Reimbursement for Defense Department Assistance to Civilian Law Enforcement Officials ( 1982 )

Reimbursement for Defense Department Assistance
to Civilian Law Enforcement Officials
T he D epartm ent o f D efense A uthorization Act of 1982 authorizes the Secretary of Defense to seek
reim bursem ent from civilian law enforcem ent agencies to whom the Departm ent provides various
form s o f assistance, and the Secretary of D efense m ay condition his D epartm ent’s provision of
assistance on such reim bursem ent. However, the Act also gives the Secretary discretion to waive a
requirem ent o f reim bursem ent for assistance provided under its authority.
T he E conom y A ct, 31 U .S .C . § 686 (1976), provides general authority for one agency to request
assistance from another agency for an activity o r operation that the requesting agency has authority
to p erfo rm , and a perform ing agency should seek reim bursem ent for the actual cost o f services
provided under that A ct. However, w here there is specific authonty for one agency to assist
another, the provisions o f the Econom y Act do not apply.
July 24, 1982
MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
This responds to your request for an opinion regarding reimbursement for
assistance provided by the Department of Defense to civilian law enforcement
officials under the Department o f Defense Authorization Act, 1982.1 This Act
provided the Defense Department with express authorization to provide certain
assistance to civilian law enforcement officials. With such express authorization,
the provision of such assistance cannot be said to violate the Posse Comitatus
Act, a Reconstruction-era law generally limiting the role of the Nation’s military
forces in executing the law.2The narrow issue upon which you have requested our
opinion is whether the Defense Department is required to seek reimbursement
from civilian law enforcement agencies for authorized assistance it provides
pursuant to this Act, or whether, under this Act, that Department is authorized to
condition assistance on reimbursement although it need not do so.
It is our opinion, after reviewing the Act and its legislative history as well as a
number of memoranda prepared by the Defense Department,3 that the Act
1 The Department of Defense Authorization Act, 1982, is Pub L No 97-86, 95 Stat. 1099 (1981).
2 The Posse Comitatus Act is codified at 18 U .S.C § 1385. That Act’s general restriction on the Defense
Department's authonty to execute the laws is made inapplicable under § 1385 itself if use of the Armed Forces is
“ expressly authorized by . Act of Congress. . .
3 We have received five main documents from the Defense Department stating its view. (1) a Memorandum for
the Deputy Secretary of Defense from the General Counsel, Defense Department, dated March 11, 1982, to which
is attached a background discussion of the Act’s legislative history; (2) a Memorandum for the Deputy Secretary of
Defense from the General Counsel, Defense Department, dated March 18, 1982; (3) Enclosure 5 of Defense
Department Directive No 5525.5, dated March 22, 1982, entitled “ DoD Cooperation with Civilian Law Enforce-
C o ntinued
464
authorizes but does not require that Department to seek reimbursement from
civilian law enforcement agencies. Our reasons for reaching this conclusion are
set forth in section II below. The Defense Department’s position on the matter at
issue is summarized in section I.
I. The Defense Department’s Interpretation
To understand the matter at hand, it is first necessary to set forth the major
provisions of the Department of Defense Authorization Act, 1982. They are the
following new §§ 371 through 377 of Title 10, United States Code (Supp. V),
contained in § 905, Title IX, of the Act:
§ 371. Use o f information collected during military operations
The Secretary c f Defense may, in accordance with other ap­
plicable law, provide to Federal, State, or local civilian law
enforcement officials any information collected during the normal
course of military operations that may be relevant to a violation of
any Federal or State law within the jurisdiction of such officials.
§ 372. Use c f military equipment and facilities
The Secretary of Defense may, in accordance with other ap­
plicable law, make available any equipment, base facility, or
research facility of the Army, Navy, Air Force, or Marine Corps
to any Federal, State, or local civilian law enforcement official for
law enforcement purposes.
§ 373. Training and advising civilian law enforcement officials
The Secretary c f Defense may assign members of the Army,
Navy, Air Force, and Marine Corps to train Federal, State, and
local civilian law enforcement officials in the operation and
maintenance c f equipment made available under section 372 of
this title and to provide expert advice relevant to the purposes of
this chapter.
§ 374. Assistance by Department c f Defense personnel
( a ) . . . the Secretary c f Defense, upon request from the head of
an agency with jurisdiction to enforce—
(1) the Controlled Substances Act (21 U.S.C. 801 et seq.) or
the Controlled Substances Import and Export Act (21 U.S.C. 951
et seq.);
ment Officials", (4) a letter from the Deputy Secretary of Defense to the Attorney General, dated March 26, 1982;
and (5) a letter from the General Counsel, Defense Department, to Theodore B Olson, Assistant Attorney General,
Office of Legal Counsel, dated June 11, 1982.
In additton, we have received a copy of testtmony by the Defense Department’s General Counsel before the
Subcommittee on C nm e o f the House Committee on the Judiciary, dated June 3,1981, which relates generally to the
issue before us Rirther, we have received a copy of a memorandum prepared by this Department’s Office of Legal
Policy on the issue at hand, dated April 30, 1982.
465
(2) any of sections 274 through 278 of the Immigration and
Nationality Act (8 U.S.C. 1324—1328); or
(3) a law relating to the arrival or departure of merchandise (as
defi ned in section 401 o f the Tariff A cto fl9 3 0 (1 9 U .S .C . 1401))
into or out of the customs territory of the United States (as defined
in general headnote 2 o f the Tariff Schedules of the United States
(19 U .S.C . 1202)) or any other territory or possession of the
United States, may assign personnel o f the Department of Defense
to operate and maintain or assist in operating and maintaining
equipment made available under section 372 of this title with
respect to any criminal violation of any such provision of law.
§ 375. Restriction on direct participation by military personnel.
The Secretary cf Defense shall issue such regulations as may be
necessary to insure that the provision cfany assistance (including
the provision of any equipment or facility or the assignment of any
personnel) to any civilian law enforcement official under this
chapter does not include or perm it direct participation by a
m em ber o f the Army, Navy, A ir Force, or Marine Corps in an
interdiction of a vessel o r aircraft, a search and seizure, arrest, or
other similar activity unless participation in such activity by such
m em ber is otherwise authorized by law.
§ 376. Assistance not to affect adversely military preparedness
Assistance (including the provision of any equipment or facili­
ty or the assignment of any personnel) may not be provided to any
civilian law enforcement official under this chapter if the provi­
sion of such assistance will adversely affect the military prepared­
ness of the United States. . . .
§ 377. Reimbursement
The Secretary of Defense shall issue regulations providing that
reimbursement may be a condition c f assistance to a civilian law
enforcement official under this chapter.
(Emphasis added.)
The foregoing provisions authorize the Defense Department to provide various
forms of assistance to civilian law enforcement officials, although certain general
limitations must be observed. First, Congress took care to prevent “ direct”
involvement of military forces in civilian law enforcement activities, see § 375.
Second, Congress sought to assure that assistance under the Act would not
adversely affect the Nation’s military preparedness, see § 376. In § 377, Con­
gress specifically provided that the Secretary of Defense shall issue regulations
466
“ providing that reimbursement may be a condition of assistance to a civilian law
enforcement official under this chapter.” (Emphasis added.)
The Defense Department’s interpretation of its authority to waive reimburse­
ment may be summarized in terms of two major propositions. First, the Depart­
ment contends that when its authority for assisting civilian law enforcement
officials was based on the Economy Act, 31 U.S.C. § 686 (1976), as it was prior
to the passage of the Department of Defense Authorization Act, 1982, the
Secretary of Defense was legally required to request reimbursement in most
situations. This contention rests on an analysis of the Economy Act and decision­
al law, particularly that of the Comptroller General, under it. Second, the
Department argues that nothing in the Department of Defense Authorization Act,
1982, changed that result. In short, the Defense Department urges that the
principles of the Economy Act as applied prior to the recent Act’s passage still
apply.
The Defense Department’s position is expressed in the letter of the Deputy
Secretary of Defense to you dated March 27, 1982, where it is stated that “ [t]he
authority of the Secretary of Defense to make reimbursement a condition of
assistance under 10 U.S.C. § 377 permits waiver of reimbursement only to the
extent that reimbursement is not required by other applicable laws, such as the
Economy Act.” The letter proceeds to urge that Congress’ intent in enacting the
recent Act was “ to leave in place existing laws governing the provision of
assistance to other agencies,” and “ did not intend . . . to provide a new basis for
DoD funding of civilian law enforcement activities.” (Page 1.)
As a result of the Defense Department’s analysis of the reimbursement issue, it
concludes that the recent Act does not accord the Department any new discretion
or any general authority to waive reimbursement for assistance provided to
civilian law enforcement officials.
II. Analysis of the Defense Department’s Interpretation
In responding in this section to the major points underlying the Defense
Department’s interpretation, we will set forth our own analysis of the reimburse­
ment issue.
(1) First, we find no reason to agree or disagree with the Defense Department’s
argument about the requirement, prior to the passage of the recent Act, to seek
reimbursement from civilian law enforcement agencies for assistance provided
to them. It is correct that the Economy Act, 31 U.S.C. § 686, is a source of
authority for one agency to request assistance from another agency for an activity
or operation that the requesting agency has authority to •perform.4 It also is
4 As the Comptroller General has stated, the purpose o f 31 U .S.C . § 686, which is § 601 of the Economy Act of
1932, as amended, is to authorize inter-agency procurement of work, materials, or equipment 57 Comp. Gen. 674,
676-77 (1978). Congress intended that economies could be achieved by providing such authority to “ enable all
bureaus and activities of the Government to be utilized to their fullest ” Id. at 680, quoting H.R. Rep No 2 2 0 1 ,71st
Cong., 2d Sess 2 -3 (1931) (a report on a predecessor bill) The Economy Act, 31 U.S C. § 686, does not give the
performing agency any new authority to perform any function; it only gives the requesting agency authonty to
request the performing agency to assist the requesting agency if the requesting agency otherwise has authonty to
perform the function.
467
generally correct that, under the Comptroller General’s opinions interpreting the
Economy Act, a performing agency should seek reimbursement for the actual
cost of services provided to a requesting agency under the Economy Act.5
However, in our view, these propositions and the argument employing them as
advanced by the Defense Department are essentially beside the point in the
present context.
The Economy Act, 31 U.S.C. § 686, is needed only when there is no specific
authority for one agency to assist another agency, or no authority for the
performing agency to take the action in the course of fulfilling its own statutory
duties. In such circumstances, under the terms of the Economy Act, an agency
may “ place orders with any other such department, establishment, bureau, or
office for materials, supplies, equipment, work, or services, of any kind that such
requisitioned Federal agency may be in a position to supply or equipped to
render. . . .” However, where there is specific authority for one agency to assist
another, there is simply no need to rely on the Economy Act in the first place.
This point is clear not only from the Economy Act’s language, but also from its
legislative history, which makes plain that the chief purpose of enacting the
provision was to establish general authority for one agency to assist another
agency when specific authority did not satisfy the requesting agency’s needs for
assistance. See, e .g ., 57 Comp. Gen. 675, 678-80 (1978) (reviewing the legis­
lative history of the Economy Act, and noting that prior to its passage, some
agencies had specific authority to perform certain classes of work for other
agencies, but there was no general authority under which agencies could assist
other agencies); H.R. Rep. No. 1126, 72d Cong., 1st Sess. 15—16 (1932).
Accordingly, we cannot accept the suggestions that the Economy Act applies
in the present context and that it requires reimbursement for assistance provided
by the Defense Department. O ur chief difficulty with these suggestions is, in
short, that the Economy Act no longer applies since there is no longer any need to
use its general authority as the basis on which the Defense Department provides
assistance to civilian law enforcement officials. In its plain terms, the Depart­
ment of Defense Authorization Act, 1982, authorizes the Defense Department to
provide certain forms of assistance to civilian law enforcement officials. In such a
situation, the law concerning reimbursement under the Economy Act is
inapplicable.6
(2) Second, the Defense Department’s suggestion that nothing in the recent
Act countermands its conclusion that reimbursement is required under the
Economy Act cannot be reconciled with the plain language of § 377, the
reimbursement provision. This provision states specifically that the Secretary of
Defense “ shall issue regulations providing that reimbursement may be a con­
5 See, e.g .. 57 Comp Gen. 674 (1978), 56 Comp. Gen. 275 (1977); 46 Comp Gen. 73, 76 (1966); 18 Comp.
Gen. 262, 266 (1938).
6 We would emphasize that this conclusion follows directly from the existence in the Department of Defense
Authorization Act, 1982, of specific authority for the Defense Department to assist civilian law enforcement
agencies. The existence of this specific authority makes it unnecessary to rely on the Economy Act, 31 U .S.C
§ 686, as the authority for such assistance. Accordingly, even if § 377 of the recent Act had not been enacted, the
Economy Act would be inapplicable in (he present context.
468
dition of assistance to a civilian law enforcement official under this chapter.”
(Emphasis added.) It is difficult to imagine how Congress could have indicated
more clearly that the Secretary may— but need not— condition assistance on
reimbursement.7
This conclusion is supported by the ordinary meaning of “ may,” which
normally indicates that one has permission or liberty to do something, not that
one is required or compelled to do something. See Webster’s Third New Interna­
tional Dictionary 1396 (1976). A statute’s terms are ordinarily to be interpreted in
light of the usual or customary meaning of the words themselves. See, e .g .,
Southeastern Community College v. Davis, 442 U.S. 397, 405 (1979). More­
over, it is significant that in § 377, Congress spoke of reimbursement in terms of
what the Secretary “ may” do, whereas it spoke of the issuance of regulations
dealing with reimbursement in terms of what the Secretary “ shall” do. This
contrast in the use of terms suggests strongly that when Congress wanted to
impose a mandatory requirement in this statute— indeed, this very provision— it
knew how to do so.
If the plain language of § 377 were an insufficient basis on which to rest the
conclusion that the Secretary has discretion to decide whether to condition
assistance under the Act on reimbursement, then we believe that consideration of
the provision’s legislative history confirms the foregoing reading of its plain
meaning.
The predecessor provision in the bill introduced in the Senate, S. 815, 97th
Cong., 1st Sess. (1981), also was permissive on its face with respect to the issue
of reimbursement. It provided:
The Secretary of Defense shall . . . issue such regulations as may
be necessary to insure that reimbursement for the provision of
assistance, including the provision of any equipment or facility,
under this chapter to any Federal, State, or local civilian law
enforcement official may be obtained whenever the Secretary of
Defense determines such reimbursement to be appropriate.
(Emphasis added.)8 The report of the Senate Committee on Armed Services
stressed that the bill’s language was intended to authorize the Secretary to provide
certain indirect assistance to civilian law enforcement officials without requiring
the Defense Department to provide such assistance. The report also noted that the
decision whether to request reimbursement for such assistance was within the
Secretary’s discretion to so act as “ appropriate.” As the report stated:
The Secretary of Defense would be authorized, not required, to
provide this aid. And the Department c f Defense could obtain
7 We note that because § 377 on its face deals only with "assistance” provided by Defense “ under this chapter
[§§ 371-77],’*any assistance provided by the Department of Defense pursuant lo any other existing authority that
predated, and is not overlapped by, this Act is nol covered by § 377. In other words, if assistance is not authonzed by
the recent Act, then its provision continues to be governed by the Economy Act
8 The reimbursement provision in the Senate bill would have been a new § 374(b) of Title 10, United States Code;
it appears at pages 64 to 65 of the pnnted Senate bill
469
reimbursement for any assistance provided when the Secretary
determ ined such reimbursement was appropriate.
S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added).
The House bill, H.R. 3519, 97th Cong., 1st Sess. (1981), contained the same
reimbursement provision as the Senate bill.9 The report of the House Committee
on Armed Services noted specifically that the provision was intended to authorize
the Secretary to issue regulations “ to ensure reimbursement for provisions of
assistance, equipment and facilities whenever he determines reimbursement is
appropriate. . . .” (Emphasis added.) H.R. Rep. No. 71, 97th Cong., 1st Sess.
(pt. 1) 164 (1981).
The report of the House Committee on the Judiciary, to which the bill was
sequentially referred, elaborated upon the permissive nature of the reimburse­
ment authorization:
The final subsection of proposed section 374 authorizes the Secre­
tary of Defense to issue regulations which may condition the
rendering c f any assistance under this Chapter upon a reimburse­
ment to the military. According to information received from the
Coast Guard, United States Customs Service, and the Depart­
ment of Justice (the Federal agencies most likely to request
assistance), this reimbursement provision is acceptable and
should not require any immediate increase in the budgets of those
agencies. The availability of this reimbursement option is not
meant to serve as an excuse fo r the Secretary c f Defense to decline
to cooperate in the provision c f assistance. Rather, the reimburse­
ment option should serve instead as an informal check of the
magnitude and frequency of the requests made by civilian law
enforcement officials. The availability cf military assistance is
not intended by the Committee to be an indirect method c f increas­
ing the budget authority o f the civilian law enforcement agency.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).
In the foregoing discussion, the House Judiciary Committee clearly sought to
tread a careful line between seeming to impose an undue burden on federal
civilian law enforcement agencies, on the one hand, and to impose an excessive
burden on the Department of Defense by indirectly “ increasing the budget
authority of the civilian law enforcement agency” involved, on the other hand.
At the same time, the foregoing passage, by referring specifically to “ the
reimbursement option” created by the bill (emphasis added), makes plain that
reimbursement under the House bill would not be required by the bill itself, but
rather was to be an option available to the Defense Department. The Committee
acknowledged that the need to pay for assistance authorized by the bill was likely
to operate as an informal check on the number and size of requests for such
9 The reimbursement provision appears at page 44 of the printed House bill.
470
assistance. As the Committee put it, “ the reimbursement option should serve
. . . as an informal check on the magnitude and frequency of the requests made
by civilian law enforcement officials.” Nevertheless, such a “ check” was
evidently intended to operate as the result of a discretionary decision by the
Secretary of Defense to request reimbursement in a particular case, not as the
result of any requirement of reimbursement under the bill itself.
The discussion of the reimbursement provision contained in the House bill by
the third House Committee to which the bill was referred, the Committee on
Government Operations, confirms that reimbursement was to be an option, not a
requirement:
Section 908 of H.R. 3519 as reported by the committee of
original jurisdiction contains the following language:
The Secretary of Defense may assign members of the armed
forces to train Federal, State, and local law enforcement officials
in the operation of military equipm ent. . . and to provide expert
advice relevant to the purposes of this chapter, if the provision of
such training or advice will not adversely affect the military
preparedness of the United States.
- An additional provision c f the section specifies that the Secre­
tary c f Defense shall issue such regulations as may be necessary
to insure that reimbursement fo r the provision c f such assistance
is obtained when the Secretary deems such reimbursement to be
appropriate.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981) (emphasis added).10
During floor debate on the House bill, it was acknowledged once again that
reimbursement for assistance provided to civilian law enforcement officials by
the Defense Department would be an option of the Secretary of Defense.
Congressman Bennett, for instance, stated that:
Section 374 requires the Secretary c f Defense to issue regula­
tions: First, to insure that the provision of assistance, equipment,
or facilities does not impair military training or operations neces­
sary to the military preparedness of the United States; and second,
to insure reimbursement fo r the provision c f assistance obtained
from the Department c f Defense when the Secretary determines it
is appropriate. The regulations provided by this section will
insure that the cooperation with the civilian law enforcement
officials does not interfere with carrying out the primary mission
of our Armed Forces, that is, military preparedness. The regula­
tion will also insure that the law enforcement cooperation is not
done at the expense c f defense activities.
"■ In another passage of the report of the House Committee on Government Operations, it is reaffirmed that the
House bill would extend authority to the Secretary of Defense to provide training services and advice “ without
reimbursement, if he determined that to be appropriate.” H R Rep. No 7 1,97th Cong., 1st Sess. (pt. 3)37(1981).
471
The results of the Armed Forces work should not be used at the
cost of defense budgets to support the activities of other agencies
of Government regardless of how laudable those activities might
be. I understand the Department c f Defense has always required
reimbursement in the p a st, and it will continue to do so under
these provisions.
127 Cong. Rec. H 4056-57 (d^ily ed. July 8, 1981) (emphasis added). These
remarks reflect sensitivity to the potential problems that could arise if the Defense
D epartm ent were not allowed to seek reimbursement for the assistance it
provides to civilian law enforcement agencies. The reimbursement option evi­
dently was designed to “ insure that the law enforcement cooperation [as autho­
rized by the bill] is not done at the expense of defense activities.” In this context,
Congressman Bennett noted that “ in the past” the Defense Department had
required reimbursement, and that it intended to do so in the future. At the same
time, these remarks do not purport to, and they do not, state any legal require­
ment that reimbursement be sought under the bill. To the contrary, the remarks
are directly tailored to protect the Defense Department’s authority to obtain
reimbursement when the Secretary deems it “ appropriate.”
Another pertinent discussion o f reimbursement during the House debate is the
following by Congressman Hughes:
Mr. C hairm an,. . . under the provisions of the bill any loaning
of equipment or any loaning of personnel is reimbursable. It does
not come out c f the Department c f Defense budget. We are not
asking the Defense Department to use their amounts set aside for
the m ilitary mission for law enforcement purposes.
All we are doing is, we are trying, first of all, to codify the
existing practices relative to the sharing of intelligence, the shar­
ing of base facilities, the sharing of research, and we have taken it
one step further; they need equipment from time to time, but it is
an empty gesture when you offer equipment and do not offer the
manpower to operate the very sophisticated equipment. . . .
Id. at H 4066-67 (emphasis added). Although the foregoing remarks indicate
concern about using Defense Department funds appropriated for military mis­
sions to provide assistance to civilian law enforcement agencies, the comments
are limited in their reference: “We are not asking the Defense Department to use
their amounts set aside for the military mission for law enforcement purposes.”
(Emphasis added.) We believe that this statement means only that Congress did
not intend to require the Defense Department to pay for the assistance it provides
as authorized by the bill. Indeed, the bill specifically empowers the Defense
Department to seek reimbursement. Congressman Hughes’ comments, like
those discussed above, do not purport to establish any legal requirement that
reimbursement must be sought by the Defense Department, even though they
indicate an expectation that reimbursement might frequently be sought. This
472
crucial point is further confirmed by the statement of Congressman Sawyer that
“ the law enforcement agency requesting the military equipment is chargeable
for the use of that equipment.” Id. at 4067 (emphasis added). To say that a civilian
law enforcement agency is “ chargeable” under the bill is not to say that such an
agency must be charged for assistance authorized by the bill.
If there were any substantial doubt remaining after a survey of the foregoing
comments in the legislative record about the conclusion that the Defense Depart­
ment has discretion to decide whether to condition assistance on reimbursement,
such doubt is dispelled by the report of the conference committee, which stated
the following about the reimbursement provision:
This section authorizes the Secretary of Defense to issue regula­
tions providing that reimbursement may be a condition c f the
assistance to civilian law enforcement officials under this chapter.
This provision was contained, in slightly different form, in both
bills. The regulation should reflect sufficient flexibility to take into
consideration the budgetary resources available to civilian law
enforcement agencies.
H.R. Rep. No. 311, 97th Cong., 1st Sess. 122 (1981) (emphasis added). If the
conference committee had sought to require the Secretary of Defense to con­
dition assistance on reimbursement, it would hardly have been consistent for the
committee to have noted that the reimbursement provision provides “ sufficient
flexibility to take into consideration the budgetary resources available to civilian
law enforcement agencies.” Such “ flexibility” in fact is reflected in the language
ultimately enacted, which provides that the Secretary of Defense “ may” con­
dition assistance under the Act on reimbursement.
In view of the plain language of § 377 and the fact that the relevant committee
reports and floor debates confirm that Congress sought to provide flexibility to
the Secretary to determine whether to require reimbursement, we conclude that
the Secretary of Defense has discretion under the Act to decide whether to
request reimbursement for assistance rendered pursuant to the Act. Since the
Act’s fundamental purpose was to provide the express authorization for the
Defense Department to assist civilian law enforcement officials notwithstanding
the general restriction under the Posse Comitatus Act, see note 2, supra, there is
no longer any need for the Defense Department to rely on the Economy Act in
providing the assistance authorized by the Act. In short, since the reimbursement
provision of the Department of Defense Authorization Act, 1982, governs, and
since that provision is permissive, we conclude that the Secretary of Defense is
authorized but not required to seek reimbursement for assistance rendered under
the Act.
(3) In opposition to the foregoing analysis of § 377 and its legislative history,
the Defense Department maintains that Congress intended to retain under this
Act the strictures of the Economy Act, 31 U.S.C. § 686. This position rests on
three main arguments.
473
First, the Defense Department contends that the language of § 372, which
limits the provision of assistance under that section “ in accordance with other
applicable law,” effectively incorporates, albeit indirectly, the Economy Act into
this Act. Second, the Defense Department seeks support in a variety of passages
in the legislative history indicating that Congress expected that the Defense
Department would not have to pay for all of the assistance rendered under the
Act. Third, the Defense Department notes that it is charged with implementing
the Act by means of regulations. For this reason, the Department suggests, even
if implicitly, that its interpretation should be given particular weight. We will
discuss each argument in turn.
A. The Language c f § 372
The Defense Department’s primary textual argument is that the phrase, “ in
accordance with other applicable law,” in § 372 incorporates in this Act the law
relating to reimbursement under the Economy Act, 31 U.S.C. § 686. Section
372 states:
The Secretary of Defense may, in accordance with other applica­
ble law, make available any equipment, base facility, or research
facility of the Army, Navy, Air Force, or Marine Corps to any
Federal, State, or local civilian law enforcement official for law
enforcement purposes.
(Emphasis added.)
The central support for this reading of the phrase, “ in accordance with other
applicable law,” is the following passage from the report of the House Commit­
tee of the Judiciary, H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 9 (1981):
The Committee on Government Operations expressed some con­
cern that the proposed section, as reported by the Armed Services
Committee, could cause potential conflicts with the application cf
other property disposition statutes. Thus, at the recommendation
of the Committee on Government Operations and with the support
of the Department of Defense, the [Judiciary] Committee added
the phrase ‘in accordance with other applicable law’ to clarify
the continued application c f the disposition procedures c f the
Economy Act, 31 U.S.C. 638a, and other similar provisions. See,
e .g ., 10 U .S.C . 2576 a n d 2667 (governing the disposition of
certain real and personal military property).
(Emphasis added.) The foregoing reference to the “disposition procedures of the
Economy Act, 31 U .S.C . 638a,” is said by the Defense Department to demon­
strate that Congress intended to retain the reimbursement requirements that
would apply if the provision of assistance to civilian law enforcement agencies
underthe Act were to proceed entirely under the Economy Act, 31 U.S.C. § 686.
474
We have a number of difficulties with this contention. First, the statute cited as
the Economy Act in the foregoing passage from the Committee report, 31
U.S.C. § 638a, is not the same as the statute upon which the Defense Depart­
ment seeks to rely, namely, 31 U.S.C. § 686. The statute actually cited by the
Committee— 31 U.S.C. § 638a— deals specifically with the purchase, opera­
tion, use, and maintenance of passenger motor vehicles and aircraft by the
federal government." Although it might be suggested that the Committee report
made a mistake in citation, the statute actually cited does appear directly relevant
to the point the Committee report was making, namely, that “ disposition pro­
cedures” specifically relating to federal property should continue to apply.
Moreover, it bears noting that such “ disposition procedures” are not in any
obvious or necessary sense “ similar” to principles of reimbursement under 31
U.S.C. § 686.12 The two statutes cited by the Committee in addition to 31
U.S.C. § 638a deal respectively with the sale to law enforcement and firefight­
ing agencies of surplus military equipment, 10 U.S.C. § 2576, and leases by
military departments of “ non-excess” property, 10 U.S.C. § 2667. These stat­
utes, combined with 31 U.S.C. § 638a, place specific limits on the disposition of
federal property. The particular requirements in these three statutes are simply
not the same as the general principles concerning reimbursement on which the
Defense Department seeks to rely.
The evidently limited reference of the “ other applicable law” language in
§ 372 is confirmed by a passage in the report of the House Committee on
Government Operations. It should be recalled that the House Judiciary Commit­
tee, in adding the “ other applicable law” language, stated that it was doing so in
response to the concern of the Government Operations Committee that the lack of
such language “ could cause potential conflicts with the application of other
property disposition statutes.” Accordingly, the explanation of the Government
Operations Committee of the meaning of the phrase “ other applicable law”
should be given particular weight. That Committee explained the language as
follows:
Under an amendment adopted by the Judiciary Committee on
June 9,1981, the provision of military equipment and facilities to
law enforcement officials would be made ‘in accordance with
applicable law.’ It is the Committee’s understanding that this
language would bring [the section] under the terms of the proper­
ty management and disposal provisions c f the Federal Property
and Administrative Services A ct c f 1949P
11 U nder3l U S.C § 638a, a number oflimitations are placed on the purchase or hire of passenger motor vehicles
and aircraft by the federal government.
12 The need to be clear about exactly which statutes were intended to remain applicable under § 372 is obvious in
light of such additional statements in the legislative history as the following: "T he sale, donation or other outright
transfer of such equipment to civilian law enforcement agencies shall be in accordance with existing statutes
covering such transfers” S. Rep. No. 58, 97th Cong., 1st Sess. 149 (1981) (emphasis added). This statement
suggests, but by itself does not make fully clear, that the relevant statutes are those dealing specifically with property
or equipment transfers, which constitute a distinct subject from that o f reimbursement for any of a variety of types of
assistance provided by one agency to another under 31 U S C § 686.
13 See also H .R. Rep. No 311, 97th Cong., 1st Sess 119 (1981) ("This provision [speaking of “ other applicable
law” ] assures the continued application of existing law, such as the Federal Property and Administrative Services
Act of 1949” )
475
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 3) 37 (1981). This reference to the
Federal Property and Administrative Services Act underscores that the Govern­
ment Operations Committee’s intention was to guarantee that that statute’s
provisions— not general reimbursement principles under 31 U.S.C. § 686—
would continue to operate under this Act.
In short, we are unconvinced that the inclusion in § 372 of the “ other
applicable law” language was intended to have the far-reaching effects attributed
to the language by the Defense Department. We believe that the phrase “ other
applicable law” in § 372 refers to the specific statutes cited in the legislative
history, which do not include 31 U .S.C . § 686. This conclusion is buttressed by
the canon of statutory construction that each provision of a statute should be read
to have independent meaning.14 If § 372 had been intended to have the meaning
attributed to it by the Defense Department, it would constitute in effect a
nullification of the plain language of § 377, a result finding no support in the
language, history, or purposes of the A ct.15
B. The A ct’s Legislative History
The Defense Department also argues that the legislative history supports its
view that the Secretary of Defense has no general authority to waive reimburse­
14 Courts have noted that, in the normal case, every word Congress uses in a statute should be given effect See,
e g , Reiter v. Sonotone Corp., 4 4 2 U S 330, 339 (1979). This approach is reflected in the notion that the “ meaning
of a statute is to be looked for, not in any single section, but in all the parts together and in their relation to the end in
view,” Panama Refining Co. v Ryan, 293 U S 388, 439 (1935) (Cardozo, J , dissenting), and that “ a section of a
statute should not be read in isolation from the context of the whole Act. . .” Richards v. United Stales, 369 U S.
1,11 (1962). Moreover, a court interpreting a statute is not “ at liberty to imply a condition which is opposed to the
explicit terms of the statute . . To [so] hold is not to construe the Act but to amend it ” Detroit Trust Co. v The
Barium , 293 U S. 21, 38 (1934), quoted in Fedorenko v United States, 449 U S. 490, 513 (1981)
15 We also note that § 371 specifies that action pursuant to it shall be “ in accordance with other applicable law.”
This provision authorizes the sharing of information obtained by the Defense Department “ dunng the normal course
of military operations.” To what does the “ in accordance with other applicable law” language in § 371 refer9 To be
consistent with its argum ent about § 372, the D efense Department apparently would have to argue that it refers to
the Economy Act, 31 U .S .C . § 686
However, we are aware of no legislative history to that effect Indeed, the House Judiciary Committee specifically
stated that the “ other applicable law” language in § 371 refers to the Privacy Act (without mentioning 31 U S.C.
§ 686). “ The phrase ‘in accordance with other applicable law’ as used in section 371 is meant to continue the
application of the Privacy Act to this type of intelligence sharing. See 5 U.S.C. 552a.” H .R. Rep. No 71, 97th
C ong., IstS ess. (pt 2)8 (1 9 8 1 ) S e ea/w H .R . Rep. No 3 1 1 ,97thC ong , IstSess. 119(1981). This explanation of
§ 371 seems to confirm a pattern by which C ongress, in referring to “ other applicable law” in certain provisions
granting the Defense Department authonty to provide assistance, was intending to refer to statutes directly bearing
on the specific subject matter of the authorizing provision in question Such a pattern is not consistent with the
Defense D epartm ent’s suggestion that “ other applicable law” refers to a broad set of principles relating to
reimbursement under the Economy Act in general
Furthermore, even if the phrase refemng to “ other applicable law ” in §§ 372 and 371 were to be construed—
contrary lo what we consider the reasonable construction— as effectively nullifying the reimbursement provision, it
is difficult to understand how such a construction would lead to the result sought by the Defense Department with
respect lo assistance provided under §§ 373 and 374 The latter two provisions do not contain “ other applicable
law” language. Although they do refer to equipment provided under § 372, their subjects are distinct from that of
§ 372: § 373 deals with the use of Defense personnel in training and advisory capacities, and § 374 deals with the
use o f Defense'personnel.in operating and maintaining equipment provided under § 372 In order for the Defense
Department to establish its position with respect to §§ 373 and 374, it would be necessary to conclude that the fact
that those sections involve the use of personnel in connection with equipment provided under § 372 is sufficient tc
limit the assistance of such personnel in the same manner that the use of equipment is said to be limited under § 372
“ in accordance with other applicable law” We believe lhat this argument is excessively attenuated. Not only does i'
depend on an interpretation of “ other applicable law ” that is not borne out by the legislative history, but it alsc
depends on reading into §§ 373 and 374 language that is not contained in those provisions
476
ment for assistance provided under the Act. The initial difficulty with this
argument is that legislative history cannot serve to supersede the plain language
of a statutory provision such as § 377. It is an established canon of statutory
construction that “ legislative intention, without more, is not legislation.” Train
v. City of New York, 420 U.S. 35, 45 (1975).
In any event, we do not read the passages in the legislative history on which the
Defense Department seeks to rely as supporting the view advanced by that
Department. The problems with relying on the passages may be shown with
reference to each one.
One of the central passages relied upon in the March 26, 1982, letter from the
Deputy Secretary of Defense to the Attorney General is the following drawn from
remarks by Congressman Hughes during floor debate on the House bill:
[UJnder the provisions of the bill any loaning of equipment or any
loaning of personnel is reimbursable. It does not come out of the
Department of Defense budget. We are not asking the Defense
Department to use their amounts set aside fo r the military mission
fo r law enforcement purposes.
127 Cong. Rec. H 4066 (daily ed. July 8, 1981). These remarks are quoted in
their fuller context above.
The main observation to make about the foregoing remarks is that they merely
state that the Defense Department is not required under the Act to use money
appropriated specifically for military purposes to pay for assistance provided
under the bill. As Congressman Hughes noted, Congress is “ not asking the
Defense Department to use their amounts set aside for the military mission for
law enforcement purposes.” That, however, is not the question before us. Our
question is whether the Defense Department has discretion under the Act to
determine whether it will condition authorized assistance on reimbursement. It
is, in brief, a non sequitur to argue that because Congressman Hughes indicated
that Congress was not requiring the Defense Department to use military funds to
pay for assistance provided under the bill, therefore the Defense Department is
required by the Act to demand reimbursement when it does provide assistance.
The latter proposition, in our view, is not established by the quoted comments.
Another passage relied upon by the Defense Department is taken from testi­
mony by the Department’s General Counsel on June 3, 1981, as follows:
Section 374 [of the House bill] contains two provisions of consid­
erable importance to the Department of Defense. . . .Subsection
(b) requires the Secretary to issue regulations governing reim­
bursement to the Department of Defense, an essential element of
the legislation. The funding of nonmilitary law enforcement
activities is the responsibility of those agencies given the au­
thority to investigate and prosecute crimes against the United
States. The Department c f Defense is pleased to provide assist­
ance, consistent with the limitations set forth in this legislation
477
and other laws, but we cannot use defense resources to fund the
activities c f other agencies cf the federal government. We have
required reimbursement in the past when costs have been incurred
in the provision cfsuch assistance, and we shall continue to do so
under the provision cf this legislation if enacted.
Posse Comitatus Act: Hearings on H.R. 3519 Before the Subcomm. on Crime cf
the House Comm, on the Judiciary, 97th Cong., IstSess. 15—16 (1981) (empha­
sis added). In the Defense Department’s view, this statement confirms that it
always has intended to approach the issue of reimbursement under the Act in the
same manner in which it approached reimbursement prior to the Act’s passage.
Our difficulty with relying on this testimony in the present context is that it
merely reflects the Defense Department’s intention at the time of testimony with
respect to implementing any powers it would have under the bill, if enacted, and
it discusses the Department’s past practices regarding reimbursement. However,
these are not the issues with which we are primarily concerned. Our question is
whether the Act requires the Defense Department to implement its stated desire
of seeking reimbursement in certain circumstances.16 The testimony of the
General Counsel establishes only that the Defense Department informed Con­
gress that it would generally seek reimbursement, but this does not clarify the
fundamental issue whether that Department is legally compelled to do so.
An additional passage in the legislative history relied upon by the Defense
Department is the following from the report of the House Judiciary Committee:
The final subsection of proposed section 374 authorizes the Secre­
tary of Defense to issue regulations which may condition the
rendering of any assistance under this Chapter upon a reimburse­
ment to the military. According to information received from the
Coast Guard, United States Customs Service, and the Depart­
ment of Justice (the Federal agencies most likely to request
assistance), this reimbursement provision is acceptable and
should not require any immediate increase in the budgets of those
agencies. The availability of this reimbursement option is not
meant to serve as an excuse fo r the Secretary c f Defense to decline
to cooperate in the provision cf assistance. Rather, the reimburse­
ment option should serve instead a s an informal check c f (sic) the
magnitude and frequency c f the requests made by civilian law
enforcement officials. The availability c f military assistance is not
intended by the Committee to be an indirect method of increasing
the budget authority c f the civilian law enforcement agency.
H.R. Rep. No. 71, 97th Cong., 1st Sess. (pt. 2) 11 (1981) (emphasis added).
16 One must bear in mind the fundamental distinction between a requirement to do X and the authority to d o X . In
this context, the Defense Department has the authority to implement its stated intention of seeking reimbursement
under the A ct's reimbursement provision This does not mean, however, that the Department is necessarily required
to seek reimbursement. The tw o matters are a n d must be kept analytically distinct.
478
Our inability to derive from the foregoing passage the conclusion preferred by
the Defense Department rests primarily on the fact that the passage speaks of
reimbursement in terms of an “ option” available to the Defense Department, not
in terms of a legal requirement. As we noted earlier, it is clear that the Committee
was sensitive to the need to balance the interests of the Defense Department in not
having to pay for all of the assistance it provides to civilian law enforcement
officials against the legislative desire to authorize such assistance. But it simply
does not follow from this that the Defense Department is legally required under
the Act to seek reimbursement. If it were, the Department would not have the
“ option” evidently contemplated by the Committee.17
To summarize, the Defense Department’s argument based on legislative histo­
ry founders, first, on the canon of construction that legislative history cannot
overcome the plain language of a statutory provision and, second, on the fact that
the passages cited do not appear directly to support the notion that the Depart­
ment is required by the Act to seek reimbursement for assistance authorized by
the Act.
C. The Defense Department’s Construction c f the Act
Implicit in the Defense Department’s position is the further argument that its
interpretation of Congress’ intention should be controlling since it is the agency
charged with implementing the statute by regulation. Also, it actively partici­
pated in the legislation’s drafting, and thus may be presumed to have intimate
knowledge of the congressional design. We acknowledge that these facts dis­
tinguished the present case from one in which an agency charged with imple­
menting a statute has not been similarly involved with the statute in question.
Surely a court reviewing the legal issue presented to us would accord a responsi­
ble agency’s view a certain respect in light of the normal understanding that such
an agency is in a position to grasp the legislature’s intent.18
However, there are two difficulties with relying on any presumption that the
Defense Department’s views should be accorded special weight in this case.
First, the Defense Department is not the only agency in the Executive Branch
affected by the authority conferred by the Act, nor is it the only agency that was
involved in deliberations prior to the Act’s passage. This Department, as the
major civilian law enforcement agency, is intimately affected by the Act and
played a role in deliberations leading to its enactment. Accordingly, any argu­
ment by the Defense Department that its views should be accorded special
consideration must be balanced against the fact that it is not the only department
whose views are entitled to consideration.
More importantly, a court will not blindly give weight to a particular agency’s
views of a statute affecting the agency. To the contrary, courts have made clear
17 For further discussion of this passage from the House Judiciary Committee report, see supra.
18 See generally Red Lion Broadcasting Co. v. FCC, 395 U S. 367, 381 (1969); Zemel v. Rusk, 381 U .S 1,
11-12 (1965); Udall v. Tollman, 380 U.S. 1, 16 (1965). See also SEC v Sloan, 436 U.S 103 (1978); General
Electric Co. v Gilbert, 429 U.S. 125, 141 (1976).
479
that their primary responsibility of deciding issues of law arising in cases
involving challenges to an agency’s action requires them to reach an independent
judgment in light of statutory language and legislative history. Courts in general
will not defer to an administrative interpretation when it is not consistent with a
statute’s language and history.19
In this case, there is no doubt that the Secretary of Defense, subject to the
supervisory power of the President, has the authority and responsibility to issue
regulations dealing with the issue of reimbursement. However, the Secretary may
not read into the statute a legal requirement that is not contained therein. In our
view, for the reasons stated earlier, we do not believe that the Secretary is required
by the Act to seek reimbursement.
III. Conclusion
In conclusion, we believe that the Act’s reimbursement provision means what
it says: the Secretary of Defense “ shall issue regulations providing that reim­
bursement may be a condition of assistance” under the Act. We cannot find in
this provision, its legislative history, other provisions of the statute, or the Act’s
legislative history in general any legal requirement that reimbursement be sought
under the Act. Also, since this Act provides authority for the Defense Depart­
ment to assist civilian law enforcement officials in certain circumstances, there is
no occasion to rely on the Economy Act, 31 U.S.C. § 686, as the authority under
which the Defense Department will provide such assistance. Therefore, this is
not a situation in which reimbursement is governed by the law that would have
applied under the Economy Act itself.
T heodore B. O lson
Assistant Attorney General
Office of Legal Counsel
19 A court’s deference to an agency’s construction is constrained by the statute *s language, history and purposes.
See Teamsters v. D aniel. 439 U .S 551, 566 n 2 0 (1979), Morton v. Ruiz, 415 U .S. 199, 237 (1974); Billings v.
Truesdell, 321 U S. 542, 552-53 (1944); Great Northern Ry Co. v. United States, 315 U.S 262, 275-76(1942);
U nited States v. Jackson, 280 U .S 183, 193 (1930). Courts are the final authorities on issues of statutory
interpretation and “ are not obliged to stand aside and rubber stamp their affirmance of administrative decisions that
they deem inconsistent with a statutory mandate o r that frustrate the congressional policy underlying a statute ”
Volkswagenwerk Aktiengesellschaft v. FMC, 390 U .S. 261, 272 (1968).
480