x9cReimbursement Law\xe2\x80\x9d or \xe2\x80\x9cthe statute.\xe2\x80\x9d\nEditor\xe2\x80\x99s Note: For the book edition of this memorandum opinion, this footnote was moved forward\nand some naming conventions and citations were adjusted to make the presentation of sources more\nprecise.\n\n78\n\n227-329 VOL_25_PROOF.pdf 88\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\nsubsequently amended\xe2\x80\x94including an amendment making reimbursement\nmandatory rather than permissive\xe2\x80\x94the statute now provides in relevant part:\nNotwithstanding any other provision of law, amounts appropriated\nby this Act (or any other Act for fiscal year 1997 or any fiscal year\nthereafter) for salaries and expenses shall be used to reimburse any\nqualified employee for not to exceed one-half the costs incurred by\nsuch employee for professional liability insurance.\nId. \xc2\xa7 636(a) (as amended by Treasury and General Government Appropriations\nAct, 2000, Pub. L. No. 106-58, \xc2\xa7 642(a), 113 Stat. 430, 477 (1999)). These\nprovisions were not enacted in the form of an amendment or addition to title 5,\nU.S. Code, although their text is set out as an uncodified note under subchapter IV\n(\xe2\x80\x9cMiscellaneous Allowances\xe2\x80\x9d) of chapter 59 of title 5.\nThe statute provides that a \xe2\x80\x9c\xe2\x80\x98qualified employee\xe2\x80\x99 means an agency employee\nwhose position is that of\xe2\x80\x94(1) a law enforcement officer; or (2) a supervisor or\nmanagement official.\xe2\x80\x9d Treasury Act \xc2\xa7 636(b). It defines the term \xe2\x80\x9cagency\xe2\x80\x9d to\nmean an \xe2\x80\x9cExecutive agency\xe2\x80\x9d as defined by 5 U.S.C. \xc2\xa7 105 (1994); \xe2\x80\x9cany agency or\ncourt in the Judicial Branch\xe2\x80\x9d; or \xe2\x80\x9cany agency of the Legislative Branch of\nGovernment including any office or committee of the Senate or the House of\nRepresentatives.\xe2\x80\x9d Treasury Act \xc2\xa7 636(c)(1) (as amended by Treasury and General\nGovernment Appropriations Act, 1999, Pub. L. No. 105-277, div. A, sec. 101(h),\n\xc2\xa7 644(1), 112 Stat. 2681, 2681-480, 2681-526 (1998)). The basic term \xe2\x80\x9cemployee,\xe2\x80\x9d however, is not separately defined under the statute.\nYour inquiry presents the question whether members of the NOAA Commissioned Corps would constitute \xe2\x80\x9cqualified employee[s]\xe2\x80\x9d under the foregoing statute\nif they otherwise fall within the covered work categories (i.e., law enforcement\nofficers, supervisors, or management officials).\nThe NOAA Corps, which succeeded to the authorities and responsibilities\npreviously held in turn by the officers of the Coast and Geodetic Survey and the\nEnvironmental Science Services Administration, see 33 U.S.C.A. \xc2\xa7 851 historical\nnote (West Supp. 2000), consists of roughly 250 to 300 commissioned officers,\nwith a rank system corresponding to that of the Navy. See id. \xc2\xa7 853a. The duties\nand functions of the NOAA Corps include operating NOAA\xe2\x80\x99s fleet of research and\nsurvey vessels and aircraft and extend to such matters as hydrographic and\ntopographic surveys, tide and current observations, geodetic-control surveys, field\nsurveys for aeronautical charts, and other scientific investigations and observations\nthat fall within the responsibility of the Secretary of Commerce and NOAA. See\n33 U.S.C. \xc2\xa7 883a (1994); Department of Commerce, NOAA Commissioned Corps\nHistory, http://www.noaacorps.noaa.gov/history.html (last visited Oct. 16, 2004).\nOfficers of the NOAA Corps may be transferred to the service of the military\ndepartments when the President determines that a sufficient national emergency\n\n79\n\n227-329 VOL_25_PROOF.pdf 89\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nexists and that such transfer is in the best interests of the nation. See 33 U.S.C.\n\xc2\xa7 855. Like members of the Armed Forces, NOAA Corps officers do not have the\nfreedom to terminate their commissions at any time of their choosing\xe2\x80\x94rather, they\nare required to tender their resignations at least six months in advance and their\napproved date of separation is \xe2\x80\x9cdetermined by the [NOAA] Director based on the\nneeds of the Service and may be either sooner or later than the date requested.\xe2\x80\x9d\nSee DOC Letter at 8 n.17; NOAA Corps Regulations \xc2\xa7 08202. 2 For purposes of\nveterans benefits administered by the Secretary of Veterans Affairs, moreover,\nactive service with the NOAA Corps is treated the same as active service with the\nmilitary services. See 33 U.S.C. \xc2\xa7 857 (1994). On the other hand, the NOAA\nCorps is not itself considered a part of the Armed Forces of the United States,\nwhich include only the Army, Navy, Air Force, Marine Corps, and Coast Guard.\nSee 10 U.S.C. \xc2\xa7 101(a)(4) (1994); 5 U.S.C. \xc2\xa7 2101(2) (1994). Members of the\nNOAA Corps, moreover, are not subject to the Uniform Code of Military Justice,\nexcept \xe2\x80\x9cwhen assigned to and serving with the armed forces.\xe2\x80\x9d See 10 U.S.C.\n\xc2\xa7 802(a)(8) (1994).\nTogether with military personnel of the Armed Forces (including the Coast\nGuard) and members of the Commissioned Corps of the U.S. Public Health\nService, members of the NOAA Corps are part of the \xe2\x80\x9cuniformed services\xe2\x80\x9d of the\nUnited States, as distinguished from the civilian \xe2\x80\x9ccivil service\xe2\x80\x9d for various\nstatutory purposes. See 5 U.S.C. \xc2\xa7\xc2\xa7 2101(1), (3), 2105(a)(1) (1994). Of particular\nrelevance here, members of the uniformed services do not constitute members of\nthe \xe2\x80\x9ccivil service,\xe2\x80\x9d and therefore do not constitute \xe2\x80\x9cemployees\xe2\x80\x9d as defined for\npurposes of the general provisions of title 5, U.S. Code, governing federal\ngovernment organizations and employees. 3\nBecause the Reimbursement Law neither expressly defines the term \xe2\x80\x9cemployee\xe2\x80\x9d nor expressly incorporates by cross-reference the title 5 definition of that term,\nyou have inquired whether the term \xe2\x80\x9cqualified employee\xe2\x80\x9d as used in the insurance\nreimbursement provisions encompasses members of the uniformed services, such\n2\nIn this respect, NOAA Corps members may differ from officers of the Public Health Service, the\nonly other uniformed service that is not part of the Armed Forces. See DOC Letter at 8 n.17; Milbert v.\nKoop, 830 F.2d 354, 359 (D.C. Cir. 1987) (asserting that, unlike members of the Armed Forces, \xe2\x80\x9ca\ncommissioned officer of the PHS is free unilaterally to terminate his status as a commissioned officer\nof the PHS\xe2\x80\x9d).\n3\nPart III of title 5, U.S. Code, governs \xe2\x80\x9cEmployees\xe2\x80\x9d of the federal government and provides the\nfollowing definition for \xe2\x80\x9cemployees\xe2\x80\x9d as that term is used in title 5:\n\nFor the purpose of this title, \xe2\x80\x9cemployee,\xe2\x80\x9d except as otherwise provided by this section\nor when specifically modified, means an officer and an individual who is . . . appointed in the civil service . . . .\n5 U.S.C. \xc2\xa7 2105 (emphasis added). That definition would not encompass members of the NOAA Corps\nbecause they are members of the uniformed service and, as such, are not \xe2\x80\x9cappointed in the civil\nservice.\xe2\x80\x9d See 5 U.S.C. \xc2\xa7 2101(1) (defining \xe2\x80\x9ccivil service\xe2\x80\x9d to include all appointive positions in the\nExecutive, Judicial, or Legislative Branches \xe2\x80\x9cexcept positions in the uniformed services\xe2\x80\x9d).\n\n80\n\n227-329 VOL_25_PROOF.pdf 90\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\nas members of the NOAA Corps, as well as \xe2\x80\x9ccivilian\xe2\x80\x9d federal employees in the\ncivil service.\nAfter considering a number of alternative approaches to determining the meaning of the term \xe2\x80\x9cemployee\xe2\x80\x9d as used in the Reimbursement Law, the DOC letter to\nthis Office states: \xe2\x80\x9cThe title 5 definition of \xe2\x80\x98employee\xe2\x80\x99 best fits the broader statute\nunder review and thus should be consulted to determine who is eligible for\nprofessional liability insurance reimbursement under Pub. L. No. 104-208.\xe2\x80\x9d DOC\nLetter at 10. That interpretation would exclude NOAA Corps members and all\nother members of the uniformed services from coverage as \xe2\x80\x9cqualified employee[s]\xe2\x80\x9d eligible for reimbursement under the Reimbursement Law. Acknowledging\nthat this interpretation of the issue \xe2\x80\x9cis certainly not free from doubt,\xe2\x80\x9d however,\nyour office has submitted the question to this Office for our legal opinion. Id.\nHaving considered the views of your department and the other concerned\ndepartments, 4 we conclude that members of the NOAA Commissioned Corps who\notherwise satisfy the statutory definitions for \xe2\x80\x9claw enforcement officers,\xe2\x80\x9d \xe2\x80\x9csupervisors,\xe2\x80\x9d or \xe2\x80\x9cmanagement officials\xe2\x80\x9d may constitute \xe2\x80\x9cqualified employees\xe2\x80\x9d eligible\nfor reimbursement under the Reimbursement Law, even though they are excluded\nfrom the definition of \xe2\x80\x9cemployee\xe2\x80\x9d for purposes of title 5, U.S. Code. See 5 U.S.C.\n\xc2\xa7 2105.\nII.\nIn considering whether NOAA Corps members constitute \xe2\x80\x9cqualified employee[s]\xe2\x80\x9d eligible for coverage under the Reimbursement Law, the Department of\nCommerce letter places considerable emphasis on the fact that the statute contains\nno separate definition for the term \xe2\x80\x9cemployee.\xe2\x80\x9d See DOC Letter at 3. In the\nabsence of such a statutory definition, your office seeks to ascertain the meaning\nof that term by examining the \xe2\x80\x9cbroader context\xe2\x80\x9d of the enactment, citing the\nSupreme Court\xe2\x80\x99s opinion in Robinson v. Shell Oil Co., 519 U.S. 337, 345-46\n(1997). 5 Reasoning that the subject matter of the Reimbursement Law fits well\n4\nWe invited and received submissions of their views from the Department of Defense (containing\nthe three military departments), the Department of Health and Human Services (containing the U.S.\nPublic Health Service), and the Department of Transportation (containing the U.S. Coast Guard). See\nLetter for Vicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from Douglas\nA. Dworkin, General Counsel, Department of Defense (Aug. 11, 2000) (\xe2\x80\x9cDoD Letter\xe2\x80\x9d); Letter for\nVicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from Timothy M. White,\nAssociate General Counsel, Department of Health and Human Services (July 14, 2000) (\xe2\x80\x9cHHS\nLetter\xe2\x80\x9d); Letter for Vicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from\nNancy E. McFadden, General Counsel, Department of Transportation (July 19, 2000) (\xe2\x80\x9cDOT Letter\xe2\x80\x9d).\n5\nAs the DOC letter also points out, one line of cases has taken the position that \xe2\x80\x9cwhen Congress . . .\n[uses] the term \xe2\x80\x98employee\xe2\x80\x99 without defining it, we . . . [conclude] that Congress intend[s] to describe\nthe conventional master-servant relationship as understood by common-law agency doctrine.\xe2\x80\x9d\nCommunity for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (citations omitted);\nNationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992). As your letter also properly notes,\n\n81\n\n227-329 VOL_25_PROOF.pdf 91\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nwithin the general framework of title 5, U.S. Code, and noting that it expressly\nincorporates other significant definitions from title 5, the DOC letter suggests that\nit is therefore appropriate to apply the title 5 definition of \xe2\x80\x9cemployee\xe2\x80\x9d to limit the\nclass of persons who constitute \xe2\x80\x9cqualified employee[s]\xe2\x80\x9d for purposes of the\ninsurance reimbursement coverage in issue. DOC Letter at 10. Such a limitation\nwould exclude members of the NOAA Corps (as well as all other members of the\nuniformed services) from coverage because members of the uniformed services\nare excluded from title 5\xe2\x80\x99s definition of \xe2\x80\x9cemployee.\xe2\x80\x9d Although this approach is not\nwithout merit, we decline to adopt it because we conclude that an individual who\notherwise satisfies the Reimbursement Law\xe2\x80\x99s express definition of a \xe2\x80\x9cqualified\nemployee\xe2\x80\x9d (which incorporates the additional definitions of \xe2\x80\x9claw enforcement\nofficer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d or \xe2\x80\x9cmanagement official\xe2\x80\x9d) need not also satisfy another\nstatute\xe2\x80\x99s definition of the term \xe2\x80\x9cemployee\xe2\x80\x9d in order to be eligible for the reimbursement benefit.\nA.\nWe consider it significant that the Reimbursement Law expressly defines those\nterms that Congress apparently considered important to define\xe2\x80\x94\xe2\x80\x9cqualified\nemployee,\xe2\x80\x9d \xe2\x80\x9cagency,\xe2\x80\x9d \xe2\x80\x9claw enforcement officer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d and \xe2\x80\x9cmanagement\nofficial\xe2\x80\x9d\xe2\x80\x94either with original statutory definitions or by express cross-reference to\nexisting definitions in other statutes. The Reimbursement Law defines the term\n\xe2\x80\x9cagency\xe2\x80\x9d by express cross-reference to the definition for the term \xe2\x80\x9cExecutive\nagency\xe2\x80\x9d contained in the general definitions for title 5, U.S. Code (a definition that\nencompasses all of the executive departments employing uniformed service\npersonnel). See 5 U.S.C. \xc2\xa7 105. Although not dispositive, Congress\xe2\x80\x99s failure to\ncross-reference expressly title 5\xe2\x80\x99s definition of \xe2\x80\x9cemployee\xe2\x80\x9d to govern the Reimbursement Law is noteworthy. Congress\xe2\x80\x99s failure to include reference to that title 5\ndefinition in the context of this statute suggests that the statute\xe2\x80\x99s express definitions of \xe2\x80\x9cqualified employee,\xe2\x80\x9d \xe2\x80\x9cagency,\xe2\x80\x9d and other defined terms were deemed\nadequate to describe and limit the class of persons Congress intended to be eligible\nfor the reimbursement benefit.\nThe critical operative term in the Reimbursement Law for purposes of eligibility for reimbursement is \xe2\x80\x9cqualified employee,\xe2\x80\x9d and the statute does provide a\ndetailed definition of that term. If a person is an \xe2\x80\x9cagency employee\xe2\x80\x9d serving in the\nposition of a \xe2\x80\x9claw enforcement officer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d or \xe2\x80\x9cmanagement official,\xe2\x80\x9d\nthen he is a \xe2\x80\x9cqualified employee\xe2\x80\x9d eligible for reimbursement. See Treasury Act\n\nhowever, those cases focus on the distinct question of whether a particular individual is an employee as\ndistinguished from an independent contractor, rather than whether a particular category of federal\ngovernment personnel constitutes government \xe2\x80\x9cemployees\xe2\x80\x9d for a particular statutory purpose. DOC\nLetter at 4.\n\n82\n\n227-329 VOL_25_PROOF.pdf 92\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\n\xc2\xa7 636(b). Members of the NOAA Corps are employed in the Department of\nCommerce, which is an \xe2\x80\x9cagency\xe2\x80\x9d as that term is defined under the Reimbursement\nLaw. See 5 U.S.C. \xc2\xa7\xc2\xa7 101, 105 (1994). For reasons discussed below, we do not\nbelieve that an individual\xe2\x80\x99s status as a member of a uniformed service is somehow\ninherently incompatible with status as an \xe2\x80\x9cagency employee.\xe2\x80\x9d 6 Thus, we think that\neligibility under the Reimbursement Law depends on whether that individual\nsatisfies the statutory definition for either \xe2\x80\x9claw enforcement officer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d\nor \xe2\x80\x9cmanagement official,\xe2\x80\x9d regardless of whether he or she also conforms to some\ndefinition of \xe2\x80\x9cemployee\xe2\x80\x9d contained in another statute, such as 5 U.S.C. \xc2\xa7 2105,\nthat is not incorporated by reference in the Reimbursement Law. We believe that\nthese rather detailed statutory provisions can be interpreted on their own terms,\nwithout reaching out to other statutes to \xe2\x80\x9cborrow\xe2\x80\x9d limiting definitions that\nCongress did not incorporate expressly in this statute.\nIn reaching this conclusion, we have considered whether service in the uniformed services is in some way inherently incompatible with being considered an\n\xe2\x80\x9cemployee\xe2\x80\x9d of the United States for purposes of a statute such as the Reimbursement Law. We do not believe that it is. First (leaving aside the express definitions\nthat the Reimbursement Law does include), we see nothing in the Reimbursement\nLaw that would draw or require a distinction between civilian and uniformed\ngovernment personnel (e.g., if the benefit conferred by the statute were separately\nor differently provided to uniformed services personnel). 7 Cf. Feres v. United\nStates, 340 U.S. 135, 144-45 (1950) (noting the existence of a separate scheme for\ncompensation of injured armed services personnel in holding Federal Tort Claims\nAct remedy unavailable to serviceman suffering injuries arising in course of or\nincident to military service). Nor, as discussed below, can we discern any general\nprinciple in federal statutory law that would invariably require the conclusion that\nmembers of the uniformed services are not \xe2\x80\x9cemployees\xe2\x80\x9d for purposes of particular\nstatutory provisions. Finally, we see no way in which the Reimbursement Law\n6\nThe Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d), while taking no position as to the coverage of NOAA Corps\nmembers under the Reimbursement Law, strongly urges that members of the Armed Forces (i.e., the\nAir Force, Army, Marine Corps, Navy, and Coast Guard, see 5 U.S.C. \xc2\xa7 2101(2) (1994)) are not\ncovered by the term \xe2\x80\x9cemployee\xe2\x80\x9d as used in statutes directed at the federal workforce in the absence of\nexpress language to that effect or another affirmative expression of such congressional intent. See DoD\nLetter at 2. The Department of Transportation, in contrast, does not take the position that Coast Guard\npersonnel, who are also members of the Armed Forces, are excluded from coverage under the\nReimbursement Law for that reason. See DOT Letter at 1-2. Members of the NOAA Corps and officers\nof the U.S. Public Health Service are members of the uniformed services, but are not members of the\nArmed Forces. For this reason, it is unnecessary for us to opine on, and we do not decide, the distinct\nissue as to whether the Reimbursement Law also covers members of the Armed Forces.\n7\nWe also note that dictionary definitions of \xe2\x80\x9cemployee\xe2\x80\x9d would not on their face exclude uniformed\nservice personnel. See, e.g., Black\xe2\x80\x99s Law Dictionary 471 (5th ed. 1979) (defining employee as \xe2\x80\x9c[o]ne\nwho works for an employer; a person working for salary or wages.\xe2\x80\x9d); The American Heritage\nDictionary of the English Language 428 (New College Ed. 1976) (\xe2\x80\x9cA person who works for another in\nreturn for financial or other compensation.\xe2\x80\x9d).\n\n83\n\n227-329 VOL_25_PROOF.pdf 93\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nwould implicate considerations (such as the unique nature of military discipline,\nhierarchy, and command arrangements) that sometimes have been found to\ndemand distinctive treatment of members of the uniformed as compared to the\ncivil services.\nIn construing the Reimbursement Law\xe2\x80\x99s use of the term \xe2\x80\x9cemployee\xe2\x80\x9d in the\ndefined term \xe2\x80\x9cqualified employee,\xe2\x80\x9d we have considered whether federal statutory\nlaw uniformly and consistently excludes uniformed service members from\ntreatment or coverage as government \xe2\x80\x9cemployees.\xe2\x80\x9d We find no such pattern. The\nFederal Tort Claims Act, for example, includes \xe2\x80\x9cmembers of the military or naval\nforces of the United States\xe2\x80\x9d under its definition of \xe2\x80\x9cEmployee of the government.\xe2\x80\x9d\n28 U.S.C. \xc2\xa7 2671 (1994). Other federal statutes that encompass uniformed services\npersonnel within their definition of \xe2\x80\x9cemployee\xe2\x80\x9d or \xe2\x80\x9cemployee of the United\nStates\xe2\x80\x9d include 5 U.S.C. \xc2\xa7 7342(a)(1)(D) (1994) (receipt and handling of foreign\ngifts and decorations); id. \xc2\xa7 7905(a)(1) (program to encourage car-pooling by\nfederal employees by, inter alia, providing subsidized mass transit passes); id.\n\xc2\xa7 8311(1) (provisions governing forfeiture of annuities and retired pay); 22 U.S.C.\n\xc2\xa7 2403(j) (1994) (foreign assistance general provisions); id. \xc2\xa7 3902(5) (foreign\nservice general provisions); and Pub. L. No. 105-264, \xc2\xa7 2, 112 Stat. 2350 (1998)\n(federal employees\xe2\x80\x99 travel charge card). These statutes demonstrate that service in\nthe uniformed services is not always incompatible with the status of an \xe2\x80\x9cemployee\xe2\x80\x9d of the federal government for various statutory purposes, including federal\nemployee benefit provisions. 8\nA number of judicial decisions likewise recognize that uniformed service personnel are not invariably excluded from coverage as \xe2\x80\x9cemployees\xe2\x80\x9d under federal\nstatutes that do not expressly provide for such exclusion. As noted in your letter,\nfor example, two federal courts have held that commissioned officers of the PHS\n(who, like officers of the NOAA, are members of the uniformed services, but not\nmembers of the Armed Forces) are protected employees for purposes of the\nemployment discrimination provisions of Title VII of the Civil Rights Act of 1964.\nSee Milbert v. Koop, 830 F.2d at 358-59; Carlson v. United States Dep\xe2\x80\x99t of Health\nand Human Servs., 879 F. Supp. 545, 548 (D. Md. 1995). But see Salazar v.\nHeckler, 787 F.2d 527 (10th Cir. 1986) (holding to the contrary). 9\n8\nWe note, moreover, that a number of federal statutes using the term \xe2\x80\x9cemployee\xe2\x80\x9d contain provisions expressly excluding members of the uniformed services from the scope of that term. See, e.g.,\n3 U.S.C. \xc2\xa7 411(c)(1)(C); 5 U.S.C. \xc2\xa7 7103(a)(2)(ii); 5 U.S.C. \xc2\xa7 7322(1). It is thus apparent that there is\nno uniform pattern governing the treatment of uniformed services members under federal statutes using\nthe term \xe2\x80\x9cemployee\xe2\x80\x9d\xe2\x80\x94some statutes expressly include, others expressly exclude, and others are silent.\nBut we do not believe an inference either of inclusion or exclusion of uniformed services employees\ncan necessarily be drawn when a statute, such as the Reimbursement Law, simply uses the term\n\xe2\x80\x9cemployee.\xe2\x80\x9d Whether uniformed services personnel are included in that term would depend on the\nparticular statutory context. See also Robinson v. Shell Oil, 519 U.S. at 343.\n9\nWe note that numerous federal courts of appeals have held that members of the Armed Forces are\nnot protected \xe2\x80\x9cemployees\xe2\x80\x9d for purposes of Title VII of the Civil Rights Act of 1964. See, e.g., Roper v.\n\n84\n\n227-329 VOL_25_PROOF.pdf 94\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\nFurther, application of the Reimbursement Law to the uniformed services\nwould not present any special risk of interference with their duties or functions.\nSome courts, for example, have viewed Title VII as posing the threat of inappropriate interference with the disciplinary and command arrangements that are\nunique to the military services. See, e.g., Mier v. Owens, 57 F.3d 747, 749-51 (9th\nCir. 1995); Roper, 832 F.2d at 248. The Reimbursement Law, however, does not\nregulate intra-agency employee relations as Title VII does. Rather, it simply\nextends a benefit to qualified employees of partial reimbursement for liability\ninsurance should they seek to purchase it.10 In this respect, this statute is more\nanalogous to miscellaneous employee benefit statutes such as the Federal Employees Clean Air Incentive Act, 5 U.S.C. \xc2\xa7 7905, which authorizes subsidized transit\npasses for commuting federal employees, including those in the uniformed\nservices, see id. \xc2\xa7 7905(a)(1).\nIn light of the foregoing considerations, we conclude that if a member of the\nNOAA Corps otherwise satisfies the Reimbursement Law\xe2\x80\x99s requirements for a\n\xe2\x80\x9cqualified employee\xe2\x80\x9d\xe2\x80\x94including the functional definitions of \xe2\x80\x9claw enforcement\nofficer,\xe2\x80\x9d \xe2\x80\x9csupervisor,\xe2\x80\x9d or \xe2\x80\x9cmanagement official\xe2\x80\x9d\xe2\x80\x94it is irrelevant whether he or\nshe also satisfies the definition of \xe2\x80\x9cemployee\xe2\x80\x9d set forth at 5 U.S.C. \xc2\xa7 2105. As we\nread the Reimbursement Law, a NOAA Corps member is employed in an \xe2\x80\x9cagency\xe2\x80\x9d as defined in 5 U.S.C. \xc2\xa7 105\xe2\x80\x94i.e., the Department of Commerce\xe2\x80\x94and thus\nconstitutes a \xe2\x80\x9cqualified employee\xe2\x80\x9d eligible for reimbursement benefits as long as\nhe or she satisfies the requirements for any one of those three functional categories\nof service.\nB.\nIn reaching this conclusion, we acknowledge that the contrary arguments made\nby DOC are not without merit. As DOC points out in applying the \xe2\x80\x9cbroader\ncontext\xe2\x80\x9d approach of Robinson v. Shell Oil, the Reimbursement Law could be said\nto fall within the general body of laws codified in title 5 covering government\norganization and employees, although Congress did not choose to enact it as an\namendment or addition to title 5 that would be incorporated and codified as part of\nDep\xe2\x80\x99t of the Army, 832 F.2d 247, 248 (2d Cir. 1987); Gonzalez v. Dept. of the Army, 718 F.2d 926, 928\n(9th Cir. 1983); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir. 1978). Only one federal\ndistrict court opinion appears to have held to the contrary. See Hill v. Berkman, 635 F. Supp. 1228\n(E.D.N.Y. 1986).\n10\nWe note that, because the Reimbursement Law requires reimbursement of only up to one-half of\nthe cost of professional liability insurance, it seems unlikely that large numbers of uniformed services\npersonnel who do not have genuine concerns regarding potential liability would be willing to absorb\nthe expense of paying one-half the cost of a policy and thus qualify for the reimbursement benefit. This\nconsideration reduces the likelihood that the applicability of the Reimbursement Law to uniformed\nservices personnel would open the floodgates to substantial unanticipated expenditures under the\nprovision.\n\n85\n\n227-329 VOL_25_PROOF.pdf 95\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nthe actual text of title 5. See DOC Letter at 6. Absent some contrary indication of\ncongressional intent, it may sometimes be appropriate to fill in the definitional\ngaps of statutes dealing with federal personnel matters by \xe2\x80\x9cborrowing\xe2\x80\x9d the\nappropriate title 5 definition on the reasonable assumption that Congress clearly\nintended that definition to apply and simply considered it unnecessary to make that\nintention explicit.11 Here, however, we cannot say that Congress left a manifest\ndefinitional \xe2\x80\x9cgap\xe2\x80\x9d that requires cross-reference to extraneous statutes in order to\nmake the Reimbursement Law \xe2\x80\x9cwork\xe2\x80\x9d or make sense. On the contrary, the\nReimbursement Law contains a rather elaborate series of functionally-related\ndefinitions which appear to set forth adequately the intended reach and limits of\nthe reimbursement benefit. The statutory scheme indicates that Congress intended\nto extend this benefit to federal personnel working in the described functional\ncategories\xe2\x80\x94law enforcement, supervision, and management\xe2\x80\x94because it considered those categories to be most in need of the liability insurance reimbursement\nbenefit in question. And we find nothing in the statute indicating that Congress\nviewed persons working in federal law enforcement, supervisory, or management\ncapacities as falling outside the beneficial purposes of the statute merely because\nthey happen to be in the uniformed, rather than the civil, service.12\nThe Reimbursement Law\xe2\x80\x99s emphasis on these functional criteria in defining a\n\xe2\x80\x9cqualified employee\xe2\x80\x9d distinguishes this matter from a prior opinion where we\ninterpreted the term \xe2\x80\x9cemployee\xe2\x80\x9d as used in an executive order to exclude appointed members of the Regional Fishery Management Councils (\xe2\x80\x9cRFM Councils\xe2\x80\x9d).\nSee Applicability of Executive Order No. 12674 to Personnel of Regional Fishery\nManagement Councils, 17 Op. O.L.C. 150 (1993). The executive order in question\nset forth ethical standards for Executive Branch employees and defined the term\n\xe2\x80\x9cemployee\xe2\x80\x9d as \xe2\x80\x9cany officer or employee of an agency, including a special\nGovernment employee.\xe2\x80\x9d It further defined the term \xe2\x80\x9cagency\xe2\x80\x9d by reference to the\ntitle 5 definitions of executive departments, Government corporations, and\nindependent establishments in the Executive Branch. See id. at 152. We concluded\nthat the term \xe2\x80\x9cemployee\xe2\x80\x9d as used in the executive order was identical in scope and\n\n11\nFor an example of a court employing this line of reasoning, see Salazar v. Heckler, 787 F.2d at\n530 (relying on the exclusion of Public Health Service officers from title 5 definition of \xe2\x80\x9cemployee\xe2\x80\x9d in\nconcluding that they are not \xe2\x80\x9cemployees\xe2\x80\x9d for purposes of Title VII); but cf. Milbert v. Koop, 830 F.2d\nat 358-59 (concluding that \xe2\x80\x9cmilitary exception\xe2\x80\x9d to Title VII and Rehabilitation Act did not preclude\nPublic Health Service officers from bringing suit); Carlson, 879 F. Supp. at 548 (to the same effect).\n12\nWe agree with your assertion that the legislative history on the Reimbursement Law is \xe2\x80\x9cscant\xe2\x80\x9d\nand contains \xe2\x80\x9cnothing that addresses whether officers of the NOAA Corps may be \xe2\x80\x98qualified\nemployees.\xe2\x80\x99\xe2\x80\x9d DOC Letter at 9. Although the Department of Defense\xe2\x80\x99s submission cites certain\nstatements by Senator Warner mentioning various categories of federal employees he hoped would\nbenefit from the 1999 amendment to the Reimbursement Law (making reimbursement mandatory\nrather than discretionary), and notes that the Senator did not refer to organizations representing the\ninterests of military personnel, see DoD Letter at 4-5, these statements simply do not address the\nquestion whether uniformed services personnel may constitute \xe2\x80\x9cqualified employees\xe2\x80\x9d under the statute.\n\n86\n\n227-329 VOL_25_PROOF.pdf 96\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\nmeaning to that term as defined in title 5, see 5 U.S.C. \xc2\xa7 2105, and that such term\nexcluded appointed members of the RFM Councils. 17 Op. O.L.C. at 153. Among\nthe three considerations on which we relied in reaching this conclusion was that\n\xe2\x80\x9calthough the Order does not expressly adopt title 5\xe2\x80\x99s definition of an \xe2\x80\x98employee,\xe2\x80\x99\nit does adopt that title\xe2\x80\x99s definition of an \xe2\x80\x98agency.\xe2\x80\x99\xe2\x80\x9d We further explained that\n\xe2\x80\x9c[w]e think it unlikely that the Order was intended to cover personnel who were\nemployed by \xe2\x80\x98agencies\xe2\x80\x99 within the meaning of title 5 but who were not themselves\n\xe2\x80\x98employees\xe2\x80\x99 within the same title.\xe2\x80\x9d Id. at 154. We believe the Reimbursement Law\nis distinguishable from the executive order addressed in our 1993 opinion because\nthe Reimbursement Law\xe2\x80\x99s functional definition of \xe2\x80\x9cqualified employee\xe2\x80\x9d demonstrates that Congress was focusing upon specific criteria (distinct from title 5\xe2\x80\x99s\ndefinition of \xe2\x80\x9cemployee\xe2\x80\x9d) in deciding who would be eligible for the reimbursement benefit\xe2\x80\x94providing functional definitions lacking in the executive order.\nWe also note that one prominent federal court of appeals decision has expressly\ndeclined to \xe2\x80\x9cborrow\xe2\x80\x9d the title 5 definition of \xe2\x80\x9cemployee\xe2\x80\x9d in construing a statute\nthat explicitly incorporated title 5\xe2\x80\x99s definition of \xe2\x80\x9cagency\xe2\x80\x9d but not its definition of\n\xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee.\xe2\x80\x9d Although the issues resolved in that case are not\nprecisely analogous to that presented here, they nonetheless indicate that close\nconstruction of the particular statute under consideration, rather than routine\nincorporation of the title 5 definition, is a more appropriate approach to statutory\ninterpretation in this context. In Association of American Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993), the issue was whether the\nFirst Lady constituted a \xe2\x80\x9cfull-time officer or employee of the federal government\xe2\x80\x9d\nfor purposes of a provision of the Federal Advisory Committee Act, 5 U.S.C. app.\n2 (\xe2\x80\x9cFACA\xe2\x80\x9d), exempting from FACA\xe2\x80\x99s coverage any committee composed wholly\nof full-time officers or employees of the federal government. The district court, in\nholding that the First Lady did not constitute such a federal government employee\nand that the FACA exemption therefore did not apply, had \xe2\x80\x9cquite reasonably\nturned to title 5 of the U.S. Code to find a definition.\xe2\x80\x9d 997 F.2d at 903. But the\nCourt of Appeals reversed, holding that the title 5 definitions of \xe2\x80\x9cofficer\xe2\x80\x9d and\n\xe2\x80\x9cemployee\xe2\x80\x9d do not govern the question whether the First Lady is a federal officer\nor employee for purposes of FACA. See id. at 915. The court instead applied the\ndefinition of \xe2\x80\x9cofficer\xe2\x80\x9d in title 1, U.S. Code, in concluding that the First Lady was\nan \xe2\x80\x9cofficer\xe2\x80\x9d for the purposes in question. In explaining its refusal to adopt the title\n5 definitions of officer or employee, the court explained:\nNevertheless, it is true, as the government insists, that Congress\ndid not adopt explicitly all of Title 5\xe2\x80\x99s definitions in FACA. FACA\nis not part of Title 5, which was enacted six years before FACA\xe2\x80\x99s\npassage, but, instead is only temporarily housed there as an appendix. Typically, when Congress wishes to add a statute to Title 5, it\namends the Title. It did not do so when it passed FACA, but at that\n\n87\n\n227-329 VOL_25_PROOF.pdf 97\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ntime it specifically did adopt certain Title 5 definitions. For example,\nadjacent to the definition of an advisory committee is FACA\xe2\x80\x99s definition of any agency, which incorporates the definition in Title 5:\n\xe2\x80\x9c\xe2\x80\x98agency\xe2\x80\x99 has the same meaning as in section 551(1) of title 5,\nUnited States Code.\xe2\x80\x9d But Congress actually deleted from the Senate\nversion of FACA definitions of \xe2\x80\x9cofficer\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d that paralleled those of sections 2104 and 2105.\nId. at 904 (internal citations omitted). The statutory framework addressed by the\ncourt in Clinton is quite similar in key respects to that presented here\xe2\x80\x94e.g., a\nstatute not codified in title 5 that expressly incorporates title 5\xe2\x80\x99s definition of\n\xe2\x80\x9cagency,\xe2\x80\x9d but omits its definition of \xe2\x80\x9cemployee\xe2\x80\x9d\xe2\x80\x94and the reasons underlying that\ncourt\xe2\x80\x99s refusal to borrow the title 5 definitions of \xe2\x80\x9cemployee\xe2\x80\x9d and \xe2\x80\x9cofficer\xe2\x80\x9d are\nconsistent with our conclusion on this issue.\nC.\nFinally, we have considered whether there is any manifest incongruity in applying the Reimbursement Law\xe2\x80\x99s definitions of law enforcement, supervisor, or\nmanagement personnel to the NOAA Corps that would cast doubt on our interpretation. We conclude that there is not.\nTo begin with, the statute\xe2\x80\x99s definition of \xe2\x80\x9claw enforcement officer\xe2\x80\x9d provides:\n[T]he term \xe2\x80\x9claw enforcement officer\xe2\x80\x9d means an employee, the duties\nof whose position are primarily the investigation, apprehension,\nprosecution, detention, or supervision of individuals suspected or\nconvicted of offenses against the criminal laws of the United States,\nincluding any law enforcement officer under section 8331(20) or\n8401(17) of such title 5, or under section 4823 of title 22, United\nStates Code.\nTreasury Act \xc2\xa7 636(c)(2) (as amended by Treasury and General Government\nAppropriations Act, 1999, Pub. L. No. 105-277, div. A, sec. 101(h), \xc2\xa7 644(2), 112\nStat. 2681, 2681-480, 2681-526 (1998)). This definition, unlike the definitions for\n\xe2\x80\x9csupervisor\xe2\x80\x9d and \xe2\x80\x9cmanagement official\xe2\x80\x9d discussed below, applies only to one who\nis \xe2\x80\x9can employee.\xe2\x80\x9d For reasons explained above, however, we do not believe that\nmembers of the uniformed services are excluded from the term \xe2\x80\x9cemployee\xe2\x80\x9d for\npurposes of this particular statute.13 The statute\xe2\x80\x99s language directs attention to\nwhether the government personnel in question are employed by a covered\nexecutive agency and perform the functions that Congress had in mind when it\n13\nAs pointed out by the Supreme Court in Robinson v. Shell Oil Co., 519 U.S. at 344 n.4, the term\n\xe2\x80\x9cemployee\xe2\x80\x9d does not have some \xe2\x80\x9cintrinsically plain meaning.\xe2\x80\x9d\n\n88\n\n227-329 VOL_25_PROOF.pdf 98\n\n10/22/12 11:10 AM\n\n\x0cNOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement\n\nauthorized reimbursement benefits for professional liability insurance. Insofar as\nmembers of the NOAA Commissioned Corps hold positions whose duties are\n\xe2\x80\x9cprimarily the investigation, apprehension, prosecution, or detention of individuals\nsuspected or convicted of offenses against the criminal laws of the United States,\xe2\x80\x9d\nwe conclude that they would be entitled to insurance reimbursement as authorized\nby the Reimbursement Law.\nThis Office, however, lacks sufficient factual knowledge of NOAA personnel\nassignments, or those of the other uniformed services, to assess which particular\npositions would satisfy the criteria for the \xe2\x80\x9claw enforcement officer\xe2\x80\x9d classification.\nSuch determinations must be made by the particular employing agency, based on\nits knowledge of its own personnel and their assignments. See infra note 14.\nThe Reimbursement Law also authorizes reimbursement coverage for qualified\nemployees who are \xe2\x80\x9csupervisors.\xe2\x80\x9d The statute provides that \xe2\x80\x9csupervisor\xe2\x80\x9d has the\nsame meaning given it by 5 U.S.C. \xc2\xa7 7103(a), which provides:\n\xe2\x80\x9c[S]upervisor\xe2\x80\x9d means an individual employed by an agency having\nauthority in the interest of the agency to hire, direct, assign, promote,\nreward, transfer, furlough, layoff, recall, suspend, discipline, or\nremove employees, to adjust their grievances, or to effectively recommend such action, if the exercise of the authority is not merely\nroutine or clerical in nature but requires the consistent exercise of\nindependent judgment, except that, with respect to any unit which\nincludes firefighters or nurses, the term \xe2\x80\x9csupervisor\xe2\x80\x9d includes only\nthose individuals who devote a preponderance of their employment\ntime to exercising such authority.\nId. \xc2\xa7 7103(a)(10). Although this definition does not require that an individual be a\ntitle 5 \xe2\x80\x9cemployee\xe2\x80\x9d in order to be a supervisor, it does require that a supervisor\nserve in a position authorizing him or her to perform the enumerated activities\nwith respect to \xe2\x80\x9cemployees.\xe2\x80\x9d For purposes of section 7103 and all other sections of\nchapter 71 of title 5, the term \xe2\x80\x9cemployee\xe2\x80\x9d expressly excludes all members of the\nuniformed services. See 5 U.S.C. \xc2\xa7 7103(a)(2)(ii). Accordingly, we conclude that\nwhile members of the uniformed services are not excluded from qualifying as\nsupervisors under the Reimbursement Law, only those who exercise at least one of\nthe enumerated supervisory activities with respect to civilian employees (i.e.,\nemployees who are not members of the uniformed services) may qualify for\nreimbursement as supervisors under the statute. Cf. Plowman v. U.S. Dept. of the\nArmy, 698 F. Supp. 627 (E.D. Va. 1988) (Army colonel who supervised civilian\nemployees named as co-defendant in suit for breach of contract and privacy\nviolations).\n\n89\n\n227-329 VOL_25_PROOF.pdf 99\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nAs with \xe2\x80\x9csupervisor[s],\xe2\x80\x9d the Reimbursement Law defines \xe2\x80\x9cmanagement official\xe2\x80\x9d by direct incorporation of the definition of that term provided by 5 U.S.C.\n\xc2\xa7 7103(a), which provides:\n\xe2\x80\x9c[M]anagement official\xe2\x80\x9d means an individual employed by an agency in a position the duties and responsibilities of which require or\nauthorize the individual to formulate, determine, or influence the\npolicies of the agency.\nId. \xc2\xa7 7103(a)(11). This definition does not exclude persons who fail to conform to\nthe title 5 definition of \xe2\x80\x9cemployee,\xe2\x80\x9d nor does it otherwise exclude personnel of the\nuniformed services.14 The application of this definition to particular positions in a\nuniformed services is a matter to be determined in the first instance by the\ndepartment employing persons in those positions. We conclude here only that\nmembers of the uniformed services who otherwise qualify as \xe2\x80\x9cmanagement\nofficials\xe2\x80\x9d are not excluded from eligibility for reimbursement because they do not\nconstitute \xe2\x80\x9cemployees\xe2\x80\x9d as that term is defined in 5 U.S.C. \xc2\xa7 2105 or other statutory\ndefinition of that term.\nIII.\nFor all of the foregoing reasons, we conclude that members of the NOAA\nCommissioned Corps may constitute \xe2\x80\x9cqualified employees\xe2\x80\x9d under the Reimbursement Law if they otherwise satisfy the statutory definitions for law enforcement officers, supervisors, or management officials. While we conclude that being\na member of the uniformed services as defined in 5 U.S.C. \xc2\xa7 2101(3) does not\npreclude eligibility for this benefit, we do not reach the application of this statute\nto the Armed Forces as defined in 5 U.S.C. \xc2\xa7 2101(2).\nVICKI C. JACKSON\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n14\nOur conclusion that the functional categories for qualified employees under the Reimbursement\nLaw are not incongruous when applied to members of the uniformed services is fortified by the\nDepartment of Health and Human Services\xe2\x80\x99 statement with regard to commissioned officers of the\nPHS:\n\nCommissioned officers do perform duties that fall within the duties describing supervisors and management officials in title 5. Also, some Public Health Service officers\nare detailed to the Bureau of Prisons, Immigration and Naturalization Service and the\nMarshals\xe2\x80\x99 Service and may be considered \xe2\x80\x9claw enforcement officers\xe2\x80\x9d for purposes of\nthe provision in question. These officers, in particular, are often sued in their individual capacities.\nHHS Letter at 1.\n\n90\n\n227-329 VOL_25_PROOF.pdf 100\n\n10/22/12 11:10 AM\n\n\x0c'