b'Applicability of 18 U.S.C. \xc2\xa7\xc2\xa7 212 and 213 to FDIC Examiners\xe2\x80\x99\nObtaining of Credit Cards From State-Chartered FDICInsured Nonmember Banks\nP ro p o sed F D IC regulations allowing F D IC exam iners to obtain credit cards from insured state non\xc2\xad\nm em b er ban k s (subject to the condition that those exam iners are not authorized to exam ine the\nb anks that have issued the cards) are consistent w ith the provisions o f 18 U .S.C. \xc2\xa7\xc2\xa7 212 and 213,\np ro h ib itin g loans betw een a bank ex am in er and banks w hich th at exam iner exam ines, o r has the\nauthority to exam ine.\n\nJanuary 12, 1988\nM\n\nem orandum fo r th e\n\nE x e c u t iv e S e c r e t a r y\n\nF e d e r a l D e p o s i t I n s u r a n c e C o r p o r a t io n\n\nThis memorandum responds to your letter of September 14, 1987, as revised,\nrequesting our views on proposed Federal Deposit Insurance Corporation\n(\xe2\x80\x9cFDIC\xe2\x80\x9d) regulations that would authorize FDIC examiners to obtain credit cards\nfrom certain state-chartered FDIC-insured banks that are not members of the Fed\xc2\xad\neral Reserve System (\xe2\x80\x9cinsured state nonmember banks\xe2\x80\x9d). Specifically, you asked\nwhether the proposed regulations would be consistent with the provisions of 18\nU.S.C. \xc2\xa7\xc2\xa7 212 and 213, prohibiting loans between a bank examiner and banks\nwhich that examiner examines, or has the authority to examine. Subsequently,\nby letter dated December 11, 1987, FDIC Special Counsel F. Douglas Birdzell\ntransmitted a revised version of the proposed regulations. Our analysis is based\non those revised regulations. For the reasons set forth below, we conclude that\nthe proposed regulations would not run afoul of the prohibitions found in 18\nU.S.C. \xc2\xa7\xc2\xa7212 and 213.\nAnalysis\nAt issue is the scope of the prohibitions contained in 18 U.S.C. \xc2\xa7\xc2\xa7212 and\n213. Section 212 prohibits an officer, director, or employee of a bank which is a\nmember of the Federal Reserve System or insured by the FDIC from making a\nloan to an examiner who \xe2\x80\x9cexamines or has authority to examine\xe2\x80\x9d the bank. Sec\xc2\xad\ntion 213 complements section 212 by prohibiting a bank examiner from accept\xc2\xad\n14\n\n\x0cing a loan from \xe2\x80\x9cany bank, corporation, association or organization examined by\nhim or from any person connected therewith.\xe2\x80\x9d \'\nThe rule against examiner borrowing embodied in sections 212 and 213 was\nfirst promulgated as section 22 of the Federal Reserve Act of 1913, 38 Stat. 251,\n272, and was intended to \xe2\x80\x9cproscribe certain financial transactions which could\nlead to a bank examiner carrying out his duties with less than total, unbiased ob\xc2\xad\njectivity.\xe2\x80\x9d United States v. Bristol, 473 F.2d 439, 442 (5th Cir. 1973). See also\nH.R. Rep. No. 6 9 ,63d Cong., 1st Sess. (1913). There is no provision in the statute\nor its legislative history that evinces a congressional intent to exempt any par\xc2\xad\nticular type of credit relationship, and the rule against examiner borrowing found\nin sections 212 and 213 has been applied to prohibit credit advanced through\ncredit cards, as well as through direct loans.2 Since both credit cards and direct\nloans have as their essential attribute the extension of credit,3 we also take the\nposition that sections 212 and 213 apply to credit cards issued by banks.\nCurrent FDIC regulations prohibit FDIC examiners from \xe2\x80\x9caccept[ing] or be\xc2\xad\ncom ing] obligated on any extension of credit, including credit extended through\nthe use of a credit card,\xe2\x80\x9d from an insured nonmember bank. 12 C.F.R. \xc2\xa7 336.16\n(1987) (\xe2\x80\x9csection 336.16\xe2\x80\x9d). Wfe understand that this prohibition generally does not\nencompass credit extended by member banks of the Federal Reserve System,\nsince member banks normally are examined by Federal Reserve System (in the\n\n1 Sections 212 and 213 provide in relevant part as follows:\nSec. 212. Offer o f loan or gratuity to bank examiner\nW hoever, being an officer, director or employee o f a bank which is a member of the Federal Re\xc2\xad\nserve System or the deposits o f which are insured by the Federal Deposit Insurance Corporation, or of\nany land bank. Federal land bank association or other institution subject to examination by a farm credit\nexaminer, or of any small business investment company, makes or grants any loan or gratuity, to any\nexaminer or assistant examiner who examines or has authority to examine such bank, corporation, or\ninstitution, shall be fined . or imprisoned . . . or both . . . .\nSec. 213. Acceptance o f loan or gratuity by bank examiner\nWhoever, being an examiner or assistant examiner o f member banks of the Federal Reserve Sys\xc2\xad\ntem or banks the deposits o f which are insured by the Federal Deposit Insurance Corporation, or a farm\ncredit examiner or examiner o f National Agricultural Credit Corporations, or an examiner of small\nbusiness investment companies, accepts a loan or gratuity from any bank, corporation, association or\norganization examined by him or from any person connected herewith shall be fined . . . or impris\xc2\xad\noned . . . or b o th . . . .\n2 Prior interpretations by the Office of Legal Counsel have presumed that sections 212 and 213 apply to credit\nextended through credit cards. See Memorandum for Hoyle L. Robinson, Executive Secretary, FDIC, from Leon\nUlman, Deputy Assistant Attorney General, Office o f Legal Counsel, Re Proposed Amendments to Regulations o f\nFDIC Relating to Bank Loans to Examiners (July 10,1980); Federal Reserve Board Policy on Bank Examiner Bor\xc2\xad\nrowing, 6 Op. O.L.C 509(1982).\n3 Consistent with this observation, we note that 15 U.S.C \xc2\xa7 1602 (which contains definitions applicable to fed\xc2\xad\neral consumer credit cost disclosure statutes) defines \xe2\x80\x9ccredit card\xe2\x80\x9d as \xe2\x80\x9cany card, plate, coupon book or other credit\ndevice existing fo r the purpose o f obtaining money, property, labor, or services on credit." 15 U.S.C. \xc2\xa7 1602(k)\n(emphasis added). Furthermore, 12 U.S.C. \xc2\xa7 1901 (which contains definitions applicable to federal credit control\nstatutes) defines \xe2\x80\x9cloan\xe2\x80\x9d as \xe2\x80\x9cany type o f credit, including credit extended in connection with a credit sale.\xe2\x80\x9d 12 U.S.C.\n\xc2\xa7 1901(]) (emphasis added).\n\n15\n\n\x0ccase of state member banks) or Comptroller of the Currency (in the case of fed\xc2\xad\nerally-chartered national banks) examiners\xe2\x80\x94 not by FDIC examiners.4\nThe proposed revision of section 336.16 would prohibit FDIC examiners from\n\xe2\x80\x9cbecom[ing] obligated on any extension of credit, including credit extended\nthrough the use of a credit card, from an insured state nonmember bank,\xe2\x80\x9d subject\nto two exceptions: (1) an examiner could, with the prior written consent of his or\nher supervisor, \xe2\x80\x9capply for and obtain credit cards issued by insured state nonmember banks located outside o f his or her region of official assignment,\xe2\x80\x9d sub\xc2\xad\nject to the condition that he or she would \xe2\x80\x9cbe disqualified from participating in\nany examination function regarding th[ose] credit card issuer[s]\xe2\x80\x9d; and (2) an ex\xc2\xad\naminer could, at the discretion o f his or her supervisor (to meet local examina\xc2\xad\ntion needs), receive credit cards or lines of credit from insured limited service\nstate nonmember banks, including limited service banks located within his or her\nregion o f official assignment, subject to the condition that he or she would \xe2\x80\x9cbe\ndisqualified from participating in any examination function regarding th[ose]\ncreditor[s].\xe2\x80\x9d The revised section 336.16 also would specify that if a change in an\nexam iner\xe2\x80\x99s assignment or bank structure resulted in an examiner\xe2\x80\x99s becoming ob\xc2\xad\nligated on an extension of credit secured through a credit card issued by an in\xc2\xad\nsured state nonmember bank (category (1)), the credit card would have to be can\xc2\xad\ncelled and any outstanding balance paid according to the card\xe2\x80\x99s terms, without\nrenegotiation. For as long as an outstanding balance remained, that examiner\nwould be disqualified from participating in any examination of the creditor bank.\nFinally, the revised section 336.16 would provide that in the case of a credit card\nor line o f credit obtained from an insured limited service state nonmember bank\n(category (2)) located within an examiner\xe2\x80\x99s region of official assignment, that\nexaminer would have to request the approval of his or her supervisor to retain the\ncredit card or line of credit.5\nIt is our opinion that the proposed revision of section 336.16 does not run afoul\nof the statutory prohibitions found in sections 212 and 213. Under the terms of\nthe proposed revision, FDIC examiners clearly do not examine\xe2\x80\x94 and are not au\xc2\xad\nthorized to examine\xe2\x80\x94 banks to which they are obligated for a credit card, line of\n\n4 See 12 U.S.C. \xc2\xa7 481 (providing for the examination o f national banks by Comptroller of the Currency exam\xc2\xad\niners); 12 U.S.C. \xc2\xa7 485 (providing for the examination o f member banks by Federal Reserve examiners); 12 U S C.\n\xc2\xa7 1820(b) (providing for the examination o f insured state nonmember banks by FDIC examiners). 12 U.S C.\n\xc2\xa7 1820(b) also authorizes the FDIC to examine state member banks and national banks, \xe2\x80\x9cwhenever in the judgment\no f the [FD IC \xe2\x80\x99s] Board o f Directors such special examination is necessary to determine the condition o f any such\nbank for insurance purposes.\xe2\x80\x9d The current version o f section 336.16 accommodates such \xe2\x80\x9cspecial purpose\xe2\x80\x9d exam\xc2\xad\ninations, consistent with the statutory prohibitions of section 212 and 213, by prohibiting credit extension rela\xc2\xad\ntionships between \xe2\x80\x9cassessment auditor[s]\xe2\x80\x9d charged with auditing banks \xe2\x80\x9cfor deposit insurance assessment purposes\xe2\x80\x9d\nand the banks that are being audited Because the latter category o f audited banks is not defined restrictively, it en\xc2\xad\ncom passes state m ember banks and national banks as well as state nonmember banks.\n5 W e understand, o f course, that even if he o r she received such approval, the disqualification against partici\xc2\xad\npation in an examination (category (2)) would remain in effect.\n\n16\n\n\x0ccredit, or direct loan.6 The requirement that an FDIC examiner receive supervi\xc2\xad\nsory approval before obtaining any extension of credit from an insured state non\xc2\xad\nmember bank\xe2\x80\x94 and that such approval be conditioned upon disqualification from\nexamination of the bank in question\xe2\x80\x94ensures adherence to the prohibitions of\nsections 212 and 213. Furthermore, the proposed revision contains a prophylac\xc2\xad\ntic measure that prevents examiner reassignments or bank structural changes from\naccidentally placing examiners in the position of being authorized to examine (or\nactually examining) banks to which they are indebted. In short, the revised sec\xc2\xad\ntion 336.16 is fully in line with the standards set forth in sections 212 and 213.\nConclusion\nFor the foregoing reasons, we conclude that proposed FDIC regulations al\xc2\xad\nlowing FDIC examiners to obtain credit cards from insured state nonmember\nbanks (subject to the condition that those examiners are not authorized to exam\xc2\xad\nine the banks that have issued the cards) are consistent with the provisions o f 18\nU.S.C. \xc2\xa7\xc2\xa7 212 and 213, prohibiting loans between a bank examiner and banks\nwhich that examiner examines, or has the authority to examine.\nJohn O . M\n\nc G in n is\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n6\nThe FD IC\xe2\x80\x99s power to promulgate regulations specifying categories of banks that particular FDIC examiners\nare not authorized to examine would appear to flow naturally from 12 U.S.C. \xc2\xa7 1819, which, inter alia, authorizes\nthe FDIC \xe2\x80\x9c [t]o prescribe by its Board o f Directors such rules and regulations as it may deem necessary to carry out\nthe provisions o f this chapter or o f any other law which it has the responsibility of administering or enforcing.\xe2\x80\x9d\nInasmuch as the proposed section 336.16 enables the FDIC to \xe2\x80\x9cadminister\xe2\x80\x9d its examination responsibilities (set\nforth in 12 U.S.C. \xc2\xa7 1820(b)) in an efficient yet lawful manner, we believe that it is covered by the plain terms of\n12U S .C . \xc2\xa7 1819.\n\n17\n\n\x0c'


b'Applicability of Tax Levies to Thrift Savings Plan Accounts\nThrift Savings Plan accounts are subject to federal tax levies under sections 6331 and\n6334 of the Internal Revenue Code, notwithstanding a statute that, standing alone,\nwould protect such accounts from \xe2\x80\x9clevy\xe2\x80\x9d except as expressly provided in that statute.\nMay 3, 2010\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nINTERNAL REVENUE SERVICE\nYour office has asked whether Thrift Savings Plan (\xe2\x80\x9cTSP\xe2\x80\x9d) accounts,\nwhich permit tax-deferred retirement savings for certain federal employees, are subject to federal tax levies under sections 6331 and 6334 of the\nInternal Revenue Code, notwithstanding a statute that, standing alone,\nwould protect such accounts from \xe2\x80\x9clevy\xe2\x80\x9d except as expressly provided in\nthat statute. 1 We believe that TSP accounts are subject to federal tax\nlevies under the applicable statutes.\nI.\nYour question deals with the interaction between the federal tax levy\nprovisions of the Internal Revenue Code, see 26 U.S.C. \xc2\xa7\xc2\xa7 6321, 6331,\n6334 (2006), and a provision of the Federal Employees\xe2\x80\x99 Retirement\nSystem Act of 1986 (\xe2\x80\x9cFERSA\xe2\x80\x9d), 5 U.S.C.A. \xc2\xa7 8437(e)(2) (West 2007).\nThe Internal Revenue Code has long given broad authority to the\nTreasury Secretary to collect unpaid federal taxes (and associated interest, penalties, and costs) by levy. See Internal Revenue Code of 1954,\nPub. L. No. 83-591, \xc2\xa7\xc2\xa7 6331(a), 6334(c), 68A Stat. 1, 783, 785. Under\ncurrent Code provisions, \xe2\x80\x9c[i]f any person liable to pay any tax neglects or\nrefuses to pay the same after demand,\xe2\x80\x9d the amount of the liability, including interest and penalties, \xe2\x80\x9cshall be a lien in favor of the United States\nupon all property and rights to property, whether real or personal,\nbelonging to such person.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6321. If a taxpayer \xe2\x80\x9cliable to pay\nany tax neglects or refuses to pay the same within 10 days after notice and\n1 In addition to the views of your office and the Federal Retirement Thrift Investment\nBoard, we have considered views submitted by the Tax Division of the Department of\nJustice.\n\n157\n\n\x0c34 Op. O.L.C. 157 (2010)\n\ndemand,\xe2\x80\x9d the Treasury Secretary may \xe2\x80\x9ccollect such tax (and such further\nsum as shall be sufficient to cover the expenses of the levy) by levy upon\nall property and rights to property (except such property as is exempt\nunder section 6334) belonging to such person or on which there is a lien\nprovided in this chapter [which includes section 6321] for the payment of\nsuch tax.\xe2\x80\x9d Id. \xc2\xa7 6331(a). The code defines such levies to \xe2\x80\x9cinclude[] the\npower of distraint and seizure by any means\xe2\x80\x9d and states that \xe2\x80\x9c[i]n any case\nin which the Secretary may levy upon property or rights to property, he\nmay seize and sell such property or rights to property (whether real or\npersonal, tangible or intangible).\xe2\x80\x9d Id. \xc2\xa7 6331(b).\nSection 6334(a) does exempt specified categories of assets from levies.\nSince 1966, such exempt assets have included \xe2\x80\x9c[a]nnuity or pension\npayments under the Railroad Retirement Act, benefits under the Railroad\nUnemployment Insurance Act, special pension payments received by a\nperson whose name has been entered on the Army, Navy, Air Force, and\nCoast Guard Medal of Honor roll (38 U.S.C. 1562), and annuities based\non retired or retainer pay under chapter 73 of title 10 of the United States\nCode.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(a)(6) (codifying the Federal Tax Lien Act of\n1966, Pub. L. No. 89-719, \xc2\xa7 104(c)(2), 80 Stat. 1125, 1137). 2 Section\n6334(c) directs that \xe2\x80\x9c[n]otwithstanding any other law of the United States\n(including section 207 of the Social Security Act), no property or rights\nto property shall be exempt from levy other than the property specifically\nmade exempt by subsection (a).\xe2\x80\x9d Section 6334 makes no express exemption for TSP accounts.\nCongress enacted FERSA in 1986 to reform the retirement savings system for federal employees. See FERSA \xc2\xa7 100A, reprinted in 5 U.S.C.\n\xc2\xa7 8401 note (2006). Among other things, FERSA established the Thrift\nSavings Plan, which enables federal employees to hold individual retirement savings accounts in the Thrift Savings Fund, an investment fund\nmanaged by the Federal Retirement Thrift Investment Board (\xe2\x80\x9cFRTIB\xe2\x80\x9d).\nSee 5 U.S.C.A. \xc2\xa7\xc2\xa7 8432, 8437 (West 2007 & West Supp. 2009); 5 U.S.C.\n\xc2\xa7\xc2\xa7 8472, 8479(b) (2006). These accounts, commonly known as \xe2\x80\x9cThrift\nUnder section 6331(h) of the Code, certain payments otherwise covered by exemptions in section 6334(a), including \xe2\x80\x9cany annuity or pension payment under the Railroad\nRetirement Act or benefit under the Railroad Unemployment Insurance Act,\xe2\x80\x9d may be\nsubject to a tax levy, generally limited to fifteen percent of the payment,\n\xe2\x80\x9c[n]otwithstanding section 6334.\xe2\x80\x9d See 26 U.S.C. \xc2\xa7 6331(h).\n2\n\n158\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nSavings Plan\xe2\x80\x9d or \xe2\x80\x9cTSP\xe2\x80\x9d accounts, see 5 C.F.R. \xc2\xa7 1690.1 (2009), offer\nfederal employees a tax-deferred retirement savings opportunity similar\nto that offered to private-sector employees by so-called \xe2\x80\x9c401(k)\xe2\x80\x9d plans\nestablished under section 401(k) of the Internal Revenue Code, 26\nU.S.C.A. \xc2\xa7 401 (West Supp. 2009). See 5 U.S.C. \xc2\xa7 8440 (2006); see\nalso, e.g., Hewitt v. Thrift Sav. Plan, 664 F. Supp. 2d 529, 530 (D.S.C.\n2009) (describing the Thrift Savings Plan as \xe2\x80\x9ca retirement plan for certain\nfederal government employees that was designed to allow government\nemployees savings-related benefits very similar to those enjoyed by\nprivate sector employees whose employers offer them 401(k) retirement\nplans\xe2\x80\x9d); Cavanaugh v. Saul, 233 F.R.D. 21, 22 (D.D.C. 2005) (similar);\nIn re Hasse, 246 B.R. 247, 252 (Bankr. E.D. Va. 2000) (similar).\nFERSA includes a provision that broadly protects assets in TSP accounts from \xe2\x80\x9clevy,\xe2\x80\x9d subject to specified exceptions. It states:\nExcept as provided in paragraph (3), sums in the Thrift Savings Fund\nmay not be assigned or alienated and are not subject to execution,\nlevy, attachment, garnishment, or other legal process. For the purposes of this paragraph, a loan made from such Fund to an employee\nor Member shall not be considered to be an assignment or alienation.\n5 U.S.C.A. \xc2\xa7 8437(e)(2). The cross-referenced paragraph (3) permits legal\nprocess to obtain \xe2\x80\x9c[m]oneys due or payable from the Thrift Savings Fund\xe2\x80\x9d\nor the \xe2\x80\x9cbalance\xe2\x80\x9d in a TSP account for enforcement of certain child support\nor alimony obligations under the Social Security Act, 42 U.S.C.A. \xc2\xa7 659\n(West Supp. 2009); enforcement of certain victim restitution orders under\nthe Mandatory Victims Restitution Act of 1996 (\xe2\x80\x9cMVRA\xe2\x80\x9d), 18 U.S.C.\n\xc2\xa7 3663A (2006); forfeiture under a FERSA provision, 5 U.S.C.A.\n\xc2\xa7 8432(g)(5), of government contributions to a TSP account based on\nthe account-holder\xe2\x80\x99s commission of one or more specified national security offenses; and payments required by another FERSA provision, 5 U.S.C.\n\xc2\xa7 8467 (2006), to satisfy certain divorce, annulment, or separation decrees\nand certain judgments for physical, sexual, or emotional abuse of a child.\nSee 5 U.S.C.A. \xc2\xa7 8437(e)(3). Paragraph (3) does not cross-reference\nsection 6334 and thus does not expressly indicate that federal tax levies\nunder that provision may be imposed on TSP accounts.\n\n159\n\n\x0c34 Op. O.L.C. 157 (2010)\n\nII.\nA.\nTo resolve the question here, we must reconcile these two statutes,\neach of which appears exclusive on its face. While FERSA provides that\nfunds in TSP accounts shall not be subject to levy except as provided in\n5 U.S.C.A. \xc2\xa7 8437(e)(3), the Internal Revenue Code directs that \xe2\x80\x9c[n]otwithstanding any other\xe2\x80\x9d federal law, no property is exempt from federal\ntax levies except as provided in section 6334(a) of the Code. And although both statutes include express exceptions, neither includes a crossreference to the other specifying how the two statutes should be reconciled. 3\nDespite the apparent conflict between the TSP provision and the federal\ntax levy statute, our \xe2\x80\x9cduty\xe2\x80\x9d is \xe2\x80\x9cto regard each as effective\xe2\x80\x9d if the two\nstatutes are \xe2\x80\x9ccapable of co-existence.\xe2\x80\x9d Morton v. Mancari, 417 U.S. 535,\n551 (1974). \xe2\x80\x9c[I]t is \xe2\x80\x98[a] long-standing maxim of statutory construction that\nstatutes are enacted in accord with the legislative policy embodied in prior\nstatutes, and that therefore statutes dealing with the same subject should\nbe construed together.\xe2\x80\x99\xe2\x80\x9d Relationship Between Illegal Immigration ReWe do not consider here the validity of federal tax levies on any state-law community\nproperty interests that spouses of account-holders may have in TSP accounts. In a 1981\nopinion, this Office addressed whether a federal tax levy under 26 U.S.C. \xc2\xa7 6331(a) could\nbe asserted against a tax delinquent\xe2\x80\x99s community property interest in his wife\xe2\x80\x99s federal\npension, despite a provision directing that the pension benefits in question were \xe2\x80\x9cnot\nassignable, either in law or equity, except under [certain provisions], or subject to execution, levy, attachment, garnishment, or other legal process, except as otherwise may be\nprovided by Federal laws,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8346(a) (2006). Validity of Federal Tax Lien on\nCivil Service Retirement Refund, 5 Op. O.L.C. 37, 37 (1981). We concluded that \xe2\x80\x9cNevada\xe2\x80\x99s community property law, in the absence of explicit legislation by Congress, has not\ncreated for [the delinquent taxpayer] \xe2\x80\x98property [or] rights to property\xe2\x80\x99 in his wife\xe2\x80\x99s\nretirement deductions that are assailable by IRS.\xe2\x80\x9d Id. at 40 (quoting 26 U.S.C. \xc2\xa7 6331(a)).\nYour office has asked us here to address the validity of \xe2\x80\x9cfederal tax levies served on\n[FRTIB] to attach taxpayer\xe2\x80\x99s rights in their individual TSP accounts in order to satisfy\noutstanding tax liabilities.\xe2\x80\x9d Letter for David J. Barron, Acting Assistant Attorney General,\nOffice of Legal Counsel, from Clarissa C. Potter, Acting Chief Counsel, Internal Revenue\nService at 1 (July 1, 2009). Because it appears undisputed that taxpayers\xe2\x80\x99 rights in their\nown TSP accounts constitute \xe2\x80\x9cproperty [or] rights to property\xe2\x80\x9d of the individual taxpayer,\nwe need not consider here whether the reasoning of our 1981 opinion should extend to\nany community property interests in TSP accounts.\n3\n\n160\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, __ Op. O.L.C. Supp. __,\nat *5 (May 18, 1999) (\xe2\x80\x9cIIRIRA Opinion\xe2\x80\x9d) (quoting Memorandum for\nGlen E. Pommerening, Assistant Attorney General for Administration,\nfrom Antonin Scalia, Assistant Attorney General, Office of Legal Counsel, Re: Establishing a Maximum Entry Age Limit for Law Enforcement\nOfficer Positions in the Department of Justice at 3 (Apr. 3, 1975), https://\nwww.justice.gov/olc/page/file/936041/download). In our view, the texts\nof the two statutes are properly reconciled by giving primacy to the federal tax levy provision in section 6334.\nAlthough the TSP provision may appear absolute if read in isolation,\nsection 6334(c)\xe2\x80\x99s \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause indicates by its terms that all\n\xe2\x80\x9cother law[s] of the United States,\xe2\x80\x9d a category that necessarily includes\nFERSA, are ineffective to bar a federal tax levy, except as provided by the\nexpress exceptions in section 6334(a). As a general rule \xe2\x80\x9cthe use of such\na \xe2\x80\x98notwithstanding\xe2\x80\x99 clause clearly signals the drafter\xe2\x80\x99s intention that the\nprovisions of the \xe2\x80\x98notwithstanding\xe2\x80\x99 section override conflicting provisions of any other section.\xe2\x80\x9d Cisneros v. Alpine Ridge Group, 508 U.S. 10,\n18 (1993); see also, e.g., IIRIRA Opinion at *7 (observing that a prefatory \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause \xe2\x80\x9cdoes reflect a congressional intention to\ndisplace inconsistent law\xe2\x80\x9d). Indeed, some courts have observed that \xe2\x80\x9c\xe2\x80\x98a\nclearer statement\xe2\x80\x99\xe2\x80\x9d of congressional intent to supersede all other laws\n\xe2\x80\x9c\xe2\x80\x98is difficult to imagine,\xe2\x80\x99\xe2\x80\x9d see Cisneros, 508 U.S. at 18 (quoting Liberty\nMaritime Corp. v. United States, 928 F.2d 413, 416 (1991) (internal\nquotation marks omitted) (collecting other similar cases), and the Supreme Court has described the \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause in section 6334\nas \xe2\x80\x9cdirect[ing]\xe2\x80\x9d that \xe2\x80\x9c[t]he enumeration [of exceptions] contained in\n\xc2\xa7 6334(a) . . . is exclusive.\xe2\x80\x9d Drye v. United States, 528 U.S. 49, 56 (1999);\nsee also In re Beam (Beam v. IRS), 192 F.3d 941, 944 (9th Cir. 1999)\n(describing section 6334 as \xe2\x80\x9cunambiguous\xe2\x80\x9d in indicating \xe2\x80\x9cthat Congress\nclearly intended to exclude from IRS levy only those 13 categories of\nproperty specifically-exempted in section 6334(a)\xe2\x80\x9d). In contrast, while the\nTSP provision appears exclusive by its own terms because it establishes\na general bar on levies that applies \xe2\x80\x9cexcept as\xe2\x80\x9d provided in FERSA, this\nprovision does not include language comparable to the \xe2\x80\x9cnotwithstanding\xe2\x80\x9d\nclause in section 6334(c) that expressly overrides other potentially applicable statutes. The text of section 6334 thus appears to reflect a stronger\n161\n\n\x0c34 Op. O.L.C. 157 (2010)\n\ncongressional intent to override conflicting statutes than does the text of\nthe TSP provision. Cf., e.g., Beam, 192 F.3d at 944 (holding that section\n6334 overrides a bankruptcy statute directing that the bankruptcy trustee\n\xe2\x80\x9cshall return\xe2\x80\x9d certain payments to the debtor in certain circumstances);\nCrowley Caribbean Transp., Inc. v. United States, 865 F.2d 1281, 1282\xe2\x80\x93\n83 (D.C. Cir. 1989) (deeming it \xe2\x80\x9cimplausible\xe2\x80\x9d that a statute applicable\n\xe2\x80\x9cnotwithstanding\xe2\x80\x9d any other statute did not override a separate statute\napplicable \xe2\x80\x9cwhenever\xe2\x80\x9d the United States took certain actions). As one\ncourt has put it, the \xe2\x80\x9cplain language [of section 6334(c)] bars interpreting\n5 U.S.C. \xc2\xa7 8437(e)(2) as proscribing a \xc2\xa7 6331 levy on a TSP account.\xe2\x80\x9d\nIn re Jones (Jones v. IRS), 206 B.R. 614, 617 (Bankr. D.D.C. 1997); see\nalso United States v. Laws, 352 F. Supp. 2d 707, 712 & n.7 (E.D. Va.\n2004) (holding that criminal restitution order could be enforced against\nTSP account under statute generally permitting such enforcement to the\nsame extent as federal tax levies). 4\nIt is true that FERSA was enacted after section 6334(c), which might be\nthought to make the preemptive effect of section 6334(c)\xe2\x80\x99s \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause \xe2\x80\x9cless certain,\xe2\x80\x9d since \xe2\x80\x9c[t]he drafters of [section 6334(c)] can\nhardly be said to have had [FERSA] specifically within their contemplation.\xe2\x80\x9d Ill. Nat\xe2\x80\x99l Guard v. FLRA, 854 F.2d 1396, 1403 (D.C. Cir. 1988)\n(quoting N.J. Air Nat\xe2\x80\x99l Guard v. FLRA, 677 F.2d 276, 283 (3d Cir.\n1982)); cf. United States v. Novak, 476 F.3d 1041, 1046 (9th Cir. 2007)\n(en banc) (observing that courts have \xe2\x80\x9cdetermined the reach of each such\n\xe2\x80\x98notwithstanding\xe2\x80\x99 clause by taking into account the whole of the statutory\ncontext in which it appears\xe2\x80\x9d). Yet in cases involving later-enacted statutes\nlacking their own applicable \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clauses, courts have\ndeemed \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clauses \xe2\x80\x9cpowerful evidence that Congress did\nnot intend\xe2\x80\x9d other statutes, \xe2\x80\x9cwhenever enacted,\xe2\x80\x9d to qualify the terms of the\n4 As we have recently observed, \xe2\x80\x9c\xe2\x80\x98notwithstanding\xe2\x80\x99 phrases are best read simply to\nqualify the substantive requirement that follows.\xe2\x80\x9d Prioritizing Programs to Exempt Small\nBusinesses from Competition in Federal Contracts, 33 Op. O.L.C. 284, 296 (2009). They\ntherefore do not \xe2\x80\x9csupport a broad construction of the substantive provision that would\ngive rise to . . . inconsistencies\xe2\x80\x9d with other statutes. IIRIRA Opinion at *7. Here, however, the substantive clause of section 6334(c) broadly states that \xe2\x80\x9cno property or rights to\nproperty shall be exempt from levy other than the property specifically made exempt by\nsubsection (a),\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(c), and there appears to be no dispute that this substantive provision is inconsistent with the TSP provision to the extent the former statute\nauthorizes levies while the latter restricts them.\n\n162\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nearlier-enacted statute. Ill. Nat\xe2\x80\x99l Guard, 854 F.2d at 1403 (quoting N.J.\nAir Nat\xe2\x80\x99l Guard, 677 F.2d at 283); see also, e.g., Am. Fed\xe2\x80\x99n of Gov\xe2\x80\x99t\nEmployees v. FLRA, 239 F.3d 66, 70 (1st Cir. 2001) (following N.J. Air\nNat\xe2\x80\x99l Guard). As some courts have explained, \xe2\x80\x9c[t]he [notwithstanding]\nlanguage does not preclude a subsequent change of heart on the part of\nCongress, but it does suggest that any qualification of the terms of [the\nearlier-enacted statute] would be accepted by Congress only after some\nconsideration of the factors requiring or permitting such a change.\xe2\x80\x9d Ill.\nNat\xe2\x80\x99l Guard, 854 F.2d at 1403 (quoting N.J. Air Nat\xe2\x80\x99l Guard, 677 F.2d at\n283). Moreover, the TSP anti-levy provision, as a later-enacted statute\nthat has no \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause and does not expressly crossreference section 6334 or even mention any exercise of authority by the\nSecretary of Treasury, could override section 6334 and thus preclude\nfederal tax levies on TSP accounts only if it effected an implied partial\nrepeal of section 6334\xe2\x80\x99s broad directive that \xe2\x80\x9cno property or rights to\nproperty shall be exempt from levy other than the property specifically\nmade exempt by [26 U.S.C. \xc2\xa7 6334(a)].\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(c). But \xe2\x80\x9crepeals by implication are not favored and will not be presumed unless the\nintention of the legislature to repeal is clear and manifest.\xe2\x80\x9d Hawaii v.\nOffice of Hawaiian Affairs, 129 S. Ct. 1436, 1445 (2009) (internal quotation marks and brackets omitted)). Here, we believe the text and history of\nthe two statutes support the conclusion that Congress, far from \xe2\x80\x9cclear[ly]\nand manifest[ly],\xe2\x80\x9d id., intending to repeal section 6334(c), in fact intended\nto permit federal tax levies on TSP accounts. 5\n5 A related principle of statutory interpretation holds that \xe2\x80\x9cin the absence of a clear\nintention to the contrary \xe2\x80\x98a specific statute will not be controlled or nullified by a general\none, regardless of the priority of enactment.\xe2\x80\x99\xe2\x80\x9d Disclosure of Confidential Business\nRecords Obtained Under the National Traffic and Motor Vehicle Safety Act, 4B Op.\nO.L.C. 735, 736 (1980) (quoting Morton, 417 U.S. at 550\xe2\x80\x9351). This canon is inapplicable\nhere, however, because neither statute is clearly more specific or more general than the\nother in relevant respects. On the one hand, federal tax levies under section 6334 are only\na subset of the broader category of \xe2\x80\x9clevies\xe2\x80\x9d covered by the plain terms of the TSP provision, while on the other hand TSP accounts are only a subset of the broader category of\n\xe2\x80\x9cproperty or rights to property\xe2\x80\x9d covered by the plain terms of federal tax levy provisions.\nSee, e.g., Restrictions on Travel by Voice of America Correspondents, 23 Op. O.L.C. 192,\n195 n.2 (1999) (observing that an issue of statutory construction could not be resolved\n\xe2\x80\x9cby turning to the principle that, absent a clear intention to the contrary, a specific statute\ncontrols a general one\xe2\x80\x9d because one set of applicable statutes was \xe2\x80\x9cmore specific\xe2\x80\x9d on one\nquestion but \xe2\x80\x9cless specific\xe2\x80\x9d on another); Gulf War Veterans Health Statutes, 23 Op.\n\n163\n\n\x0c34 Op. O.L.C. 157 (2010)\n\nAs one indication of section 6334(c)\xe2\x80\x99s breadth, Congress amended that\nprovision in 1984 expressly to include section 207 of the Social Security\nAct, 42 U.S.C. \xc2\xa7 407 (2006), which provides that \xe2\x80\x9c[t]he right of any\nperson to any future payment under this subchapter shall not be transferable or assignable, at law or in equity, and none of the moneys paid or\npayable or rights existing under this subchapter shall be subject to execution, levy, attachment, garnishment, or other legal process, or to the\noperation of any bankruptcy or insolvency law.\xe2\x80\x9d Id. \xc2\xa7 407(a). This provision itself had recently been amended to provide that \xe2\x80\x9c[n]o other provision of law, enacted before, on, or after April 20, 1983, may be construed\nto limit, supersede, or otherwise modify the provisions of this section\nexcept to the extent that it does so by express reference to this section.\xe2\x80\x9d\nSee Social Security Amendments of 1983, Pub. L. No. 98-21, \xc2\xa7 335(a)(2),\n97 Stat. 65, 130 (codified at 42 U.S.C. \xc2\xa7 407(b)); Spending Reduction Act\nof 1984, Pub. L. No. 98-369, div. B, tit. VI, \xc2\xa7 2661(o)(5), 98 Stat. 494,\n1159 (codified at 26 U.S.C. \xc2\xa7 6334(c)); see also H.R. Rep. No. 98-861, at\n1413 (1984) (Conf. Rep.) (describing subtitle including change to section\n6334 as \xe2\x80\x9ccontain[ing] a number of minor technical amendments to the\nSocial Security Act and the Internal Revenue Code, to correct clerical and\nother minor errors either resulting from the Social Security Amendments\nof 1983, or already existing in those acts\xe2\x80\x9d). The \xe2\x80\x9cexpress reference\xe2\x80\x9d\nrequirement of section 207 shows, if anything, a stronger congressional\nintent to preclude levies than the relevant prohibitory language of FERSA,\nwhich includes no such \xe2\x80\x9cexpress reference\xe2\x80\x9d requirement broadening its\nscope. Accordingly, as the en banc Ninth Circuit recently observed in an\nanalysis of provisions similar to those at issue here, \xe2\x80\x9c[i]t would . . . be\nanomalous to interpret\xe2\x80\x9d section 6334(c) \xe2\x80\x9cas abandoning the protection\nof Social Security benefits but not of retirement plans\xe2\x80\x9d covered by other\nprovisions that do not even have a comparable \xe2\x80\x9cexpress reference\xe2\x80\x9d requirement. Novak, 476 F.3d at 1048. \xe2\x80\x9c[B]y making clear that the \xe2\x80\x98notwithstanding\xe2\x80\x99 clause \xe2\x80\x98includes\xe2\x80\x99 the one federal anti-alienation provision\nthat demands explicit statutory override, Congress manifested that [section 6334(c)] means what it says\xe2\x80\x9d\xe2\x80\x94that absent an express exception in\nsection 6334, no \xe2\x80\x9cproperty or rights to property\xe2\x80\x9d are exempt from levy.\nO.L.C. 49, 52 (1999) (rejecting application of the canon where \xe2\x80\x9cthe two provisions are at\nthe same order of specificity\xe2\x80\x9d).\n\n164\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nId.; see also id. at 1076\xe2\x80\x9377 (W. Fletcher, J., dissenting) (disagreeing with\nmajority\xe2\x80\x99s conclusions regarding the statutes at issue but distinguishing\nInternal Revenue Code section 6334).\nCongress\xe2\x80\x99s express exemption of certain retirement benefits from tax\nlevies under section 6334 reinforces the view that Congress did not\nintend to provide a similar exception for TSP accounts, which are not\nexpressly exempted. The four exempted retirement statutes all include\nanti-alienation provisions. While one of these statutes (the Railroad\nRetirement Act) expressly cross-references the Internal Revenue Code\nand applies \xe2\x80\x9cnotwithstanding any other law of the United States,\xe2\x80\x9d see\n45 U.S.C. \xc2\xa7 231m(a) (2006), and another (the Railroad Unemployment\nInsurance Act) also applies \xe2\x80\x9c[n]otwithstanding any other law of the United States,\xe2\x80\x9d id. \xc2\xa7 352(e), the other two employ language closely similar to\nthe TSP provision. Specifically, provisions governing the exempted\n\xe2\x80\x9cannuities based on retired or retainer pay under chapter 73 of title 10 of\nthe United States Code,\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(a)(6), provide, without any\nexpress carve-out for the Internal Revenue Code, that \xe2\x80\x9c[e]xcept as provided\xe2\x80\x9d elsewhere in that chapter, certain annuities are not \xe2\x80\x9cassignable or\nsubject to execution, levy, attachment, garnishment, or other legal process.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 1440 (2006) (covering annuities under one subchapter\nof chapter 73); id. \xc2\xa7 1450(i) (covering annuities under another subchapter\nof chapter 73). And provisions governing the exempted \xe2\x80\x9cspecial pension\npayments received by a person whose name has been entered on the\nArmy, Navy, Air Force, and Coast Guard Medal of Honor roll (38 U.S.C.\n1562),\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(a)(6), provide that such \xe2\x80\x9c[s]pecial pension[s]\nshall not be subject to any attachment, execution, levy, tax, lien, or detention under any process whatever.\xe2\x80\x9d See 38 U.S.C. \xc2\xa7 1562(c) (2006).\nGiven the breadth of section 6334(c)\xe2\x80\x99s terms\xe2\x80\x94 \xe2\x80\x9cno property or rights\nto property shall be exempt from levy\xe2\x80\x9d except as \xe2\x80\x9cspecifically\xe2\x80\x9d provided\nin section 6334(a)\xe2\x80\x94and its express applicability \xe2\x80\x9c[n]otwithstanding any\nother law of the United States,\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6334(c), the express exemptions from federal tax levies in section 6334(a) cannot be understood as simply \xe2\x80\x9cclarify[ing]\xe2\x80\x9d the scope of the rule in section 6334(c).\nAm. Fed\xe2\x80\x99n of Gov\xe2\x80\x99t Employees v. FLRA, 702 F.2d 1183, 1187 (D.C.\nCir. 1983) (opinion by Scalia, J.); see also Drye, 528 U.S. at 56 (concluding that \xe2\x80\x9c[t]he enumeration [of exceptions to section 6334(c)]\ncontained in \xc2\xa7 6334(a) . . . is exclusive\xe2\x80\x9d). Accordingly, section 6334\xe2\x80\x99s\n165\n\n\x0c34 Op. O.L.C. 157 (2010)\n\nexpress exceptions for these pension and annuity benefits suggest that\nwithout the exceptions the benefits would be subject to levy under sections 6331 and 6334, despite the applicable anti-alienation provisions in\nthe cross-referenced statutes governing the benefits. By the same token,\nit is unlikely Congress intended the comparable language of the TSP\nprovision\xe2\x80\x94\xe2\x80\x9c[e]xcept as provided in [section 8437(e)(3)], sums in the\nThrift Savings Fund may not be assigned or alienated and are not subject\nto execution, levy, attachment, garnishment, or other legal process,\xe2\x80\x9d\n5 U.S.C.A. \xc2\xa7 8437(e)(2) \xe2\x80\x94to create an exemption from tax levies under\nthe Internal Revenue Code without an express exemption in section 6334.\nIn other words, there would be no apparent need for the express exemption for the retirement benefits listed in section 6334(a)(6) if language\nsuch as that in the TSP provision sufficed on its own to establish such an\nexemption.\nThe relevant legislative history of the two statutes accords with our\nconstruction of them. With respect to section 6334, the legislative history\nplainly shows that this provision should override other statutes. According\nto the committee reports on the 1954 Internal Revenue Code, Congress\nintended section 6334(c) to \xe2\x80\x9cmake[] it clear that no other provision of\nFederal law shall exempt property\xe2\x80\x9d from federal tax levies. See H.R. Rep.\nNo. 83-1337, at A409 (1954) (House Ways and Means Committee report\non Internal Revenue Code of 1954); S. Rep. No. 83-1622, at 578 (1954)\n(Senate Finance Committee report on Internal Revenue Code of 1954).\nAnd with respect to FERSA, the legislative history shows that Congress\n\xe2\x80\x9cpatterned\xe2\x80\x9d the Thrift Savings Plan \xe2\x80\x9cafter [retirement savings plans]\nfound among large employers in private industry.\xe2\x80\x9d See S. Rep. No. 99166, at 48 (1985); see also H.R. Rep. No. 99-606, at 134 (1986) (Conf.\nRep.) (observing that \xe2\x80\x9c[t]he tax-deferred features of the plan . . . make the\nThrift Savings Plan economically attractive to employees\xe2\x80\x9d and that\n\xe2\x80\x9c[t]hese popular tax-deferred savings plans should be as available to\nFederal employees as they are to private sector employees\xe2\x80\x9d); S. Rep. No.\n99-302, at 134 (1986) (Conf. Rep.) (same). Similar private-sector plans\nare generally governed by the Employee Retirement Income Security Act\nof 1974 (\xe2\x80\x9cERISA\xe2\x80\x9d), 29 U.S.C.A. \xc2\xa7\xc2\xa7 1001\xe2\x80\x931461 (West 2008 & West\nSupp. 2009; West 2009), which includes its own anti-alienation provision\ndirecting that \xe2\x80\x9c[e]ach pension plan shall provide that benefits provided\nunder the plan may not be assigned or alienated.\xe2\x80\x9d See id. \xc2\xa7 1056(d)(1).\n166\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nCourts have construed section 6334 to permit tax levies on plans covered\nby this provision. See, e.g., United States v. Hosking, 567 F.3d 329, 335\n(7th Cir. 2009); United States v. Taylor, 338 F.3d 947, 950 n.3 (8th Cir.\n2003); McIntyre v. United States (In re McIntyre), 222 F.3d 655, 660\n(9th Cir. 2000); United States v. Sawaf, 74 F.3d 119, 124 (6th Cir. 1996);\nShanbaum v. United States, 32 F.3d 180, 183 (5th Cir. 1994); United\nStates v. Rogers, 558 F. Supp. 2d 774, 786 n.1 (N.D. Ohio 2008); see\nalso 26 C.F.R. \xc2\xa7 1.401(a) -13(b) (providing that certain qualified ERISA\nplans must provide that \xe2\x80\x9cbenefits provided under the plan may not be\nanticipated, assigned (either at law or in equity), alienated or subject to\nattachment, garnishment, levy, execution or other legal or equitable process,\xe2\x80\x9d but indicating that such plans \xe2\x80\x9cshall not preclude . . . [t]he enforcement of a Federal tax levy made pursuant to section 6331\xe2\x80\x9d). These\ncourts, to be sure, have relied in part on ERISA\xe2\x80\x99s savings clause, which\ngenerally provides that \xe2\x80\x9c[n]othing in [ERISA] shall be construed to alter,\namend, modify, invalidate, impair, or supersede any law of the United\nStates.\xe2\x80\x9d 29 U.S.C.A. \xc2\xa7 1144(d). But Congress\xe2\x80\x99s decision to model TSP\naccounts on private retirement savings plans is in line with the textual\nindications that Congress did not intend to prevent tax levies on TSP\naccounts of public employees who fail to pay taxes and suggests that\nCongress did not wish to provide greater protection against federal tax\nlevies to the assets held in the TSP retirement accounts of federal employees than it conferred on the comparable accounts of private-sector employees.\nOur interpretation of the relationship between section 6334 and the TSP\nprovision, moreover, continues to give effect to the term \xe2\x80\x9clevy\xe2\x80\x9d in the\nlatter statute. While federal tax levies under section 6331 may be one\ncommon form of \xe2\x80\x9clevy,\xe2\x80\x9d the term has other applications as well. Black\xe2\x80\x99s\nLaw Dictionary defines \xe2\x80\x9clevy\xe2\x80\x9d to mean not only \xe2\x80\x9c[t]he imposition of a\nfine or tax; the fine or tax so imposed\xe2\x80\x9d (so-called \xe2\x80\x9ctax levies\xe2\x80\x9d), but also\n\xe2\x80\x9c[t]he legally sanctioned seizure and sale of property; the money obtained from such a sale\xe2\x80\x9d (so-called \xe2\x80\x9clevies of execution\xe2\x80\x9d). Black\xe2\x80\x99s Law\nDictionary 991 (9th ed. 2009). In keeping with this definition, the term\nhas been used in other contexts to describe means of recovering a variety\nof both public and private debts. See, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7 3002(3), (4),\n3102(d), 3203(d) (2006) (authorizing \xe2\x80\x9clevies\xe2\x80\x9d to collect various debts\nowed to the United States); U.C.C. \xc2\xa7 6-111 (1987 Official Text), reprint167\n\n\x0c34 Op. O.L.C. 157 (2010)\n\ned in U.C.C. app. V at 1497 (2005) (providing with respect to recovery of\ncertain private debts that \xe2\x80\x9c[n]o action under this Article shall be brought\nnor levy made more than six months after the date on which the transferee\ntook possession of the goods unless the transfer has been concealed\xe2\x80\x9d\n(emphasis added)); D.C. Code \xc2\xa7 28:6-111 (2001) (codifying this provision); Md. Code Ann., Com. Law, \xc2\xa7 6-111 (West 2009) (same); U.C.C.\n\xc2\xa7 6-111 cmt. 2 (1987 Official Text), reprinted in U.C.C. app. V at 1497\n(2005) (indicating that while \xe2\x80\x9c\xe2\x80\x98levy\xe2\x80\x99 . . . is not a defined term under the\nCode,\xe2\x80\x9d the term \xe2\x80\x9cshould be read broadly [in this provision] as including\nnot only levies of execution proper but also attachment, garnishment,\ntrustee process, receivership, or whatever proceeding, under the state\xe2\x80\x99s\npractice, is used to apply a debtor\xe2\x80\x99s property to payment of his debts\xe2\x80\x9d);\nUnited States v. Holy Land Found. for Relief & Dev., 445 F.3d 771, 782\xe2\x80\x93\n85 (5th Cir. 2006) (discussing levies imposed on certain bank account\nassets under New York, South Carolina, and Washington state law to\nexecute a federal court civil judgment), vacated in part on other grounds,\n493 F.3d 469 (5th Cir. 2007) (en banc). Furthermore, a Treasury Department regulation requires certain pension plans to bar \xe2\x80\x9cbenefits provided\nunder the plan\xe2\x80\x9d from being \xe2\x80\x9canticipated, assigned (either at law or in\nequity), alienated or subject to attachment, garnishment, levy, execution\nor other legal or equitable process,\xe2\x80\x9d but then exempts federal tax levies\nunder section 6331 from this prohibition. See 26 C.F.R. \xc2\xa7 1.401(a) -13(b)\n(emphasis added). As this regulation demonstrates, the term \xe2\x80\x9clevy\xe2\x80\x9d in the\nTreasury Department\xe2\x80\x99s view encompasses more than federal tax levies.\nTherefore, a restriction on \xe2\x80\x9clevies,\xe2\x80\x9d as appears in FERSA, need not be\nviewed as unnecessary or without meaningful effect where federal tax\nlevies are expressly permitted by a different statute that controls. In\nshort, absent some statutory restriction on doing so, both private and\ngovernmental parties might seek to impose levies on TSP accounts to\ncollect debts other than federal tax liabilities. Because FERSA\xe2\x80\x99s general\nbar against levies on TSP accounts therefore need not be understood\nsolely as a limitation against federal tax levies, the provision is not rendered superfluous by reconciling the two measures as we think proper.\nB.\nAgainst this reading of the proper means of reconciling the two statutes, we have been offered several reasons to conclude that Congress\n168\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nintended the TSP provision to bar federal tax levies under sections 6331\nand 6334.\nFirst, another FERSA anti-alienation provision (applicable to certain\nannuities) includes the phrase \xe2\x80\x9cexcept as otherwise may be provided by\nFederal laws,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8470(a) (2006), and the Senate version of the\nTSP anti-alienation provision included a similar clause that was dropped\nfrom the final bill by a conference committee. See H.R. Rep. No. 99-606,\nat 39; S. Rep. No. 99-302, at 39; H.R. 2672, 99th Cong. \xc2\xa7 101(a) (as\nordered printed with Senate amendments, Nov. 14, 1985) (proposing new\n5 U.S.C. \xc2\xa7 8426(d)); S. Rep. No. 99-166, at 52. While the contrast between section 8470 and the TSP anti-alienation provision might suggest\nthat Congress intended to protect TSP accounts from levy under other\n\xe2\x80\x9cFederal laws,\xe2\x80\x9d and thus presumably under section 6334 as well, the\nconference committee did not explain its decision to omit this Senate\nlanguage. 6 See H.R. Rep. No. 99-606, at 133\xe2\x80\x9339; S. Rep. No. 99-302, at\n133\xe2\x80\x9339. Given the \xe2\x80\x9cnotwithstanding\xe2\x80\x9d clause in section 6334, Congress\nmight well have concluded that, whatever the effect of the anti-alienation\nprovision on other federal statutes, a broad express exception for \xe2\x80\x9cFederal\nlaws\xe2\x80\x9d was unnecessary to permit federal tax levies on TSP accounts.\nIndeed, several years before Congress enacted FERSA, this Office concluded that a similar \xe2\x80\x9cexcept as\xe2\x80\x9d clause in 5 U.S.C. \xc2\xa7 8346(a) (2006), an\nanti-alienation provision for certain federal pensions, \xe2\x80\x9cwas probably\nincluded pro forma\xe2\x80\x9d and \xe2\x80\x9cwas not necessary to enable IRS to reach funds\npayable under the retirement law to employees or former employees\n\n6 As explained in the conference committee reports, the Senate passed the legislation\nthat became FERSA as an amendment to unrelated House legislation. H.R. Rep. No. 99606, at 125; S. Rep. No. 99-302, at 125; see also 131 Cong. Rec. 31,087 (1985) (Senate\npassage of legislation). Although the House bill in the conference included no provisions\nfor the establishment of a new federal retirement system, the conferees \xe2\x80\x9cwere cognizant\nof\xe2\x80\x9d a pending House retirement reform bill, and they \xe2\x80\x9cincorporated many of [this bill\xe2\x80\x99s\nprovisions] in the conference agreement.\xe2\x80\x9d H.R. Rep. No. 99-606, at 125; S. Rep. No. 99302, at 125; see also H.R. 3660, 99th Cong. (1985) (pending House bill); H.R. Rep. No.\n99-1030, at 174\xe2\x80\x9375 (1986) (review of committee activity describing legislative history of\nFERSA and H.R. 3660). The House bill included a TSP anti-alienation provision that,\namong other differences from the Senate provision, omitted the clause \xe2\x80\x9cexcept as may be\nprovided in a Federal law\xe2\x80\x9d that appeared in the Senate bill. See H.R. 3660, \xc2\xa7 101(a)\n(proposing new 5 U.S.C. \xc2\xa7 8434(d)); H.R. 2672, \xc2\xa7 101(a) (proposing new 5 U.S.C.\n\xc2\xa7 8426(d)).\n\n169\n\n\x0c34 Op. O.L.C. 157 (2010)\n\ndelinquent in the payment of their taxes.\xe2\x80\x9d Validity of Federal Tax Lien\non Civil Service Retirement Refund, 5 Op. O.L.C. 37, 39 (1981). In any\nevent, we cannot presume that, contrary to the other considerations of text\nand history discussed above, Congress\xe2\x80\x99s omission of an \xe2\x80\x9cexcept as\xe2\x80\x9d\nclause included in another provision and originally included in the Senate\nbill signals the kind of \xe2\x80\x9cclear and manifest\xe2\x80\x9d intent, Office of Hawaiian\nAffairs, 129 S. Ct. at 1445 (internal quotation marks omitted), that would\nbe required to repeal section 6334 by implication and thus shield TSP\naccounts from federal tax levies.\nSecond, according to the legislative history, Congress enacted ownership and vesting protections for TSP accounts to prevent \xe2\x80\x9cpolitical involvement in the thrift plan management\xe2\x80\x9d and eliminate any congressional\ntemptation to \xe2\x80\x9cuse the large pool of thrift money for political purposes.\xe2\x80\x9d\nSee H.R. Rep. No. 99-606, at 136; S. Rep. No. 99-302, at 136. An IRS\nlevy to collect unpaid taxes, however, does not implicate these concerns,\nbecause such levies are possible only in the case of a tax delinquency.\nThird, in 1996, Congress amended FERSA to provide that \xe2\x80\x9c[n]otwithstanding any other provision of law,\xe2\x80\x9d the government\xe2\x80\x99s contributions to\nan employee\xe2\x80\x99s TSP account (and any associated earnings) \xe2\x80\x9cshall be forfeited\xe2\x80\x9d if the employee forfeits certain other federal retirement benefits\nunder provisions authorizing such forfeiture based on the employee\xe2\x80\x99s\ncommission of one or more specified national security offenses. See\nIntelligence Authorization Act for Fiscal Year 1996, Pub. L. No. 104-93,\n\xc2\xa7 304, 109 Stat. 961, 965 (1996) (codified at 5 U.S.C.A. \xc2\xa7 8432(g)(5)).\nCongress\xe2\x80\x99s placement of the new provision, 5 U.S.C.A. \xc2\xa7 8432(g)(5), in\nprovisions governing TSP accounts, rather than in the provisions generally governing forfeiture based on national security offenses, might be\nargued to support the conclusion that \xe2\x80\x9cCongress intended that TSP funds\nwere, and are, to be alienated only pursuant to the express exceptions set\nforth in FERSA.\xe2\x80\x9d Letter for Daniel L. Koffsky, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Thomas K. Emswiler, General\nCounsel, Federal Retirement Thrift Investment Board, at 5 (Sept. 17,\n2009) (\xe2\x80\x9cFRTIB Submission\xe2\x80\x9d). Yet because other provisions of the subsection to which Congress added this provision deal with forfeiture of government contributions to TSP accounts, see 5 U.S.C.A. \xc2\xa7 8432(g), it\nwould seem a natural, or at least convenient, place to locate the new\nprovision. In any event, we do not believe we can draw such a sweeping\n170\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\ninference about congressional intent from Congress\xe2\x80\x99s decision where to\ncodify this provision, which is described in the legislative history as\nmerely \xe2\x80\x9cclos[ing] a loophole.\xe2\x80\x9d See H.R. Rep. No. 104-138, pt. 1, at 29\n(1995). In fact, if anything, this amendment reinforces the conclusion that\nsection 6334(c) permits federal tax levies on TSP accounts, because in\nsection 8432(g)(5) Congress authorized forfeiture from TSP accounts\nusing precisely the phrase\xe2\x80\x94\xe2\x80\x9cnotwithstanding any other\xe2\x80\x9d law\xe2\x80\x94that also\nappears in section 6334(c). 7\nFinally, another FERSA amendment, enacted in 2009, created an express exception to the TSP anti-alienation provision for the \xe2\x80\x9cenforcement\xe2\x80\x9d\nof certain victim restitution orders under the MVRA, 18 U.S.C. \xc2\xa7 3663A.\nSee 5 U.S.C.A. \xc2\xa7 8437(e)(3). Because a separate MVRA provision already\nprovided for civil enforcement of such restitution orders \xe2\x80\x9c[n]otwithstanding any other Federal law (including section 207 of the Social Security Act),\xe2\x80\x9d see 18 U.S.C. \xc2\xa7 3613(a), (f) (2006), Congress\xe2\x80\x99s addition of\nthis express exception could show that Congress did not believe that the\n\xe2\x80\x9cnotwithstanding\xe2\x80\x9d provision in the MVRA already authorized alienation\nof TSP account assets and thus that Congress did not intend the closely\nsimilar \xe2\x80\x9cnotwithstanding\xe2\x80\x9d language of section 6334(c) to authorize such\nalienation. The legislative background of this amendment, however,\nundermines this inference. The Ninth Circuit, among other courts, had\nheld that the MVRA enforcement provision superseded ERISA\xe2\x80\x99s antialienation provision, thus allowing enforcement against funds in ERISA-\n\n7 More broadly, FRTIB suggests that because certain provisions in Title 5 of the U.S.\nCode governing the Thrift Savings Fund explicitly incorporate or cross-reference specific\nprovisions of the Internal Revenue Code (Title 26) applicable to analogous private\nretirement savings plans, Congress \xe2\x80\x9cdesigned the TSP to be governed by title 5, not title\n26,\xe2\x80\x9d and did not intend \xe2\x80\x9c[p]rovisions in the [Internal Revenue Code] applicable to private\nsector plans [to be] self-executing with regard to the TSP.\xe2\x80\x9d FRTIB Submission at 10\xe2\x80\x9311.\nBut express cross-references to such other Internal Revenue Code provisions would not\npreclude the application of the federal tax levy provisions, which by their terms reach all\n\xe2\x80\x9cproperty and rights to property,\xe2\x80\x9d to TSP accounts. 26 U.S.C. \xc2\xa7\xc2\xa7 6331(a), 6334(c); see\nalso, e.g., Drye, 528 U.S. at 56 (observing that the language in section 6331(a) \xe2\x80\x9c\xe2\x80\x98is broad\nand reveals on its face that Congress meant to reach every interest in property that a\ntaxpayer might have\xe2\x80\x99\xe2\x80\x9d (quoting United States v. Nat\xe2\x80\x99l Bank of Commerce, 472 U.S. 713,\n719\xe2\x80\x9320 (1985)). We express no view in this opinion about the applicability of any other\nInternal Revenue Code provisions to TSP accounts or the Thrift Savings Fund.\n\n171\n\n\x0c34 Op. O.L.C. 157 (2010)\n\ngoverned plans. 8 See Novak, 476 F.3d at 1053 (en banc); see also, e.g.,\nUnited States v. Miller, 588 F. Supp. 2d 789, 796 (E.D. Mich. 2008);\nUnited States v. Lazorwitz, 411 F. Supp. 2d 634, 636\xe2\x80\x9337 (E.D.N.C. 2005);\nUnited States v. James, 312 F. Supp. 2d 802, 804\xe2\x80\x9305 (E.D. Va. 2004); cf.\nUnited States v. Irving, 452 F.3d 110, 126 (2d Cir. 2006) (adopting the\n\xe2\x80\x9cunderstanding\xe2\x80\x9d that \xe2\x80\x9c18 U.S.C. \xc2\xa7 3613(a) permits courts to consider\nERISA protected assets in determining appropriate fines and restitution\xe2\x80\x9d\nbecause \xe2\x80\x9cERISA pension plans are not exempted from payment of taxes\nunder 26 U.S.C. \xc2\xa7 6334, and thus they should not be exempted from\npayment of criminal fines\xe2\x80\x9d); Hosking, 567 F.3d at 335 (holding that a\nsentencing court \xe2\x80\x9cmay order a lump-sum payment from [a retirement]\naccount to satisfy a restitution order\xe2\x80\x9d). In addition, at least one federal\ncourt had held that TSP accounts were subject to MVRA orders. See\nLaws, 352 F. Supp. 2d at 712 & n.7. FRTIB, however, advised Congress\nand the Department of Justice that it nevertheless would not honor MVRA\norders. See FRTIB Submission at 6\xe2\x80\x937; Letter for Kenneth E. Melson,\nDirector, Executive Office for United States Attorneys, from Thomas K.\nEmswiler, General Counsel, Federal Retirement Thrift Investment Board\n(Apr. 30, 2009) (attachment 3 to FRTIB Submission); E-mail for Larry\nNovey from Thomas Trabucco (Apr. 21, 2009) (\xe2\x80\x9cTrabucco E-mail\xe2\x80\x9d)\n(attachment 4 to FRTIB Submission). FRTIB also approved a motion to\n\xe2\x80\x9cseek clarification\xe2\x80\x9d from Congress as to whether the MVRA applied to\nTSP accounts, and in e-mail correspondence FRTIB requested that a\ncongressional committee revise FERSA \xe2\x80\x9c[i]f after review the Committee\nbelieves that the MVRA provision was intended to allow access to TSP\nfunds.\xe2\x80\x9d See Trabucco E-mail.\nIn light of FRTIB\xe2\x80\x99s request for clarifying legislation, Congress may not\nhave intended to make any substantive change in the 2009 amendments,\nbut simply to clarify congressional intent and provide FRTIB with comfort that MVRA orders may be satisfied from TSP accounts. Indeed, at\nthe same time that it added the MVRA exception, Congress also added\nan express exception to the anti-alienation provision for forfeiture under\nthe provision regarding government contributions enacted in 1996. See\n8 Although several judges dissented from the en banc Ninth Circuit\xe2\x80\x99s holding with\nrespect to the MVRA in Novak, the dissenters distinguished federal tax levies from the\nMVRA. See Novak, 476 F.3d at 1076\xe2\x80\x9377 (W. Fletcher, J., dissenting).\n\n172\n\n\x0cApplicability of Tax Levies to Thrift Savings Plan Accounts\n\nThrift Savings Plan Enhancement Act of 2009, Pub. L. No. 111-31, \xc2\xa7 108,\n123 Stat. 1853, 1856 (2009) (codified at 5 U.S.C.A. \xc2\xa7 8437(e)(3)). This\nchange also seems to have been intended as a clarification, not a substantive amendment, as it seems unlikely that Congress intended the 1996\namendment to have been ineffective before the anti-alienation provision\nwas thus amended to include an express cross-reference. See FRTIB\nSubmission at 5\xe2\x80\x936, 12 n.13 (asserting that the addition of this exception\nto \xc2\xa7 8437(e)(3) was \xe2\x80\x9cunnecessary\xe2\x80\x9d because forfeitable government contributions under \xc2\xa7 8432(g) are \xe2\x80\x9cnot protected by 5 U.S.C. \xc2\xa7 8437\xe2\x80\x9d). To the\nextent the express exception for MVRA restitution orders was intended\nto be clarifying rather than substantive, this amendment may only reinforce the conclusion that Congress believed the closely similar language\nof the federal tax levy provision also creates an exception to the TSP\nprovision. Cf. Am. Fed\xe2\x80\x99n of Gov\xe2\x80\x99t Employees, 702 F.2d at 1186\xe2\x80\x9387 (contrasting clarifying provisions and exceptions to otherwise governing law).\nIn any event, the legislative history gives no clear explanation for the\n2009 changes. Thus, here, too, the amendment fails to indicate a \xe2\x80\x9cclear\nand manifest\xe2\x80\x9d intention, Office of Hawaiian Affairs, 129 S. Ct. at 1445\n(internal quotation marks omitted), partially to repeal section 6334(c) and\npreclude federal tax levies on TSP accounts. 9\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n9 The Tax Division also argues that tax levies under sections 6331 and 6334 do not\nfall within the scope of the TSP anti-alienation provision because that provision\xe2\x80\x99s ban\non \xe2\x80\x9cexecution, levy, attachment, garnishment, or other legal process,\xe2\x80\x9d 5 U.S.C.A.\n\xc2\xa7 8437(e)(2) (emphasis added), applies only to forms of \xe2\x80\x9clegal process,\xe2\x80\x9d a term the Tax\nDivision argues should be understood to \xe2\x80\x9crequire judicial intervention,\xe2\x80\x9d whereas tax\nlevies under sections 6331 and 6334 are imposed administratively. See Memorandum\nfor Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from\nJohn A. DiCicco, Acting Assistant Attorney General, Tax Division, Re: Validity of IRS\nTax Levies on Thrift Savings Fund Accounts at 8\xe2\x80\x939 (Dec. 18, 2009). We need not, and\ntherefore do not, reach this argument to resolve the question presented to us.\n\n173\n\n\x0c'


b'May 31, 1977\n\n77-31\n\nMEMORANDUM OPINION FOR THE\nDIRECTOR OF THE EXECUTIVE OFFICE\nFOR UNITED STATES ATTORNEYS\nUnited States Attorney, Virgin Islands\xe2\x80\x94Hatch Act\nApplicability\n\nThis responds to your request for our opinion regarding the applica\xc2\xad\nbility of the Hatch Act or any other law or regulation to the questions\nposed by the United States Attorney for the Virgin Islands. The first\nquestion is whether employees of the Department of Justice (including\nthe attorney and his or her assistants) may run for and serve as dele\xc2\xad\ngates to the forthcoming Virgin Islands constitutional convention; and,\nif so, whether they must or should take a leave of absence from their\nofficial positions during the proceedings of the convention.\nThe U.S. Attorney describes as a given \xe2\x80\x9cthe nonpolitical, nonpartisan\ndescription of the Office of Delegate to the Constitutional Convention,\xe2\x80\x9d\nand he has forwarded the relevant Virgin Islands legislation authorized\nfor enactment by Congress in Pub. L. No. 94-584, 90 Stat. 2899. So far\nas relevant here, the Federal statute merely authorizes the Virgin Is\xc2\xad\nlands legislature to call a convention to draft a constitution for local\nself-government. The Virgin Islands legislation sets forth the qualifica\xc2\xad\ntions of delegates as follows (\xc2\xa7 4):\n(a) a citizen of the United States; and\n(b) a qualified elector of the Virgin Islands; and\n(c) a resident of the legislative district from which he or she has\nbeen elected for not less than three years immediately preceding\nthe date of election.\nIt further provides in \xc2\xa7 6 for a special election for delegates and that\n\xe2\x80\x9cno political party symbols nor political party designation shall appear\non any ballot.\xe2\x80\x9d\nThe Hatch Act, 5 U.S.C. \xc2\xa7 7321 et seq., does not prohibit the pro\xc2\xad\nposed activity. Section 7326(b) states that political activity of Federal\nexecutive branch employees is not prohibited where the activity is \xe2\x80\x9cin\nconnection with . . . a question which is not specifically identified with\na National or State political party or political party of a territory or\n123\n\n\x0cpossession of the United States.\xe2\x80\x9d The section goes on to state that\n\xe2\x80\x9cquestions relating to constitutional amendments, referendums, approval\nof municipal ordinances, and others of a similar character, are deemed\nnot specifically identified with a National or State political party or\npolitical party o f a territory or possession of the United States.\xe2\x80\x9d It is\nclear that the activity here involved is not prohibited.1\nThe applicable regulation appears in 28 CFR \xc2\xa7 45.735.19, which\nmerely embodies the restrictions of the Hatch Act. We also note that\nwith respect to 5 U.S.C. \xc2\xa7 7326, the Federal Personnel Manual states\nthat \xe2\x80\x9cEven if section 7326 permits the political activity involved in\nsecuring and holding an office, the holding o f the office must not\ninterfere with the efficient discharge of the duties of the Federal office.\nOn this question the head o f the Federal department or agency is the\nsole judge.\xe2\x80\x9d We believe that this is an issue for you to decide in the\nlight of whether the functions of the Virgin Islands office nevertheless\ncan be effectively carried on; obviously, the officials involved should\nnot be absent from their jobs for protracted periods that would leave\ntheir offices vacant or be unduly diverted from performing their normal\ntasks.\nAs to the second question, concerning a leave of absence, we are not\naware of any legal requirement therefor. It may be that what is meant\nis \xe2\x80\x9cleave without pay.\xe2\x80\x9d O n this point we refer you to the Federal\nPersonnel Manual, Chapter 630, Subchapter 12. The appropriate offi\xc2\xad\ncials in the Office of Management and Finance should also be\nconsulted.\nL\n\neon\n\nU\n\nlm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n1 It should be no ted that in 1966 this Office advised the D eputy A ttorney G eneral that\nthe H atch A c t did not permit a U nited States A ttorney to run for the office o f delegate\nto a S tate constitutional convention w here the delegates w ould be nom inated by their\npolitical parties and run under the p arty name and emblem.\n\n124\n\n\x0c'


b"Authority to Pay Witness Fees to Illegal Aliens\nAliens not legally entitled to be admitted to or reside in the United States w ho have been\nparoled for prosecution as defendants, who admit deportability, or who have been\nadjudged deportable under 8 U.S.C. \xc2\xa7 1252(b), are not entitled to payment for appear\xc2\xad\ning as witnesses in federal courts. 28 U.S.C. \xc2\xa7 1821(e). However, aliens who are\ncurrently the subject of deportation proceedings but have not admitted deportability, or\nw ho have rendered themselves subject to deportation proceedings and do not admit\ndeportability, are entitled to witness fees pursuant to 28 U.S.C. \xc2\xa7 1821 in the amount of\n$30 per day.\nAliens determined to be excludable under 8 U.S.C. \xc2\xa7 1226, whose removal has been\nstayed by the A ttorney General so that they may testify on behalf of the United States\nor indigent criminal defendants, are entitled to witness fees in the amount o f $1 per\nday. 8 U.S.C. \xc2\xa7 1227(d); Rule 17(b), Fed. R. Crim. P.\nWhere the language of two or more appropriation accounts makes them equally available\nto pay certain expenses, and an administrative determination has been made to pay\nthem out of one account rather than any other, Comptroller General rulings require the\ncontinued use o f the appropriation account that has been selected. Accordingly, witness\nfees paid to excludable aliens pursuant to 8 U.S.C. \xc2\xa7 1227(d) must in the future be made\nfrom the Department o f Justice\xe2\x80\x99s \xe2\x80\x9cFees and Expenses of Witnesses\xe2\x80\x9d (FEW ) appropria\xc2\xad\ntion, rather than from the Immigration and Naturalization Service appropriation, since\nsuch fees have in the past been paid from the F E W appropriation.\n\nDecember 21, 1981\nMEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY\nGENERAL FOR ADMINISTRATION\nYou have asked this Office to advise you as to the eligibility of aliens\nwho are not legally entitled to be admitted to or reside in the United\nStates for payment of witness fees and expenses for appearing in United\nStates courts.1 In addition, you have asked that we identify the statu\xc2\xad\ntory authorities that support our conclusions, and indicate the condi\xc2\xad\ntions and rates specified in those statutes. After receiving the views of\nyour Division and the Immigration and Naturalization Service (INS),2\n1 \xe2\x80\x9c Illegal\xe2\x80\x9d aliens are typically detained to testify in criminal proceedings against persons who\nallegedly smuggled them into the United States. See. e.g., United States v. Mendez-Rodriguez, 450 F.2d\n1 (9th Cir. 1971), holding that deporting deportable aliens who are potential witnesses in a criminal\nproceeding against alleged smugglers before defense counsel has had an opportunity to interview them\nviolates the defendants' rights to due process of law and compulsory process under the Fifth and Sixth\nAmendments to the Constitution.\n2 In response to your letter requesting our advice, we solicited the views of your Division and of\nINS as to these matters. The responses that w e received reflect substantial agreement as to the proper\nconstruction of 28 U.S.C. \xc2\xa7 1821 and 8 U.S.C. \xc2\xa7 1227(d) (Supp. II 1978), as well as the appropriations\navailable for payment of witness fees under these provisions. The responses differed only in that INS,\nContinued\n\n391\n\n\x0cand examining the pertainent statutes, we conclude that aliens paroled\nfor prosecution as defendants, or who admit deportability or have been\nadjudged deportable under \xc2\xa7 242(b) of the Immigration and Nationality\nAct, 8 U.S.C. \xc2\xa7 1252(b), are entitled to no payment at all for appearing\nas witnesses in federal courts. Aliens who are currently the subject of\ndeportation proceedings and do not admit deportability, or who have\nrendered themselves subject to deportation proceedings by, e.g., violat\xc2\xad\ning their status, and do not admit deportability, but have not yet been\nissued an order to show cause, are entitled to witness fees pursuant to\n28 U.S.C. \xc2\xa7 1821 in the amount of $30 per day. Finally, \xc2\xa7 237(d) of the\nImmigration and Nationality Act, 8 U.S.C. \xc2\xa7 1227(d), authorizes pay\xc2\xad\nments of $1 per day to excludable aliens whose removal has been\nstayed by the Attorney General for the purpose of providing testimony,\nin criminal proceedings on behalf of the United States, or, pursuant to\nRule 17(b) of the Federal Rules of Criminal Procedure, on behalf of\ndefendants who are unable to pay witness fees. Payments under both\nprovisions are authorized to be made out of the Department\xe2\x80\x99s \xe2\x80\x9cFees\nand Expenses of Witnesses\xe2\x80\x9d (FEW) appropriation.\nL\nThe general statutory provision which mandates payment of specified\nfees and allowances to witnesses \xe2\x80\x9cin attendance at any court of the\nUnited States\xe2\x80\x9d is 28 U.S.C. \xc2\xa7 1821. Under this section, witnesses are\nentitled to a $30 per day attendance fee, 28 U.S.C. \xc2\xa7 1821(b) (Supp. II\n1978), and a travel allowance for expenses incurred in travelling to and\nfrom the courthouse. 28 U.S.C. \xc2\xa7 1821(c) (Supp. II 1978).3\nSection 1821 specifically excludes three categories of aliens from the\nfee and allowance provisions that are generally applicable to other\nwitnesses in federal courts. 28 U.S.C. \xc2\xa7 1821(e) (Supp. II 1978).4 The\nfirst category of aliens not covered by the general witness fee provision\nincludes aliens who, pending the determination of their applications for\nadmission into the United States, are temporarily paroled into this\ncountry at the discretion of the Attorney General, for prosecution\nreflecting its expertise in such matters, noted the existence o f various categories o f \xe2\x80\x9cillegal aliens,\xe2\x80\x9d and\nclarified the distinction between \xe2\x80\x9cexcludable\xe2\x80\x9d and \xe2\x80\x9cdeportable\xe2\x80\x9d aliens, for purposes of 8 U.S.C.\n\xc2\xa7 1227(d).\n3 In addition, this section provides that witnesses whose testimony is material to a criminal proceed\xc2\xad\ning and whose appearance or testimony may not be secured by subpoena or deposition may be\ndetained pursuant to 18 U.S.C. \xc2\xa7 3149, and are entitled to a $30 attendance fee for each day of\nconfinement. 28 U.S.C. \xc2\xa7 1821(dX4) (Supp. II 1978). However, both the House and Senate reports to\nthe 1978 amendments o f \xc2\xa7 1821 clearly state that the section referring to detained material witnesses is\nnot intended to apply to \xe2\x80\x9c illegal aliens.\xe2\x80\x9d See H.R. Rep. No. 1651, 95th Cong., 2d Sess. 5 (1978); S.\nRep. No. 756, 95th Cong., 2d Sess. 4 (1978).\n4 28 U.S.C. \xc2\xa7 1821(e) (Supp. II 1978) provides:\nA n alien w ho has been paroled into the United States for prosecution, pursuant to\nsection 212(dX5) of the Immigration and Nationality Act (8 U.S.C. 1182(d)(5)), or an\nalien w ho either has admitted belonging to a class o f aliens w ho are deportable or has\nbeen determ ined pursuant to 242(b) o f such A ct (8 U .SC. 1252(b)) to be deportable,\nshall be ineligible to receive the fees or allowances provided by this section.\n\n392\n\n\x0cunder the laws of the United States. See, e.g., Klapholz v. Esperdy, 302\nF.2d 928 (2d Cir.), cert, denied, 371 U.S. 891 (1962). Aliens thus paroled\nare not deemed to be \xe2\x80\x9cadmitted\xe2\x80\x9d into the United States, and after their\nprosecution are returned to the custody from which they were paroled\nfor resumed processing of their applications. 8 U.S.C. \xc2\xa7 1182(d)(5)\n(Supp. II 1980).5 The second category of aliens excluded from the\nwitness fee provision of \xc2\xa7 1821 includes aliens who have already en\xc2\xad\ntered the United States\xe2\x80\x94either through formal admissions procedures\nor surreptitious entry\xe2\x80\x94and admit belonging to a class of deportable\naliens,6 thereby requesting voluntary departure without the necessity of\ndeportation proceedings under 8 U.S.C. \xc2\xa7 1252(b). The third category\nof aliens who are not entitled to witness fees under \xc2\xa7 1821 consists of\naliens who, after administrative proceedings pursuant to 8 U.S.C.\n\xc2\xa7 1252(b), have been found to be 'deportable.\nNotwithstanding the wide sweep of \xc2\xa7 1821(e), there do exist some\ncategories of aliens residing illegally in the United States which Con\xc2\xad\ngress has not specifically excluded from coverage under the general\nwitness fee provisions of \xc2\xa7 1821, and are entitled, we believe, to receive\nfees and allowances pursuant to that section. These categories include\naliens who, at the time of the proceeding in which they give testimony,\nare the subjects of deportation proceedings but have not admitted\ndeportability. An additional category of \xe2\x80\x9cillegal\xe2\x80\x9d aliens who are enti\xc2\xad\ntled to receive fees under \xc2\xa7 1821 are those aliens who have overstayed\ntheir authorized time, violated their status, or otherwise rendered them\xc2\xad\nselves amenable to deportation proceedings, but have not yet been\nissued an order to show cause and have not admitted deportability.\nAlthough the Justice Management Division did not specifically identify\nthis category of \xe2\x80\x9cillegal\xe2\x80\x9d aliens as separate and distinct from those who\nhave admitted being, or been found to be, deportable, we believe that\nthe distinction drawn by INS is a sound one. Congress\xe2\x80\x99 failure to\ninclude these two categories of aliens in \xc2\xa71821(e), which lists the\nvarious classes of aliens excluded from the fees and allowances provi\xc2\xad\nsion contained in \xc2\xa7 1821, is consistent with the fact that the status of the\naliens in these two categories has not yet been adjudicated.\nAn additional category of \xe2\x80\x9cillegal\xe2\x80\x9d aliens not specifically excluded\nfrom the witness fees provisions of \xc2\xa7 1821 are aliens who are excludable\n5 Section 1182(3X5) of Title 8 provides:\nThe A ttorney General may, except as provided in subparagraph (B), in his discretion\nparole into the United States temporarily under such conditions as he may prescribe\nfor emergent reasons or for reasons deemed strictly in the public interest any alien\napplying for admission to the United States, but such parole of such alien shall not be\nregarded as an admission of the alien and when the purposes of such parole shall, in\nthe opinion o f the Attorney General, have been served the alien shall forthwith return\nor be returned to the custody from which he was paroled and thereafter his case shall\ncontinue to be dealt with in the same manner as that of any other applicant for\nadmission to the United States.\n6 Section 241(a) o f the Immigration and Nationality Act, 8 U.S.C. \xc2\xa7 1251(a), catalogues the classes\nof deportable aliens.\n\n393\n\n\x0cunder \xc2\xa7 236 of the Immigration and Nationality Act, 8 U.S.C. \xc2\xa7 1226.\nExcludability under this section refers to aliens who have applied for,\nbut have not yet been granted, admission into the United States, or who\nhave been paroled into this country for a limited purpose\xe2\x80\x94in other\nwords, aliens who have not yet \xe2\x80\x9centered\xe2\x80\x9d the United States in the\ncontemplation of law. Because there is a more specific statutory au\xc2\xad\nthorization for witness fees for aliens in this category under the Immi\xc2\xad\ngration and Nationality Act, we do not believe that Congress intended\nthat excludable aliens be covered under the general witness fee provi\xc2\xad\nsions in 28 U.S.C. \xc2\xa71821.7 Section 237(d) of the Immigration and\nNationality Act, 8 U.S.C. \xc2\xa7 1227(d), authorizes the Attorney General to\nstay the removal of any alien determined to be excludable under \xc2\xa7 1226\n\xe2\x80\x9cif in his judgment the testimony of such alien is necessary on behalf of\nthe United States in the prosecution of offenders against . . . [the] laws\no f the United States,\xe2\x80\x9d and entitles such aliens to a witness fee of $1 per\nday for each day that they are detained in the custody of the United\nStates.8\nAlthough \xc2\xa7 1227(d) limits payments under this section to witnesses\nwho testify on behalf of the United States, Rule 17(b) of the Federal\nRules of Criminal Procedure 9 authorizes the payment of fees to wit\xc2\xad\nnesses who are subpoenaed to appear on behalf of defendants in crimi\xc2\xad\nnal proceedings, who are unable to pay the fees \xe2\x80\x9cin the same manner in\nwhich . . . fees are paid . . . [to] a witness subpoenaed on behalf of the\ngovernment.\xe2\x80\x9d Thus, aliens determined to be excludable under 8 U.S.C.\n\xc2\xa7 1226, whose removal is stayed for the purpose of testifying on behalf\nof indigent criminal defendants, are entitled to $1 for each day that they\nare so detained. Because the fees provision contained in \xc2\xa7 1227(d) is\n7 See 2A Sands, Sutherland Statutory Construction \xc2\xa751.05 (4th ed. 1973).\nW here one statute deals with a subject in general terms, and another deals with a part\no f the same subject in a more detailed way, the tw o should be harmonized if possible;\nbut if there is any conflict, the latter will prevail, regardless o f whether it was passed\nprior to the general statute, unless it appears that the legislature intended to make the\ngenera] act controlling.\nId. at 315 (footnotes omitted).\n8 Section 237(d) o f the Immigration and Nationality A ct, 8 U.S.C. \xc2\xa7 1227(d), provides in pertinent\npart:\nT he A ttorney General . . . may stay the deportation o f any alien deportable under\nthis section, if in his judgment the testimony o f such alien is necessary on behalf of the\nUnited States in the prosecution o f offenders against any provision of this chapter or\nother laws o f the United States. T h e cost o f maintenance of any person so detained\nresulting from a stay o f deportation under this subsection and a witness fee in the sum\no f $1 per day for each day such person is so detained may be paid from the\nappropriation for the enforcement o f this subchapter\n9 Rule 17 (b) provides:\nT he C ourt shall order at any tim e that a subpoena be issued for service on a named\nwitness upon an ex parte application of a defendant upon a satisfactory showing that\nthe defendant is financially unable to pay the fees o f the witness and that the presence\no f the witness is necessary to an adequate defense. If the court orders the subpoena to\nbe issued the costs incurred by the process and the fees of the witness so subpoenaed\nshall be paid in the same manner in which similar costs and fees are paid in case o f a\nwitness subpoenaed in behalf of the government.\nFed. R. C nm . P. 17(b).\n\n394\n\n\x0climited to aliens detained pursuant to that subsection, aliens who have\nbeen found to be deportable under \xc2\xa7 1252 who have been subpoenaed\nto testify and are detained for that purpose are not entitled to witness\nfees under \xc2\xa7 1227(d).\nII.\nThe Justice Management Division has informed us that payments\nmade to witnesses pursuant to 28 U.S.C. \xc2\xa7 1821 and 28 U.S.C. \xc2\xa7 1227(d)\nare authorized by, and, in the past have been made from, the Depart\xc2\xad\nment\xe2\x80\x99s FEW appropriation. While witness fees paid to excludable aliens\nunder \xc2\xa7 1227(d) are authorized to be made from the INS appropriation,\nwe believe that the INS appropriation need not be the exclusive source\nof such payments, and that the FEW appropriation is also available for\nthat purpose.\nSection 1227(d) provides that \xe2\x80\x9c[t]he cost of maintenance of any\nperson . . . detained . . . under this subsection and a witness fee in the\nsum of $1 per day for each day such person is so detained may be paid\nfrom the appropriation for the enforcement of this subchapter.\xe2\x80\x9d The\ncurrent INS appropriation refers generally to \xe2\x80\x9cexpenses, not otherwise\nprovided for, necessary for the administration and enforcement of the\nlaws relating to immigration . .\nbut does not refer specifically to\nwitness fee payments. H.R. 7584, 96th Cong., 2d Sess. (1980), enacted\nin part in the Continuing Appropriations for Fiscal Year 1981, Pub. L.\nNo. 96-536, \xc2\xa7 101(o), 94 Stat. 3169 (1980), and 1982, Pub. L. No. 97-92,\n95 Stat. 1183 (1981). The Department\xe2\x80\x99s FEW appropriation is not\nlimited to fees paid under \xc2\xa7 1821; rather, it provides generally for\n\xe2\x80\x9cexpenses, mileage, compensation, and per diems of witnesses and for\nper diems in lieu of subsistence, as authorized by law. . . .\xe2\x80\x9d Id.\nThus, while the language of neither appropriation specifically author\xc2\xad\nizes witness fee payments to be made to aliens who are not legally\nentitled to reside in the United States, the language of both appropria\xc2\xad\ntions reasonably may be construed to authorize such expenditures. In\nthese circumstances, the Comptroller General has opined that \xe2\x80\x9cthe\nadministrative determination as to which of the two [appropriations]\nshall be used will not be questioned by the accounting officers.\xe2\x80\x9d 23\nComp. Gen. 827 (1944); 5 Comp. Gen. 479 (1926). Moreover, the\nComptroller General has required the continued use of the appropria\xc2\xad\ntion which has been selected, \xe2\x80\x9cto the exclusion of any other for the\nsame purpose . . . in the absence of changes in the appropriation acts.\xe2\x80\x9d\n23 Comp. Gen. 827 (1944). See 10 Comp. Gen. 440 (1931). Because the\nDepartment has elected in the past to pay witness fees pursuant to 8\nU.S.C. \xc2\xa7 1227(d) out of the FEW appropriation, and the 1982 appro\xc2\xad\npriation, Pub. L. No. 97-92 (1981), does not modify the language of the\n1981 appropriation, Pub. L. No. 96-536, \xc2\xa7 101(o), 94 Stat. 3169 (1980),\n395\n\n\x0cwe conclude that the FEW appropriation must continue to be made\navailable for such payments.\nT h e o d o r e B. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n396\n\n\x0c"