b'Application of 44 U.S.C. \xc2\xa7 1903 to Procurement of\nPrinting of Government Publications\nSection 1903 of title 44 of the United States Code does not prevent executive agencies from using\nprivate printers at agency expense to print copies of government publications for their own use while\nat the same time requisitioning depository copies from the Government Printing Office at GPO\nexpense.\n\nAugust 22, 2002\n\nMEMORANDUM OPINION FOR THE ADMINISTRATOR FOR\nFEDERAL PROCUREMENT POLICY\nOFFICE OF MANAGEMENT AND BUDGET\nYou have asked for our interpretation of section 1903 of title 44 of the United\nStates Code, 1 and what limitations that section may place on the procurement of\nprinting of government publications by executive agencies in light of our previous\nadvice that executive agencies may opt to use private printers rather than the\nGovernment Printing Office (\xe2\x80\x9cGPO\xe2\x80\x9d). We conclude that under the best reading of\nthe statute, executive agencies may fulfill their own needs through use of private\nprinters and, at the same time, have GPO provide and pay for the copies of the\npublication sent to the depository libraries.\nChapter 19 of title 44 requires that certain government publications \xe2\x80\x9cshall be\nmade available to depository libraries through the facilities of the Superintendent\nof Documents for public information.\xe2\x80\x9d 44 U.S.C. \xc2\xa7 1902 (1994). For such\npublications, the Superintendent of Documents informs the component of\nGovernment ordering the printing of the number of copies needed for distribution\nto depository libraries. See id. \xc2\xa7 1903. Under certain circumstances, discussed\nbelow, GPO pays for such copies. See id.\nWe have previously advised that executive branch departments and agencies\nneed not procure printing through GPO. See Involvement of the Government\nPrinting Office in Executive Branch Printing and Duplicating, 20 Op. O.L.C. 214,\n221 (1996). We now conclude that for government publications that are to be\nmade available to the depository libraries, executive agencies may \xe2\x80\x9csplit\xe2\x80\x9d their\norders. That is, the agency may procure the copies for its own use through private\nprinters and have GPO provide and pay for copies to be sent to the depository\nlibraries.\nSection 1903 provides, in relevant part:\nUpon request of the Superintendent of Documents, components of\nthe Government ordering the printing of publications shall either\n\n1\n\nSee 44 U.S.C. \xc2\xa7 1903 (1994).\n\n104\n\n227-329 VOL_26_PROOF.pdf 114\n\n10/22/12 11:13 AM\n\n\x0cApplication of 44 U.S.C. \xc2\xa7 1903 to Printing of Government Publications\n\nincrease or decrease the number of copies of publications furnished\nfor distribution to designated depository libraries . . . so that the\nnumber of copies delivered to the Superintendent of Documents is\nequal to the number of libraries on the list. . . .\nThe Superintendent of Documents shall currently inform the\ncomponents of the Government ordering printing of publications as\nto the number of copies of their publications required for distribution\nto depository libraries. The cost of printing and binding those publications distributed to depository libraries obtained elsewhere than\nfrom the Government Printing Office, shall be borne by components\nof the Government responsible for their issuance; those requisitioned\nfrom the Government Printing Office shall be charged to appropriations provided the Superintendent of Documents for that purpose.\n44 U.S.C. \xc2\xa7 1903.\nBecause the statute refers both to copies of publications and to publications\nthemselves, some ambiguity arises. Indeed, the statute uses both terms in the same\nsentence, giving rise to the implication that the two terms have different meanings.\nSee, e.g., id. (stating that \xe2\x80\x9ccomponents of the Government ordering the printing of\npublications shall either increase or decrease the number of copies of publications\nfurnished for distribution to designated depository libraries\xe2\x80\x9d) (emphasis added).\nTaking seriously the possible distinction between copies of publications and\npublications, it could be argued that the full cost of printing any publication\n(including depository copies) not requisitioned entirely through GPO must be\nborne by the ordering component of Government. This is so because, on this\nreading, \xe2\x80\x9cthose requisitioned from\xe2\x80\x9d GPO would refer to publications that are\ndistributed to depository libraries and not merely to the copies of such publications\nthat actually are so distributed.\nWe reject this construction, however. Giving effect to the possible distinction\nbetween copies of publications and publications undermines the statute. \xe2\x80\x9c[T]hose\npublications distributed to depository libraries\xe2\x80\x9d clearly refers to the same thing as\n\xe2\x80\x9cthose requisitioned from the Government Printing Office.\xe2\x80\x9d But if these phrases\nrefer to the total publication rather than the copies sent to the depository libraries,\nthe statute would require GPO to pay for the entire cost of printing every copy of\nthe publication, as long as the agency requisitioned GPO to print the publication.\nNot only would this be an absurd result given GPO\xe2\x80\x99s role, but we understand that\nit is unsurprisingly contrary to practice, see, e.g., Memorandum for Heads of\nExecutive Departments and Agencies, from Mitchell E. Daniels, Jr., Director,\nOffice of Management and Budget, Re: Procurement of Printing and Duplicating\nthrough the Government Printing Office at 1 (May 3, 2002) (noting that GPO\ncharges agencies for printing services). Because \xe2\x80\x9c[s]tatutory construction is a\n\n105\n\n227-329 VOL_26_PROOF.pdf 115\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nholistic endeavor, and, at a minimum, must account for a statute\xe2\x80\x99s full text,\nlanguage as well as punctuation, structure, and subject matter,\xe2\x80\x9d Nat\xe2\x80\x99l Bank of Or.\nv. Indep. Ins. Agents, 508 U.S. 439, 455 (1993) (internal quotations and citation\nomitted), we decline to give effect to any possible distinction between \xe2\x80\x9ccopies of\npublications\xe2\x80\x9d and \xe2\x80\x9cpublications.\xe2\x80\x9d\nIt follows that the statute provides that GPO shall cover the costs of producing\nthe copies of publications that are to be distributed to the depository libraries, as\nlong as the ordering component of Government requisitions GPO to produce those\ncopies. Furthermore, the statute does not require that the ordering component of\nGovernment requisition every copy of the publication from GPO in order to have\nGPO pay for the depository copies. Accordingly, we conclude that section 1903\ndoes not preclude agencies from splitting their orders by contracting with private\nprinters to produce copies for their own use and requisitioning GPO to produce the\ndepository copies.\nIn summary, executive agencies may split print orders, using private printers at\nagency expense for their own needs and requisitioning depository copies from\nGPO at GPO\xe2\x80\x99s expense. We note in passing that nothing in the statute requires\nGPO actually to produce the depository copies in a separate printing run. As GPO\nitself already contracts out most of its printing work, GPO could certainly choose\nto purchase the depository copies from the private printer selected by the executive\nagency.\nJOAN L. LARSEN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n106\n\n227-329 VOL_26_PROOF.pdf 116\n\n10/22/12 11:13 AM\n\n\x0c'


b'Inapplicability of the Federal Vacancies Reform Act\xe2\x80\x99s\nReporting Requirements When PAS Officers Serve Under\nStatutory Holdover Provisions\nThere is no \xe2\x80\x9c vacancy\xe2\x80\x9d within the meaning of the Federal Vacancies Reform Act of 1998 when a\npresidentially appointed, Senate-confirmed officer continues to hold a position under a statutory\nholdover provision. Therefore, the holdover service is not reportable under the Act.\nJuly 30, 1999\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\nO f f ic e o f M a n a g e m e n t a n d B u d g e t\n\nWe recently received two inquires that raised the question whether service of\na presidentially appointed, Senate-confirmed (\xe2\x80\x9c PAS\xe2\x80\x9d ) officer under a statutory\nholdover provision is reportable as a vacancy under the Federal Vacancies Reform\nAct of 1998 ( \xe2\x80\x9c Vacancies Reform Act\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ). As discussed below, we have\nconcluded that holdover service is not a vacancy for purposes of the Act and\ntherefore is not reportable. We wanted to inform you of our conclusion to facilitate\na uniform approach among the executive agencies on the reporting of this informa\xc2\xad\ntion. Because the Act is somewhat confusing on the point, however, we also would\nstrongly urge (and the White House Counsel\xe2\x80\x99s Office concurs) that you notify\nthe General Accounting Office that the Administration is not reporting holdover\npositions as vacancies.\nStatutory holdover provisions provide for an officer appointed for a term of\nyears to continue to serve in the office at the expiration of the term for which\nhe or she was appointed. In some cases that period is open-ended \xe2\x80\x94 statutorily\ndefined as continuing until a successor is appointed. In other cases, the period\ncontinues until either a successor is appointed or a specific period of time has\nexpired. In either case, the PAS officer\xe2\x80\x99s term in the office continues until the\nexpiration o f the statutorily defined holdover period.\nAs a matter of constitutional law, the executive branch consistently has taken\nthe position that there is a vacancy for purposes of the Recess Appointments\nClause when an appointment for a term of years expires and the officer continues\nserving under a holdover provision.1 There is, however, no necessary correspond\xc2\xad\nence between the meaning of a \xe2\x80\x9c vacancy\xe2\x80\x9d for purposes of the Recess Appoint\xc2\xad\n1 Judicial decisions on the issue have been mixed. Compare Staebler v Carter, 464 F. Supp. 585, 588-601 (D.D C.\n1979) (holding that a Federal Election Commission ( \xe2\x80\x9c FEC\xe2\x80\x9d ) office was vacant for Recess Appointments Clause\npurposes when the incumbent continued to exercise authority pursuant to a holdover provision that provided that\n\xe2\x80\x9c [a] m em ber o f the [FEC] may serve on the Commission after the expiration of his term until his successor has\ntaken office\xe2\x80\x9d ) with M ackie v. Clinton, 827 F. Supp. 56, 58 (D.D.C. 1993) (whether a vacancy exists for Recess\nAppointments Clause purposes depends on th e wording and structure of the particular holdover provision, deciding\nthat the Postal Service holdover provision did not create a vacancy), vacated as moot. No 93-5287, 93-5289, 1994\nW L 163761 (D C . C ir Mar. 9, 1994)\n\n178\n\n\x0cApplicability o f the Federal Vacancies Reform A c t\xe2\x80\x99s Reporting Requirements to Statutory Holdovers\n\nments Clause and the meaning of a \xe2\x80\x9c vacancy\xe2\x80\x9d as used in a statute, such as the\nVacancies Reform Act.\nUnder the Vacancies Reform Act, a \xe2\x80\x9c vacancy\xe2\x80\x9d occurs when a PAS officer\n\xe2\x80\x9c dies, resigns, or is otherwise unable to perform the functions and duties of the\noffice.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a) (Supp. IV 1998). This is a narrower idea of a vacancy\nthan is applicable in the context of the Recess Appointments Clause. It is, as\nwell, a definition that is not, by its terms, applicable to an officer serving under\na statutory holdover provision. Under a holdover provision, the Senate-confirmed\nofficer continues to serve in the office and therefore has not died, resigned, or\nbecome unable to perform the functions and duties of the office.\nIn addition, the Vacancies Reform Act provides, in a separate section specifi\xc2\xad\ncally addressing service under a holdover provision, that the Act is not intended\nto affect the service of a PAS officer under such a provision:\nSections 3345 through 3349a shall not be construed to affect any\nstatute that authorizes a person to continue to serve in any office \xe2\x80\x94\n(1) after the expiration of the term for which such person\nis appointed; and\n(2) until a successor is appointed or a specified period of\ntime has expired.\n5 U.S.C. \xc2\xa7 3349b (Supp. IV 1998). As a result, we believe that there is no vacancy\nto be reported under the Act when a PAS officer continues service under a hold\xc2\xad\nover provision.\nAlthough we believe that this is the proper understanding of the Act,\n\xc2\xa7 3345(c)(2) makes what would otherwise be a clear result somewhat less clear.\nSection 3345(c)(2) provides that \xe2\x80\x9c [f]or purposes of this section and sections 3346,\n3347, 3348, 3349, 3349a, and 3349d, the expiration of a term of office is an\ninability to perform the functions and duties of such office.\xe2\x80\x9d Viewed in isolation,\nthis provision could be interpreted to extend the definition of a vacancy to cover\nservice under a holdover provision. Section 3345(c)(2), however, must be inter\xc2\xad\npreted in light of the purpose of \xc2\xa7 3345(c) as a whole, and, as so interpreted,\nit does not alter the conclusion provided by examining the other provisions of\nthe Act.2\nSection 3345(c) was added as a late amendment to the Act for the purpose\nof creating an additional class of acting officers for a specific, narrow situation:\nofficers holding fixed terms with no holdover provision who are renominated to\n\n2 The other pari o f section 3345(c) is subsection (c)(1), which provides.\nNotwithstanding subsection (a)(1), the President (and only the President) may direct an officer who is\nnominated by the President for reappointment for an additional term to the same office in an Executive\ndepartment without a break in service, to continue to serve in that office subject to the time limitations\nin section 3346, until such time as the Senate has acted to confirm or reject the nomination, notwithstanding\nadjournment sine die.\n\n179\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nthe office. See 144 Cong. Rec. S12,823 (daily ed. Oct. 21, 1998) (statement of\nSen. Thompson) (\xe2\x80\x9c New \xc2\xa7 3345(c) was added to address the special case of an\nexecutive department (not executive agency) officer who serves not at the pleasure\nof the President, but under a fixed term, and without a holdover provision that\ngoverns acting service in that office following expiration of the fixed term.\xe2\x80\x9d\n(emphasis added)). Section 3345(c) was not intended to, and does not, supplant\nor alter the specific statement in \xc2\xa7 3349b that the Act does not affect service under\na statutory holdover provision.3\nFor these reasons, we believe that when an officer serves under a holdover\nprovision, there is no reportable vacancy under the Act.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 Section 3345(c) refers to \xe2\x80\x9c the expiration o f a term o f office," and \xc2\xa7 3349b refers to \xe2\x80\x9c the expiration o f the\nterm for which such person is appointed.\xe2\x80\x9d T h e different phrases convey different meanings. As we discussed above,\n\xc2\xa7 3345(c)(2) was meant to apply to situations in which there is no holdover provision and was not intended to\nsupplant or alter the clear statement in \xc2\xa7 3349b that the Act does not affect service under a holdover provision.\nBut to the extent \xc2\xa7 3345(c)(2) encompasses positions with holdover provisions, its reference to a term of office\nwould sensibly include the full period of service in the office, including the holdover period Section 3349b, on\nthe other hand, refers to \xe2\x80\x98\xe2\x80\x98the expiration o f the term fo r which such person is appointed" (emphasis added) when\nit unquestionably intends to exclude the holdover period. This is the term o f years designated as the term of appoint\xc2\xad\nment in the statute governing appointment to the position See, e.g., 28 U.S C. \xc2\xa7541 (b) (1994) (\xe2\x80\x98\xe2\x80\x98Each United States\nattorney shall be appointed for a term o f fo u r years On the expiration of his term, a United States attorney shall\ncontinue to perform the duties o f his office until his successor is appointed and qualifies.\xe2\x80\x9d )\n\n180\n\n\x0c'


b'Implementation of Standstill Agreement Pending\nApproval of ABM Treaty and ICBM Interim Agreement\nThe Standstill Agreement, made by the President with the Soviet Union pending congressional\napproval of the ABM Treaty and the ICBM Interim Agreement, would not violate section 33 of the\nArms Control and Disarmament Act, forbidding disarmament except by treaty or act of Congress.\nThe President is not precluded by contract law or authorization and appropriations legislation passed by\nCongress from directing the appropriate Executive Branch agencies to abide by the provisions of the\narms control agreements pending their coming into force.\n\nJune 12, 1972\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis is in response to your oral request for our views concerning certain legal\naspects of the Standstill Agreement made with the Soviet Union pending approval\nby the Congress and the Senate respectively of the Interim Agreement with the\nUSSR on Certain Measures with Respect to the Limitation of Strategic Offensive\nArms (\xe2\x80\x9cInterim Agreement\xe2\x80\x9d) and the Treaty with the USSR on the Limitation of\nAnti-Ballistic Missile Systems (\xe2\x80\x9cABM Treaty\xe2\x80\x9d).\nAlthough we have not seen the text of the Standstill Agreement, we understand\nthat it is embodied in three documents which have been summarized in the\nproposed transmittal papers to Congress as follows:\nBoth signatories understand that, pending ratification and acceptance, neither will take any action that would be prohibited by the\nABM Treaty and the Interim Agreement, in the absence of notification by either signatory of its intention not to proceed with ratification or acceptance.\nThe ABM Treaty is an agreement not to deploy Anti-Ballistic Missile Systems\nexcept for the two described in Article III of the Treaty. The Interim Agreement\nprovides that the United States and the USSR undertake not to start construction of\nadditional fixed land-based intercontinental ballistic missile launchers after July 1,\n1972; not to convert land-based launchers for light ICBMs into launchers for\nheavy types; and to limit the number of missile launching submarines.\nI.\nThe first question presented is whether the Standstill Agreement would violate\nthe proviso to section 33 of the Arms Control and Disarmament Act. Pub. L.\nNo. 87-297, \xc2\xa7 33, 75 Stat. 631, 634 (1961), codified at 22 U.S.C. \xc2\xa7 2573 (1970).\nThat proviso states:\n\n346\n\n\x0cImplementation of Standstill Agreement Pending Approval of ABM Treaty\n\nThat no action shall be taken under this or any other law that will\nobligate the United States to disarm or to reduce or to limit the\nArmed Forces or armaments of the United States, except pursuant to\nthe treaty making power of the President under the Constitution or\nunless authorized by further affirmative legislation by the Congress\nof the United States.\nWe believe it reasonable to conclude that the Standstill Agreement does not violate\nthis proviso. A technical argument to the contrary could be made since it might be\nsaid to be an obligation to limit the arms of the United States not implemented by\ntreaty or statute.\nAs indicated in our memorandum to you of June 7, 1972, the proviso to section 33 was intended to prevent the President from acting on his own in making\narms limitation agreements. See, e.g., 107 Cong. Rec. 20,308\xe2\x80\x9309 (1961). Here the\nPresident is acting closely with the Congress and asking for its approval. On his\nreturn after signing the ABM Treaty and the Interim Agreement, he stated to\nCongress: \xe2\x80\x9c[W]e can undertake agreements as important as these only on a basis of\nfull partnership between the executive and legislative branches of our Government.\xe2\x80\x9d Transcript of President Nixon\xe2\x80\x99s Address to Congress on Meetings in\nMoscow, N.Y. Times, June 2, 1972, at 12.\nAll that the Standstill Agreement seeks to do is to ensure that both the United\nStates and the USSR refrain from acts which would defeat the object and purpose\nof the Treaty and the Interim Agreement, thus allowing them to be successfully\nimplemented. In doing so the parties are following a generally recognized\nprinciple of international law\xe2\x80\x94international agreements should be negotiated in\ngood faith and nothing should be done to undermine them pending their final\nconclusion. This principle is codified in Article 18 of the Vienna Convention on\nthe Law of Treaties (which the United States has signed but has not yet ratified) as\nfollows:\nA State is obligated to refrain from acts which would defeat the object and purpose of a treaty when:\n(a) It has signed the treaty . . . ; or\n(b) It has expressed its consent to be bound by the treaty, pending\nthe entry into force of the treaty and provided that such entry into\nforce is not unduly delayed.\nVienna Convention on the Law of Treaties art. 18, opened for signature May 23,\n1969, 1155 U.N.T.S. 331, 336 (entered into force Jan. 27, 1980).\nThis custom reflects certain eminently practical considerations. It would be\ndifficult to conclude a successful treaty or interim agreement in the arms control\narea without an understanding as to what the relationship of the parties should be\n\n347\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\npending ratification or acceptance as the case may be; as a result, such understandings, as here, are often reduced to writing. See George Bunn, Missile Limitation:\nBy Treaty or Otherwise?, 70 Colum. L. Rev. 1, 16 (1970).\nIt should be noted that the proviso does not state that all arms limitation agreements must be made by treaty or statute. The phrase used in section 33 is \xe2\x80\x9cpursuant to the treaty making power of the President under the Constitution\xe2\x80\x9d (emphasis\nadded). Although treaties can be made only by and with the advice and consent of\nthe Senate, it is the President alone who negotiates. The Treaty Clause therefore\nconfers on him certain independent powers. See Congressional Oversight of\nExecutive Agreements: Hearing Before the Subcomm. on Separation of Powers of\nthe S. Comm. on the Judiciary, 92d Cong. at 248\xe2\x80\x9369 (May 18, 1972) (statement of\nJohn R. Stevenson, Legal Adviser, Department of State). Under the treaty making\npower of the President, certain \xe2\x80\x9ctime-honored diplomatic devices [such] as the\n\xe2\x80\x98protocol\xe2\x80\x99 which marks a stage in the negotiation of a treaty, and the modus\nvivendi, which is designed to serve as a temporary substitute for one,\xe2\x80\x9d are recognized. The Constitution of the United States of America: Analysis and Interpretation, S. Doc. No. 88-39, at 485 (Edward S. Corwin et al. eds., 1964); see United\nStates v. Belmont, 301 U.S. 324, 330 (1937). It is the President\xe2\x80\x99s duty in negotiating international agreements to preserve the effectiveness of the treaty making\npower and to take care that our international obligations are met by arrangements\nwhich are designed to preserve the integrity of more lasting arrangements. Cf.\nUnited States v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).\nThe Standstill Agreement is such a stage in negotiations seeking to preserve the\nstatus quo and to meet our international obligations pending eventual congressional approval. The Supreme Court has said on a number of occasions that \xe2\x80\x9c\xe2\x80\x98an act\nof Congress ought never to be construed to violate the law of nations if any other\npossible construction remains.\xe2\x80\x99\xe2\x80\x9d McCulloch v. Sociedad Nacional de Marineros de\nHonduras, 372 U.S. 10, 21 (1963) (quoting The Charming Betsy, 6 U.S. (2 Cranch)\n64, 118 (1804)). We conclude that the proviso to section 33 should not be read to\npreclude such an arrangement.\nII.\nThe second question put to us is whether, apart from the matter discussed\nabove, the President is legally precluded from directing the appropriate Executive\nBranch agencies to abide by the provisions of the ABM Treaty and the Interim\nAgreement pending their coming into force.\nSpecifically, this question involves the President\xe2\x80\x99s authority to direct executive\nagencies to take initial steps to terminate current contracts for construction and\nprocurement in projects covered by the ABM Treaty and the Interim Agreement.\nWe perceive two potential legal objections to this proposal. First, private contractors may object to termination of their construction or procurement contracts\nwith the government for these projects as a matter of contract law. However, since\n\n348\n\n\x0cImplementation of Standstill Agreement Pending Approval of ABM Treaty\n\nwe understand that all defense contracts are supposed to have termination-forconvenience clauses, the government can simply terminate these contracts as\nprovided in the contracts. Even if this clause were omitted from a contract, the\ngovernment could still terminate and pay appropriate damages for breach of\ncontract. Thus, there is no insurmountable contractual hurdle in issuing a presidential suspension directive.\nA second question involves the constitutional power of the President to terminate projects provided for by authorization and appropriations legislation passed\nby the Congress. This question in turn raises two subsidiary issues: (1) whether\nthis legislation grants discretion to the President in spending funds or is mandatory\nin nature; and (2) if mandatory, whether the President possesses constitutional\nauthority to disregard the legislative mandate.\nSince the President is under a constitutional obligation to \xe2\x80\x9ctake Care that the\nLaws be faithfully executed\xe2\x80\x9d (U.S. Const. art. II, \xc2\xa7 3), the authorization and\nappropriations legislation for each of the various projects scheduled for termination must be considered. Although we have not been informed of the specific\nlegislation applicable to the projects involved (except for the ABM installation\ndiscussed below), the laws probably will be found to be permissive in nature if\nthey follow the pattern of most spending legislation, particularly defense appropriations in recent years. As a general rule, appropriations acts \xe2\x80\x9care of a fiscal and\npermissive nature and do not in themselves impose upon the executive branch an\naffirmative duty to expend the funds.\xe2\x80\x9d Federal-Aid Highway Act of 1956\xe2\x80\x94Power\nof President to Impound Funds, 42 Op. Att\xe2\x80\x99y Gen. 347, 350 (1967) (Clark, A.G.)\n(citing cases); see also McKay v. Cent. Elec. Power Coop., 223 F.2d 623, 625\n(D.C. Cir. 1955).\nOne of the projects being considered for immediate termination is presumably\nthe Safeguard ABM installation at Malmstrom Air Force Base at Great Falls,\nMontana. Secretary Laird recently directed the officials involved to suspend\nconstruction at this site. In connection with this directive we have examined the\nmost recent authorization and appropriations legislation governing the Safeguard\nsite.1 Neither the language of the acts nor the legislative history indicate that\nCongress intended the spending to be mandatory.\nEven if some of the projects in question are, as a matter of statutory construction, interpreted as mandatory in nature, there may be constitutional authority for\nthe President\xe2\x80\x99s refusal to expend additional funds. This Office has previously\nadvised that the President has authority to impound funds if their expenditure\nwould conflict with his powers and responsibilities as Commander in Chief and his\nprimary role in international relations. Whether Congress can force the President\nto spend appropriated funds in these cases is not likely to be tested directly in any\n\n1\nMilitary Procurement Authorization Act, 1972, Pub. L. No. 92-156, 85 Stat. 423; Department of\nDefense Appropriation Act, 1972, Pub. L. No. 92-204, 85 Stat. 716.\n\n349\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nevent. Because this matter involves delicate questions concerning the separation of\npowers between the two political branches of government, the Supreme Court has\nnot, nor is likely to, pass on this question. We believe, however, that the weight of\nhistorical precedent indicates that the President possesses the power to impound\nfunds touching on the national defense and foreign relations.\nPrecedents for presidential impoundment in this area are numerous. In 1949, for\nexample, Congress voted to increase the Air Force from 48 to 58 groups. President\nTruman signed the bill but directed the impoundment of the extra $614 million\nappropriated. President Truman also cancelled the construction of an aircraft\ncarrier designed to carry nuclear bombers by exercising his power as Commander\nin Chief to direct that strategic nuclear bombing be exclusively an Air Force\nmission. And in 1956 the Defense Department declined to implement a congressional appropriation earmarked for the construction of 20 superfort bombers.2\nIn this light, the suspension of further work on projects covered by the agreements through the impounding of appropriated funds appears within the President\xe2\x80\x99s constitutional powers, even if Congress did intend that a specific appropriation should be mandatory.\nRALPH E. ERICKSON\nAssistant Attorney General\nOffice of Legal Counsel\n\n2\nThese examples and others are discussed in the following articles: Frank Church, Impoundment of\nAppropriated Funds: The Decline of Congressional Control over Executive Discretion, 22 Stan. L.\nRev. 1240, 1242\xe2\x80\x9344 & nn. 21\xe2\x80\x9322 (1970); Harry Kranz, A 20th Century Emancipation Proclamation:\nPresidential Power Permits Withholding of Federal Funds from Segregated Institutions, 11 Am. U. L.\nRev. 48, 65 n.122 (1962); Arthur Selwyn Miller, Presidential Power to Impound Appropriated Funds:\nAn Exercise in Constitutional Decision-Making, 43 N.C.L. Rev. 502, 513 (1965).\n\n350\n\n\x0c'


b'Authority of OPM to Direct Health Insurer Not to Enroll\nIndividual Deemed Eligible by Employing Agency\nUnder both the regulations it has issued for administering the Federal Employees Health\nBenefits Act and its contract with the insurance carrier, the Office of Personnel Management has authority to direct a carrier not to enroll an individual in a health plan if\nOPM disagrees with the employing agency\xe2\x80\x99s determination that the enrollment is permissible under federal law.\nIn the circumstances presented here, the law does not allow OPM to exercise its general\nadministrative discretion in a manner that would permit such an enrollment to proceed.\nJanuary 20, 2010\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nThis memorandum elaborates upon legal advice our Office previously\nprovided to you orally and by e-mail concerning the authority of the\nOffice of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) to direct the Blue Cross and\nBlue Shield Association (\xe2\x80\x9cBC/BS\xe2\x80\x9d) not to enroll a federal employee\xe2\x80\x99s\nsame-sex spouse in a federal health benefits plan, in a situation where the\nrelevant employing agency has determined that the spouse is eligible to\nenroll. We previously advised both that OPM possesses the authority to\ndirect non-enrollment and that, in the circumstances presented here, the\nlaw does not allow OPM to exercise its general administrative discretion\nin a manner that would permit such an enrollment to proceed. We reach\nthis conclusion based on our understanding of the Federal Employees\nHealth Benefits Program (\xe2\x80\x9cFEHBP\xe2\x80\x9d) and of basic principles of administrative and government contracting law, although we acknowledge that\nthere is no express provision of the Federal Employees Health Benefits\nAct (\xe2\x80\x9cFEHBA\xe2\x80\x9d)\xe2\x80\x94the statute governing the FEHBP\xe2\x80\x94or OPM\xe2\x80\x99s organic\nstatute that precisely addresses a situation like this or that expressly\nimposes a duty upon OPM to countermand an employing agency\xe2\x80\x99s enrollment determination when OPM believes that determination to be\ninconsistent with the statutory bounds established by the FEHBA. Because this issue arises in a highly unusual and complex procedural posture, we begin by setting forth in some detail the factual background that\ninforms our understanding of the questions you have posed and the answers that we provide. We then explain why we believe that OPM has the\n51\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nauthority to direct non-enrollment here, as well as why we believe the law\ndoes not allow OPM to permit the enrollment to proceed in these circumstances.\nI.\nIn 2008, Karen Golinski, a staff attorney for the U.S. Court of Appeals\nfor the Ninth Circuit, applied for benefits for her same-sex spouse under\nthe FEHBP. Under the regulatory scheme established for administering\nthe FEHBP, the Administrative Office of the United States Courts\n(\xe2\x80\x9cAOUSC\xe2\x80\x9d), as Ms. Golinski\xe2\x80\x99s employing agency, deemed Ms. Golinski\xe2\x80\x99s spouse ineligible to receive benefits. Accordingly, the AOUSC\nrefused to submit Ms. Golinski\xe2\x80\x99s health benefits election form to her\ninsurance carrier, BC/BS. In response, Ms. Golinski filed a complaint\nunder the Ninth Circuit\xe2\x80\x99s Employee Dispute Resolution (\xe2\x80\x9cEDR\xe2\x80\x9d) plan,\nwhich establishes the Ninth Circuit\xe2\x80\x99s internal procedure for resolving\nemployee disputes. In that complaint, she alleged that the AOUSC\xe2\x80\x99s\nfailure to submit her form violated the Ninth Circuit\xe2\x80\x99s EDR plan and its\nEqual Employment Opportunity (\xe2\x80\x9cEEO\xe2\x80\x9d) plan because it amounted to\ndiscrimination on the basis of sex and sexual orientation. See In re Golinski, 587 F.3d 901, 902 (9th Cir. 2009).\nThe Chief Judge of the Ninth Circuit, Alex Kozinski, sitting as the\nhearing officer administering the EDR plan, agreed with Ms. Golinski\xe2\x80\x99s\ncomplaint. He concluded that the FEHBA permitted employing agencies\nto enroll same-sex spouses notwithstanding the Defense of Marriage Act\n(\xe2\x80\x9cDOMA\xe2\x80\x9d) and thus that denying health insurance to Ms. Golinski\xe2\x80\x99s\nspouse violated the prohibitions against discrimination in the Ninth Circuit\xe2\x80\x99s EDR and EEO plans. He ordered the Director of the AOUSC to\nsubmit Ms. Golinski\xe2\x80\x99s health benefits election form \xe2\x80\x9cto the appropriate\nhealth insurance carrier.\xe2\x80\x9d Id. at 904.\nIn response to the Chief Judge\xe2\x80\x99s order, OPM, by letter dated February\n20, 2009, advised the AOUSC that \xe2\x80\x9c[p]lans in the FEHBP may not provide coverage for domestic partners, or legally married partners of the\nsame sex, even though recognized by state law.\xe2\x80\x9d Letter for Nancy E.\nWard, Deputy Assistant Director, Office of Human Resources, Administrative Office of the United States Courts, from Lorraine E. Dettman,\nAssistant Director, Office of Insurance Services Programs, Office of\n52\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nPersonnel Management (Feb. 20, 2009) (\xe2\x80\x9cDettman Letter\xe2\x80\x9d). The letter\nreferenced prior guidance from OPM on that same point. See Office of\nPersonnel Management, Benefits Administration Letter No. 96-111, at 3\n(Nov. 15, 1996) (\xe2\x80\x9c[DOMA] clarifies that same-sex marriages cannot be\nrecognized for benefit entitlement purposes under . . . FEHB[.]\xe2\x80\x9d). The\nletter further advised that OPM had informed BC/BS that it \xe2\x80\x9cmay not\naccept the enrollment forms submitted by your agency to provide coverage that is not allowed under Federal law.\xe2\x80\x9d Dettman Letter; see also\nLetter for Stephen W. Gammarino, Senior Vice President, National Programs, Blue Cross Blue Shield, from Shirley R. Patterson, Chief Insurance Contracting Officer, Office of Insurance Services Programs, Office\nof Personnel Management (Feb. 23, 2009) (\xe2\x80\x9cUnder [the FEHBA and\nDOMA], Ms. Golinski may not provide coverage for her same-sex\nspouse, even though the marriage may be recognized by state law. Therefore, we are advising you that you may not accept the enrollment form\nsubmitted by the Administrative Office of the United States Courts to\nprovide coverage that is not allowed under Federal law.\xe2\x80\x9d).\nIn response to OPM\xe2\x80\x99s letter to the AOUSC, its advice to BC/BS not\nto permit the enrollment, and the fact that the carrier had not actually\nenrolled Ms. Golinski\xe2\x80\x99s spouse following the Chief Judge\xe2\x80\x99s initial order,\nthe Chief Judge issued a new order dated November 19, 2009. In that\norder, the Chief Judge reiterated Ms. Golinski\xe2\x80\x99s entitlement to relief and\nordered the AOUSC to resubmit her health benefits election form to\nBC/BS. He further concluded that OPM\xe2\x80\x99s actions in issuing guidance or\notherwise directing the carrier not to enroll Ms. Golinski\xe2\x80\x99s spouse violated\nseparation of powers principles; he directed OPM to \xe2\x80\x9crescind\xe2\x80\x9d its \xe2\x80\x9cguidance or directive\xe2\x80\x9d instructing BC/BS that Ms. Golinski\xe2\x80\x99s wife was not\neligible to enroll; and he instructed OPM to refrain from \xe2\x80\x9cinterefer[ing]\nin any way with the delivery of health benefits to Ms. Golinski\xe2\x80\x99s wife on\nthe basis of her sex or sexual orientation.\xe2\x80\x9d In re Golinski, 587 F.3d 956,\n963\xe2\x80\x9364 (9th Cir. 2009) (\xe2\x80\x9cNovember 19, 2009 Order\xe2\x80\x9d). 1\n1 On December 17, 2009, BC/BS filed a petition for review of the November 19, 2009\nOrder with the Ninth Circuit Judicial Council, arguing that \xe2\x80\x9cthe Judicial Council has no\njurisdiction over BC/BSA under the EDR Plan\xe2\x80\x9d and that the Chief Judge\xe2\x80\x99s conclusion that\nthe FEHBA allows enrollment of same-sex spouses was incorrect in any event. See\nPetition for Review for Blue Cross and Blue Shield Association at 1, 9, In re Golinski,\nNo. 09-80173 (9th Cir. Dec. 17, 2009). On December 22, 2009, Chief Judge Kozinski\n\n53\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nIn light of this order, you asked whether, assuming the AOUSC resubmits Ms. Golinski\xe2\x80\x99s health benefits form to BC/BS, OPM may again\ndirect or otherwise advise BC/BS not to enroll her spouse in the health\nbenefits plan, such as by affirming its prior statements to that effect in\nsome manner. You also asked whether, assuming OPM wishes to permit\nthe enrollment to proceed now that Chief Judge Kozinski has issued his\nmost recent order, it may rescind its prior guidance and advise BC/BS that\nenrollment would be permissible.\nIn answering these questions, we do not believe the November 19, 2009\nOrder from Judge Kozinski materially affects OPM\xe2\x80\x99s legal authorities\nor obligations with respect to the enrollment at issue. As we previously\nadvised you, that order could not bind OPM because it was issued in an\nadministrative capacity under the EDR plan. See E-mail for Elaine\nKaplan, General Counsel, Office of Personnel Management, from David\nBarron, Acting Assistant Attorney General, Office of Legal Counsel\n(Dec. 16, 2009, 5:37 PM EST).* As a result, we do not believe OPM is\nrequired to comply with the Order\xe2\x80\x99s directives. OPM\xe2\x80\x99s legal authorities\nand obligations, if any, arise from the FEHBA, OPM\xe2\x80\x99s organic statute, the\nrelevant regulations OPM has issued, and its contract with BC/BS, and it\nis to these legal sources that we look for guidance. 2\nissued a new order, noting that the time for filing appeals of his prior orders had expired\nand concluding that his \xe2\x80\x9cprior orders in this matter are therefore final and preclusive on\nal1 issues decided therein as to others who could have, but did not appeal, such as the\nOffice of Personnel Management . . . and the Administrative Office of the United States\nCourts.\xe2\x80\x9d In re Golinski, No. 09-80173, at 1 (9th Cir. Dec. 22, 2009).\n* Editor\xe2\x80\x99s Note: On the same day that it issued this memorandum opinion, the Office\nissued a separate opinion memorializing the advice in the December 16, 2009 e-mail.\nSee Legal Effect of Federal Judge\xe2\x80\x99s Order as Hearing Officer Under Court\xe2\x80\x99s Employment\nDispute Resolution Plan, 34 Op. O.L.C. 25 (2010).\n2 We note that, on June 17, 2009, President Obama issued a presidential memorandum in which he required the heads of certain executive departments and agencies to\nextend various benefits to same-sex domestic partners, and the heads of other executive departments and agencies to determine what additional measures could be taken\n\xe2\x80\x9cto provide benefits to the same-sex domestic partners of Federal Government employees.\xe2\x80\x9d Memorandum for the Heads of Executive Departments and Agencies (June\n17, 2009), https://obamawhitehouse.archives.gov/the-press-office/memorandum-headsexecutive-departments-and-agencies-federal-benefits-and-non-discri. That memorandum does not affect our analysis because, as it made clear, it did not purport to alter\nexisting statutory limitations on agencies\xe2\x80\x99 authority. See id. (\xe2\x80\x9cExecutive departments and\n\n54\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nII.\nWe begin by examining OPM\xe2\x80\x99s authority to direct a carrier not to enroll an individual in a health plan\xe2\x80\x94or, at least, to affirm its prior nonenrollment directive or guidance\xe2\x80\x94in the event that OPM disagrees with\na federal employing agency\xe2\x80\x99s determination that the enrollment is permissible under federal law. There are two potential sources of such authority:\nOPM\xe2\x80\x99s own regulations for administering the benefits program, issued\npursuant to the FEHBA, and its contract with the carrier (here BC/BS).\nWe consider each of these potential sources of authority in turn.\nWe note at the outset that OPM has already advised as to BC/BS\xe2\x80\x99s legal\nauthority to enroll in this case, as reflected in the letter OPM issued to\nBC/BS following Chief Judge Kozinski\xe2\x80\x99s initial order. Moreover, as we\nhave previously advised, Chief Judge Kozinski\xe2\x80\x99s subsequent November\n19, 2009 Order is not binding on OPM because it was issued by the Chief\nJudge in his administrative capacity. Accordingly, there has been no\nintervening event that would appear to strip OPM of the authority it\npreviously exercised in this case to prevent the enrollment from proceeding. Nonetheless, if the AOUSC resubmits Ms. Golinski\xe2\x80\x99s enrollment\nform and the carrier again asks OPM how it should respond, OPM may\nface anew the question whether it possesses the authority to direct or\notherwise advise that the enrollment may not occur (even if such action\nwere only to take the form of an affirmation of OPM\xe2\x80\x99s prior directive or\nguidance). Accordingly, we now address OPM\xe2\x80\x99s power to so advise or\ndirect. As we explain further below, OPM possesses the authority to issue\na directive (or affirm its previous directive or guidance) under both the\nregulations it has issued for administering the FEHBA and its contract\nwith BC/BS, which, among other things, incorporates regulations governing federal contract law.\n\nagencies . . . may only provide benefits . . . if they have legal authorization to do so. My\nAdministration is not authorized by Federal law to extend a number of available Federal\nbenefits to the same-sex partners of Federal employees.\xe2\x80\x9d); see also id. (providing that\nrecommendations for the extension of benefits should be \xe2\x80\x9cconsistent with existing law\xe2\x80\x9d).\n\n55\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nA.\nWe begin by considering OPM\xe2\x80\x99s authority to take action to prevent enrollment under its own regulations. Acting under the authority granted by\nthe FEHBA, OPM has entered into contracts with various health insurers,\nincluding BC/BS, to provide health care to federal employees and other\npersons covered by the FEHBA. Rather than retaining all authority to\nsupervise implementation of these contracts, OPM has delegated to the\nemploying offices of agencies participating in the FEHBP the authority to\nmake both initial and final enrollment eligibility determinations. See\n5 C.F.R. \xc2\xa7 890.104 (2009). 3 The regulations expressly reserve to OPM,\nhowever, the discretion to \xe2\x80\x9corder correction of an administrative error\nupon a showing satisfactory to OPM that it would be against equity and\ngood conscience not to do so.\xe2\x80\x9d Id. \xc2\xa7 890.103(b).\nAt the time these regulations were promulgated, OPM explained that\n\xe2\x80\x9can administrative error occurs when an employing office misapplies the\nlaw or regulations, misinforms employees, or fails to inform employees\nwhen required to do so.\xe2\x80\x9d 59 Fed. Reg. 66434, 66434 (Dec. 27, 1994)\n(emphasis added). Thus, \xe2\x80\x9cadministrative error\xe2\x80\x9d includes clear statutory\nerror. Admittedly, the purpose of the regulation, at least in significant\npart, was to provide OPM with a means of correcting errors by employing\nagencies that were adverse to the employee: in its Federal Register notice\npromulgating the relevant regulations, OPM explained that \xe2\x80\x9cadministrative error\xe2\x80\x9d included \xe2\x80\x9cany mistake on the part of the employing office that\ndirectly results in the loss of a benefit or opportunity to an employee.\xe2\x80\x9d Id.\nHere, of course, OPM would be confronted with the opposite circumstance because a determination by the employing agency that the employee\xe2\x80\x99s same-sex spouse is eligible for enrollment would constitute clear\n3 We note that in delegating authority to make final enrollment determinations for the\nJudicial Branch to the AOUSC, OPM apparently relied on its general rulemaking authority under the FEHBA. See 5 U.S.C. \xc2\xa7 8913(a) (2006) (\xe2\x80\x9cThe Office of Personnel Management may prescribe regulations necessary to carry out this chapter.\xe2\x80\x9d); id. \xc2\xa7 8913(b) (\xe2\x80\x9cThe\nregulations of the Office may prescribe the time at which and the manner and conditions\nunder which an employee is eligible to enroll in an approved health benefits plan[.]\xe2\x80\x9d). We\nexpress no view on whether this rulemaking authority permits such a delegation, because\neven if the AOUSC did not have validly delegated authority to make a final judgment on\nenrollment, OPM would nonetheless maintain the authority to issue a non-enrollment\ndirective, or otherwise correct AOUSC\xe2\x80\x99s decision.\n\n56\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nstatutory error favorable to the employee. Thus, the issue is whether the\nOPM regulation in question would authorize OPM to \xe2\x80\x9corder correction of\nan administrative error\xe2\x80\x9d that would benefit the employee.\nOPM has informed us that, notwithstanding its focus on adverse impacts on employees in the Federal Register discussion of \xe2\x80\x9cadministrative\nerror,\xe2\x80\x9d it has in practice applied this regulation to correct errors even\nwhen the mistake would have benefitted the employee. See Memorandum\nfor David Barron, Acting Assistant Attorney General, Office of Legal\nCounsel, from Elaine D. Kaplan, General Counsel, Office of Personnel\nManagement, Re: Request for Second OLC Opinion Regarding In re\nGolinski, No. 09-80173 (9th Cir. Nov. 19, 2009), at 6 (Dec. 8, 2009)\n(\xe2\x80\x9cKaplan Memo\xe2\x80\x9d) (\xe2\x80\x9cAccording to program staff, OPM has, in the past,\noccasionally requested that agencies correct enrollment errors that it\nbelieves are contrary to law, whether those errors are harmful or beneficial to the employee.\xe2\x80\x9d). As you have explained, although \xe2\x80\x9c[t]he language\nof the regulation, and its history . . . , might suggest that OPM\xe2\x80\x99s authority\nto correct administrative errors was designed to protect employees from\nharm,\xe2\x80\x9d in practice \xe2\x80\x9cOPM has not limited its correction of administrative\nerrors to this narrow context.\xe2\x80\x9d Id.\nIn our view, OPM may reasonably interpret its regulation to confer the\nauthority to correct a clear statutory error by the employing agency, even\nif that error would be to the employee\xe2\x80\x99s benefit. See Auer v. Robbins, 519\nU.S. 452, 461 (1997) (\xe2\x80\x9cBecause the salary-basis test is a creature of the\nSecretary\xe2\x80\x99s own regulations, his interpretation of it is, under our jurisprudence, controlling unless plainly erroneous or inconsistent with the regulation.\xe2\x80\x9d (internal quotation marks omitted)); Bowles v. Seminole Rock &\nSand Co., 325 U.S. 410, 414 (1945) (\xe2\x80\x9cthe ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is\nplainly erroneous or inconsistent with the regulation\xe2\x80\x9d). The plain text of\nthe regulation itself is not limited to correction of errors that harm employees. And in defining an \xe2\x80\x9cadministrative error\xe2\x80\x9d to \xe2\x80\x9cinclude\xe2\x80\x9d actions\nthat are adverse to employees, the statement in the Federal Register does\nnot foreclose circumstances in which an administrative error subject to\ncorrection could also include final action by an employing agency that\nfavors the employee. Similarly, although the regulation\xe2\x80\x99s reference to\n\xe2\x80\x9cequity and good conscience\xe2\x80\x9d connotes the provision of relief to an employee who has suffered harm from an employing agency\xe2\x80\x99s adverse ac57\n\n\x0c34 Op. O.L.C. 51 (2010)\n\ntion, 5 C.F.R. \xc2\xa7 890.103(b); see also 59 Fed. Reg. at 66435 (\xe2\x80\x9c[W]ithout\nthe authority to order a correction, OPM could not overrule an agency\nreconsideration decision that is obviously in disregard of law and regulations and is unfair to the employee.\xe2\x80\x9d (emphasis added)), it does not compel the conclusion that OPM\xe2\x80\x99s discretion under the regulation is limited to\nproviding such relief. Rather, OPM could reasonably construe the regulation, including the phrase \xe2\x80\x9cequity and good conscience,\xe2\x80\x9d to permit it to\nintervene to stop an employing agency from making an enrollment decision that would be clearly unlawful under the FEHBA, as a matter of its\nequitable authority to ensure that the legal limits of the benefits program\nare respected. Thus, we believe the regulations provide a legal basis for\nOPM to correct an erroneous enrollment decision made by an employing\nagency. 4\nB.\nIndependent of OPM\xe2\x80\x99s corrective authority under the regulations described above, OPM also possesses authority to direct non-enrollment\nunder its contract with BC/BS. It is our understanding that OPM concurs\nin this construction of the authority the contract confers upon the agency.\nKaplan Memo at 7 (\xe2\x80\x9cAs applied to the Golinski matter, it is our view\nthat OPM had the contractual authority to intervene as it did last February\nto prevent Ms. Golinski\xe2\x80\x99s enrollment form from being processed by\nBC/BS.\xe2\x80\x9d).\nThe contract provides that a person\xe2\x80\x99s eligibility for coverage shall be\ndetermined by OPM\xe2\x80\x99s regulations. But the contract also independently\nprovides that \xe2\x80\x9c[t]he applicable provisions of . . . chapter 89 of title 5,\nUnited States Code\xe2\x80\x9d\xe2\x80\x94i.e., the FEHBA\xe2\x80\x94\xe2\x80\x9cconstitute a part of this contract\nas if fully set forth herein.\xe2\x80\x9d Federal Employees Health Benefits Program\nStandard Contract for Fee-for-Service Carriers \xc2\xa7 1.4(a) (2009) (\xe2\x80\x9cBC/BS\nContract\xe2\x80\x9d). In the event that there is a conflict between the regulations\nand the FEHBA, moreover, the contract provides that \xe2\x80\x9c[a]ny inconsist-\n\nWe do not address the precise means by which such a correction should be made, and\nin particular whether the corrective action should take the form of an order superseding\nthe employing agency\xe2\x80\x99s final determination, an order directing the employing agency not\nto submit enrollment forms despite its final determination to the contrary, or a directive to\nthe carrier not to carry out the enrollment.\n4\n\n58\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nency . . . shall be resolved by giving precedence in the following descending order: The Act, the regulations in part 890, title 5, Code of Federal\nRegulations, the regulations in chapters 1 and 16, title 48, Code of Federal\nRegulations, and this contract.\xe2\x80\x9d Id. \xc2\xa7 1.3. Thus, under the contract\xe2\x80\x99s own\nterms, even if an enrolling agency has determined that a same-sex spouse\nis eligible for coverage, the statutory prohibition on the carrier\xe2\x80\x99s providing coverage to same-sex spouses prevails over the employing agency\xe2\x80\x99s\ndetermination (which is made pursuant to regulation).\nTo be sure, the contract does not require the carrier to engage in an independent evaluation of the statutory eligibility of every individual whose\nenrollment forms are forwarded by an employing agency. The contract\ndoes provide, however, that the carrier is subject to OPM\xe2\x80\x99s discretion in\nmaking enrollment decisions. For example, the contract provides that a\ncarrier\xe2\x80\x99s decision regarding a person\xe2\x80\x99s eligibility for coverage is \xe2\x80\x9cdetermined in accordance with regulations or directions of OPM given pursuant to chapter 89, title 5, United States Code.\xe2\x80\x9d Id. \xc2\xa7 2.1(a)(2) (emphasis\nadded). The contract also expressly incorporates chapters one and sixteen\nof the Federal Acquisition Regulations System (\xe2\x80\x9cFAR\xe2\x80\x9d), see id. \xc2\xa7 1.4(a),\nwhich provide (in the general provisions located in chapter one) that\n\xe2\x80\x9c[c]ontracting officers are responsible for . . . ensuring compliance with\nthe terms of the contract, and safeguarding the interests of the United\nStates in its contractual relationships,\xe2\x80\x9d 48 C.F.R. \xc2\xa7 1.602-2. The regulations specifically relating to health plan contracts (located in chapter\nsixteen of the FAR) also make clear that OPM can issue directives to\ncarriers, providing that carriers \xe2\x80\x9cmust perform the contract in accordance\nwith prudent business practices,\xe2\x80\x9d including \xe2\x80\x9c[t]imely compliance with\nOPM instructions and directives.\xe2\x80\x9d Id. \xc2\xa7 1609.7001(b)(1). A carrier\xe2\x80\x99s\nfailure to comply with OPM instructions can provide cause for OPM to\n\xe2\x80\x9cwithdraw[] . . . approval of the health benefits carrier and terminat[e] . . .\nthe carrier\xe2\x80\x99s contract.\xe2\x80\x9d Id. \xc2\xa7 1609.7001(b); see also id. \xc2\xa7 1609.7001(a)\n(requiring \xe2\x80\x9c[t]he carrier of an approved health benefits plan\xe2\x80\x9d to \xe2\x80\x9cmeet the\nrequirements of chapter 89 of title 5, United States Code\xe2\x80\x9d and providing\nthat its failure to do so can provide cause for termination of the contract);\nsee also 5 C.F.R. \xc2\xa7 890.204 (2009) (\xe2\x80\x9cThe Director may withdraw approval of a health benefits plan or carrier if the standards at \xc2\xa7 890.201 of this\npart and 48 CFR subpart 1609.70 are not met.\xe2\x80\x9d); Bridges v. Blue Cross &\nBlue Shield Ass\xe2\x80\x99n, 935 F. Supp. 37, 42 (D.D.C. 1996) (\xe2\x80\x9cOPM also has the\n59\n\n\x0c34 Op. O.L.C. 51 (2010)\n\npower to penalize or debar carriers who violate the terms of their contracts with the OPM.\xe2\x80\x9d). Consistent with these authorities, the contract\nitself requires the carrier to retain records so OPM can assess the carrier\xe2\x80\x99s\ncompliance with the contract. See BC/BS Contract \xc2\xa7 3.8 (\xe2\x80\x9cthe Carrier\nwill retain and make available all records applicable to a contract term\nthat support the annual statement of operations\xe2\x80\x9d); see also 48 C.F.R.\n\xc2\xa7 1652.204-70 (requiring inclusion of section 3.8 in all FEHBP contracts);\nid. \xc2\xa7 1609.7001(a)(4) (\xe2\x80\x9c[The carrier] must permit representatives of OPM\nand of the General Accounting Office to audit and examine its records and\naccounts which pertain, directly or indirectly, to the plan at such reasonable times and places as may be designated by OPM or the General Accounting Office.\xe2\x80\x9d); Bridges, 935 F. Supp. at 43 (\xe2\x80\x9c[c]arriers must also\nsubmit to audits by the OPM\xe2\x80\x9d). 5\nIn light of these contractual provisions, and in accord with OPM\xe2\x80\x99s own\nview of its contractual authority, we conclude that OPM has authority\nunder the contract to direct BC/BS not to enroll an individual who is\nineligible under the FEHBA.\nIII.\nThat OPM possesses the authority to direct the carrier not to enroll a\nperson whom OPM determines is ineligible for coverage does not resolve\nhow OPM should respond to an employing agency\xe2\x80\x99s determination that\nsuch person is eligible for enrollment. You have explained that OPM\n5 The contract also obligates the carrier to \xe2\x80\x9cnotify the Contracting Officer of any Significant Event within ten (10) working days after the Carrier becomes aware of it.\xe2\x80\x9d BC/BS\nContract \xc2\xa7 1.10(a). The contract defines a \xe2\x80\x9cSignificant Event\xe2\x80\x9d to include, among other\nthings, \xe2\x80\x9cany occurrence or anticipated occurrence that might reasonably be expected to\nhave a material effect upon the Carrier\xe2\x80\x99s ability to meet its obligations under this contract,\nincluding, but not limited to . . . [a]ny significant changes in policies and procedures or\ninterpretations of the contract or brochure which would affect the benefits available under\nthe contract or the costs charged to the contract.\xe2\x80\x9d Id. \xc2\xa7 1.10(a)(11). Although this provision might be read to encompass only changes in the particular selection of benefits\navailable to persons enrolled in the plan, it could also be read to cover a situation where\nthe statute by its terms renders ineligible for benefits a class of persons whom the employing agency has deemed eligible. The contract provides that, upon learning of a Significant\nEvent, \xe2\x80\x9cOPM may institute action, in proportion to the seriousness of the event, to protect\nthe interests of Members, including . . . [d]irecting the Carrier to take corrective action.\xe2\x80\x9d\nId. \xc2\xa7 1.10(b)(1).\n\n60\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nbelieves its authority to correct an administrative error by the employing\nagency regarding eligibility is \xe2\x80\x9cdiscretionary and not mandatory\xe2\x80\x9d because\n\xe2\x80\x9c[t]he regulations contemplate that the correction of \xe2\x80\x98administrative\nerrors\xe2\x80\x99 by OPM will be ordered only where OPM concludes that it would\nbe against equity and good conscience not to do so.\xe2\x80\x9d Kaplan Memo at 7\n(quoting 5 C.F.R. \xc2\xa7 890.103(b)). On that basis, OPM concludes that it\n\xe2\x80\x9ccould reasonably find that equity and good conscience do not require it\nto intervene in any new enrollment action that may be triggered by [Chief]\nJudge Kozinski\xe2\x80\x99s Order\xe2\x80\x9d because (1) OPM has an interest in \xe2\x80\x9caffording\ncomity to [Chief] Judge Kozinski\xe2\x80\x99s opinion,\xe2\x80\x9d (2) enrolling Ms. Golinski\xe2\x80\x99s\nspouse would have a \xe2\x80\x9cnegligible impact . . . on the FEHBP both as a\nmatter of its cost and precedential effect,\xe2\x80\x9d and (3) OPM has an interest\nin avoiding litigation. Id. Furthermore, you have informed us that OPM\nbelieves its contract with BC/BS does not limit the discretion that it\nretains under section 890.103(b) to permit an enrollment to proceed\xe2\x80\x94\neven if OPM believes such enrollment to be in contravention of the\nFEHBA\xe2\x80\x99s eligibility limitations. Id. at 7. For the reasons set forth below,\nwe disagree, and conclude instead that OPM does not have the authority\nto permit the enrollment to proceed in the circumstances at issue here.\nA.\nIn evaluating OPM\xe2\x80\x99s discretion to permit the enrollment of a same-sex\nspouse of an FEHBP member to proceed, we start with the assumption\nthat OPM does not have a general obligation to ensure that all enrollment\ndecisions employing agencies make comply with the FEHBA, at least\ninsofar as such a duty would impose on OPM the onerous obligation of\nreviewing each and every enrollment determination before it is implemented. The statutory and administrative framework that governs the\nFEHBP plainly does not contemplate such direct, ex ante OPM supervision of all enrollment decisions. At the same time, however, the absence\nof an obligation on OPM to assess the eligibility of each enrollee sua\nsponte does not mean that OPM retains the discretion to knowingly permit\nan unlawful enrollment to proceed when it has been specifically informed\nof the enrollment before it occurs and could easily take action to prevent\nit from occurring. Still less does the absence of such a general duty mean\nthat OPM may take affirmative steps intended to permit such an enrollment to proceed that otherwise would not.\n61\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nIn the particular factual circumstances at issue here, although there is\nno express statutory provision that resolves the scope of OPM\xe2\x80\x99s obligation\nin a clear manner, we believe that the law is best read not to allow OPM\nto permit the enrollment to proceed. The employing agency\xe2\x80\x99s eligibility\ndecision would be in clear violation of the FEHBA (as OPM acknowledges), and it would appear that to prevent the enrollment from proceeding\nOPM need only affirm its prior directive or guidance when asked by the\ncarrier whether it should carry out the enrollment. By contrast, to permit\nthe enrollment to proceed, OPM would have to take action, contrary to its\nprior guidance, intended to assure the carrier that it may accept an enrollment that OPM has determined to be unlawful. In our view, the relevant\nstatutory, regulatory, and contractual provisions cannot be read, in light of\nmore general administrative law principles, to permit OPM to exercise its\nadministrative discretion in such a manner.\nWe base our conclusion on our interpretation of the FEHBA, as informed by the general obligation of agencies to respect the limits of their\nauthority under their authorizing statutes. Under the terms of the FEHBA,\nOPM does not have the authority to extend benefits to persons who are\nnot authorized to receive benefits under the statute, including the samesex spouses of federal employees. Specifically, the FEHBA authorizes\nOPM to \xe2\x80\x9ccontract for or approve . . . [o]ne Government-wide plan . . .\nunder which payment is made by a carrier under contracts with physicians, hospitals, or other providers of health services for benefits . . .\ngiven to employees . . . [and] members of their families.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 8903(1) (2006). The FEHBA expressly defines \xe2\x80\x9cmember of family\xe2\x80\x9d to\nmean \xe2\x80\x9cthe spouse of an employee or annuitant and an unmarried dependent child under 22 years of age.\xe2\x80\x9d Id. \xc2\xa7 8901(5). DOMA, in turn, provides\nthat the term \xe2\x80\x9cspouse\xe2\x80\x9d refers \xe2\x80\x9conly to a person of the opposite sex who is\na husband or a wife.\xe2\x80\x9d 1 U.S.C. \xc2\xa7 7 (2006). Consistent with these provisions, OPM has taken the position that \xe2\x80\x9c[p]lans in the FEHB may not\nprovide coverage for domestic partners, or legally married partners of the\nsame sex, even though recognized by state law,\xe2\x80\x9d Dettman Letter; see also\nBenefits Administration Letter No. 96-111, at 3 (\xe2\x80\x9c[DOMA] clarifies that\nsame-sex marriages cannot be recognized for benefit entitlement purposes\nunder . . . FEHB[.]\xe2\x80\x9d), and OPM has advised us that this remains its position, Kaplan Memo at 3 (\xe2\x80\x9cOPM has concluded that it is prohibited by law\nfrom providing FEHBP benefits to same-sex spouses.\xe2\x80\x9d).\n62\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nThe fact that OPM holds this view is significant for purposes of determining the scope of its authority to permit the enrollment of a same-sex\nspouse in these circumstances. It means that this is not a case in which\nOPM, in permitting the enrollment to proceed, could be understood to be\nmerely deferring to an employing agency\xe2\x80\x99s reasonable construction of an\nambiguous statutory term. Rather, by taking steps intended to permit the\nenrollment of a same-sex spouse to proceed, OPM would be taking steps\nto permit\xe2\x80\x94rather than protect against\xe2\x80\x94an enrollment that OPM believes\nto be unlawful under the clear terms of the statute it administers. Such\naction would appear to be inconsistent with the basic principle that an\nagency may not act beyond its statutory authority. See 1 General Accounting Office, Principles of Federal Appropriations Law 3-16 (3d ed. 2004)\n(\xe2\x80\x9cGAO Redbook\xe2\x80\x9d) (explaining that \xe2\x80\x9c[i]t is a fundamental proposition that\nagency regulations are bound by the limits of the agency\xe2\x80\x99s statutory and\norganic authority\xe2\x80\x9d); Dow Chemical Co. v. EPA, 605 F.2d 673, 681 (3d\nCir. 1979) (agencies may not \xe2\x80\x9cextend their statutory authority beyond that\ndelegated to them by Congress\xe2\x80\x9d); Transohio Sav. Bank v. Dir., Office of\nThrift Supervision, 967 F.2d 598, 621 (D.C. Cir. 1992) (\xe2\x80\x9cIt is \xe2\x80\x98central to\nthe real meaning of \xe2\x80\x9cthe rule of law,\xe2\x80\x9d [and] not particularly controversial\xe2\x80\x99\nthat a federal agency does not have the power to act unless Congress, by\nstatute, has empowered it to do so. Agency actions beyond delegated\nauthority are \xe2\x80\x98ultra vires,\xe2\x80\x99 and courts must invalidate them.\xe2\x80\x9d (internal\ncitation omitted)); Aluminerie Becancour, Inc. v. United States, 28 Ct.\nInt\xe2\x80\x99l Trade 2060, 2066 (2004) (the authority of federal agencies to contract \xe2\x80\x9cis necessarily constrained by the statutes under which the agency\noperates, by regulations, and by applicable case law\xe2\x80\x9d). It would also\nappear to be inconsistent with OPM\xe2\x80\x99s more specific obligation to \xe2\x80\x9cact in a\nmanner consistent with the underlying purposes\xe2\x80\x9d of the FEHBA. Nat\xe2\x80\x99l\nFed\xe2\x80\x99n of Fed. Emps. v. Devine, 679 F.2d 907, 912 (D.C. Cir. 1981).\nIndeed, in accord with this general principle, courts have recognized\nthat agencies have no general authority to waive statutory restrictions that\nCongress has imposed in establishing a benefits program. As the Eighth\nCircuit has explained, a federal agency \xe2\x80\x9ccannot extend benefits by regulation to a class of persons not included within the authorizing statute,\xe2\x80\x9d and\n\xe2\x80\x9c[t]o the extent . . . regulations can be read to confer benefits not authorized by the Act\xe2\x80\x99s statutory provisions, they are beyond the agencies\xe2\x80\x99\ndelegated powers.\xe2\x80\x9d Harris v. Lynn, 555 F.2d 1357, 1359 (8th Cir. 1977);\n63\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nsee Schoemakers v. OPM, 180 F.3d 1377, 1382 (Fed. Cir. 1999) (\xe2\x80\x9cNeither\ncourts nor administrative agencies . . . have the authority to waive requirements . . . that Congress has imposed as a condition to the payment\nof federal money.\xe2\x80\x9d); Crown v. U.S. R.R. Retirement Bd., 811 F.2d 1017,\n1021 (7th Cir. 1987) (\xe2\x80\x9cA congressional mandate to pay statutory benefits . . . leaves no discretion in the agencies and courts but to limit the\npayment of benefits to those entitled to them.\xe2\x80\x9d (quotations omitted)).\nTo be sure, OPM has in this case delegated authority to the AOUSC to\nmake enrollment decisions for judicial employees, and we recognize that\nthis delegation means that OPM\xe2\x80\x99s role in allowing the enrollment is\nsomewhat less affirmative than it would be had it not made the delegation.\nBut for the following reasons, this delegation of the authority to make\neligibility determinations does not fundamentally alter our analysis.\nAs a preliminary matter, OPM did not delegate all of its discretion. It\ndelegated to employing offices the responsibility to make enrollment\ndecisions, 5 C.F.R. \xc2\xa7 890.104, but it retained the responsibility to \xe2\x80\x9ccontract for or approve\xe2\x80\x9d health benefit plans that meet the statutory requirements, 5 U.S.C. \xc2\xa7 8903, and it also retained the authority to correct \xe2\x80\x9cadministrative errors\xe2\x80\x9d made by employing offices, 5 C.F.R. \xc2\xa7 890.103(b).\nEven if OPM\xe2\x80\x99s regulations do not themselves impose a duty on OPM to\nexercise its administrative authority in a manner that would prevent the\nenrollment from proceeding here, we do not believe those regulations may\nfairly be read to relieve OPM of any such implicit statutory duty it may\notherwise have. So far as we are aware, OPM has never before viewed\nthese regulations as an affirmative obstacle to OPM\xe2\x80\x99s attempt to correct\nan unlawful enrollment by an employing office. Indeed, on the basis of\nthat retained discretionary authority, OPM has advised the carrier previously that it may not proceed with the enrollment.\nMore importantly, we do not believe that OPM may justify acting in\na manner that would facilitate the enrollment here on the ground that it\nis merely permitting a carrier to implement a decision made by the employing office and not by OPM. A federal agency cannot, as a general\nrule, evade responsibility for its statutory obligations by delegating\nthem to another agency. See Conoco, Inc. v. Skinner, 781 F. Supp. 298,\n309 (D. Del. 1991) (\xe2\x80\x9cThe Secretary cannot escape ultimate responsibility\nunder these statutes by merely delegating responsibility to an inferior\nagency.\xe2\x80\x9d); cf. Campbell v. Galeno Chem. Co., 281 U.S. 599, 610 (1930)\n64\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\n(\xe2\x80\x9cWe cannot see that the Commissioner, under the guise of legislation,\nmay do in gross what he had no power to do in detail.\xe2\x80\x9d (internal quotation\nmarks omitted)). To put it slightly differently, OPM could not validly\npromulgate a regulation that purported to allow same-sex spouses to\nenroll in benefit plans under the FEHBA, and we have found no support\nfor the view that it could bring about this result by delegating enrollment\ndecisions to another agency. See Vierra v. Rubin, 915 F.2d 1372, 1378\n(9th Cir. 1990) (\xe2\x80\x9c[W]hen the Secretary delegates to a state\xe2\x80\x99s discretion the\ndefinition of an important statutory term, the states\xe2\x80\x99 authority to define the\nterm can not [sic] exceed the authority given the Secretary by Congress in\nthe first place. . . . The Secretary may thus delegate definitional responsibilities to the states only to the extent that the state\xe2\x80\x99s determinations are\nalso consistent with the AFDC program generally. . . . The Secretary\xe2\x80\x99s\ndelegation to Hawaii of the good cause definition is invalid to the extent\nthat it allows Hawaii to exceed the scope of the Secretary\xe2\x80\x99s initial authority to formulate the definition.\xe2\x80\x9d).\nThese general principles of administrative law seem particularly applicable here. There is no provision in the FEHBA itself that directly or\nclearly confers upon OPM the unusual authority effectively to waive a\nstatutory limitation on eligibility requirements established by federal\nlaw. And there is no indication that OPM is generally understood to\nhave such authority. 6 Other provisions in the FEHBA make clear that\nIndeed, Congress was previously encouraged to adopt an express waiver provision\nin a closely related context. Specifically, the FEHBA authorizes OPM to enter into\ncontracts for group-practice prepayment plans. See 5 U.S.C. \xc2\xa7 8903(4)(A). Under a prior\nversion of the law, any such group practice was required by statute to \xe2\x80\x9cinclude physicians\nrepresenting at least three major medical specialties who receive all or a substantial part\nof their professional income from the prepaid funds.\xe2\x80\x9d Id. (1982). During 1983 hearings on\namendments to the FEHBA, the then-president of an association of group-practice prepayment plans advocated for the \xe2\x80\x9cpossibility of a waiver of the requirement that three\nspecialties be []represented in HMO physician groups.\xe2\x80\x9d Federal Employees Health\nBenefits Reform Act of 1983: Hearing Before the Subcomm. on Comp. & Emp. Benefits\nof the H. Comm. on Post Office & Civil Serv., 98th Cong. 277 (1983) (statement of Dr.\nDonald F. Schaller, President, Group Health Association of America, Inc.); see also\nOversight on Federal Employees Health Benefits Program: Hearing Before the Subcomm.\non Compensation & Employee Benefits of the H. Comm. on Post Office & Civil Serv.,\n99th Cong. 142 (1985) (advocating \xe2\x80\x9c[e]limination of the requirement that a comprehensive plan have three major medical specialties represented within its medical group\xe2\x80\x9d and\narguing that \xe2\x80\x9cOPM should have the authority to determine whether a plan will be able to\n6\n\n65\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nCongress knew how to grant OPM discretion to waive eligibility limitations when it wanted to do so. For example, the FEHBA contains at least\none express provision regarding waiver of statutorily defined eligibility\nrequirements, and it is quite limited. Section 8905 of title 5 provides\nthat an annuitant \xe2\x80\x9cwho at the time he becomes an annuitant was enrolled\nin a health benefits plan . . . may continue his enrollment\xe2\x80\x9d if certain statutory conditions are met. The section also expressly provides that OPM\n\xe2\x80\x9cmay, in its sole discretion, waive the requirements of this subsection in\nthe case of an individual who fails to satisfy such requirements if [OPM]\ndetermines that, due to exceptional circumstances, it would be against\nequity and good conscience not to allow such individual to be enrolled as\nan annuitant in a health benefits plan.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8905(b). This waiver\nauthority was one of a group of amendments made to the FEHBA in 1986.\nSee Federal Employees Benefits Improvement Act of 1996, Pub. L.\nNo. 99-251, 100 Stat. 14; see also 132 Cong. Rec. 1343 (Feb. 3, 1986)\n(noting that the proposed legislation would \xe2\x80\x9c[g]rant authority to the Office\nof Personnel Management [OPM] to waive certain eligibility requirements\nfor annuitants to participate in the FEHBP\xe2\x80\x9d). The limited nature of this\nwaiver authority reinforces the conclusion that OPM lacks the authority to\npermit the enrollment here to proceed, now that it has been made aware of\nit and has acted previously to prevent it on the ground that it was inconsistent with the FEHBA.\nIn sum, although we have not identified precedent that clearly requires\nOPM to take affirmative action to prevent it from being brought into\nviolation of its governing statute in the situation at issue here, we believe\nthe duty not to knowingly allow such a violation to take place follows\nfrom the FEHBA. That conclusion rests on several considerations: the\nFEHBA\xe2\x80\x99s limited express waiver provision, its plain limitations on\nOPM\xe2\x80\x99s authority to contract with a carrier to provide benefits to same-sex\nspouses of employees, and the more general principles of administrative\nprovide its benefits to the prospective members\xe2\x80\x9d). Congress subsequently responded not\nby granting OPM waiver authority but instead by amending section 8903, so that, under\nthe terms of the statute, group-practice prepayment plans no longer must include three\nspecialists. See 5 U.S.C. \xc2\xa7 8903(4)(A) (\xe2\x80\x9cThe group shall include at least 3 physicians who\nreceive all or a substantial part of their professional income from the prepaid funds and\nwho represent 1 or more medical specialties appropriate and necessary for the population\nproposed to be served by the plan.\xe2\x80\x9d).\n\n66\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nlaw regarding an agency\xe2\x80\x99s obligation to comply with statutory requirements. We think the duty is particularly evident here where it would not\nbe difficult for OPM to ensure that the unlawful enrollment does not\noccur: OPM is aware of the pending enrollment, has already been asked\nonce whether such an enrollment would be permissible, and can prevent\nthe violation simply by issuing a directive (or letting stand its prior statements on the issue). Thus, this is not a case where the agency would have\nto expend considerable resources to prevent an unlawful enrollment from\noccurring.\nB.\nAgainst this conclusion, OPM argues that it has discretion in this situation for either of two reasons. First, citing Heckler v. Chaney, 470 U.S.\n821 (1985), OPM invokes the general principle that an agency has discretion to decide whether to seek to redress a violation of a statute it is\ncharged with enforcing, and argues that its reasons for declining to enforce eligibility limitations here are akin to those found appropriate in\nHeckler itself. See E-mail for Jonathan Cedarbaum, Deputy Assistant\nAttorney General, Office of Legal Counsel, from Elaine Kaplan, General\nCounsel, Office of Personnel Management (Dec. 11, 2009, 1:11 PM EST).\nSecond, OPM suggests that, in the past, it has exercised discretionary\nauthority to refrain from correcting an enrollment that it believes to violate the Act\xe2\x80\x99s eligibility restrictions but that benefits an employee. These\nexercises of discretion, it claims, support its contention that the statutory\nframework it administers does not impose a mandatory duty to prevent\nenrollment in this case. See E-mail for David Barron, Acting Assistant\nAttorney General, and Jonathan Cedarbaum, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Elaine Kaplan, General Counsel,\nOffice of Personnel Management (Dec. 11, 2009, 3:07 PM EST). We find\nthese arguments unpersuasive.\nIn Heckler v. Chaney, the plaintiffs alleged that the use of certain drugs\nin capital punishment was an \xe2\x80\x9cunapproved use of an approved drug\xe2\x80\x9d that\nviolated the prohibition on misbranding in the Federal Food, Drug, and\nCosmetic Act. On this basis, the plaintiffs challenged the failure of the\nFood and Drug Administration (\xe2\x80\x9cFDA\xe2\x80\x9d) to initiate an enforcement proceeding. See 470 U.S. at 823\xe2\x80\x9324 & n.1 (citing 21 U.S.C. \xc2\xa7 352(f)). The\nCourt rejected their challenge, concluding that the FDA had the discretion\n67\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nnot to prosecute alleged violations of the Act, noting that the \xe2\x80\x9crecognition\nof the existence of discretion is attributable in no small part to the general\nunsuitability for judicial review of agency decisions to refuse enforcement.\xe2\x80\x9d Id. at 831. As the Court explained, \xe2\x80\x9can agency decision not to\nenforce often involves a complicated balancing of a number of factors\nwhich are peculiarly within its expertise,\xe2\x80\x9d such as the best use of agency\nresources and whether the agency is likely to prevail if it acts. Id.\nThere are certain provisions of the FEHBA that authorize OPM to enforce restrictions governing third-party conduct. See, e.g., 5 U.S.C.\n\xc2\xa7 8902a(d) (2006) (\xe2\x80\x9cWhenever [OPM] determines [that a provider engaged in various kinds of fraud] . . . [OPM] may . . . impose a civil monetary penalty of not more than $10,000 for any item or service involved.\xe2\x80\x9d).\nAnd we do not doubt that in enforcing these provisions, OPM is entitled\nto substantial discretion in determining when it makes sense, given the\nagency\xe2\x80\x99s interests and resources, to take enforcement action. Here, however, OPM has not been charged with enforcing restrictions governing\nthird-party conduct, but rather has itself been given the authority to confer\nbenefits on a limited class of people. That an agency is allowed the discretion to determine when to exercise its authority to enforce laws that place\nobligations on third parties does not mean that the agency is free to ignore\nobligations and limitations Congress has specifically imposed on the\nagency itself in distributing benefits only to eligible persons. Cf. Welch\nFoods, Inc. v. Borough of North East, No. 98-246 Erie, 2001 U.S. Dist.\nLEXIS 3287, at *23 (W.D. Pa. Feb. 6, 2001) (concluding that the EPA\ndid not have a \xe2\x80\x9cnondiscretionary duty to enforce each and every violation\nof the section\xe2\x80\x9d because \xe2\x80\x9cthe language plainly imposes an obligation on the\nBorough but not on EPA\xe2\x80\x9d (emphasis added)).\nHeckler itself acknowledged that \xe2\x80\x9cCongress did not set agencies free to\ndisregard legislative direction in the statutory scheme that the agency\nadministers. Congress may limit an agency\xe2\x80\x99s exercise of enforcement\npower if it wishes, either by setting substantive priorities, or by otherwise\ncircumscribing an agency\xe2\x80\x99s power to discriminate among issues or cases it\nwill pursue.\xe2\x80\x9d 470 U.S. at 833; see also Cass R. Sunstein, Reviewing\nAgency Inaction After Heckler v. Chaney, 52 U. Chi. L. Rev. 653, 683\n(1985) (\xe2\x80\x9cthe Chaney decision, in keeping with the general direction of\nlower court cases over the past decade, made clear that judicial review of\nagency inaction is available when the agency\xe2\x80\x99s enforcement decision\nviolates statutory [constraints]\xe2\x80\x9d). Indeed, even in the context of benefits\n68\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\ncoverage, where the FEHBA grants OPM \xe2\x80\x9cbroad discretionary authority\nto negotiate and contract for the benefits to be offered by health carriers,\xe2\x80\x9d\nOPM must still \xe2\x80\x9cact in a manner consistent with the underlying purposes\nof the Act.\xe2\x80\x9d Nat\xe2\x80\x99l Fed\xe2\x80\x99n of Fed. Emps., 679 F.2d at 912; see also Tackitt\nv. Prudential Ins. Co., 758 F.2d 1572, 1575 (11th Cir. 1985) (\xe2\x80\x9cThe grant\nof authority given OPM to approve benefit plans is very broad. The OPM\nmust act in a manner consistent with the goals and policies of FEHBA.\xe2\x80\x9d\n(citation omitted)); Doe v. Devine, 703 F.2d 1319, 1326 n.30 (D.C. Cir.\n1983) (Ginsburg, J.) (noting that section 8904\xe2\x80\x99s requirement that government-wide contracts include coverage for \xe2\x80\x9ccatastrophic\xe2\x80\x9d illnesses is a\n\xe2\x80\x9cspecific mandate,\xe2\x80\x9d and that although \xe2\x80\x9c[c]atastrophic\xe2\x80\x9d is not defined in\nthe Act, the requirement is nevertheless \xe2\x80\x9c\xe2\x80\x98law,\xe2\x80\x99 capable of judicial construction consistent with FEHBA\xe2\x80\x99s goals, structure, and legislative history\xe2\x80\x9d); Am. Fed\xe2\x80\x99n of Gov\xe2\x80\x99t Emps. v. Devine, 525 F. Supp. 250, 252 (D.D.C.\n1981) (\xe2\x80\x9cWhile the Director has discretion to administer the FEHB in an\nefficient and effective way, the scope of his discretion is limited by the\nlanguage of the statute and by the purposes for which it was enacted.\xe2\x80\x9d); cf.\nNat\xe2\x80\x99l Treas. Emps. Union v. Campbell, 589 F.2d 669, 678 (D.C. Cir.\n1978) (\xe2\x80\x9cRather, [OPM\xe2\x80\x99s predecessor\xe2\x80\x99s] discretion under the Health Benefits Act, though broad, is bounded by Section 8902(i); and it is to the\ncourts that the task of policing the boundary falls.\xe2\x80\x9d); GHS HMO, Inc. v.\nUnited States, 76 Fed. Cl. 339, 360\xe2\x80\x9361 (2007) (\xe2\x80\x9cAlthough the court\nagrees with the defendant that Congress has provided OPM with broad\nauthority to administer the FEHBP, as the agency deems necessary, it is\nnot limitless authority. . . . [T]his court should not sustain the agency\xe2\x80\x99s\ninterpretation of the Final Year Regulation, as applied to the contracts at\nissue, if it is inconsistent with the statute, the FEHBA.\xe2\x80\x9d). Here, where the\nFEHBA expressly mandates that OPM only enter into contracts with\nhealth benefit plans that provide benefits to certain specified groups,\nHeckler does not authorize OPM to disregard Congress\xe2\x80\x99s express legislative direction and take action to permit the enrollment of a broader class\nof individuals.\nIn arguing otherwise, OPM identifies what might be thought of as \xe2\x80\x9cfactors peculiarly within its expertise,\xe2\x80\x9d and suggests that that these factors\nshow that its decision to permit enrollment is discretionary\xe2\x80\x94just as certain factors identified in Heckler supported the Court\xe2\x80\x99s conclusion that the\nenforcement authority of the Department of Health and Human Services\nwas discretionary, and not mandatory, in that case. See Heckler, 470 U.S.\n69\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nat 831\xe2\x80\x9332. In our view, however, these special considerations do not\nwarrant recognition of an implicit exception to OPM\xe2\x80\x99s general statutory\nobligations under the FEHBA in these circumstances.\nSpecifically, OPM cites inter-branch comity concerns in explaining\nwhy it believes it may permit this enrollment to proceed. OPM explains\nthat this case involves a Judicial Branch employee and an order issued\nby a federal judge, albeit in the course of an administrative action. See\nKaplan Memo at 7. As we have noted, however, the order at issue here\nwas issued by a federal judge acting as an administrative officer of the\ncourts in this setting, and as a result is not binding on OPM. Moreover,\nthis enrollment request would ultimately come from the employing agency, the AOUSC, just as enrollment requests come from other employing\nagencies, including those in the Executive Branch. Certainly nothing in\nthe FEHBA indicates that OPM\xe2\x80\x99s legal obligations under the statute are\ndifferent with respect to determinations that the Judiciary makes as an\nemploying agency as compared to determinations that an Executive\nBranch agency makes as an employing agency. We note that our conclusion in this regard is supported by the potentially broad consequences of\na contrary construction of OPM\xe2\x80\x99s statutory authority. If comity concerns\nsufficed to allow OPM knowingly to permit an unlawful enrollment to\nproceed, then presumably OPM would be entitled to allow other enrollment decisions by the Judiciary, acting as an employing agency, that were\nsimilarly in contravention of the FEHBA\xe2\x80\x99s eligibility limitations. Yet\nthere is no indication in the FEHBA that Congress intended to permit\nOPM to effectively retain the power to waive all FEHBA eligibility limitations as applied to judicial branch employees.\nWe are also aware that OPM, by declining to act, may advance its interest in avoiding litigation. We do not think, however, that the interest in\navoiding litigation can provide a basis for construing the FEHBA to allow\nOPM to permit the enrollment here to occur. An agency administering a\nbenefits program risks litigation whenever it complies with a statutory\nlimitation on eligibility, because such action necessarily means that a\nperson has been denied enrollment in a federal program, thus giving rise\nto a potential case or controversy. But precisely for that reason, the desire\nto avoid litigation does not support the conclusion that the agency possesses the authority to waive a statutory restriction on eligibility. Indeed,\nif Ms. Golinski were to sue to seek her spouse\xe2\x80\x99s enrollment, OPM would\nbe without authority to enter into a binding settlement agreement that\n70\n\n\x0cAuthority of OPM to Direct Health Insurer Not to Enroll Individual\n\nprovided health benefits to her spouse, precisely because it has no authority to confer such benefits under the FEHBA. See Authority of the United\nStates to Enter Settlements Limiting the Future Exercise of Executive\nBranch Discretion, 23 Op. O.L.C. 126, 136 (1999) (\xe2\x80\x9cCongress may place\nlimits on the scope of the Attorney General\xe2\x80\x99s settlement power through\nthe general laws that govern the conduct of the agencies on behalf of\nwhich the Attorney General purports to settle.\xe2\x80\x9d).\nFinally, OPM points to past administrative practice to support its view\nthat it possesses the discretion to act in a manner that would permit the\nenrollment to proceed. See E-mail for David Barron, Acting Assistant\nAttorney General, and Jonathan Cedarbaum, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, from Elaine Kaplan, General Counsel,\nOffice of Personnel Management (Dec. 11, 2009, 3:07 PM EST); E-mail\nfor Jonathan Cedarbaum, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Elaine Kaplan, General Counsel, Office of Personnel\nManagement (Dec. 11, 2009, 1:11 PM EST). In fact, however, its past\npractice appears to support the opposite conclusion.\nOPM relies in particular on a practice under the Federal Employees\nGroup Life Insurance program of not seeking repayment of premiums that\nwere paid for individuals who were later determined to be ineligible to\nreceive benefits. See E-mail for Jonathan Cedarbaum, Deputy Assistant\nAttorney General, Office of Legal Counsel, from Elaine Kaplan, General\nCounsel, Office of Personnel Management (Dec. 11, 2009, 1:11 PM EST).\nBut there appears to be express statutory authority that, subject to certain\ndefined limitations, gives federal agencies the general discretion to\n\xe2\x80\x9cwaive[] in whole or in part\xe2\x80\x9d claims to recoup \xe2\x80\x9cerroneous payment of pay\nor allowances\xe2\x80\x9d where collecting the erroneous payments \xe2\x80\x9cwould be\nagainst equity and good conscience and not in the best interests of the\nUnited States.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5584 (2006); see also Memorandum for Ellen\nTunstall, Chief, Insurance Planning and Evaluation Division, Office of\nInsurance Programs, from James S. Green, Associate General Counsel,\nOffice of Personnel Management, Re: FEGLI-LET STANDS at 5 (June 6,\n1997). 7 In contrast, we know of no similarly general statutory authority\nHealth premiums paid under the FEHBP are apparently covered by this provision.\nSee, e.g., Matter of Alfred H. Varga, B-260909, 1996 WL 725730, at *4 (Comp. Gen.\n1996) (\xe2\x80\x9cThis Office has consistently held that the total amount of the employee\xe2\x80\x99s debt due\nthe United States includes both the amount the employee received directly and other\n7\n\n71\n\n\x0c34 Op. O.L.C. 51 (2010)\n\nthat would allow an agency to permit enrollment of persons in government-sponsored health plans who are statutorily ineligible to enroll.\nInstead, with respect to the FEHBA, we have identified only a limited\nstatutory waiver provision, discussed above, that is inapplicable here, and\nno other waiver provision that would be applicable. The practice cited by\nOPM therefore does not imply the existence of the discretion it asserts.\nFurther, the practice OPM cites concerns claims for recoupment of erroneously paid premiums, not a decision to permit a statutorily ineligible\nperson to enroll where OPM becomes aware of the pending enrollment in\nadvance. OPM has advised us that when it discovers that an ineligible\nperson is enrolled, it has uniformly terminated that person\xe2\x80\x99s coverage\ngoing forward. OPM is aware of no instance in which it has knowingly\npermitted an ineligible person to remain enrolled. 8\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\namounts disbursed on his behalf for such items as medicare, health benefits, savings\naccount, life insurance, retirement, and federal and state tax withholdings.\xe2\x80\x9d).\n8 OPM advises that it has, on occasion, declined to require carriers to seek recoupment\nof benefits payments made for individuals who were later determined to have been\nerroneously enrolled. See generally BC/BS Contract \xc2\xa7 2.3(g) (providing normal procedures for recoupment of erroneous payments). But, as discussed above, OPM\xe2\x80\x99s statutory\nobligation is limited to the requirement that it contract with providers that, as a matter of\ncourse, only provide benefits to certain defined classes of individuals. Thus, if OPM\ndiscovers that a carrier has erroneously enrolled and paid benefits to an individual who is\nstatutorily ineligible, it may be obliged to ensure that the individual\xe2\x80\x99s enrollment is\nterminated, even if it is not obliged to try to undo the past consequences of the violation.\nRelatedly, we do not think this case is comparable to OPM\xe2\x80\x99s example of an appropriate\nexercise of discretion with regard to the enrollment of an otherwise ineligible person; that\nis, when an individual who was previously enrolled needs a grace period in which to\nobtain alternate health insurance after it is determined that he or she is not eligible for\ncontinued enrollment. We do not believe enrolling for an indefinite period a person who\nhas never been enrolled is the equivalent of allowing a person who was previously\nenrolled to retain his or her insurance for a short, defined period of time. The former\napproves of the enrollment of someone who is statutorily ineligible in a way that the latter\ndoes not. Moreover, in the latter case, there are arguably individual reliance interests at\nstake. That is evidently not the case here, and it is significant to our conclusion that in this\ncase the question of OPM\xe2\x80\x99s legal obligations to prevent an unlawful enrollment arises at\nthe pre-enrollment stage.\n\n72\n\n\x0c'


b'The Advisory Committee on International Economic Policy\nThe A dvisory C om m ittee on International E conom ic Policy is not subject to the E m olum ents Clause.\n\nApril 17, 1996\nL e t t e r O p in io n\n\nfo r th e\n\nD e p u t y L e g a l A d v is e r\n\nD epartm ent\n\nof\n\nSta te\n\nAs you requested, we have reviewed the question whether members of the Advi\xc2\xad\nsory Committee on International Economic Policy (\xe2\x80\x9c IEP Advisory Committee\xe2\x80\x9d )\nwould occupy an \xe2\x80\x9c Office of Profit or Trust\xe2\x80\x9d within the meaning of the Emolu\xc2\xad\nments Clause, U.S. Const, art. I, \xc2\xa79, cl. 8. As we have advised you before, we\nreject the sweeping and unqualified view, expressed on one occasion by our Of\xc2\xad\nfice, that federal advisory committee members, as such, are subject to the Emolu\xc2\xad\nments Clause. See Applicability o f 18 U.S.C. \xc2\xa7 2 1 9 to Members o f Federal A dvi\xc2\xad\nsory Committees, 15 Op. O.L.C. 65, 68 (1991).\nThe members of the IEP Advisory Committee meet only occasionally, serve\nwithout compensation, take no oath, and do not have access to classified informa\xc2\xad\ntion; furthermore, the Committee is purely advisory, is not a creature of statute,\nand discharges no substantive statutory responsibilities. We therefore believe that\nthe members of the IEP Advisory Committee do not occupy \xe2\x80\x9c Office[s] of Profit\nor Trust\xe2\x80\x9d under the Emoluments Clause. We do not address the argument that\nthe Office of Government Ethics\xe2\x80\x99 longstanding test for determining who are Spe\xc2\xad\ncial Government Employees (\xe2\x80\x9c SGEs\xe2\x80\x9d ) should be substantially narrowed, so that\nmembers of State Department advisory committees would generally not qualify\nas SGEs, nor be subject, by reason of SGE status, to the Emoluments Clause,\nsee Letter to Walter Dellinger, Assistant Attorney General, Office of Legal Coun\xc2\xad\nsel, from Conrad K. Harper, Legal Adviser, Department of State (Feb. 13, 1995).\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n123\n\n\x0c'