b'Authority of the General Services Board of Contract\nAppeals to Order Reimbursement of the Permanent\nJudgment Fund for Awards of Bid Protest Costs\nT h e G e n e ra l S e rv ic e s B o a rd o f C o n tra c t A p p e a ls d o e s n o t h a v e th e a u th o rity to o r d e r th e\nD e p a rtm e n t o f th e A rm y to re im b u rse th e p e rm a n e n t in d e fin ite ju d g m e n t fu n d f o r a B o a rd\na w a rd o f b id p ro te s t c o s ts u n d e r th e C o m p e titio n in C o n tra c tin g A ct.\n\nMay 29, 1990\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\nD epa rtm en t o f t h e A rm y\n\nThis memorandum responds to your office\xe2\x80\x99s request for the opinion of\nthis Office on the authority of the General Services Board of Contract Ap\xc2\xad\npeals (\xe2\x80\x9cGSBCA\xe2\x80\x9d or the \xe2\x80\x9cBoard\xe2\x80\x9d) to order the Department of the Army\n(\xe2\x80\x9cArmy\xe2\x80\x9d) to reimburse the permanent indefinite judgment fund, 31 U.S.C. \xc2\xa7\n1304, for bid protest costs under the Competition in Contracting Act\n(\xe2\x80\x9cCICA\xe2\x80\x9d), Pub. L. No. 98-369, 98 Stat. 1175, 1182-84 (1984) (codified in\nrelevant part at 40 U.S.C. \xc2\xa7 759(f)(5)). See Letter to William P. Barr, Assis\xc2\xad\ntant Attorney General, Office of Legal Counsel, from Colonel William A.\nAileo, Chief, Litigation Division, Office of the Judge Advocate General,\nUnited States Department of the Army (Jan. 30, 1990) (the \xe2\x80\x9cArmy Letter\xe2\x80\x9d).\nWe conclude that the Board does not have authority to order the Army to\nreimburse the judgment fund.\n\nI. Background\nYour inquiry was prompted by two GSBCA cases, Julie Research Labora\xc2\xad\ntories, Inc., 1989-1 B.C.A (CCH)1 21,213 at 107,020 (Sept. 23, 1988), appeal\ndismissed. United States v. Julie Research Laboratories, Inc., 881 F.2d 1067\n(Fed. Cir. 1989), and Bedford Computer Corp., 1990-1 B.C.A (CCH) f 22,377\n(Oct. 13, 1989). In both these cases, the Board awarded bid protest costs\nagainst the Army under section 2713 of CICA, 40 U.S.C. \xc2\xa7 759(0(5).\nThe Army disputes the Board\xe2\x80\x99s conclusion in the Julie Research Labora\xc2\xad\ntories and Bedford Computer cases. It maintains that the Board has exceeded\nits authority under 40 U.S.C. \xc2\xa7 759(f)(6)(C) by requiring it to reimburse the\n111\n\n\x0cjudgm ent fund. Moreover, components of the federal government other than\nthe Army, including the Department of the Air Force, the National Transpor\xc2\xad\ntation Safety Board, and the General Accounting Office, are interested in the\nresolution of the issue. See Army Letter at l . 1\nSection 759(f)(5)(C) provides that, when the Board makes a determina\xc2\xad\ntion that a challenged agency action violates a statute or regulation or the\nconditions of any delegation of procurement authority issued pursuant to the\nsection, the Board\nmay, in accordance with section 1304 of title 31, further de\xc2\xad\nclare an appropriate interested party to be entitled to the costs\nof \xe2\x80\x94\n(i) filing and pursuing the protest, including reason\xe2\x80\x94\nable attorney\xe2\x80\x99s fees, and\n(ii) bid and proposal preparation.\nSection 759(f)(5)(C) explicitly requires that the Board\xe2\x80\x99s awards of bid\nprotest costs be made \xe2\x80\x9cin accordance with\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1304, the Automatic\nPayment of Judgment Act. That act created the permanent judgment fund.\nSection 1304 thus appropriates necessary amounts to pay final judgments,\nawards, settlements, and interest and costs specified in the judgments when\nthe following three conditions are satisfied:\n(1) payment is not otherwise provided for;\n(2) payment is certified by the Comptroller General; and\n(3) the judgment, award, or settlement is payable . . . under a\ndecision of a board of contract appeals.\nDespite section 759(f)(5)(C)\xe2\x80\x99s express reference to payments from the\njudgm ent fund, the Board in both Julie Research Laboratories and Bedford\nC om puter cases required the Army to reimburse the permanent judgment\nfund for the award, thus effectively requiring the Army to pay the costs from\nits procurement appropriation. In Julie Research Laboratories ,2 the Board\nsupported its decision to require the Army to reimburse the judgment fund\nas follows:\n\n1 A re c e n t R ep o rt to C ongress fro m the G eneral A cco u n ting O ffice has said that \xe2\x80\x9cthere has been som e\nc o n fu s io n in m a k in g adm inistrative an d policy d ecisio n s\xe2\x80\x9d as a resu lt o f d isagreem ents o v e r the re q u ire \xc2\xad\nm e n ts o f th e law , an d h as called fo r co rrectiv e legislation. G eneral A ccounting O ffice, ADP B id Pro\xc2\xad\ntests, R e p o rt to th e C h airm an , S u b co m m ittee o n Federal Services, Post O ffice, and C ivil S ervice, C o m \xc2\xad\nm itte e on G o v e rn m e n ta l A ffairs, U .S . S enate, at 33 (M arch, 1990) (\xe2\x80\x9cGAO Report").\n1 In Julie Research Laboratories, th e A rm y \xe2\x80\x99s M issile C o m m and had issued a solicitatio n fo r a m u lti\xc2\xad\ny e a r p ro c u re m e n t o f autom atic d ata p ro cessin g eq u ip m en t ( \xe2\x80\x9cA D P E \xe2\x80\x9d ). Julie R esearch L a boratories p ro \xc2\xad\nte ste d th e so lic ita tio n a n d prevailed o n a sig n ifican t issu e. It then applied for $25,754.88 in costs. T he\nB o ard a w ard ed it $20,986.13.\n\n112\n\n\x0cBecause this monetary award is inextricably connected with\nthe true economic cost of the procurement, it is appropriate\nthat the fund be reimbursed by the agency whose appropria\xc2\xad\ntions were used for the contract out of available funds or by\nobtaining additional appropriations for such purposes. Such\nreimbursement,is consistent with the purpose underlying 41\nU.S.C. \xc2\xa7 612 (1982), see S. Rep. No. 1118, 95th Cong., 2d\nSess. 33 (1978), and with our responsibility to \xe2\x80\x9caccord due\nweight to the policies of [the Brooks Act, [Pub. L. No. 89306, 79 Stat. 1127 (1965)]] and the goals of economic and\nefficient procurement . . . .\xe2\x80\x9d 40 U.S.C. \xc2\xa7 759(h)(5)(A) (Supp.\nIll 1985) (to be recodified at 40 U.S.C. \xc2\xa7 759(f)(6)(C). . . .\nAccordingly, we revise the delegation of authority to require\nthe agency to make the reim bursem ent. 40 U .S.C . \xc2\xa7\n759(h)(5)(B) (Supp. Ill 1985).\nJulie Research Labs., Inc. at 89-1 B.C.A 1 21,213 at 107,021. Administra\xc2\xad\n\ntive Judge Borwick dissented in part. He stated:\n[A]bsent a statutory requirement for reimbursement of the\njudgment fund in the Brooks Act, requiring agencies to reim \xc2\xad\nburse the judgment fund is not appropriate. The majority\nrelies on that portion of the Brooks Act which empowers the\nBoard to order any additional relief which it is authorized to\nprovide under statute or regulation. 40 U.S.C. \xc2\xa7 759(h)(6)(C)\n(Supp. Ill 1985) (to be recodified at 40 U.S.C. \xc2\xa7 759(f)(6)(C)).\nI do not believe that our broad authority to grant relief applies\nto this matter of fiscal and accounting policy which is purely\na matter of statutory direction. There are sound policy rea\xc2\xad\nsons for the result reached by the majority as the reimbursement.\nHowever, if Congress had wished to adopt that policy, it would\nhave specifically done so, as it did in the CDA [Contract Dis\xc2\xad\nputes Act, 41 U.S.C. \xc2\xa7\xc2\xa7 609-613, Pub. L. No. 95-563, 92 Stat.\n2388 (1978)]. As Congress has not, I would not revise the\nDPA [delegation of procurement authority] to require such re\xc2\xad\nimbursement.\nId.\n\nThe Army then appealed this judgment to the Federal Circuit, which dis\xc2\xad\nm isse d the appeal on the ground th at the d isp u te w as p u re ly\nintragovemmental:\n\n113\n\n\x0c[T]he government\xe2\x80\x99s obligation to pay Julie has been deter\xc2\xad\nmined and Julie has received everything it could recover by\nreceiving a decision on the merits in its favor which has not\nbeen appealed. A decision by this court o f this intra-govern\xc2\xad\nment dispute \xe2\x80\x9ccannot affect the rights of [the] litigants," North\nCarolina v. Rice, 404 U.S. [244,] at 246 [(1971)], and we\nmust, therefore, conclude that the issue presented is not justi\xc2\xad\nciable.\nUnited States v. Julie Research Labs., Inc., 881 F.2d 1067, 1068 (Fed. Cir. 1989).\nIn Bedford Computer, the Board, citing Julie Research Laboratories, also\n\nordered the Army to reimburse the judgment fund in the amount of its award\no f costs.3 Bedford Computer, 1990-1 B.C.A 1 22,377 at 112,434 (Oct. 13,\n1989). Concurring separately in Bedford Computer, Administrative Judge\nHendley agreed that the judgment fund should be reimbursed. He added\nthat in future settlements of protest costs, the respondent agency should pay\ndirectly \xe2\x80\x9cin accordance with the Federal Acquisition Regulation (FAR).\xe2\x80\x9d Id.\nJudge Hendley wrote:\nSo long as agency funds are available, to seek to have the\npayment made from the judgment fund and then reimburse\nthat fund, is economically inane and constitutes a pointless\nexercise in unnecessary paper shuffling. That an agency should\npay such costs directly, and not through the conduit of the\njudgm ent fund, is clearly directed by FAR 33.105(0 [48 C.F.R.\n\xc2\xa7 33.105(0 (1988)] which states:\n(0(1) The GSBCA may declare an appropriate\ninterested party to be entitled to the cost of \xe2\x80\x94\n(1) Filing and pursuing the protest, including\nreasonable attorney\xe2\x80\x99s fees; and\n(ii) Bid and proposal preparation.\n(2) Costs awarded under (0(1) above shall be\npaid promptly by the agency out of funds\navailable to or fo r the use o f [4] the\nacquisition of supplies or services.\n\n3 In B edford C om puter th e Army c o n c e d e d that it h a d failed to c o m p ly w ith c e rta in p ro c u re m e n t\ns ta tu te s a n d re g u la tio n s . T h e Army a n d the p ro te ste r d e c id e d to s e ttle the p ro test. T he B o ard found\nth a t th e p ro te s to r h as p re v a ile d on a s ig n ific a n t issu e, a n d aw ard ed it $ 75,000 in p ro te st co sts.\n\xe2\x80\x98 P e rh a p s sh o u ld read : \xe2\x80\x9co r.\xe2\x80\x9d\n\n114\n\n\x0cAlthough the FAR is couched in terms of payment of costs\nawarded by the Board in a case where those costs were con\xc2\xad\ntested, it would be sheer sophistry to contend that in those\ninstances where the parties have settled their dispute, those\nsame costs, reflected in their settlement, should not be paid\nfrom the agency\xe2\x80\x99s funds as well.\nId. at 112,434-35.\n\nII. Analysis\nWe conclude that a Board award of costs under CICA is payable out of\nthe judgment fund, and that the Board does not have the authority to order\nan agency to reimburse the judgment fund for having paid such an award.3\n1.\nThe only substantive question concerning the availability of the judg\xc2\xad\nment fund to pay bid protest costs in the Julie Research Laboratories and\nBedford Computer cases is whether the first of section 1304(a)(l)\xe2\x80\x99s three\nconditions is met,6 i.e., whether payment of a Board award is \xe2\x80\x9cotherwise\nprovided for\xe2\x80\x9d from some other appropriation. As a general rule, \xe2\x80\x9cagency\nappropriations are not available to pay judgments. Exceptions are recog\xc2\xad\nnized only where the appropriations or special funds for the activities out of\nwhich the cause of action arose expressly include provisions for the payment\nof judgments, or where other express provisions of law include such author\xc2\xad\nity.\xe2\x80\x9d GAO Principles at 12-3.\nWe are aware of no statutory authority \xe2\x80\x94 and none was cited in Julie\nResearch Laboratories or Bedford Computer \xe2\x80\x94 that would require the Army\neither to pay Board awards of bid protest costs out of its own appropriations,\nor to reimburse the judgment fund for having paid such awards. There is no\nprovision in either 40 U.S.C. \xc2\xa7 759 or in 31 U.S.C. \xc2\xa7 1304 which requires a\nprocuring agency to reimburse the judgment fund when bid protest costs are\n\xe2\x80\x99 T his dispute b etw een the A rm y and th e Board, as the Federal C ircu it held, is purely a d isag ree m e n t\nw ithin the G o v ern m en t and in no w ay affects the rights o r rem edies o f parties (such as Julie R esearch\nL aboratories, Inc.) outside the executive branch. C onsequently, as the court held, the d isp u te w as not\nju stic ia b le un d er A rticle III. See United States v. Julie Research Labs., Inc., 881 F.2d at 1068. B ecause\nthe d ispute arises o n ly betw een tw o co m ponents o f the executive branch, this O ffice has ju risd ic tio n to\nresolve it. See \xc2\xa7 1-401 o f Exec. O rder No. 12146, 3 C.F.R. 4 0 9 ,4 1 1 (1980), as am ended by E x ec. O rd e r\nNo. 12608, 3 C.F.R. 245 (1 9 8 8 ) (A ttorney G eneral has authority to resolve interagency d isp u te s). T h e\nA ttorney G eneral h a s d eleg ated to this O ffice his au th o rity to pro v id e legal o pinions and a d v ice to the\nP resident an d heads o f the E xecutive and m ilitary departm ents. See 28 U .S.C . \xc2\xa7 5 1 0 (A ttorney G e n e ra l\xe2\x80\x99s\na u th o rity to deleg ate); id. \xc2\xa7 \xc2\xa7 5 1 1 -5 1 3 (d u ties o f A ttorney G eneral); 28 C .F R . \xc2\xa7 0.25 (m atters d e le g ate d\nto O L C ); see generally M em orandum fo r H elen S. L essin, D irector, Federal Legal C ouncil, from L eon\nU lm an, D eputy A ssistan t A ttorney G en eral, O ffice o f L egal C ounsel, Re- OLC Policies Regarding\nIssuance and Release o f Opinions (Sept. 10, 1980).\n\xe2\x80\x98 T h e second statu to ry requirem ent \xe2\x80\x94 the necessity for certificatio n by the C om p tro ller G en eral \xe2\x80\x94\nim poses no su b stan tiv e co n strain ts on access to the ju d g m e n t fund: the C om p tro ller G e n eral\xe2\x80\x99s c e rtific a \xc2\xad\ntio n follow s from satisfactio n o f the o th er tw o requirem ents and co m p letion o f the necessary p a perw ork.\nC ontinued\n\n115\n\n\x0cawarded against it.7 We recognize that an award to a contractor by an agency\nboard o f contract appeals under the Contract Disputes Act (\xe2\x80\x9cCDA\xe2\x80\x9d), Pub. L.\nNo. 95-563, 92 Stat. 2388 (1978) (codified at 41 U.S.C. \xc2\xa7\xc2\xa7 609-613), when\npaid by the judgment fund, must thereafter be reimbursed by the procuring\nagency whose appropriations were used for the contract at issue. See 41\nU.S.C. \xc2\xa7 612(c). But CDA is inapplicable here because the awards at issue\nwere not made under CDA, but under CICA, a wholly distinct enactment.8\nHence, we conclude, Congress intended that Board awards of these bid pro\xc2\xad\ntest costs be paid out of the judgment fund, rather than being statutorily\nsubject to reimbursement.9\n2.\nThe remaining question is whether the Board exceeded its authority in\nordering the Army to reimburse the judgment fund for having paid the awards.\nWe conclude that the Board has exceeded its authority.\nIn Julie Research Laboratories, the Board majority relied on 40 U.S.C. \xc2\xa7\n759(f)(6)(C), which states:\n[N]othing contained in this subsection shall affect the board\xe2\x80\x99s\npower to order any additional relief which it is authorized to\nprovide under any statute or regulation.\nFor two independent reasons, this provision does not, in our opinion, autho\xc2\xad\nrize the Board to require a procuring agency to reimburse the judgment fund\nfor the payment of protest cost awards.\nFirst, an order requiring the agency to reimburse the judgment fund would\nprovide relief a t all \xe2\x80\x94 still less \xe2\x80\x9cadditional re lie f\xe2\x80\x99 \xe2\x80\x94 to the bid protester,\nsince the protester\xe2\x80\x99s award has already been paid in full by the judgment\nfund. From the protester\xe2\x80\x99s point of view, it makes no difference whether the\nagency\xe2\x80\x99s procurement appropriation reimburses the judgment fund after the\naward is paid: the amount o f the award is exactly the same. Thus, requiring\nthat the amount of the award be taken from agency procurement appropriations\n\xe2\x80\x98 (....c o n tin u e d )\n\nSee Availability o f the Judgment F und fo r the Payment o f Judgments or Settlements in Suits Brought\nA g a in st the Com m odity Credit Corporation Under the Federal Tort Claims Act, 13 Op. O .L .C . 362, 3636 4 & n .l (1 9 8 9 ); accord G eneral A cco u n tin g O ffice, Principles o f Federal Appropriations Law, at 12-2\n(1 9 8 2 ) ( \xe2\x80\x9c G AO P rinciples"). The th ird req u irem en t \xe2\x80\x94 that the aw ard o r settlem ent be pay ab le \xe2\x80\x9c under a\nd ecisio n o f a board o f contract appeals" \xe2\x80\x94 is m anifestly satisfied by aw ards issued by the Board.\n\xe2\x80\x99 S e c tio n 1304(c) re fe rs to a situ atio n in w hich the ju d g m e n t fu n d is a vailable to pay a ju d g m e n t or\nc o m p ro m is e s ettlem e n t b u t must th e re a fte r be reim b u rsed . T he section is irrelevant here: it only c o n \xc2\xad\nc e rn s c a se s in w h ich th e ju dgm ent o r settlem en t \xe2\x80\x9carises out o f an express o r im plied c o n tra c t\xe2\x80\x9d m ade by\nth e A rm y an d A ir F o rce Exchange S e rv ice, the N avy E xchanges, the M arine C orps E xchanges, the\nC o a s t G u a rd E x c h a n g e s, o r the E x ch an g e C ouncils o f the N ational A eronautics and Space A d m in istra \xc2\xad\ntio n . See P u b . L. N o. 9 1 -3 5 0 , 84 Stat. 4 4 9 (1 9 7 0 ) (codified at 31 U .S .C . \xc2\xa7 1304(c)).\n\xe2\x80\x98 C IC A , w h ic h g iv es th e Board a u th o rity o v er A D PE pro tests, w as not an am endm ent to C D A but to the\nB ro o k s A ct, Pub. L . N o. 89-306, 79 S ta t. 1127 (1 9 6 5 ) (co d ified at 4 0 U .S.C . \xc2\xa7 7 5 9 (0 ). H ence the re im \xc2\xad\nb u rse m e n t re q u ire m e n t o f section 612 o f C D A does not apply to B oard aw ards under the B rooks A ct.\n\xe2\x80\x99 T h is O ffice re a ch e d a sim ilar co n clu sio n in Payment o f Attorney Fee Awards Against the United States\nU nder 28 U.S.C. \xc2\xa7 2412(b), 7 Op. O .L .C . 180 (1 9 8 3 )(ju d gm ent fund available by statute to pay fee\na w ard s). A ccord 6 3 C o m p . Gen. 260, 26 3 -6 4 & n.3 (1984) (c itin g R ose M em o).\n\n116\n\n\x0cand transferred to the permanent judgment fund is purely a matter of ac\xc2\xad\ncounting and fiscal policy, not a question of the scope of relief.10 Hence, 40\nU.S.C. \xc2\xa7 759(f)(6)(C) cannot provide authority for the Board to order the\nArmy to reimburse the judgment fund for the cost of the award.\nSecond, subsection 759(f)(6)(C) is not, as the Julie Research Laborato\xc2\xad\nries majority mistakenly implied, itself an affirmative grant of authority to\nthe Board. The subsection merely states that nothing in it shall affect the\nBoard\xe2\x80\x99s power to order \xe2\x80\x9cadditional relief\xe2\x80\x99 which the Board is otherw ise\nempowered to provide. Thus, even on the assumption (which we have re\xc2\xad\njected) that requiring the procuring agency to reimburse the judgment fund\ncould constitute \xe2\x80\x9cadditional relief,\xe2\x80\x9d the Board would still need to be \xe2\x80\x9cautho\xc2\xad\nrized to provide\xe2\x80\x9d such relief under some \xe2\x80\x9cstatute or regulation\xe2\x80\x9d other than\n40 U.S.C. \xc2\xa7 759(f)(6)(C) itself.\nNo other statute provides the needed authority. In Julie Research Labo\xc2\xad\nratories, 1989-1 B.C.A. f 21,213 at 107,021 (Sept. 23, 1988), the Board\nmajority stated only that ordering reimbursement was \xe2\x80\x9cconsistent with the\npurpose underlying 41 U.S.C. \xc2\xa7 612\xe2\x80\x9d and with the Board\xe2\x80\x99s responsibility\nunder 40 U.S.C. \xc2\xa7 759(f)(5)(A) to \xe2\x80\x9caccord due weight to the policies of [the\nBrooks Act] and the goals of economic and efficient procurement.\xe2\x80\x9d How\xc2\xad\never, neither 41 U.S.C. \xc2\xa7 612 nor 40 U.S.C. \xc2\xa7 759(f)(5)(A) authorizes the\nBoard to order reimbursement of the judgment fund."\nWe recognize that, in Bedford Computer, the concurring opinion cited a\nregulatory source of authority. See id., 1990-1 B.C.A. U 22,377 at 112,435\n(Hendley, A.J., concurring separately). The cited regulation, FAR 33.105(f)(2),\n48 C.F.R. \xc2\xa7 33.105(0(2) (1988), states that protest costs awarded by the\nBoard \xe2\x80\x9cshall be paid promptly by the agency out of funds available to or for\nthe use of the acquisition of supplies or services.\xe2\x80\x9d\nWe understand,12 however, that this Federal Acquisition Regulation was\nnot intended to mandate that Board awards of bid protest costs under the\nBrooks Act be paid from agency procurement appropriations rather than\n\n>0It a p p ea rs that the d ecisio n o f the B oard m ajority in Julie Research Laboratories relied o n an u n d e r\xc2\xad\nstan d in g o f sound acco u n tin g policy. It stated th at \xe2\x80\x9c [b]ecause th is m onetary aw ard is in e x tric a b ly\nc o n n ec te d w ith the true econom ic c o st o f the p rocurem ent, it is app ro p riate th a t the [judgm ent] fu n d be\nreim b u rsed by the agency w hose ap p ro p riatio n s w ere used for the contract o u t o f a vailable funds o r by\no b ta in in g additional ap p ro p riatio n s fo r such pu rp o ses.\xe2\x80\x9d Id., 1989-1 B.C.A . 1 21,213 at 107,021. H o w \xc2\xad\never, as the d issen t c o rrectly pointed out, \xe2\x80\x9co ur broad authority to g ran t re lie f [does not] a p p l[y ] to this\nm atter o f fiscal and a cco u n tin g policy w hich is purely a m atter o f statutory d ire c tio n " Id.\n" A s ex p la in ed above, 41 U .S C. \xc2\xa7 612 provides th at a m onetary aw ard to a c o n tra c to r by an ag en cy\nboard o f c o n tract appeals in a CDA case m ust be reim bursed to the ju d g m e n t fund. N o co m p a ra b le\np ro v isio n ex ists for Brooks Act cases. Rather, 4 0 U .S .C . \xc2\xa7 7 5 9 (f)(5 )(C ) m erely states th a t the B oard\nm ay hold a bid p ro testo r to be en titled to protest costs to be paid \xe2\x80\x9c in accordance w ith sec tio n 1304,\xe2\x80\x9d the\nju d g m e n t fu n d statute.\nS ection 759(f)(5 )(A ) instructs the B oard to take account o f the policy o f the B rooks A c t and o f the\ng oals o f eco n o m ic and efficien t procurem ent w hen \xe2\x80\x9c m aking a decision on the merits o f p ro te sts brought\nu n d e r this sectio n \xe2\x80\x9d (em phasis added). T h at language does not authorize the B oard to d e c id e , after\nm aking its decision on the m erits, w h eth er paym ent for an aw ard o f protest c o sts is to c o m e from the\nju d g m e n t fund or from agency appropriations.\nP e r telep h o n e co n v ersatio n with Mr. Jack M iller, D eputy A sso ciate G eneral C ounsel, G S A .\n\n117\n\n\x0cfrom the judgm ent fund.13 (Apparently, the draftsmen of the regulation over\xc2\xad\nlooked the fact that protests costs in CICA cases, unlike CDA cases, were to\nbe paid out o f the judgment fund.) If the regulation were read to require\nagencies to pay such costs without any recourse to the judgment fund, we\nwould find it invalid. The plain language of both the judgment fund statute,\n31 U.S.C. \xc2\xa7 1304, and of the Brooks Act provision that refers to it, 40\nU.S.C. \xc2\xa7 759(f)(5)(C), compels the conclusion that Board awards of bid\nprotest cases are payable only out of the judgment fund, not out of the\nagency\xe2\x80\x99s appropriation.14 Insofar as a regulation conflicts with the express\nprovisions of a statute, the regulation is without effect. See, e.g., Dole v.\nU nited States Steelworkers o f Am., 494 U.S. 26, 42 & n.10 (1990); Board o f\nG overnors o f the Fed. Reserve Sys. v. Dimension Fin. Corp., 474 U.S. 361,\n368 (1986); A rizona Grocery Co. v. Atchison T. & S.F. Ry. Co., 284 U.S. 370,\n387 (1932); 3 Op. O.L.C. 457, 459 (1979).\nAccordingly, we conclude that the Board is not validly authorized by\nstatute or by regulations to order reimbursement.\n\nIII. Conclusion\nThe General Services Board of Contract Appeals lacks the authority\nto order the reimbursement o f the judgment fund from a procuring agency\xe2\x80\x99s\nappropriation where the judgment fund has paid a Board award o f bid pro\xc2\xad\ntest costs against the agency in a case decided under 40 U.S.C. \xc2\xa7 759.\nJOHN O. McGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\' \xe2\x80\x99 F u rth er, n o n e o f th e th re e statutes \xe2\x80\x94 4 0 U .S.C . \xc2\xa7 4 8 6 (c); 10 U .S .C . ch. 137; 42 U .S .C . \xc2\xa7 2453(c) \xe2\x80\x94\nc ite d as a u th o ritie s fo r th e FAR re g u la tio n , see 50 Fed. R eg . 2270 (1985), ex p ressly authorizes the G e n \xc2\xad\ne ra l S e rv ic e s A d m in istra tio n to m an d ate, no tw ith stan d in g 4 0 U .S .C . \xc2\xa7 759(f)(5)(C ), th a t p ay m en t o f\nG S B C A b id p ro te st c o st aw ards in B ro o k s A ct cases b e m ad e d irectly from ag en cy app ro p riatio n s instead\no f fro m the ju d g m e n t fu n d . Nor does a n y o f those s tatu tes allow the B oard to o rd e r the ju d g m e n t fund to\nbe re im b u rse d fro m a g en cy appropriations for h aving p aid such aw ards.\n14 T h e G A O e x p re ssly agrees with th e co n clu sio n , o b serv in g that \xe2\x80\x9c w hile C IC A requires th a t G SB C A\np a y m e n ts b e m ade from th e Judgm ent Fund, the F ed eral A cquisition R egulation pro v id es th a t these\np a y m e n ts m u st be m a d e fro m the a g e n c y \xe2\x80\x99s funds a v ailab le for the acquisition o f supplies o r services.\nThe F ederal A cquisition Regulation is inconsistent with CICA in this regard." GAO Report at 62\n(e m p h a sis a d d ed ).\n\n118\n\n\x0c'


b"Delegation of the Attorney General\xe2\x80\x99s Authority\nto Investigate Credit Card Fraud\nThe A ttorney General has authority under 28 U.S.C. \xc2\xa7 533 to investigate all criminal violations\nagainst the U nited States, including credit card fraud under IS U.S.C. \xc2\xa7 1644, except in cases\nin w hich C ongress has specifically assigned the responsibility with respect to a particular\ninvestigation exclusively to another agency.\nThe A ttorney G eneral\xe2\x80\x99s investigative authority under 28 U.S.C. \xc2\xa7 533, which has been delegated\nto the Federal Bureau o f Investigation by 28 C.F.R. \xc2\xa7 0.85(a), may not be delegated outside of\nthe Departm ent o f Justice to the Secret Service.\nA prelim inary analysis reveals no independent authority for investigations of credit card fraud in\nthe Secret Service\xe2\x80\x99s enabling statute, 18 U.S.C. \xc2\xa7 3056.\n\nNovember 22, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD epa rtm en t\n\nof the\n\nA s s is t a n t S e c r e t a r y\nT rea sury\n\nThis responds to your letter to your request that the Attorney General\ndelegate to the Secret Service the Department of Justice\xe2\x80\x99s authority to investi\xc2\xad\ngate violations of 15 U.S.C. \xc2\xa7 1644.\nAs you know, \xc2\xa7 1644 generally makes it a crime (in certain circumstances\naffecting interstate or foreign commerce) to receive, transport, or use counter\xc2\xad\nfeit, fictitious, altered, forged, lost, stolen, or fraudulently obtained credit\ncards. We understand that the Secret Service and the Postal Service have\ninformally agreed upon procedures for coordinating and cooperating in investi\xc2\xad\ngations of \xc2\xa7 1644 violations, but that you have taken the position that the Secret\nService \xe2\x80\x9cis not in a position to effect those procedures governing counterfeit\ncredit card investigations until the Department of Justice delegates to the\nService the appropriate authority to investigate violations\xe2\x80\x9d of this provision.\nYour position is predicated on the assumption that the Secret Service does not\nhave independent authority to investigate criminal violations of \xc2\xa7 1644, but\nthat the Attorney General may delegate to the Secret Service his statutory\nresponsibilities to enforce \xc2\xa7 1644. For the reasons set forth below, we conclude\nthat the Attorney General may not transfer duties vested in him to other\ndepartments of the federal government in these circumstances, although we\n172\n\n\x0cexpress no final view at this time whether the Secret Service possesses inde\xc2\xad\npendent authority to undertake such investigations, a question which the De\xc2\xad\npartment of Treasury should examine in detail in the first instance.1\nI. Delegation of Authority Under \xc2\xa7 533\nSection 1644 does not specifically provide that the Department of Justice\nmay undertake credit card investigations. Nevertheless, the Department of\nJustice has general statutory authority to investigate the violation of criminal\nlaws of the United States under 28 U.S.C. \xc2\xa7 533. This section, which is part of\nthe chapter in Title 28 setting forth the duties of the Federal Bureau of\nInvestigation, states that the Attorney General \xe2\x80\x9cmay appoint officials . . . to\ndetect and prosecute crimes against the United States.\xe2\x80\x9d2\nThe history of this provision can be traced back to a 1921 Appropriations Act\nfor the Department of Justice, which contained a provision routinely included\nin Department of Justice appropriation laws over the years authorizing the\nexpenditure of funds \xe2\x80\x9cfor the detection and prosecution of crimes against the\nUnited States.\xe2\x80\x9d Act of Mar. 4, 1921, Pub. L. No. 389, 41 Stat. 1367, 1410.\nAttached to this standard clause was a proviso, stating that \xe2\x80\x9cfor the purpose of\nexecuting the duties for which provision is made by this appropriation, the\nAttorney General is authorized to appoint officials who shall be designated\n\xe2\x80\x98special agents of the Department of Justice,\xe2\x80\x99 and who shall be vested with the\nauthority necessary for the execution of such duties.\xe2\x80\x9d Id. at 1411. Similar\nprovisos were included in appropriation statutes passed during each of the\nfollowing six years, see, e.g., Act of June 1, 1922, Pub. L. No. 229, 42 Stat.\n599, 613 (codified at 5 U.S.C. \xc2\xa7 300 (1925)).\nAs interpreted by this Office over the years, this provision authorizes the\nDepartment of Justice to investigate all criminal violations against the United\nStates, except in cases in which Congress has specifically assigned this respon\xc2\xad\nsibility with respect to a particular investigation exclusively to another agency.3\n1 We do not understand you to be asking (he D epartm ent o f Justice to enter into an agreem ent with the\nSecret Service for the perform ance o f such services pursuant to the Economy Act, 31 U S.C. \xc2\xa7 1535, and thus\nwe have not considered the appropriateness o f such an arrangem ent. An Economy Act agreem ent between the\nD epartm ents o f Justice and Treasury would not involve a \xe2\x80\x9cdelegation\xe2\x80\x9d o f responsibilities to the Secret\nService, but only the perform ance o f services by the Secret Service for the D epartm ent o f Justice. See, e.g.. 57\nComp. Gen. 677, 6 7 8 -8 0 (1978), H.R. Rep. No. 1126, 72d Cong., 1st Sess. 15-16 (1932). For this reason, if\nan Econom y Act arrangem ent provided the basis for Secret Service investigations o f \xc2\xa7 1644 violations, the\nDepartment o f Justice w ould be required to reim burse Treasury for all such services, unless it w as determ ined\nthat Treasury does indeed have independent authority to conduct such investigations.\n2 The grant o f authority is not exclusive, for, according to \xc2\xa7 533, it is not intended to \xe2\x80\x9clim it the authority o f\ndepartm ents and agencies to investigate crim es against the United States when investigative jurisdiction has\nbeen assigned by law to such departm ents and agencies.\xe2\x80\x9d\n3 See, e.g.. M emorandum for H erbert J. M iller, A ssistant A ttorney G eneral, Crim inal D ivision from\nNicholas deB. K atzenbach, A ssistant A ttorney G eneral, O ffice o f Legal Counsel (Oct. 25, 1961); M emoran\xc2\xad\ndum for the Attorney G eneral from J. Lee Rankin, A ssistant Attorney G eneral, O ffice o f Legal Counsel (Nov.\n9, 1955); M emorandum fo r the A ttorney G eneral from J. Lee Rankin, Assistant A ttorney G eneral, Office o f\nLegal Counsel (Oct. 19, 1954); M em orandum for the D eputy A ttorney General from J. Lee Rankin, Assistant\nAttorney G eneral, O ffice o f Legal Counsel (Oct. 5, 1954). See generally 28 C.F.R. \xc2\xa70.85(a).\n\n173\n\n\x0cFor this reason, the Federal Bureau of Investigation, which has been delegated\nthe Attorney General\xe2\x80\x99s responsibilities under \xc2\xa7 533, see 28 C.F.R. \xc2\xa7 0.85(a),\nclearly may undertake credit card investigations pursuant to \xc2\xa7 1644.\nIn our view, however, the Attorney General may not delegate this responsi\xc2\xad\nbility outside of the Department of Justice to the Secret Service. Section 533\nvests the authority to appoint criminal investigative officials in the Attorney\nGeneral, not in the heads o f other departments designated by the Attorney\nGeneral.4 In other words, on its face this provision does not authorize the\nAttorney General to delegate these duties outside this Department. Similarly,\nneither the language nor the legislative history of \xc2\xa7 533 contemplates that the\nAttorney General would \xe2\x80\x9cappoint\xe2\x80\x9d employees of other departments directly in\norder that these employees may perform criminal investigations under the\ndirect supervision of the heads of other departments. As noted above, this\nsection was originally passed as a rider to an appropriation for the Department\nof Justice, which stated that such officials were to be designated \xe2\x80\x9cspecial agents\nof the Department of Justice\xe2\x80\x9d and were to execute the duties set forth in the\nappropriation for the Department of Justice. Floor comments regarding this\nproviso only reflect a congressional intent to support the appointment of\nDepartment of Justice investigative employees.5\nWe also believe the authority to transfer functions vested in the Attorney\nGeneral may not be inferred in these circumstances. By establishing the De\xc2\xad\npartment of Justice and placing certain responsibilities in its head, see 28\nU.S.C. \xc2\xa7\xc2\xa7 501, 509, Congress has expressed its intent that these duties should\nbe discharged by officials of this Department. The Attorney General, like the\nheads of many other departments who have similar authority with respect to\ntheir departments, may transfer responsibilities between officials within this\nDepartment pursuant to 28 U.S.C. \xc2\xa7\xc2\xa7 509 and 510, but Congress has not\ngranted the Attorney General general authority to transfer responsibilities\noutside this Department. This Office has previously observed that, in the\nabsence of any general provision of law permitting an agency to transfer its\nstatutory authority to another agency, such transfer or delegations may nor\xc2\xad\n4 O f course, as discussed below, 28 U .S.C . \xc2\xa7 S10 authorizes the A ttorney General to delegate functions\nvested in him to \xe2\x80\x9cany officer, em ployee, or agency o f the D epartm ent,\xe2\x80\x9d but there is no authority for the\nA ttorney G eneral to transfer such au th o rity outside the D epartm ent o f Justice.\n5 F or exam ple, in opposing passage o f th is provision on the ground that it would have conferred substantive\npow er in an A ppropriations Act, one R epresentative explained.\nAll o f the em ployees o f the D epartm ent o f Justice that are authorized to be appointed are\ncreatures o f legislation . . . [The p resen t bill w ould] give additional authority to the Department\no f Justice outside o f the present legislation, [thereby] authorizing the [A ttorney G eneral] to\nappoint additional employees unauthorized by the present law.\n62 C ong. R ec. 5209 (1922) (remarks o f R ep. Blanton) (em phasis added).\nC o n g ress' consideration o f a proposed cap on salaries paid under this provision reflects a sim ilar under\xc2\xad\nstanding. O ne R epresentative argued th a t, based on his know ledge o f the salaries o f \xe2\x80\x9cagents of the Bureau o f\nIn v e s tig a tio n ,. . . the designation of sp ecial agents o f the D epartm ent o f Justice is sim ply a device to enable\nthe A ttorney G eneral to differentiate betw een the general agents and these special agents as far as salaries and\ncom pensation are concerned.\xe2\x80\x9d Id. (rem arks o f Rep. Connally). He w ent on to observe that there was \xe2\x80\x9cno\nreason fo r m aking these officials special agents o f the D epartm ent, w hen the Attorney General and the chief\no f the bureau now have authority to appoint all the regular agents of the bureau that they may find desirable.\xe2\x80\x9d Id.\n\n174\n\n\x0cmally be accomplished only by legislation or by Executive Reorganization under\nthe Reorganization Act.\nThis does not suggest, of course, that other agencies may not have indepen\xc2\xad\ndent authority to investigate violations of particular criminal statutes, authority\nwhich normally is exercised concurrently with the Department of Justice. For\nexample, Congress has specifically granted the Secret Service the responsibil\xc2\xad\nity to investigate counterfeiting of United States obligations, see 18 U.S.C.\n\xc2\xa7 3056, and conferred upon the United States Postal Service the right to\ninvestigate postal violations. See 39 U.S.C. \xc2\xa7 404(a)(7). The failure of Con\xc2\xad\ngress to specify which agencies other than the Department of Justice may\nundertake criminal investigations, however, cannot be construed as empower\xc2\xad\ning the Attorney General to choose any agency he wishes to assume these\nresponsibilities. The \xe2\x80\x9cdetermination of where investigative jurisdiction lies for\ncriminal violations\xe2\x80\x9d of a statute can only be made \xe2\x80\x9cpursuant to general prin\xc2\xad\nciples of law and construction of existing statutes,\xe2\x80\x9d Memorandum for the\nDeputy Attorney General from J. Lee Rankin, Assistant Attorney General,\nOffice of Legal Counsel (Oct. 5, 1954), not through a policy determination by\nthe Attorney General specifying which agency he believes is best suited to\nundertake such efforts. Thus, in our view, the Secret Service may undertake to\nenter into the division of investigative jurisdiction with the Postal Service only\nif the Secret Service has independent authority to investigate violations of \xc2\xa7 1644.\nII. Independent Authority of the Secret Service\nto Investigate Credit Card Fraud\nThis conclusion raises the question whether the Secret Service has indepen\xc2\xad\ndent authority to undertake these responsibilities. Generally, it is preferable\nthat this Office interpret an agency\xe2\x80\x99s basic authorizing statute only after the\nagency itself has had an opportunity to examine the issue in detail and submit\nits views. As the Supreme Court has observed on numerous occasions, the\nconstruction of a statute by the agency charged with its administration is due\nsubstantial deference. See, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S.\n367, 381 (1969); Udall v. Tollman, 380 U.S. 1, 15 (1965). We hesitate to give\nany final interpretation of the enabling statutes for the Department of Treasury\nand Secret Service in the present case without having the assistance of your\nviews.\nNevertheless, we do offer the following brief observation which may be of\nsome guidance. As in many cases where Congress has enacted a new statute\nmaking certain conduct a federal criminal violation, Congress did not specify\nclearly when passing \xc2\xa7 1644 which agency or agencies would have authority to\ninvestigate possible criminal violations. The provision was originally added on\nthe Senate floor when Congress was making several general amendments to the\nTruth-in-Lending Act, 15 U.S.C. \xc2\xa7\xc2\xa7 1601 et seq., of which it was made a part.\nSee 116 Cong. Rec. 11839-40 (1970). Neither the language of \xc2\xa7 1644 nor its\nlegislative history indicates what agency should be responsible for investigat\xc2\xad\n175\n\n\x0cing criminal violations.6 Thus, the authority of the Secret Service to investigate\npossible credit card fraud depends in large part upon whether its enabling\nstatute permits it to engage in such efforts.\nOur preliminary review o f the Secret Service\xe2\x80\x99s basic authorizing provision,\n18 U.S.C. \xc2\xa7 3056, however, has failed to uncover any basis for such an\nundertaking. As you know, \xc2\xa7 3056 provides, in pertinent part, that the Secret\nService may \xe2\x80\x9cdetain and arrest any person committing any offense against the\nlaws of the United States relating to coins, obligations, and securities of the\nUnited States and of foreign governments.\xe2\x80\x9d The legislative history of this\nprovision only suggests, as the language itself states, that the Secret Service\nmay investigate counterfeiting of obligations of the United States and foreign\ncountries. See S. Rep. No. 467, 82d Cong., 1st Sess. 2 (1951). There is no\nindication it may generally investigate fraud involving private financial obliga\xc2\xad\ntions, such as credit cards. Although certain types of government-related\ntransactions might come within the broad jurisdiction of the Department of\nTreasury and Secret Service* we are not aware at this time of any general\nauthority for the Secret Service to investigate private credit card violations.\nOnce again, though, we note these views are only preliminary and are intended\nto be of some assistance to your own examination of this question.\nShould you ultimately conclude that the Secret Service lacks independent\nauthority to undertake credit card investigations, we would be happy to work\nwith you in drafting general legislation to submit to Congress. We believe that\nan amendment to \xc2\xa7 1644 to permit the Secret Service, with the approval of the\nAttorney General, to pursue \xc2\xa7 1644 investigative efforts, would afford a firm\nlegal basis for the important investigative responsibilities you seek to undertake.\nTheodore\n\nB.\n\nO lso n\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n6 W e raise one caveat to this conclusion. The Truth-in-Lending A ct, 15 U.S.C. \xc2\xa7 1607, does authorize\ncertain agencies to enforce the requirem ents o f Title I o f the A ct, o f w hich \xc2\xa7 1644 was m ade part. It is unclear,\nhow ever, w hether C ongress intended th e se provisions to apply to crim inal enforcem ent of the credit card\nfraud section, w hich was first added tw o years after the original Act w as passed and is generally concerned\nw ith a d ifferen t type o f abuse than the rem ainder o f T itle I. As a general matter. T itle I seeks to ensure that\nfinancial in stitu tio n s w hich extend cred it \xe2\x80\x9cprovide m eaningful disclosure o f credit term s so that the consum er\nw ill be ab le to com pare more readily th e various cred it terms available to him .\xe2\x80\x9d 15 U.S.C. \xc2\xa7 1601. The\nenforcing agencies identified in Title 1 a re generally those responsible under other statutes for overseeing the\nfinancial in stitu tio n s w hich are obliged under T itle I to g iv e such inform ation, and do not appear to have any\nspecial ex p ertise o f w hich w e are aw are w ith credit card fraud. Even if C ongress\xe2\x80\x99 inclusion o f \xc2\xa7 1644 in the\nA ct is c onstrued to give these agencies authority to investigate violations, moreover, the Secret Service is not\nincluded am ong them. T hus, the Act can n o t serve as a basis for the Secret Service to investigate credit card\nviolations.\n\n176\n\n\x0c"


b'Federal Bureau of Investigation Participation\nin Wire Interceptions in Cases Where It Lacks Investigative\nResponsibility\nU nder 18 U.S.C. \xc2\xa72516(1), th e Federal Bureau o f Investigation (FBI) may be judicially\nauthorized to participate in Title III interceptions o f wire or oral communications\ndirected at narcotics-related offenses, even though the Drug Enforcement Administra\xc2\xad\ntion and not the FBI has general investigative responsibility for such offenses.\nT he plain language of \xc2\xa72516(1) authorizes the FBI to participate in court-approved\ninterceptions directed at any of the offenses listed in that section, and the legislative\nhistory lends support to its \xe2\x80\x9c plain meaning\xe2\x80\x9d interpretation.\n\nSeptember 29, 1981\nMEMORANDUM OPINION FOR THE ASSISTANT DIRECTOR\nFOR LEGAL COUNSEL, FED ERA L BUREAU OF\nINVESTIGATION\nThis responds to your request for our opinion whether, pursuant to\n18 U.S.C. \xc2\xa7 2516(1)(1976 and Supp. IV 1980), the Federal Bureau of\nInvestigation (FBI) may be authorized by a court to participate in Title\nIII interceptions directed at offenses for which the FBI has no general\ninvestigative responsibility. This legal question has arisen in the context\nof investigations of narcotics-related offenses over which the Drug\nEnforcement Administration (DEA)\xe2\x80\x94not the FBI\xe2\x80\x94has been delegated\ngeneral investigative responsibility by the Attorney General. See United\nStates Attorneys\xe2\x80\x99 Manual, Section 9-1.122 (Oct. 17, 1977); 21 U.S.C.\n\xc2\xa7 871(a). In particular, in a case in which the DEA seeks authorization\nfor an interception directed at narcotics offenses, and in which there is\nno probable cause to seek authorization for in interception directed at\nother offenses for which the FBI has general investigative responsibil\xc2\xad\nity, the question is whether the FBI as well as the DEA may be\nauthorized to participate in an interception. If, as the FBI\xe2\x80\x99s Legal\nCounsel Division has concluded, the FBI can participate in a Title III\ninterception only when it has general investigative responsibility for the\noffense at which the interception is directed, then the FBI could not be\nauthorized by a court to participate in an interception in such a case.1\n1 T he A ttorney General could, if he chose to do so, delegate general investigative jurisdiction over\nnarcotics-related offenses to the FB I. See 21 U.S.C \xc2\xa7 871(a). Unless he does so, however, such\njurisdiction remains with the DEA . [N o t e : In February o f 1982, the Attorney General authorized the\nContinued\n\n286\n\n\x0cI.\n\nIn our view, \xc2\xa7 2516(1) provides authority for the FBI to participate\nin interceptions in such a case directed at any of the offenses listed in\nthat provision, including narcotics-related offenses, so long as all of the\nspecific procedural requirements of \xc2\xa7 2516(1) are satisfied. We conclude\nthat it is not necessary for the FBI to have general investigative\nresponsibility for such offenses before it may participate in court-approved \xc2\xa72516(1) interceptions directed at them. The basis for this\nconclusion is the plain language of \xc2\xa72516(1), which provides in perti\xc2\xad\nnent part:\nThe Attorney General, or any Assistant Attorney General\nspecially designated by the Attorney General, may au\xc2\xad\nthorize an application to a Federal judge of competent\njurisdiction for, and such judge may grant in conformity\nwith section 2518 of this chapter an order authorizing or\napproving the interception of wire or oral communica\xc2\xad\ntions by the Federal Bureau of Investigation, or a Federal\nagency having responsibility for the investigation of the\noffense as to which the application is made, when inter. ception may provide or has provided evidence of\xe2\x80\x94\n*\n*\n*\n*\n*\n(e) any offense involving . . . the manufacture, importa\xc2\xad\ntion, receiving, concealment, buying, selling, or otherwise\ndealing in narcotic drugs, marihuana, or other dangerous\ndrugs, punishable under any law of the United States . . .\nThe foregoing language specifically provides that an application may be\nmade to a court for an order approving an interception \xe2\x80\x9cby the Federal\nBureau of Investigation, or a Federal agency having responsibility for\nthe investigation of the offense as to which the application is made,\nwhen such interception may provide or has provided evidence of \xe2\x80\x9d the\nlisted offenses. In literal terms, this language authorizes the FBI to\nparticipate in court-approved interceptions directed at the listed of\xc2\xad\nfenses.\nAn interpretation leading to the contrary result would depend on the\npremise that the clause within the commas\xe2\x80\x94\xe2\x80\x9cor a Federal agency\nhaving responsibility for the investigation of the offense as to which the\napplication is made,\xe2\x80\x9d\xe2\x80\x94refers to the FBI as well as other federal agen\xc2\xad\ncies, thereby requiring the FBI itself to have \xe2\x80\x9cresponsibility\xe2\x80\x9d for the\ninvestigation of any offense as to which an interception application is\nmade. That premise lacks specific textual support.2 We also believe it to\nFBI, concurrently with the DEA, to investigate violations o f the cnminal drug laws of the United\nStates. See A tt\xe2\x80\x99y Gen. Or. No. 968-82, 47 Fed. Reg. 4989 (1982). Ed.\n2 A cardinal principle of statutory construction is that the language used by Congress is to be given\nprimary weight See, e.g.. Southeastern Community College v Davis, 442 U.S. 397, 405 (1979); InternaContinued\n\n287\n\n\x0cbe contrary to the natural inference to be drawn from the placement of\ncommas around the clause referring to a federal agency having investi\xc2\xad\ngative \xe2\x80\x9cresponsibility,\xe2\x80\x9d which renders that clause clearly a subordinate,\nself-contained part of the sentence. No language renders the subordi\xc2\xad\nnate clause an express qualification on the sentence\xe2\x80\x99s main proposition\nthat the FBI may be authorized to participate in interceptions directed\nat the listed offenses. It would have been simple to provide, had it been\nCongress\xe2\x80\x99 intent to do so, that the FBI may participate in courtapproved interceptions only in those instances where it has investiga\xc2\xad\ntive \xe2\x80\x9cresponsibility\xe2\x80\x9d for a given offense and not in those where another\nfederal agency has such \xe2\x80\x9cresponsibility.\xe2\x80\x9d 3\nII.\nSection 2516(l)\xe2\x80\x99s legislative history lends support to its \xe2\x80\x9cplain mean\xc2\xad\ning\xe2\x80\x9d interpretation. The Senate Judiciary Committee report, S. Rep.\nNo. 1097, 90th Cong., 2d Sess. 97 (1968), explains \xc2\xa72516(1) as follows:\nThe order of authorization may permit the Federal\nBureau of Investigation or the Federal agency having\nresponsibility for the investigation of the offense involved\nto intercept the wire or oral communication. The Depart\xc2\xad\nment of Justice under the leadership of the Attorney Gen\xc2\xad\neral must be the central focal point of any drive against\norganized crime, particularly in the collection, analysis,\nand dissemination of information. It is appropriate that no\nlimitation be placed on the investigations in which the\ninvestigative arm of the Department may participate. Or\xc2\xad\nganized crime has not limited itself to the commission of\nany particular offense. No limitation should be placed on\nthe Department of Justice.\nThis passage speaks of possible judicial authorization of interceptions by\n\xe2\x80\x9cthe Federal Bureau of Investigation or the Federal agency having\nresponsibility for the investigation of the offense. . . .\xe2\x80\x9d It does not\nindicate that the FBI must have general investigative responsibility for\na given offense before it may be authorized under \xc2\xa72516(1) to partici\xc2\xad\npate in an interception directed at such an offense. Moreover, by stating\nthat \xe2\x80\x9cno limitation\xe2\x80\x9d should be placed on the investigations in which the\ninvestigative arm of the Department of Justice may participate (other\ntional Brotherhood o f Teamsters v. Daniel, 439 U.S. 551, 558 (1979). A court is not \xe2\x80\x9cat liberty to imply\na condition which is opposed to the explicit terms of the statute. . . To [so] hold . . . is not to\nconstrue the A ct but to amend it.\xe2\x80\x9d Detroit Trust Co. v. The Thomas Barium, 293 U.S. 21, 38 (1934),\nquoted in Fedorenko v. United States, 449 U.S. 490, 514 (1981).\n3 Section 2516(l)\xe2\x80\x99s intention regarding the identity of the agencies that may execute an interception\norder is taken for granted in J. C arr, The Law of Electronic Surveillance, \xc2\xa7 5.02 at 243 (1977), which\nm erely quotes the provision\xe2\x80\x99s language in identifying such agencies: \xe2\x80\x9c \'the Federal Bureau o f Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the\napplication is made.\xe2\x80\x99 \xe2\x80\x9d\n\n288\n\n\x0cthan, presumably, any limitation mandated by the statutory language),\nthe report underscores the importance placed by the Committee on the\nFBI\xe2\x80\x99s ability generally to participate in court-approved interceptions\nunder \xc2\xa72516(1). To derive from \xc2\xa72516(1) a specific limitation on the\nFBI\xe2\x80\x99s authority to participate in interceptions that is not explicitly set\nforth in the provision would appear inconsistent with this legislative\nintent.4\nAdditional support for the \xe2\x80\x9cplain meaning\xe2\x80\x9d interpretation of \xc2\xa7 2516(1)\nderives from a study of predecessor wiretap bills. S. 1308, introduced in\nthe 88th Cong., 1st Sess. (1963), provided in pertinent part that the\nAttorney General or a specially designated Assistant Attorney General\nmay authorize an application for judicial permission for \xe2\x80\x9cthe Federal\nBureau of Investigation, or any federal agency having investigative\nresponsibility for the crimes set forth in this subsection,\xe2\x80\x9d to conduct\ninterceptions. The legislative history of S. 1308 includes a letter to the\nChairman of the Senate Judiciary Committee from the General Counsel\nof the Department of the Treasury, dated July 2, 1963, which discusses\nthis provision of S. 1308. The General Counsel objected to the fact that\nunder the provision either the FBI or the agency charged with investi\xc2\xad\ngating the listed offenses\xe2\x80\x94in particular, with investigating narcotics\noffenses, which then was the responsibility of the Treasury\xe2\x80\x94could be\nauthorized by a court to conduct interceptions. He stated that such\n\xe2\x80\x9coverlapping of authority would be undesirable. . . .\xe2\x80\x9d To prevent such\nan overlap, the General Counsel proposed alternative language provid\xc2\xad\ning that the FBI or another agency, \xe2\x80\x9cwhichever has the investigative\nresponsibility for a crime set forth in this subsection,\xe2\x80\x9d may be judicially\nauthorized to conduct an interception.\xc2\xae That alternative language was\nnot adopted by Congress.\nFurthermore, the two bills acknowledged in the legislative history of\n\xc2\xa72516(1) as the main sources of the wiretap legislation that was en\xc2\xad\nacted\xe2\x80\x94S. 675 and S. 2050, 90th Cong., 1st Sess. (1967) 6\xe2\x80\x94differed in a\ncrucial respect in the wording of the relevant provision. S. 675 pro\xc2\xad\nvided that \xe2\x80\x9cthe Federal Bureau of Investigation, or other Federal\nagency . . .\xe2\x80\x9d having investigative responsibility for certain offenses\n4The broad principle that \xe2\x80\x9cno limitation*\xe2\x80\x99 should be placed on the FBI\'s ability to participate in\ninterceptions is not inconsistent with the decision by the Attorney General, pursuant to 21 U.S.C.\n\xc2\xa7 871(a), to delegate general investigative jurisdiction over narcotics-related offenses to the D EA. The\nbroad principle stated in the Senate committee report expresses the intent underlying \xc2\xa7 2516(1), not the\nintent underlying other statutes such as 21 U S.C . \xc2\xa7 871(a). The latter statute authorizes the Attorney\nGeneral to \xe2\x80\x9cdelegate any o f his functions under this subchapter to any officer or employee of the\nDepartment o f Justice.\xe2\x80\x9d\n5The 1963 letter was later printed in Criminal Laws and Procedures: Hearings on S. 2187, S. 2188, 5.\n2189 et a l before the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary,\n89th Cong., 2d Sess. 10-11 (1966).\n*See S. Rep No. 1097, 90th Cong., 2d Sess. 66 (1968) (\xe2\x80\x9cTitle III is essentially a combination o f S.\n675 . . . and S. 2050. . . .\xe2\x80\x9d); 114 Cong. Rec 11755 (1968). S. 675 and S. 2050 are printed in\nControlling Crime Through More Effective Law Enforcement: Hearings on S 300, S. 552, S 580 et al.\nbefore the Subcomm. on Criminal Laws and Procedures o f the Senate Comm, on the Judiciary, 90th\nCong., 1st Sess. 76, 1003 (1967).\n\n289\n\n\x0cmay be authorized to conduct an interception directed at them (empha\xc2\xad\nsis added). The use of the word \xe2\x80\x9cother\xe2\x80\x9d in the quoted phrase suggests\nthat the FBI would have had to have general investigative responsibil\xc2\xad\nity for the listed offenses. Otherwise, it would have made no sense to\nrefer to another federal agency as the \xe2\x80\x9cother\xe2\x80\x9d agency having such\nresponsibility. However, the word \xe2\x80\x9cother\xe2\x80\x9d was not included in S. 2050,\nwhich spoke instead of \xe2\x80\x9cthe Federal Bureau of Investigation, or a\nFederal agency . . . .\xe2\x80\x9d having investigative responsibility (emphasis\nadded). The pertinent language of S. 2050\xe2\x80\x94not that of S. 675\xe2\x80\x94was\nultimately enacted.\nThus, the legislative history of \xc2\xa7 2516(1) supports the conclusion\nderived from the provision\xe2\x80\x99s plain language that Congress intended that\nthe FBI may be judicially authorized to engage in an interception\ndirected at any of the listed offenses, including narcotics offenses.\nIII.\nThis interpretation of \xc2\xa72516(1) must be tested against the contrary\narguments advanced in the memorandum of the FBI\xe2\x80\x99s Legal Counsel\nDivision. The memorandum relies not on the provision\xe2\x80\x99s language or\nlegislative history, but rather on a reading of United States v. Marion,\n535 F.2d 697 (2d Cir. 1976), and on an argument said to be based on\nthe general purposes of Title III.\nThe Legal Counsel Division\xe2\x80\x99s memorandum summarizes the Marion\nholding as follows:\nIn focusing on the investigative interests at the time of\ninterception, the Marion court requires separate orders, each\njustifying the agency\'s investigative jurisdiction, before inter\xc2\xad\nception is permitted. (Emphasis added.)\nThis reading of Marion suggests that under that decision each agency\nmust have general \xe2\x80\x9cinvestigative jurisdiction\xe2\x80\x9d over an offense before it\nmay participate in an interception under \xc2\xa72516(1). However, we are\nunable to find support for such a reading in the opinion itself. The\nprecise issue in Marion was whether the requirement of 18 U.S.C.\n\xc2\xa7 2517(5) for subsequent judicial approval of incidental interceptions of\ncommunications relating to offenses other than those specified in an\ninitial wiretap authorization applies to wiretaps initially authorized by\nan order of a state court.7 The court of appeals held that, in such cases,\nthe requirement of \xc2\xa7 2517(5) does apply. The court explained:\n7 Section 2517(5) provides:\nWhen an investigative o r law enforcement officer, while engaged in intercepting\nwire o r oral communications in the manner authorized herein, intercepts wire or oral\ncom munications relating to offenses other than those specified in the order of authori\xc2\xad\nzation or approval, the contents thereof, and evidence derived therefrom, may be\ndisclosed or used as provided in subsections (1) and (2) o f this section. Such contents\nand any evidence derived therefrom may be used under subsection (3) o f this section when\nContinued\n\n290\n\n\x0c. . . our holding does not \xe2\x80\x98call into question\xe2\x80\x99 the practice\nof joint federal-state wiretap investigations. Indeed, Title\nI ll\xe2\x80\x99s framers seem to have specifically envisioned co\xc2\xad\noperation among law enforcement authorities of different\njurisdictions where appropriate to enhance the effective\xc2\xad\nness of electronic surveillance operations . . . . If, for\nexample, federal officials called into an ongoing state\nwiretap operation learned at that time of communications\nrelating to separate federal offenses not specified in the\ninitial interception order, there would be little difficulty in\nobtaining the requisite subsequent approval pursuant to\n\xc2\xa72517. And where federal and state officers pursue an\ninvestigation jointly from its inception, we foresee little\ndifficulty for the appropriate federal officer to obtain a\nseparate order authorizing the interception of communica\xc2\xad\ntions relating to the federal offenses believed involved.8\nThis passage underscores that Marion involved \xc2\xa72517(5). It simply did\nnot deal with, and reached no conclusion about, the precise issue before\nus regarding \xc2\xa7 2516(1).\nA broader argument in the Legal Counsel Division\xe2\x80\x99s memorandum is\nthat a construction of \xc2\xa72516(1) permitting the FBI to participate in\ncourt-authorized interceptions relating to all offenses enumerated in that\nprovision would be in tension with Title Ill\xe2\x80\x99s underlying purposes,\nwhich include placing restrictions on interceptions in order to protect\ncitizens\xe2\x80\x99 privacy interests. To be consistent with such a purpose, courts\nhave noted that Title III should be carefully construed. See, e.g., United\nStates v. Giordano, 469 F.2d 522, 530 (4th Cir. 1972), affd, 416 U.S.\n505 (1974). The Legal Counsel Division suggests that in order to be\nconsistent with this. canon of careful construction, it is necessary to\ninterpret \xc2\xa7 2516(1) as not allowing the FBI to participate in an intercep\xc2\xad\ntion unless it has general investigative responsibility for the offense at\nwhich an interception is directed.\nWe agree that Title III, and hence \xc2\xa72516(1), must be carefully\nconstrued. We do not agree, however, that such a construction must\ninclude reading language into \xc2\xa72516(1) that is not there, especially\nwhen the legislative history shows that one of the two major bills\nauthorized or approved by a judge o f competent jurisdiction where such judge finds on\nsubsequent application that the contents were otherwise intercepted in accordance with the\nprovisions o f this chapter. Such application shall be made as soon as practicable. [Em\xc2\xad\nphasis added.]\n8 535 F.2d at 707. Cf. United States v. Manfredi, 488 F.2d 588, 601 (2d Cir. 1973), cert, denied 417\nU.S. 936 (1974) (noting that 18 U.S.C. \xc2\xa72517 authorizes disclosure to appropriate law enforcement\nofficials of evidence gained as a result o f an authorized wiretap, and concluding: \xe2\x80\x9c If such information\nmay be exchanged after the termination o f the surveillance, we perceive no reason why that informa\xc2\xad\ntion may not be disclosed to cooperating agencies contemporaneously with its interception \xe2\x80\x9d ); United\nStates v Masciarelti. 558 F.2d 1064, 1067-68 (2d Cir. 1977); United Stales v. Webster, 473 F. Supp. 586,\n600 (D. Md. 1979).\n\n291\n\n\x0cbefore Congress when it passed Title III contained language that would\nhave led to the result suggested by the Legal Counsel Division, but\nCongress did not adopt it. The most fundamental canon of statutory\nconstruction is that plain language should control, especially in the\nabsence of contrary legislative history.9 The Legal Counsel Division\nhas not pointed to such contrary legislative history. Nor have we\nbecome aware of any.\nFurthermore, although it is plain that in enacting Title III Congress\nwas sensitive to the need to protect citizens\xe2\x80\x99 privacy interests, it does\nnot follow from this alone that \xc2\xa72516(1) must be read in the manner\nsuggested by the Legal Counsel Division. The Senate Judiciary Com\xc2\xad\nmittee report states that \xe2\x80\x9c [t]o assure the privacy of oral and wire\ncommunications, title III prohibits all wiretapping and electronic sur\xc2\xad\nveillance by persons other than duly authorized law enforcement officers\nengaged in the investigation or prevention of specified types of serious\ncrimes, and only after authorization of a court order. . .\n(Emphasis\nadded). S. Rep. No. 1097, 90th Cong. 2d Sess. 66 (1968). In other\nwords, as long as the officers engaged in an interception are \xe2\x80\x9cduly\nauthorized\xe2\x80\x9d to do so and Title Ill\xe2\x80\x99s other requirements are met, the\npurpose of protecting the legitimate privacy interests would be satisfied.\nThus, the argument advanced by the Legal Counsel Division ultimately\nreturns us to the initial question that is the subject of this opinion: may\nthe FBI be \xe2\x80\x9cduly authorized\xe2\x80\x9d to participate in \xc2\xa72516(1) interceptions\nwhen the interception is directed at an offense listed in that subsection,\neven though the FBI lacks general investigative responsibility for the\noffense? The \xe2\x80\x9cpurposive\xe2\x80\x9d approach o f the Legal Counsel Division\xe2\x80\x99s\nmemorandum does not ultimately assist in answering that question.\nAnother argument might have been made to support the position of\nthe Legal Counsel Division. Section 2516(1) specifically refers to the\nprocedures in \xc2\xa72518 governing orders authorizing interceptions, and\n\xc2\xa7 2518(l)(a) states that an application must identify \xe2\x80\x9cthe investigative or\nlaw enforcement officer\xe2\x80\x9d making the application for an interception. 18\nU.S.C. \xc2\xa7 2510(7) defines the term \xe2\x80\x9cinvestigative or law enforcement\nofficer\xe2\x80\x9d to include \xe2\x80\x9cany officer o f the United States or of a State or\npolitical subdivision thereof, who is empowered by law to conduct investi\xc2\xad\ngations o f or to make arrests fo r offenses enumerated in this chapter, and\nany attorney authorized by law to prosecute or participate in the\nprosecution of such offenses . . .\n(Emphasis added.) It might be said\nthat \xc2\xa7\xc2\xa72518 and 2510(7), read together, contemplate that all officers\ncovered by an application for an interception must be \xe2\x80\x9cempowered by\n*A court interpreting a statute is bound by the 44 \xe2\x80\x98literal or usual meaning of its words\' \xe2\x80\x9d unless this\nwould lead to " \xe2\x80\x98absurd results . . . o r would thw art the obvious purpose o f the statute.\' . . \xe2\x80\x9d Trans\nAlaska Pipeline Rate Cases, 436 U .S. 631, 643 (1978), quoting Commissioner v. Brown, 380 U.S. 563, 571\n(1965). See also Southeastern Community College v. Davis, 442 U .S. 397, 405 (1979); Detroit Trust Co. v.\nThe Thomas Barium, 293 U.S. 21, 38 (1934), quoted in Fedorenko v. United States, 449 U .S 490, 514\n(1981).\n\n292\n\n\x0claw\xe2\x80\x9d other than \xc2\xa7 2516(1) to investigate an offense for which an inter\xc2\xad\nception authorization is sought.\nThe weakness in this argument is that it simply presupposes its\nconclusion: it assumes that an \xe2\x80\x9cinvestigative or law enforcement offi\xc2\xad\ncer\xe2\x80\x9d for purposes of \xc2\xa7 2518 could not be, in the context of an intercep\xc2\xad\ntion under \xc2\xa72516(1) directed at narcotics offenses, an officer of the\nFBI. That is, of course, the question to be answered. It cannot be\nresolved simply by stating conclusorily that \xc2\xa7 2516(1) could not be read\nto empower the FBI to participate in court-approved interceptions\ndirected at the offenses listed in it. As noted above, under \xc2\xa72516(l)\xe2\x80\x99s\nmost natural reading it in fact does authorize the FBI to participate in\ncourt-approved interceptions directed at any of the offenses listed in it.\nIV.\nFor all the reasons stated in this opinion, we do not read \xc2\xa7 2516(1) to\nrequire the FBI to have general investigative responsibility for an\noffense listed in that subsection before the FBI may be judicially au\xc2\xad\nthorized to participate in an interception directed at such an offense,\nincluding narcotics offenses. Accordingly, in the type of case that gave\nrise to your opinion request to this Office, we conclude that, under\n\xc2\xa72516(1), the FBI may be judicially authorized to participate in a\ncourt-approved interception directed at an offense noted in that provi\xc2\xad\nsion.\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n293\n\n\x0c'


b'Relocation Deadline Provision Contained in the 1996 Omnibus\nConsolidated Rescissions and Appropriations Act\nRequirement in the Appropriations Act that the United States Information Agency relocate the Office\nof Cuba Broadcasting to south Florida by a date almost a month before the Act was signed into\nlaw constitutes a technical or typographical error, and USIA is entitled to obligate the funds appro\xc2\xad\npriated in the provision, even though it is unable to turn back the clock and comply with the\nprovision\xe2\x80\x99s literal deadline.\n\nMay 21, 1996\nM e m o r a n d u m O p in io n\n\nfor th e\n\nB r o a d c a s t in g B o a r d\n\nof\n\nC h a ir m a n\n\nG overnors\n\nThis is in response to your request for advice concerning the interpretation of\na provision contained in title IV of the Omnibus Consolidated Rescissions and\nAppropriations Act, Pub. L. No. 104-134, 110 Stat. 1321, 1321-43 (1996)\n(\xe2\x80\x9c Act\xe2\x80\x9d ) (the provision at issue is herein referred to as \xe2\x80\x9c the provision\xe2\x80\x9d ). See\nLetter for Walter E. Dellinger, Assistant Attorney General, Office of Legal Coun\xc2\xad\nsel, from David W. Burke, Chairman, Broadcasting Board of Governors (May\n2, 1996). Specifically, you have asked whether the United States Information\nAgency (\xe2\x80\x9c USIA\xe2\x80\x9d ) is entitled at this time to spend monies appropriated under\nthe provision, whether the provision requires the relocation of the Office of Cuba\nBroadcasting\xe2\x80\x99s (\xe2\x80\x9c OCB\xe2\x80\x9d ) headquarters to south Florida, and whether the accounts\ncited in the provision as being available to finance the relocation are currently\navailable for that purpose.\nThe provision provides a fiscal year 1996 appropriation to USIA to carry out\nactivities authorized under various public laws relating to international broad\xc2\xad\ncasting by the United States. The provision states in pertinent part:\nFor expenses necessary to enable the United States Information\nAgency to carry out the Radio Broadcasting to Cuba Act, as amend\xc2\xad\ned, the Television Broadcasting to Cuba Act, and the International\nBroadcasting Act of 1994 . . . $24,809,000 . . . Provided, That\nnot later than April 1, 1996, the headquarters o f the Office o f Cuba\nBroadcasting shall be relocated from Washington, D.C. to south\nFlorida, and that any funds available under the headings \xe2\x80\x9c Inter\xc2\xad\n\nnational Broadcasting Operations,\xe2\x80\x9d \xe2\x80\x9c Broadcasting to Cuba,\xe2\x80\x9d and\n\xe2\x80\x9c Radio Construction\xe2\x80\x9d may be available to carry out this relocation.\nPub. L. No. 104-134, 110 Stat. at 1321-43 (emphasis added).\nAs your letter makes clear, because the Act was signed into law on April 26,\n1996, almost one month after the date upon which OCB\xe2\x80\x99s headquarters must be\n209\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nrelocated to south Florida under the literal terms of the provision\xe2\x80\x99s relocation\ndeadline, these literal terms cannot be satisfied. For the reasons stated below, how\xc2\xad\never, we conclude that USIA is at this time nevertheless entitled to spend funds\nappropriated under the provision. In addition, we conclude that the relocation of\nOCB\xe2\x80\x99s headquarters to south Florida is mandatory under the appropriation. Fi\xc2\xad\nnally, we conclude that, despite USIA\xe2\x80\x99s inability to comply with the literal terms\nof the provision\xe2\x80\x99s relocation deadline, it may at this time access funds contained\nin the International Broadcasting Operations, Broadcasting to Cuba, and Radio\nConstruction accounts in order to cover expenses associated with relocating OCB\xe2\x80\x99s\nheadquarters to south Florida. These conclusions are premised on observance of\nthe statutory mandate to relocate OCB\xe2\x80\x99s headquarters to south Florida. We decline\nto address at this time, however, the time period within which the relocation must\nbe accomplished.\nI. Discussion\n\nThe pre-eminent principle of statutory interpretation, as most recently expressed\nby the Supreme Court, is that where Congress has \xe2\x80\x9c spoken to the precise question\nat issue,\xe2\x80\x9d agencies and courts are bound by the terms of the statute as written.\nChevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,\n842 (1984). Here, the appropriations provision under review speaks plainly and\nprecisely, imposing an April 1, 1996 deadline on the relocation of OCB\xe2\x80\x99s head\xc2\xad\nquarters to south Florida. We conclude, however, that the exceptional aspects of\nthis provision and its enactment history justify a narrow exception to the principle\nenunciated in Chevron to correct what manifestly appears to be a technical or\nclerical error.\nAccording to a General Accounting Office (\xe2\x80\x9c GAO\xe2\x80\x9d ) treatise on Appropriations\nlaw:\nA statute may occasionally contain what is clearly a technical or\ntypographical error which, if read literally, could alter the meaning\nof the statute or render execution effectively impossible. In such\na case, if the legislative intent is clear, the intent will be given\neffect over the erroneous language.\n1 Office of the General Counsel, United States General Accounting Office, Prin\xc2\xad\nciples o f F ederal Appropriations Law 2-74 (2d ed. 1991). Courts have embraced\nthe GAO\xe2\x80\x99s view regarding such statutes. In Fleming v. Salem Box Co., 38 F.\nSupp. 997 (D. Or. 1940), the court gave effect to what it determined to be the\ntrue intent of Congress when confronted with a clerical error that, if adhered to,\ncould not have been reconciled with the statute\xe2\x80\x99s legislative history. The court\nstated that \xe2\x80\x9c [a] palpable clerical error clearly shown should not override legisla210\n\n\x0cR elocation D eadline P rovision C ontained in the 1996 O m nibus C onsolidated R escissions a n d\nA ppropriations A c t\n\ntive intention.\xe2\x80\x9d Id. at 998. In Ronson Patents Corp. v. Sparklets Devices, Inc.,\n102 F. Supp. 123 (E.D. Mo. 1951), the court determined that a statute extending\nthe term of a patent was not invalid despite the existence of an error in the patent\xe2\x80\x99s\nreissue date. According to the court, \xe2\x80\x9c if the error in a legislative act is apparent\non the face of the act and can be corrected by other language of the act, it is\nnot fatal.\xe2\x80\x9d Id. at 124.1 The fact that the provision\xe2\x80\x99s literal terms require USIA\nto satisfy a condition that is beyond the realm of possibility strongly suggests\nthat the provision contains an error of the type contemplated by the \xe2\x80\x9c technical\nor clerical error\xe2\x80\x9d line of cases.\nThe \xe2\x80\x9c technical or clerical error\xe2\x80\x9d doctrine directs courts, when necessary, to\nlook beyond a statute\xe2\x80\x99s literal language to the statute\xe2\x80\x99s legislative history to fash\xc2\xad\nion an interpretation that is consistent with Congress\xe2\x80\x99s intention in passing the\nstatute. We will, therefore, attempt such an exercise with respect to the provision\xe2\x80\x99s\nApril 1, 1996 relocation deadline. Our research reveals that Senator Gramm ini\xc2\xad\ntially introduced the requirement that OCB\xe2\x80\x99s headquarters be relocated to south\nFlorida by April 1, 1996 as an amendment to the Senate\xe2\x80\x99s version of H.R. 2076,\nthe Department of Commerce, Justice, and State, the Judiciary, and Related Agen\xc2\xad\ncies Appropriations Act, 1996. 141 Cong. Rec. S14,539-40 (daily ed. Sept. 28,\n1995).2 On September 28, 1995, the same day the amendment was introduced,\nit was incorporated by unanimous consent into the version of H.R. 2076 then\npending before the Senate. Id. at S I4,540. On the following day, September 29,\n1995, the Senate passed its version of H.R. 2076, as amended. Id. at S I4,697\n(daily ed. Sept. 29, 1995).\nA slightly modified version of Senator Gramm\xe2\x80\x99s amendment emerged from con\xc2\xad\nference with the House of Representatives, see 141 Cong. Rec. H13.885 (daily\ned. Dec. 4, 1995), and was included in the version of H.R. 2076 that was passed\nby both houses of Congress on December 6 and 7, 1995. Id. at H14,112 (daily\ned. Dec. 6, 1995); id. at S I8,182-83 (daily ed. Dec. 7, 1995). The relocation\nlanguage that emerged from conference and was approved by both houses as part\nof H.R. 2076 was identical to the relocation language contained in the provision.\nIn describing the relocation language that emerged from the conference on H.R.\n2076, the joint explanatory statement on the conference agreement stated:\n1Although the Supreme Court has not had an occasion to review a decision regarding technical o r clerical errors\no f this kind, it has acknowledged that Chevron\'s teaching with regard to the literal meaning o f a statute is subject\nto some exceptions. Recognizing in Green v. Bock Laundry Machine Co., 490 U.S. 504, 510 (1989), that a literal\ninterpretation o f Fed. R. Evid. 609(a)(1) would cause an \'"unfathomable\xe2\x80\x9d result (i.e., the <4den[ial to] a civil plaintiff\n[of] the same right to impeach an adversary\'s testimony that [the rule] grants to a civil defendant\xe2\x80\x9d ), it held that\nthe rule should be read in a manner consistent with Congress\xe2\x80\x99s intention in enacting it, which requires that the\nword \xe2\x80\x9c defendant" be interpreted to refer solely to \xe2\x80\x9c crim inal\xe2\x80\x9d defendants. 490 U.S. at 521.\n2 The amendment introduced by Senator Gramm modified H.R. 2076 to add the following language to the section\nappropriating funds for Broadcasting to Cuba:\nProvided further, That not later than April 1, 1996, the headquarters of the Office o f Cuba Broadcasting\nshall be relocated from W ashington, D.C. to south Florida, and that any funds available to the United\nStates Information Agency may be available to carry out this relocation.\xe2\x80\x9d\nId. at S 14,558.\n\n211\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe conference agreement includes $24,809,000 for Broadcasting\nto Cuba under a separate account, as proposed by the Senate, in\xc2\xad\nstead of within the total for International Broadcasting Operations,\nas proposed by the House.\nThe agreement also includes language requiring the relocation\nof the headquarters of the Office of Cuba Broadcasting from Wash\xc2\xad\nington, D.C., to south Florida by April 1, 1996, and permits funds\nfrom three accounts, International Broadcasting Operations, Broad\xc2\xad\ncasting to Cuba, and Radio Construction, to be used to carry out\nthe relocation. The Senate bill proposed the relocation, but allowed\nany USIA funds to be used to carry out the relocation. The House\nbill contained no similar provision.\n141 Cong. Rec. H I3,923 (daily ed. Dec. 4, 1995); H.R. Conf. Rep. No. 104378, at 148-49(1995).\nBecause the President vetoed H.R. 2076, see 141 Cong. Rec. D1491 (daily ed.\nDec. 19, 1995), and Congress was unable to override his veto, H.R. 2076 was\nnever enacted. Subsequently Congress and the President reached agreement on\nthe bulk of the fiscal year 1996 appropriations that were originally included in\nH.R. 2076, and these appropriations and other provisions from H.R. 2076 were\nincluded in H.R. 3019. H.R. 3019 contained H.R. 2076\xe2\x80\x99s relocation language, with\nno adjustment in the relocation date. On April 25, 1996, the House and Senate\npassed H.R. 3019 with this language in it, including the April 1, 1996 relocation\ndeadline, see 142 Cong. Rec. 9141 (1996); id. at 9218, and President Clinton\nsigned it on April 26, 1996. See 142 Cong. Rec. D386 (daily ed. Apr. 29, 1996).\nOn the basis of the original passage of H.R. 2076 on December 6 and 7, 1995,\nCongress intended OCB\xe2\x80\x99s headquarters to be relocated to south Florida, was will\xc2\xad\ning to allow funds contained in USIA\xe2\x80\x99s International Broadcasting Operations,\nBroadcasting to Cuba, and Radio Construction accounts to finance the relocation,\nand was prepared to allow approximately four months for the relocation to be\naccomplished. The retention of the relocation and related language in H.R. 3019\nindicates that Congress\xe2\x80\x99s intention as to the relocation and its financing had not\nchanged in the intervening period between December, 1995 and the passage of\nH.R. 3019, and there is no other evidence of any kind to suggest that it had\nchanged. The manifest intention of Congress, thus, is that OCB\xe2\x80\x99s headquarters\nbe relocated by som e date, that the relocation be financed through the USIA ac\xc2\xad\ncounts specified above, and that the relocation be a condition on the expenditure\nof certain appropriated funds. Under these circumstances, we believe the retention\nof the April 1, 1996 relocation deadline\xe2\x80\x94 compliance with which had become\na temporal impossibility by the provision\xe2\x80\x99s date of enactment\xe2\x80\x94 was the result\n212\n\n\x0cR elocation D eadline P rovision C ontained in the 1996 O m nibus C onsolidated R escissions a n d\nA ppropriations A ct\n\nof a technical error in failing to revise the relocation deadline prior to the passage\nof H.R. 3019.\nFinally, in many other cases of correcting a technical or clerical error, a sub\xc2\xad\nstitute for the erroneous term is obvious or apparent from the context. Cf. A ppro\xc2\xad\npriations to Pay Supervision o f Election, 1 Comp. Dec. 1 (1894) (holding that\nan appropriation providing funds in connection with an election held on November\n\xe2\x80\x9c 5th,\xe2\x80\x9d 1890 could be used to make payments associated with an election held\non November 4, 1890, where it was clear that November \xe2\x80\x9c 5th\xe2\x80\x9d was a typo\xc2\xad\ngraphical error and Congress intended to make the funds available to support the\nNovember 4 election). Here, several plausible alternatives seem available. In this\ncircumstance, we leave to USIA, the agency administering the appropriation in\nthe first instance, the responsibility for determining a compliance date that is con\xc2\xad\nsistent with Congress\xe2\x80\x99s intention.\nII. Conclusion\nBased on the foregoing, we conclude that USIA is entitled at this time to obli\xc2\xad\ngate the funds appropriated in the provision, even though it is unable to turn back\nthe clock and comply with the provision\xe2\x80\x99s literal deadline for relocating OCB\xe2\x80\x99s\nheadquarters to south Florida. We also conclude that the relocation of OCB\xe2\x80\x99s\nheadquarters to south Florida is mandatory under the appropriation. Finally, we\nconclude that USIA may use funds available under the account headings specified\nin the provision to finance the relocation.\nRICHARD L. SHIFFRIN\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n213\n\n\x0c'


b'Payment of Legal Fees in Connection With a\nCabinet Member\xe2\x80\x99s Confirmation Hearings\nLegal expenses incurred in connection with a Cabinet member\xe2\x80\x99s Senate confirmation\nhearings would be an appropriate subject o f payment from funds authorized under the\nPresidential Transition A ct, and may also, consistent with that Act, be paid from\nprivate sources.\nPayment o f legal fees incurred in connection with the confirmation process by a private\nfoundation would not be considered to supplement a Cabinet member\xe2\x80\x99s salary in\nviolation o f 18 U.S.C. \xc2\xa7 209, since the purpose and value of the services rendered were\ndirected primarily to the government.\n\nMay 13, 1981\nMEMORANDUM OPINION\nOur views have been requested on the propriety under 18 U.S.C.\n\xc2\xa7 209 of a proposed payment by a private foundation1 of legal fees\nincurred in connection with the Senate confirmation hearings of a\nmember of the Cabinet. We understand that the lawyer was retained\nafter consultations between the office of the President-elect and a\nMember of Congress, and that the lawyer\xe2\x80\x99s fee is not and was never\nintended to be the personal obligation of the nominee. We also under\xc2\xad\nstand that the lawyer\xe2\x80\x99s services were rendered before and during the\nnominee\xe2\x80\x99s confirmation hearings and that all services were rendered\nbefore the current Administration took office.\nOur conclusions can be summarized as follows:\n(1) The payment of legal fees incurred in connection with a\nconfirmation hearing serves a legitimate governmental func\xc2\xad\ntion cognizable under the Presidential Transition Act.\n(2) The availability of public funding under the Transition Act\ndoes not preclude additional transition funding from private\nsources.\n(3) Since the purpose and value of these legal services were\ndirected primarily to the government, payment of the legal fee\nby a private party should not be considered a supplementation\nof the employee\xe2\x80\x99s salary for purposes of 18 U.S.C. \xc2\xa7209.\nA c c o rd in g to its bylaws, the foundation is a nonprofit corporation established in the District of\nColum bia \xe2\x80\x9cto facilitate an orderly transfer o f the power of the executive branch of the United States\ngovernm ent from the Administration o f the incumbent President to the Administration of the Presi\xc2\xad\ndent-elect . . .\n\n126\n\n\x0cBefore addressing the propriety of this proposed payment under\n\xc2\xa7 209, we will examine it in light of the Presidential Transition Act of\n1963, Pub. L. No. 88-277, 78 Stat. 153, as amended by Pub. L. No. 94499, 90 Stat. 2380, October 14, 1976 (reprinted in note following 3\nU.S.C. \xc2\xa7 102). This Act promotes the orderly transfer of executive\npower during a presidential transition by authorizing the Administrator\nof the General Services Administration (GSA) to provide to a President-elect necessary services and facilities for use prior to January 20 in\nconnection with preparations for the assumption of official duties. The\nGSA Administrator is specifically authorized, by \xc2\xa7 3(a)(3) of the Transi\xc2\xad\ntion Act, to pay expenses for the services of consultants,2 and we see no\nreason why a legal consultant of this type could not have been paid\nwith government funds pursuant to the Transition Act.3\nThe availability of Transition Act funds for a particular purpose does\nnot necessarily preclude the funding of that same function from a\nprivate source. Although the Comptroller General has issued a consid\xc2\xad\nerable body of opinions generally repudiating the unauthorized augmen\xc2\xad\ntation of agency appropriations, see, e.g., 46 Comp. Gen. 689 (1967), we\ndo not think that those opinions are controlling in this situation. Neither\nthe President-elect nor his transition staff are government employees,4\nand the Transition Act does not create a federal transition agency.\nInstead, it provides for the appropriation of money to a federal agency\n(GSA), to be disbursed according to certain criteria. There is no indica\xc2\xad\ntion in the Transition Act or its legislative history that demonstrates a\ncongressional intent to limit a President-elect\xe2\x80\x99s transition activities to\nthose funded by the GSA transition appropriation.5 In fact, when the\nAct was amended in 1976 to increase the amount of the authorization\nfor transition funds, the House report quoted extensively from a GAO\nstudy that showed that in the past only a small portion of the actual\ntransition expense was paid from the U.S. Treasury. In recommending\nthat the appropriation be increased,6 the GAO report stated:\n2The Transition Act provides that consultants shall be paid pursuant to the Administrative Ex\xc2\xad\npenses Act of 1946, as amended (S U.S.C. \xc2\xa7 3109). Among other things, this Act places a ceiling on the\nsalary rate paid to consultants This salary limitation clearly would apply if the lawyer\xe2\x80\x99s fees were paid\nby GSA.\n3 Had the same legal services been required after the Administration took office, they might have\nbeen provided by government lawyers or by private lawyers retained at government expense. Al\xc2\xad\nthough the use o f government funds or personnel to assist nominees in the confirmation process would\ndepend upon the language and purpose of relevant appropriation statutes, as a general matter, such\nexpenditures have been considered necessary government expenditures\n4See \xc2\xa7 36(a)(2) of the Transition Act supra. O f course, federal employees who are \xe2\x80\x9cdetailed\xe2\x80\x9d to\nassist the President-elect in transition do retain their status as federal employees.\n&There is little doubt that Congress did intend to limit federal transition expenditures to the amount\nauthorized and appropriated to the GSA for this purpose. See, e.g., S. Rep. No. 1322, 94th C o n g , 1st\nsess. 2 (1976).\n6 It should be noted that even the increased appropriation would not have covered the full\nexpenditures o f the immediately preceding transition as reported by G AO\n\n127\n\n\x0cIt is our belief, however, that if the Presidential Transition\nA ct is to function as intended, the Federal assistance must\ncover a substantial part of the Transition expenses.\nQuoted in H. Rep. No. 1442, 94th Cong., 1st Sess. 4 (1976) (emphasis\nadded). It is clear from the House report that Congress was aware of\nthe custom of augmenting the transition appropriation with private\nfunds. Since neither the A ct nor its legislative history indicate an intent\nto eliminate this practice, and in light of the language adopted from the\nGAO report, we conclude that the public funding of transition was not\nintended to preclude private funding of transition activities.\nWe now turn to the question of whether the payment of this particu\xc2\xad\nlar transition expense by a private group would violate 18 U.S.C. \xc2\xa7 209.\nAs you know, \xc2\xa7 209 prohibits the payment or receipt from any source\nother than the government of any salary, contribution to or\nsupplementation of salary, as compensation for the services of an officer\nor employee of the Executive Branch. The term salary is not defined\nby the statute.\nOne source of guidance on the meaning o f \xe2\x80\x9csalary\xe2\x80\x9d in \xc2\xa7 209 is the\nadministrative interpretations given to the term by the various federal\nagencies. This administration case law tends to give fairly broad mean\xc2\xad\ning to the term \xe2\x80\x9csalary,\xe2\x80\x9d 7 but it does not supply an answer or a ready\nformula to apply in this case. In the final analysis, the determination\nwhether a particular fringe benefit constitutes \xe2\x80\x9csalary\xe2\x80\x9d is a matter of\njudgment based on the full circumstances and intent of the parties. See\n41 Op. A tt\xe2\x80\x99y Gen. 217 (1955).\nIn this case, it is our judgment that the proposed payment would not\nconstitute a supplementation of the employee\xe2\x80\x99s salary. In reaching this\nconclusion we note that the foundation\xe2\x80\x99s primary purpose to assist the\nPresident-elect is evident from its very charter; that this purpose is a\nlegitimate function for a private foundation;8 and that the foundation is\nnot, and has never been, in an employment relationship with the\nmember of the Cabinet. Furthermore, we are convinced that any per\xc2\xad\nsonal benefit to the employee from these legal services was incidental\nand secondary to the intended benefit conferred upon the President\xc2\xad\nelect and his Administration. In addition, if the government had pro\xc2\xad\nvided these same legal services (see text accompanying footnote 3) it is\ndoubtful that the value of the services would be considered part of the\nemployee\xe2\x80\x99s salary.\n1See discussion in B. Manning, Federal Conflict o f Interest Laws 160-163 (1964), reviewing adminis\xc2\xad\ntrative decisions that define salary to include tuition fees, travel and professional expenses, and various\nhonoraria See also 18 U.S C. \xc2\xa7 209(e), which creates a narrow exception to the administrative decision\nthat \xc2\xa7 209 bars the payment of moving expenses by a former employer.\n8As discussed previously, the foundation\xe2\x80\x99s purpose to assist the transition is not at odds with the\nTransition A ct o f 1963 or the principle of fixed appropriations. We also note that in A dvisory Opinion\n1980-97 the Federal Election Commission (FE C ) concluded that the establishment of a Presidential\nTransition T rust to pay for pre-election transition activities was lawful under the Federal Election\nCampaign A ct o f 1971 and F E C regulations.\n\n128\n\n\x0cThere is a line of Comptroller General decisions holding that an\nofficer or employee has on his shoulders \xe2\x80\x9cthe duty of qualifying himself\nfor the performance of his official duties.\xe2\x80\x9d 22 Comp. Gen. 460, 461\n(1942). See also 51 Comp. Gen. 701 (1972) (disallowing the govern\xc2\xad\nment\xe2\x80\x99s payment of bar admission fees) and 31 Comp. Gen. 465 (1952),\n22 Comp. Gen. 243 (1942) (both disallowing government payment for\npre-employment medical examinations). In our view, legal fees incurred\nin connection with the confirmation process are not analogous to these\nother personal costs of job qualification. As discussed earlier, the con\xc2\xad\nfirmation process involves overriding governmental interests of a mag\xc2\xad\nnitude not present in the decisions cited above. In addition, the cited\nComptroller General decisions involve expenditures that benefit the\nemployee in a personal capacity, while the legal services at issue will\nbenefit the employee primarily in an official capacity.\nFor reasons stated above, we conclude that the proposed payment of\nlegal fees by a private foundation would not violate 18 U.S.C \xc2\xa7209.\nT heodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n129\n\n\x0c'