*1 STATES еt al. v. UNITED CRANDON February 27, 1990* 1989 Decided Argued November No. 88-931. Co., States, 88-938, Boeing Inc. v. United also on *Together with No. to the same court. certiorari *2 J., Court, opinion delivered the in which
Stevens, Rehnquist, JJ., J., joined. and Brennan, White, Marshall, Blackmun, C. and J., opinion in concurring judgment, filed an which O’Con- Scalia, JJ., joined, post, p. Kennedy, nor and 168. A. Lacovara the cause argued petitioners
Philip Stein, him briefs were R. No. 88-931. With on the William Jr., Treanor, Plotkin, F. Robert and E. Lawrence Gerard Barcella. S. the cause for Benjamin Sharp argued peti- him were tioner No. 88-938. With on the briefs Hilary Bennett, Robert and Alan Harp, Kriegel. S. argued cause for the United States. Kneedler
Edivin S. Acting Starr, were General brief Solicitor With him on the Deputy Attorney Solicitor Gen- Schiffer, General Assistant Douglas Letter. F. Wallace, Hertz, and Michael eral opinion of the Court. delivered Stevens Justice Boeing Company, of The five executives In 1981 early accept (Boeing), resigned retirement or took Inc. important positions of the Federal in the Executive Branch by Boeing, employment Upon termination Government. employment relationship shortly formation of an before lump-sum Boeing made a Government, with the mitigate the substan- amount that was intended each in an *3 by expected employee reason to suffer each tial financial loss question employment. change must The we decide of his provision payments Crimi- violated these whether private parties paying, prohibits from and nal Code receiving, supplemental employees com- from Government employee’s pensation service.1 for the disputed. employee re- are not Each essential facts The accept posi- planned specific signed federal he because required forgoing higher salaries These shifts tion. Boeing employee would have earned at and also each 1 employees by “Salary payable officials and United of Government States “(a) any salary, any supplemen- to or Whoever receives or contribution salary, employee or as for his services as an officer tation of Government, any independ- branch of United States the executive States, Columbia, any or agency ent of the District of from United States, except may other than the Government of the United as be source treasury State, county, municipality; or out of the or contributed “Whoever, individual, association, partnership, corporation, whether an to, pays, any way or or in organization or makes contribution other of, under supplements such officer circum- receipt which make its a violation of this subsection— stances would $5,000 imprisoned fined more than not more than one “Shall 209(a) (enacted 23, 1962, year, 18 C. as Act of Oct. Pub. or both.” U. S. 1125). 87-849, 1(a), L. 76 Stat.
155 Thus, the company. with financial connection all severing As- retirement to become early who took Paisley, petitioner and Research, Engineering for Navy Secretary sistant the United confirmation requires office that Systems —an to him of financial cost States Senate —estimated in- $825,000, would be approximately Boeing separating and stock options in lost $77,000 cluding approximately severance Boeing’s retirement benefits.2 in lost $250,000 $183,000.3 comparable amounted to to Paisley payment become Crandon, resigned who petitioner estimate Treaty Organiza- Atlantic the North for scientist computer $40,000.4 was his severance $150,000; tion, was were higher petitioners’ three individual The other Boeing paid Paisley’s.5 lower than but than Crandon’s $485,000.6 a total departing employees five 2 ¶ App. 27. Facts Stipulations of Uncontested Joint 3 1988). (CA4 F. 2d ¶87, 33; 2d, App. F. Facts Stipulations of Uncontested Joint 478. Secretary Deputy Jones, Under resigned to become who Petitioner $176,000 Forces, requested Theater Nuclear Strategic Defense $132,000. Reynolds, who re Petitioner and received the cost of severance Space Deputy Director of and then a consultant signed to become $80,000. $195,000 Petitioner and received Policy, requested Intelligence Secretary Deputy Assistant to become Kitson, early retirement who took *4 re Command, Control, Intelligence, and Communications Navy for of the $50,000. Stipulations of $180,000 Joint Uncontested and received quested id., 2d, id., 71-72, App. 31; ¶¶ F. at ¶55, 29; ¶25, 26; App. App. Facts Boeing that included their ex employees submitted estimates 478. The accumulated, but and the value of salary in and benefits pected reduction depart payment, to all unvested, separate A standard company benefits. in bene employees’ interests vested out the ing Boeing employees, cashed Ibid. fits. pay calculating procedure for severance accounting Boeing’s internal (1) the positions used four factors: employees departing for for Government employment, anticipated salary Government for the duration loss of term, or the of the Presidential be the remainder which was assumed to (2) shorter; birthday, whichever was employee’s 65th period prior to the (3) plan; employee’s re- retirement Boeing’s to the :he loss of contributions petitioners individual was a Government
None of five the payment.7 emplоyee at he received his severance the time unconditionally. made None Moreover, was each Boeing employees promised later to return to at a date any Boeing to rehire them. After make commitment nor did entering petition- of the individual service, none Government Boeing provided or, treatment indeed, ers with favored procurement participated decision in source selection Boeing. stipulated that all com- It is five were that affected Apart petent from the Government servants. and faithful charge payments themselves, there no fact of the petitioners. by any of the case of misconduct complaint alleging a civil In 1986 States filed the United supplement payments indi- had been made “to each that the employee” a federal and vidual defendant’s they in- of interest situation which “created conflict fiduciary duty loyalty undivided duced the breach of [which] States, each owed the United individual defendant §209 by 18 S. C. and/or the common law.” as measured U. ag- complaint sought Boeing App. in the 12. The relief payments imposition gregate and made amount of moneys indi- on received each constructive trust petitioners. vidual against ruled the Gov- a full the District Court trial,
After grounds. Supp. 653 F. ernment on (ED аlternative several 1987). had not been vio- First, held that Va. (4) costs; supplement living between to cover difference location and Washington, procedure An con- D.C. alternative costs Seattle and years employee’s Boeing of service and the dura- sidered App. anticipated employment. 281-283. tion of petitioners Boeing staff Kitson and Crandon estimated Jones, petitioners Paisley, Reynolds using procedures and for both petitioner’s anticipated length using solely procedure. Each the first component was thus a calculation of his final Government service approved by Boeing’s were chief executive. payment. Final amounts 2d, F. at 478. 7Ibid. *5 recipients payments before the made were
lated because employees were not intended to had become Government compensate Second, it held service. them for Government fiduciary standard of con- no violation that there was agency principles by because common-law duct established responsible payments offi- Government were disclosed loyalty they to subvert the did not “tend and because cials government.” States to the United the individual defendants Finally, concluded that the the District Court Id., at 1387. appearance payments of nor an actual neither the “created had not been interest,” and that conflict of injured payments not, event, therefore and was damages. Ibid. to recover entitled Appeals panel F. reversed. 845
A of the Court of divided (CA4 1988). employment at the status It held 2d 476 violation and an element of a time is not finding payments were not that the District Court’s supplemental compensation for services as em- intended to clearly ployees at Id., erroneous. of the United States was prophylactic character of the held that the 480. It further unnecessary for the Govern- interest laws made it conflict of injury prove and that the defendants’ dis- actual ment to an did not constitute a defense to closure recovery. It therefore concluded both action for their Boeing “although liable, were defendants and the individual permitted.” recovery by government Id., double 482.8 at Appeals’ granted con- to review the Court
We certiorari important statute. U. S. struction of this I Congress an has not created outset, At the we note that 209(a). remedy express The Govern- civil for violations all Appeals that the statute of limitations barred The Court of also held except Boeing’s payment against Boeing, tort claims of the Government’s Id., 481-482. to Kitson. *6 158 many argue the enactment not, words,
ment in so does remedy. damages implicitly Rather, a created of the statute begins that an with the common-law rule the Government fiduciary obliga- secretly profits agent a a breach of who ill-gotten gains. disgorge principal his It tion to must his fiduciary obliga- replaces definition of then the common-law §209(a), arguing that of be- tion with the stricter standard payment not of is an element cause statutory concealment is no defense. disclosure offense, amalgamation Regardless the Government’s of whether statutory concepts the- describes tenable common-lawand ory recovery, clear that the Government must it is at least 209(a) § prevail prove to in these cases. We a violation 209(a) § applies proceed to a to consider whether therefore encourage payee to to severance that is made accept employment, but that is made before the Government employee. payee becomes Government meaning determining statute, In we look not statutory language, design particular but to the to the object policy. to its K mart as a and statute whole (1988); Corp. 281, Pilot Cartier, Inc., 486 U. S. v. Life (1987). Moreover, be- Dedeaux, 41, Ins. v. U. S. Co. governing is forth in a criminal stat- standard set cause the lenity apply resolving appropriate the rule of ute, is coverage. any ambiguity To of the statute’s in the ambit history language uncertain, of 209 is extent interpretive guideline” serves ensure both “time-honored warning of criminal con- is fair boundaries that there legislatures, courts, define criminal liabil- duct and that (1985); ity. Liparota 471 U. States, S. v. United Bass, v. S. 347-348 404 U. see also United States II statutory provisions of almost two dozen 209 one Section graft, addressing bribery, of interest that were and conflicts Chapter compiled 11 of Code the Criminal revised and §§ some focus on While sections 201-224. 18U. S. C. 1962. quid pro quo as a for Govern- offered bribes or commencing apply persons and after before acts, ment prophylactic that aims at rule service, 209 is a compensation.9 employees’ of Government the source prohibitions, neither of which contains two Section directly specifies payment must be made or received. awhen every person paragraph who “re- is directed The first *7 salary supplement for his serv- “as ceives” agency employee” executive of the of an as an officer or ices every paragraph is directed to second Government. supplement “pays,” person or makes contribution who or employee” salary “any under circum- or of, such officer to the receipt a vi- the оf the contribution that would make stances reading A literal of the second the subsection. olation of “any paragraph particularly the term such officer the use of — payee employee” supports that the must the conclusion or — payment the is made. at the time a Government prohibitions Similarly, paragraph’s on one who the additional any way supplements the to, contribution or “makes “any employee.” In- such officer or of,” also refer to merely receipt prohibited is the or conduct deed, since the salary supplement, payment that a viola- follows 209(a) § at the time the is, not, either or is committed tion of Despite drafting payment the awkward is made. coverage they appear paragraphs, to be coextensive their 209(a) § single The text of of a transaction. of both sides employment status is an element of the thus indicates offense.10 witnesses”); 18 (“Bribery public § officials and 18 U. S. C. 201 See officers, Congress, § and oth (“Compensation to Members
U. S. C. 203 Government”). pay preemployment Some affecting in matters ers offering seeking thereof —thus are criminal under ments —and the mere § provisions of 203. 169-170, analysis, post, misses the grammatical 10 Justice Scalia’s payment made “any such offi- matter whether the pоint. It does not rejected reading Appeals this of the statute The Court prior to its codification First, it noted for two reasons. plain language § Code of the Criminal (1958 ed.) predecessor at 18 U. S. C. 1914 statute “being unambiguously whoever, a Government limited was any salary.11 employee,” The Court received official or phrase Appeals that the deletion of this meant inferred during longer need occur federal em- no that ployment, preemployment payments could violate and thus 209(a). public it felt that the 2d, Second, 845 F. at 480. “§ policy underlying interest laws in the conflict of coverage.” interpretation general support its a broad also of a criminal statute must be Ibid. Because construction warning, legislative guided by it is rare that the need for fair statutory support history policies of a will a construction clearly In warranted the text. statute broader than that reading that our each of these sources indicates case, statutory congressional language is consistent with intent.
Ill § predecessor an was enacted 1917 as The of appro- legislative to the Bureau of Education’s amendment priation provided em- “no Government official or any salary ployee in connection with his serv- shall receive “being phrase The a non-Government source.12 ices” from cer,” salary “any event, In either supplement such officer.” or to of “any recipient payment must be such officer.” of § 1914 was: paragraph The first of
“Whoever, employee, any salary being a Government official or receives employee any as such an official or from in connection with his services States, except may of the United as be other than the Government source State, county, municipality treasury any or . . . .” out of the contributed (1958 ed.). § 1914 18 U. S. C. from a desire to halt the Bureau Education’s legislation The arose allowing private organizations, such as the Rockefeller Founda practice of universities, pay employees whom the Bu the real salaries tion and salary year. Decrying the “ac- pay the of one dollar reau would nominal official or did not employee” Government until appear § when the was transferred from 5 provision U. S. C. 66 to 18 §1914 in the U. S. C. of Title 18.13 reorganization As the Court this Appeals recognized, wording 1914 unques- tionably required of a to be a recipient payment Govern- ment at the employee time the was made. This tivities that have been indulged through Bureau of Education agencies which seem to me to be youth inimical to the education of the country,” Oregon proposed Senator Chamberlain of following addi- year appropriations tion to the fiscal bill: part appropriations “That no Education, made for the Bureau of expenses any whether for salaries or purpose or other connected there- with, any money shall be used in connection with contributed or tendered by the any corporate General Education Board or organization or other or any way it, individual directly indirectly, associated with either or or by any contributed or tendered corporation or individual other than such as may by State, county, municipal contributed agencies; or nor shall the any moneys Bureau of Education receive Cong. salaries . . . .” 54 Rec. 2039 proviso passed, although still located in the addressing section appropriations, Bureau of Education’s language: contained much broader employee Government official any salary “[N]o or shall receive in connec- employee tion with his services as such an official or source other States, than the Government of except may the United be contributed treasury any State, county, out of the municipality, person, and no association, corporation to, shall make any way contribution or in of, supplement official or for the performed by services him for the Government of the United States . . . .” 3, 1917, 163, 1,§ Act of Mar. ch. 39 Stat. 1106. Davidson, (1922)
See International R. Co. v. 257 U. S. (reading § 1 of the independently). uncodified statute language This was codified in (1934 ed.). 1934at 5 U. S. C. 66 legislative history, For a Hearings see H. on R. 1900et al. before the Antitrust Subcommittee of the House Com- (1960) Judiciary, (Memoran- Cong., Sess.,
mittee on the 86th 2d 738-740 *9 (1956)). Attorney dum for the General Re: Conflict of Interest Statutes 13 25, 1948, 645, 1,§ Act of June ch. 62 Stat. 793. The Reviser’s Note to explains specific the official Code changes three wording from the of 5 66,§ U. S. C. but does not mention this addition. change appears The encompassed in the Reviser’s conclusion that changes “[m]inor were (1946 IV). phraseology.” § made in ed., 18 1914 Supp. U. S. C. 162 of the statute nor the changed original scope neither
reading period in the entire between controversy; engendered vagueness instead on the 1962, 1917 criticism focused “in em- made connection with” the the to payments reference history the legislative service.14 fact ployee’s 209(a) the narrowing § elimina- consequence the explains the reason for words, eliminating tion of these but silent on or official is inconsistent employee,” a Government “being the latter Congress change with view that intended the Sеnate and of the section.15 The coverage broaden the General all Attorney Judiciary Committees House change made no substantive maintained that em- official or Rather, law. deletion “Government of the ex- and use of the “officer or phrase employee ployee” (1961); 748, Cong., Sess., 14 See, g., Rep. H. R. No. 87th 1st Asso e. York, City of Conflict of Interest and Federal ciation the Bar of the New 212-216 Service Sess., (1962); 2213, Cong., Rep. 87th 2d H. R. Rep. S. No. 15 See Attorney Kennedy’s summary supra, No. at 24-25. General Memo 87-849, Regarding of Public Law randum Conflict Interest Provisions (a) (1963), much reported that subsection “uses of the lan Reg. Fed. vary guage former 18 S. C. 1914and does not statute in U. substance.” employee” phrase official or had “being
Deletion of the Government proposed that the suggested been at least once before in a amendment pass. but did Subcommittee considered not House Antitrust clearly phrase staff had did not cover Mem- The Subcommittee found Congress Judiciary, or and had recommended that the bers of section any salary, or “[w]hoever to address receives contribution be revised salary, for or in connection with his services supplementation to or Commissioner, Congress or a an offi- Delegate of or Resident or Member executive, cer, legislative, agent, United States Judiciary, . . . on the Federal judicial branch .” House Committee (Comm. Sess., 45, 61, Cong., 2d Legislation, 85th Conflict of Interest 1958). 209(a), dropped “being proposed Print Like amendment “[wjhoever unqualified official” clause and left the receives” yet persons subject, yet contemplate did not effect on its drafters employed the Government.
163 ecutive branch” seemed to enhance and clarity consis- with the other tency new conflicts statutes.16 We attach greater significance two other changes made when Congress it revised the and bribery conflict laws § in 1962. In 201 it added language extending prohibition against bribery of official to a public who “person has been selected to be a public official,” which it defined as “any per- son who has been nominated or to be a appointed offi- public cial, or has been informed he will be officially so nominated or In §203, appointed.”17 which outside prohibits compensa- tion for the performance of public service, ex- Congress covered pressly advance or requests offers of compensation for services to be “rendered ... at a time when [the recipi- is an officer ent] or employee of United States.”18 In both of these provisions Congress used lаn- unambiguous to cover guage preemployment payments; the absence of 209(a) comparable § language indicates that did Congress purpose One of the 1962 inconsistency bill was to eliminate overlap provisions. in the conflicts only predecessor Section 1914was the statute containing phrase employee.” “Government official or In the new 207, 208, 209, §§ replaced phrase the 1962 bill and the different previously 281, 283, §§ 284, terms used phrase and 434 with the uniform “officer or of the executive branch of the United States Govern ment, any independent agency States, of the United or of the District of supra, Rep. Columbia.” H. R. No. at 41-45. 23, 1962, 87-849, 1(a), Act of Oct. Pub. L. phrase Stat. 1119. The was “included in point order to set prospective public forth at which a statutory officialcomes within the supra, coverage.” Rep. H. R. No. at 18. present 76 Stat. 1121. specific, statute is even more covering (A) personally services “rendered or to be either rendered or another — person at a time when such Congress, is a Member of Congress Member of Elect, Delegate, Delegate Elect, Commissioner, Resident or Resident (B) Elect; Commissioner person a time when such is an officer or em ployee executive, of the legislative, United States in the judicial branch Govеrnment, any agency States, or in including United 203(a)(1). District of Columbia.” 18 U. S. C. coverage pre-existing of that to broaden
not intend provision. requires employ- confirmingthat evidence Further *11 (b) in is found subsections time of at the ment status (c) expressly §209.19 authorizes federal The former and of payments employees from a bona fide to receive to continue by plan pension, maintained a former health, or other benefit § inapplicable employer, certain to the latter makes provisions employees. types ob- Both the of of Government recipient viously that are made while on focus employee. ex- The addition of these two is a Government §§ draftsmanship emptions of 201 and in like the careful Kennedy’s Attorney contem- General with 203, is consistent 209(a) change poraneous opinion not the substance that did supra. n. 1914. See the former 18 U. S. C.
IV
prophylactic
appropriately
Congress
rules that are
enacts
wrongdoing
appearance
prevent
even the
intended to
injury
may apply
that has caused no actual
to conduct
Legisla-
is such a rule.
Section
States.
United
potential
prohibit
in-
designed
conflictsof
and to avoid
tion
sup-
governmental
performance
service is
in the
terest
maintaining
public’s
by
legitimate
ported
interest
provide:
subsections
19 Those
“(b)
employee
the executive
prevents an officer or
Nothing herein
Government,
any independent agency of
or of
the United States
branch of
Columbia,
States,
continuing
par-
or of the District
the United
life,
retirement,
pension,
group
health or accident
in a bona fide
ticipate
bonus,
insurance,
employee welfare or bene-
stock
or other
profit-sharing,
employer.
plan maintained
a former
fit
“(c)
employee
apply
special
or to
to a
Government
This section does
serving
compensation,
without
or
Government
an officer
employee,
any person pay-
special
or to
not he is a
whether or
to,
supplementing his
as such.”
18 U. S. C.
contributing
ing,
(c).
209(b),
§§
integrity of the federal service.20 Neither
in the
confidence
exemplary performance
good
disclosure, nor
faith, nor full
making
receipt
prohibited
public
excuse the
of a
officewill
appropriate,
payment.
nevertheless
a case that
It is
scope
prohibition,
identify
questions
raises
about
provision
specificpolicies
serves as
that the
well as those
broadly.
against reading it too
counsel
See
Offshore
Logistics,
Tallentire,
It is paymasters “prohibiting payrolls two two rule as one job.” employee At on the same least two of the the same policy justifications rule—the concern that the three for the private paymaster will have economic hold over the em- an among ployee em- concern about bitterness fellow ongoing ployees apply or no but have little — preemployment application severance to an unconditional employee might payment. course, the Of concern employer his former would enhanced tend to favor any ongoing generous payment, relation- but the absence of ship may mitigate particularly rules if other concern, disqualify participating in in- matter although jus- volving employer. policy Thus, former wholly inapplicable are to uncon- tifications for payments, they by preemployment no ditional severance they directly implicated are in cases of are as means salary supplements. ongoing important countervailing cannot be
An consideration also Kennedy recognized ignored. he President 1961when As Congress calling message for wholesale revision sent his of the conflict of interest laws: setting highest regulation, moral
“Such while *13 ability impair must not the Govern- standards, highest personnel quality recruit of the and ment to Today’s capacity. needs men and women range knowledge, experience, and abil- with broad ity. people top- increasing numbers of with It needs flight talent. hundreds of occasional executive It needs part-time experts and and intermittent consultants increasing help problems complexity and deal with upon difficulty. In need short, we to draw technical help talent and skill to con- America’s entire reservoir of
167 our duct most business —the generation’s important pub- lic from the business.” President of the Message United States Relative to Ethical in Conduct the Government, (1961). H. R. Doc. No. 87th Sess., 1st Cong., The President described some of the statutes that were then on the books аs while wholly inadequate, others “create[d] obstacles to wholly unnecessary recruiting qualified people Id., Government service.” at 3. Attorney General commented Kennedy on this same con- cern his memorandum on the 1962 legislation. After ex- that one of the “main plaining of the purposes new legisla- tion” was “to the Government obtain help the temporary or intermittent services of with persons special and knowledge skills whose is principal employment outside the Govern- ment,” he predicted the new legislation would “lead to a significant expansion of talent on which the pool de- partments and can draw for their agencies needs.”21 special 209(b) 209(c) §§ The substantive additions of and to allow con- and tinuing participation pension benefits and plans to ex- 209(a) certain empt from the employees prohibitions of wholly consistent with the General’s In Attorney outlook. an contrast, § expansion encompass preemploy- ment would run counter payments to this interest.22
The madp severance to the petitioners case have somewhat nebulous character. hand, On the one as the Government correctly argues, they rise to a give possi- ble appearance of that is one improрriety certainly con- General, Attorney Office of the Regarding Memorandum Conflict (1963). 87-849, Interest Reg. Provisions of Public Law 28 Fed. long recognized reach of 1914 had been “a serious obstacle to government age they recruitment of men for at an apt office when are vigorous productive.” most City Association of the Bar of New York, Conflict of Interest Federal Service 158 See also Hear (Memorandum supra, ings ah, on H. R. 1900 et n. at 750 for the Attor (1956)) (“It ney General Re: Conflict of appears Interest Statutes that the only significant problem respecting discourages section is whether it private industry”). recruitment of executives from *14 209(a). allowing corporations § hand, On the other cerns of special employees encourage qualified their skills to make public interest identi- serves the available to the Government Attorney when General fied both the President and 209(a) express § our either It is not function was enacted. approval disapproval of unconditional sever- kind reading payment. a literal of the note that ance We pre-Government places service severance a statute —which 209(a) § coverage consistent outside of —is policies the enactment of the that motivated with one of 209(a) language Cоngress used in is statute. Because spirit thought “harmony be the with what is thus presents purpose this case none “rare act,” may justify departure exceptional from circumstances” statutory language. Harrelson, 282 U. S. Crooks v. (1930); States, 449 U. accord, Rubin v. United S. 59-60 construing Finally, already observed, are as we have we appli- and are therefore bound consider criminal statute lenity. To extent that ambi- of the rule of cation temporal scope guity remains, it should over the petitioners’ favor unless and until Con- be resolved gress plainly we have misconstrued its intent. states that Appeals accordingly judgment is of the Court reversed.
It so ordered. and Jus- Scalia, Justice with whom Justice O’Connor Kennedy in the judgment. tice join, concurring agree has I Court that the failed to with the §209 petitioners prove S. violated U. C. premised (a), remedy claim and that its to a common-law My accordingly upon must fail. reasons, such violation pay- think I do not however, are somewhat different. em- made or after the term of federal ments which are before §209(a); necessarily ployment I but do are excluded periodically dur- which are neither made think that *15 ing the term of federal nor service, calculated with reference periodic compensation, are excluded.
I (а) criminally Subsection of 209 makes liable: any salary, any “Whoever receives or contribution to supplementation salary, as for his employee services as an officer or of the executive any branch of the United States Government . . . from source other than the Government of the United Statesf; and] pays, any
“Whoever . . . or makes to, contribution any way supplements salary of, such officer or employee under circumstances which would make its re- ceipt a violation of this subsection . . . .” agree I with the Court that these two clauses are “coexten- coverage single sive their of both sides of transaction,” phrase employee” ante, if so that “such officer or implies requirement payment in the second clause that the recipient employee, be made while the was an officer or such requirement must have been meant in the first clause as Surely, implication well. however, the evidence of such an fairly Congress should be clear before one concludes that has slipped requirement in an additional in such an unusual fash- importing retroactively ion, it into the earlier clause from a provision only image that is otherwise the mirror of what preceded. my fairly To mind the evidence is not astray, сlear; is nonexistent. The Court is led I think, perception every per- its that the statute “is directed to ‘pays’ ‘any employee,’” son who . . . such officer or ibid.— enough which leads to the reasonable contention that unless recipient employee anis officer or at the time of provision “any is not violated. But order to make such employee” object “pays,” officer or of the verb the clause “[wjhoever ungrammatical, reading pays must be rendered . . . such officer or under circumstances which receipt this subsection.” The a violation of make its
would (or precisely, sup- pronoun I more no antecedent “its” has pose, phrase would make its circumstances which “under application receipt has no of this subsection” a violation “[wjhoever quite pays”). that the ob- to me clear It seems “any employee,” ject “pays” officer or be, not such must employee,” officer or so “the such of, but rather receipt” receipt phrase refers to the that the later “its grammar salary. result, dictates Substance as well *16 the second clause of subsec- in this fashion does because (a) mirroring apparent purpose the first. of tion achieve the any pay- apply receives not to “whоever The first clause does salary,” supplementation any to or ment, or contribution “[wjhoever any any salary, or receives con- but rather to salary.” supplementation would there- tribution to or One pays any expect to cover whoever sal- fore the second clause salary. supplementation ary, any I to or or contribution interpretation acknowledge the second clause that this salary phrase “the of” should means that the commaafter ” placed “supplements. have after the word But instead been gross grammati- misplaced plausible than a comma is more apparently plus cal of an error, the destruction intended parallelism, leading peculiar to the introduction of a both surely clause which one would have condition the second expected in the first. to find apparently concedes that when the first clause
The Court (a) any salary, refers to who “receives of subsection someone salary, any supplementation of or contribution to or as com- employee pensation . . . services as an officeror of the ex- for imply it States,” ecutive branch of the United does recipient be an officer or at the time of must receipt. think that the Thеre is no more reason to second imports requirement when it refers to someone clause such any way sup- “pays, to, or in who or makes contribution salary employee.” plements, the such officer or Per- pay haps possible an officerwhen he is not an offi- is not surely possible pay, cer; but it is to, contribute or to supplement salary (just possible an as it is officer payment, supplementation to, receive contribution of such salary) either before or after the service to which the pertains completed. has been by agree reason,
For a different I Court, unaddressed payment present that the is case not covered 209(a).
II It is an ancient and sound rule of construction that each possible, given should, word a statute if An effect. in- terpretation needlessly superfluous renders some words suspect. seeking present petitioners In to hold the liable, though “[w]hoever the Government treats it read receives for his services as an officer or em- ployee of the executive branch of the United States Govern- . . . ment source other than the Government of the way. States.” But it United does not read that Another of way, statutes, the ethics §203, U. S. C. does read that covering receipt “any compensаtion” *17 employee relating particular services as a Government to a 209(a), matter. however, Subsection does not refer to “who- compensation,” ever receives but to “whoever receives salary, supplementation salary, contribution to or compensation.” as The second clause, seen, as we have is entirely salary. likewise tied to It would be bad construc- (if ignore language given tion to it can be reasonable meaning) interpretation par- statute; but it is ticularly ignore bad construction to it in a statute, criminal lenity applies. Wrecking where the rule of See Adamo Co. v. States, United 434 U. S. 284-285 Salary compensation, species is not the same as but is one genus. recompense “[t]he paid, of that It is or consideration stipulated paid, person regular to be to a intervals for compensation regularly paid, by ; services . . . fixed as year, quarter, month, or week.” Webster’s Second New In- (1957) added). See Dictionary (emphasis
ternational (1900) States, Benedict United v. U. S. also (“The as a fixed an- be defined ‘salary’ may generally word services, depending upon nual or periodical rendered”). To of services the amount time and not upon receive periodic pay- is to as salary compensаtion” “receive And in the context the present ments as compensation. con- that to “receive thought be reasonably statute it must is as salary compensation” tribution to or supplementation pay- or supplementation periodic to to receive contribution or supplementation that the contribution ments, in the sense it differently regard To read must be periodic. itself —to a “con- source as nongovernment any single payment to render all salary” supplementation to or tribution —is statute so salary superfluous, the references (like §203) all “compensa- have prohibited as well might when the Office of Personnel It tion.”1 is significant in its the substance of embody sought Management in a that would be understood fashion ethics regulations, means, it revised the thinks it mean what the Government salary, and supplementation to contribution references follows: “salary” possible interpretation, the one effect such an Under an unsalaried Government officer or
language would be to allow private source. lump-sum payment for his services from receive a “salary,” payment would not be a lump-sum because the That would result salary,” supplementation of since no a “contribution to or nor could supplemented or сontributed to. But even effect to be exists is) by largely completely if not eliminated sub as it (strangely contrived (c), coverage special entirely excludes from the section’s which section §202, uncompen in 18 S. C. employees, as defined U. employees. only class that remains as officers sated Government obscurely validated lump-sum payments so possible recipient of *18 and “salary” language of Government officers pointless consists otherwise employees compensated who are in special employees who are not salary. I aware that by payment of am not such other than manner some exists. class anything any salary employee or shall not receive
“An private monetary source as value from a 209).” (18 U. S. C. to the Government for his services 735.203(b) CFR 209(a), original in 1917, enacted version
Under “supplementation to” or clearer “contribution was even salary-like payments. salary regular, That envisioned of” part in as follows: read relevant any employee
“[N]o receive shall officialor Government salary an official services as such in connection with his any employee other than the Government from source or person, association, or States, . . . and no of corporation United way any any to, or make contribution shall any salary supplement or em- of, official Government by performed ployee him for Govern- for the services 1917, 39 Act of Mar. States.” ment of the United 1106. Stat. provision Congress it left amended the when
Even criminally substantially making same, the structure liable: employee, being official or a Government
“Whoever, salary any with his services as in connection receives any employee than source other or such an official States, ... or of the United the Government corpora- person, association, or “Whoever, whether any way supple- to, makes contribution tion, salary officialor of, ments performed him for the Government for the services 793. . . . .” 62 Stat. States the United interpreted phrase if versions, one of these In each “make(s) any way supplement(s) to, in contribution only periodic payments but also to include not of” upon payor prohibitions lump-sum payments, then the received payee officialwho match: the Government would not (since guiltless lump-sum payment not “re- he did would be *19 174 lia- would criminally whereas the salary”) payor
ceive ends, At was not both This intended. obviously ble. The Government does the object prohibition. was the the in the statute effected meaning rely upon any change reeodification, but the contrary and to by the revision “firmly its was position boasts —that acknowledges —indeed Nor would it be ap- established” the earlier versions. under as ap- the 1962 legislation congressional propriate regard That interpretation. and ratification the proval prior disregard- in be a doubtful basis for would circumstance but is statute, particularly unjusti- the text of a criminal ing below, in III when, interpreta- fied I shall discuss Part as that the courts or of an agency tion was not question law, administering that had primary responsibility and was full to boot. of inconsistencies (d) (e) ex- of 209
I must that subsections acknowledge (a) of subsection some coverage payments clude I have the interpretation are not so that periodic payments, than the in giv- is more successful Government’s described no of the section. But language superfluous effect all the ing sure”) (to “make are a more doubly assurance exceptions than the insertion phenomenon utterly pointless common center the substantive restriction. very language (as below) in Part Moreover, I shall III since discuss so foolish as to its apply literally interpre- is not are cov- payments tation that all lump-sum (d) (e) to be ered, superflu- turn out largely subsections of the statute as well. See May ous under its view (OLC) (advising Memorandum Counsel Legal of Office (d) “a would be clarification of exist- subsection proposed “an from U. C. 1914 law” rather than S. ing exemption” (1958 ed.)); (1922); Atty. Gen. 273 Gen. Atty. Op. 33 Op. In reason- Ill, case, only granting (e) (d) and is that subsection implication of subsections able (a) to periodic payments, addition applies meaning of subsection true that the reasonable remains (a) exclusively applies periodic payments. that it itself is meaning trumps implica- think that a an Even if one does not ambiguity since this is a crimi- at most we have an tion, —and lenity that it rule of demands be resolved nal statute the *20 liability. criminal favor of the more narrow nowadays may strange Congress that should think It seem criminalizing only periodic payments (salary categorically of salary), payments, supplementation rather than all or of employees. But it not have seemed would Government (a) strange when the substance of subsection was apparently originally time, enacted. There existed at that agency, regular practice a of hir- more than one Government salary, ing, individuals whose real at nominal paid by private organizations. Cong. 54 Rec. would be Manning, 4011-4013;B. Federal Conflictof Inter- 2039-2047, Atty. (1919); Op. Law 148-149 Cf. 31 Gen. est (1923). Apart Congress Comp. from the fact that Gen. step at a often acts “one time” tо eliminate one abuse that has the focus of its attention but not all allied become good practical why payment there are reasons the abuses, salary singled supplementation of would have been out. salary private poses Surely receipt regular from a source greatest corruption; commonly the risk of one characterizes by saying pay- corrupt that “he is on someone’s official supplementation Moreover, roll.” (as categorically lump-sum payments can- can be eliminated not) criminalizing large per- harmless, number of without fectly arrangements. innocent, desirable, and often For ex- ample: parents I make rare, think, It is for well-to-do salary-like payments might periodic, to their child so that he job they proud low-paying in a are continue suspect performing him I it and wish to continue. is of his parents rare, however, at all for such to make occasional particularly generous bequest, gifts leave a child, to the or to interpretation precisely that end in mind. Under the with generos- adopted by each such act of Government, objective, accepted ity, would if with rendered seemingly think, That I would alone, should violate the law. “supplementation enough all not to criminalize be reason salary” have us under- in the the Government would sense stand the term.
Ill length what seems me the stron- I address at some must interpreting against gest argument to mean what it long interpreted differently. says: been fact that has proves analysis, consideration than a weaker On long unsatisfactory suppose. might ex- Indeed, the one interpretation perience one with a countertextual adhering Congress prime to what enacted. reasons for points First, outset: must be made clear Two history interpretation that exists is not substantial history judicial interpretation. In the than 70 more *21 years predecessors existence, been in 209 and its have only passing, them, times, in three has discussed this Court (1945); Muschany 49, 324 U. S. 67 States, see v. United (1944); Myers, 561, U. Interna- v. 320 S. 567 United States (1922). 257 515 Prior Davidson, 506, tional R. v. U. S. Co. Appeals litigation, present have dis- to the Courts only States v. Ober- times, three see United cussed them (CA7 1989); v. 790, F. 793-794 United States hardt, 887 2d (CA9 1978); 688, F. United States v. 575 2d 691-692 Raborn, App. 22, 27-28, 964, D. 610 F. 2d 198 S. C. Muntain, U. (1979), only four times, the District Courts see 969-970 (ND Supp. 462, 474 F. Tex. Pezzello, States v. United Chicago 1979); Exchange v. Abramson, Bank National (Minn. 1969); Supp. Gerdel, United States v. 87, 295 F. 89-91 (ED 1952); Supp. v. F. 638-639 Mo. United States 1922). (SDNY Only F. 276-277 one of these Morse, opinion, judicial 1952District Court ex- references, a scarce pay- lump-sum plicitly versus discusses issue position agreeing here; that ment, with the Government’s by “gratuitous,” its discussion, moreover, was own admission way supra, was in at issue. Gerdel, since the statute no See only at 638. And two of these cases—one from a District Appeals, relatively Court, one from a Court of and both re- assumption (unchallenged) lump-sum pay- cent—was necessary apparently to the ments were covered court’s hold- ing. supra; Oberhardt, See United States v. United States supra. position In Pezzello, sum, v. the Government’s is not supported by long, appreciable, body judicial or even interpretation. body interpretation
Second, the vast of administrative advisory opinions that exists—innumerable not Attorney General, the and the OLC, Office of Government Comptroller general Ethics, but also of the General and the agencies for an counsels various not administrative inter- —is pretation that is entitled under A. to deference Chevron U. S. Council, Inc., Inc. v. Natural Resources 467 U. S. Defense question, The law a criminal is statute, by any agency entirely administered but courts. It is reasonable and understandable federal officials should employees legal regarding make available to their advice its way interpretation; general agencies in a all of the Gov- interpret ernment must it in order to assure that the behav- employees just they interpret ior of their must lаwful— provisions civil innumerable other and criminal order to operate lawfully; specific respon- but that is not the sort of sibility administering triggers the law that Chevron. Department, very specific course, Justice has *22 responsibility to determine for itself what this statute means, prosecute; in order to decide when to but we have never thought interpretation charged pros- that the of those with ecuting criminal statutes is entitled to deference. being might
Besides unentitled to what be called ex officio expansive deference under administrative in- Chevron, 209(a) § terpretation deserving any persua- is not even of Any responsible lawyer advising sive effect. on whether particular obviously a criminal statute will conduct violates rather than
err in the direction of inclusion exclusion—as- may suming, side, the safe that the statute cover to be on tendency entirely apparent. That is more than is reinforced Department, advice-giver is the which when the Justice erroneously if narrow view of what it knows that it takes an likely prosecute corrected, can will never be the error erroneously by view will be whereas an broad corrected brought. prosecutions give per- Thus, are courts when expansive advice-giving effect to the Government’s suasive 209(a) § interpretation would turn the normal construction upside-down, replacing of criminal the doctrine of statutes lenity severity. with doctrine body interpretation
The of administrative is nonetheless present purpose: case, useful in the for one It demonstrates beyond question unmanageable problems that arise when 209(a) § interpreted written, is not as it was limited to the supplementation salary. The administrative 209(a) history poignant attempts by is a record of the At- torney General and the OLC to derive reasonable results undiscriminating they rigid and criminal from the statute logic glimpse their is have invented. To follow behind the looking glass. example employee receipt
An of cash awards from non- profit public organizations for meritorious service. Unless (or statutory compensation” one that the term “as believes its with”) predecessor imports “in term connection the common- bargained-for requirement law consideration—which no imagine lump-sum pay- one contends—it is difficult to clearly grants ments more covered than cash con- specifically ferred to reward the work of Government offi- Department approved has cials. But the Justice them. The opinion doing so, 26, 1959, first rendered on June exem- OLC plifies benign unpredictable guided if discrеtion that has interpretation this criminal the administrative statute. opinion quotes Attorney opinion a 1922 General’s point “‘object provision make the obvious that the . . .
179 shall serve two official was that no Government prejudice devotion to the inter- his unbiased to the masters 26, 1959, Memorandum of June of the United States.’” ests 275). Atty.. (quoting Op. Gen., at It then contin- OLC present, not been the statute a conflict has ues: “When such apply liberally not to situations construed has been appli- strictly might have been held to be construed, which, appeared to be no violation of the in which there cable but spirit at 4. It 26, 1959,Memorandum, the statute.” June interpret a criminal statute on the absurd to is of course perception “spirit” has as to whether its been basis of one’s doubly interpret prophylactic absurd to meas- violated; and against prophy- which the of whether the evil ure on the basis opinion in fact exists. The OLC also finds was directed laxis subject upon in the case “not based that the award relationship payor between the and the ‘master-servant’ usually may expected payee attends or be to attend which principle application at 5—a far statute,” id., which, as basis in law and which the tell, I can has no apply assuredly to the statute other contexts. does “[i]n reasoning, short, and because a con- the basis of such On history legislative of the statute flict interest such as designed prevent that it was would not cre- indicates opinion approves receipt of the Rockefeller ated,” ibid., grant established under a Awards, from John Public Service III.2 D. Rockefeller in, notes, apparently irony opinion but misses the delicious The OLC 209(a) “objected par sponsor original version of
the fact that the paid by the ticularly employment persons whose actual was to the 26, 1959, June Memorandum of Carnegie Foundations.” Rockefeller OLC 3. years opinion three before this OLC interesting to note that
It is receipt of the Rockefeller Comptroller given had the advice General Comp. ivould violate 1914. 36 Gen. Awards Public Service lump-sum gifts, continuing cash but grants time the were not At that travel, tuition, living expenses at facilities. It educational grants for *24 Later OLC memoranda continue opinions this essen- tially catch-as-catch-can to public-service awards, approach unified mostly by extraordinary this crimi- principle nal statute if and is violated when its seem purposes to be of- fended. award of this kind is far “[A]n so removed from the purposes of the as not to be statutory prohibition covered by 31, 1974, it.” Memorandum 1. July of OLC 209(a) 18 U. S. C. prohibits only “[Title] those pay- ments made or received with the intent that they reward past services or government compensate for future . ones. . . Intent is to be inferred from the circum- stances, particularly past and prospective connection between the .employee and the and the payor ability employee benefit the in the payor performance of his official duties.
“This office has advised that [the Rockefeller Public Service were not prohibited by Awards] the statute be- cause they were not intended to and did not fact give rise to the sort of dual loyalty which it was designed prevent. The same would to be true appear here. [The is a payor] non-profit educational institution. The . . . Prize is a one-time-only payment, based on your achieve- ments before entered the you government. While no one factor is determinative, it is our opinion, based on our understanding situation, that your receipt the award is 209(a).” not prohibited by 18 U. S. C. 7, 1977, April Memorandum of OLC 2-3.
There would be no certainly objection this “we’ll-look-at-all- the-circumstances-and-see-if-it-looks-dangerous” if approach it were in the applied exercise of the President’s discretion- laden power to “prescribе for the regulations conduct of em- ployees the executive branch,” §7301. 5 U. S. C. But anis unprecedented way the criminal interpreting law. why, is hard to see on the theory, Government’s should have made difference. are other areas besides “meritorious many public-
There unworkability awards” which the Govern- service led to what can be called charitably ment’s has interpretation In I will mention two. 1922 the convoluted reasoning. that it would not violate the Attorney opined prede- General §of for an of Com- Department cessor for a before a merce, speech on official business dispatched from that re- organization business organization, accept the travel and hotel bills that he expenses imbursement of have to bear The extent of the personally. would otherwise *25 was as follows: reasoning
“Where, as in the to the offi- arrangement proposed you, cer or concerned does not benefit employee personally by sources, any the from outside more than he payments if he his own the statute traveling expenses, would paid violated. there be said to be a ‘con- Literally may is not tribution to’ the officer or for services employee per- him in Government, for the but the by reality formed in itself, contribution is to the Government and is fur- therance, not of its interests.” prejudice, Op. Atty. at 275. Gen., have said of the private course the same could been pay-
Of the salaries of federal that was employees prevalent ment of supra, 175, in see so as the amounts were no long the to in necessary employees more than to induce continue (in with their their federal combination federal sal- jobs, no more than could have earned elsewhere. ary) they Attorney I mention the 1940 Finally, may opinion Roosevelt, to President advising General Robert Jackson 209(a) § the did not universities predecessor prohibit that as leave with members pay faculty serving from granting as of a sab- regular consultants to the Government —not part but to enable the of consult- only rendering batical program, the wartime emer- during services to the United States ing unless analysis, That devoid gency. opinion genuinely dixit in that name to the ipse “[t]he one gives respect em- made with to the former are such circumstances granted; they ployment the leave are not incidental to with’ the services of individual ‘in connection made States within the United an official or Op. Atty. contemplation Gen. 503. the statute.” opinion that the because it demonstrates I mention 209(a), § approach “spirit-of-the-matter” necessitated beyond language, expands interpretation its ulti- (and proper predictably) mately quite will affect even the applications with salaries The consultants of the statute. precise equiva- paid by were almost the universities paid by employees foundations with salaries lent of the 1917.3 example that the shows, the liberties Govern- the last
As 209(a), § interpretation of to the ex- with its ment has taken “spirit” they appeal anything more concrete than the tent (or rely upon phrase statute, “as for” theof with”). proper interpre- predecessor, “in connection its 209(a) phrase, eliminate that troublesome will not tation of temptation give it some- eliminate most of but it will meaning. thing If than a clear and constant other salary, payment of there would be little diffi- covers following principle culty that the statute is violated *26 part, paying in is, whole or when the reason for recipient per- recipient’s that the has status-as, or work employee. perform as, will a federal officer or formed applying principle to, exam- such a clear for But one balks transportation lodging ple, a and for the reimbursement my Department opin I limited discussion in text to Justice 3 While have ions, Consider, Comptroller rational. for General are no more those of example, following: are, therefore, employees by private pro- of cash to sources “Donations hibited, money purchase transportation though the is to be used even However, where the services are fur- hotel accommodations. tickets or kind, Comp. justifiable." we believe a different conclusion is nished 268, 270 Gen. Op. Atty. speech, gives see 33 Gen. a who federal (1922), public-service Memoran- awards, see meritorious reduced-price registration for fees 1959, of June dum meetings, employees Bar Association at American federal reduced-price for members tickets entertainment many one can envision. situations services, or other armed enough to be accorded criminal statute reasonable aUntil lump-sum payments interpretation that enacted, can clear (which already by covered are consist of bribes do not 201) particular compensation § in a for services or of U. S. C. 203) § (which by already are 18 U. S. C. are covered matter through prohibition, by Exéc- administrative better handled authority pursuant to the President’s under utive Order No. 3 CFR 306 Exec. Order §7301, see 5 U. S. C. (1964-1965 regulations adopted by agency Comp.), under authority. Operating manner, the delegation in that of thаt experiment all with, sorts and can make, can Executive 209(a), interpreted § if to cover reasonable distinctions honestly permit payments, lump-sum be said to cannot —ac- example, privately paid cording special treatment, compensation travel cash reimbursement for that consists of 100.735-15(d)(l) § expenses, see 3 CFR and subsistence (1989), awards, consists of but and to organization, nonprofit see 3 CFR if conferred 735.203(e)(3)(1989). 100.735-15(d)(3) § (1989); 5 CFR
IV finally, applying I it must be think I come, present interpreted case: The to the facts Perhaps lump recipients there is sums. all the here were they argument nonetheless fall within would room for strictly amounts were if and their their existence the statute they period if had been is, service—that of federal tied to per per computed or much much month so on the basis of so *27 promised year recipient serve. But even this that each finding argument the District Court’s is eliminated “[t]he contingent upon severance . . . were not entering government [sic] individuals into federal service, government [or] remaining pe- their service for stated (ED 1987). Supp. riod of time . . . 653 F. 1381, 1384 Va. holding There transpired is, no basis short, that what “salary, receipt sup- here was the contribution to or plementation salary” 209(a). meaning within the I agree judgment therefore with the Court that Appeals Court of must be reversed.