Authority of the Secretary of the Treasury Under the New York City Loan Guarantee Act of 1978

Opinion

Authority of the Secretary of the Treasury Under the New York City Loan Guarantee Act of 1978

T h e a u th o rity o f th e S e c re ta ry o f th e T re a s u ry to issue g u a ra n te e s u n d e r th e N e w Y ork C ity L o an G u a ra n te e A c t o f 1978, P .L . N o. 9 5 -3 3 9 and P .L . N o . 95-415, w as not affected by a rid e r in th e S en ate a p p ro p ria tio n bill, H .R . 7631, u n d e r § 101(a)(3) o f the C o n tin u in g A p p ro p ria tio n s R e so lu tio n , P .L . N o. 96-369, 94 S tat. 1351.

S ectio n 101(a)(3) o f th e C o n tin u in g A p p ro p ria tio n s R e so lu tio n w a s in ten d ed to distin g u ish b etw een m a tte rs co n sid e re d by b o th th e S en ate an d th e H ouse o f R e p resen tativ es in th eir a p p ro p ria tio n s bills, fo r w h ic h th e m o re re stric tiv e o f th e tw o p ro v isio n s on an a g e n c y 's a u th o rity is to g o v e rn , and m a tte rs c o n sid e re d by o n ly o n e H ouse in its a p p ro p ria tio n s bill, for w h ic h th e a u th o rity an d c o n d itio n s o f F Y 1980 a p p ro p ria tio n s a re to g o v ern .

T h e re stric tio n on th e S e c re ta ry o f th e T re a s u r y ’s a u th o rity to issue g u ara n te e s u n d er the N e w Y o rk C ity L oan G u a ra n te e A c t o f 1978 is fo u n d o n ly in th e S en ate v ersio n o f the a p p ro p ria tio n s bill p ertain in g to th e N e w Y ork C ity L o an G u a ra n te e p ro g ra m and had not been co n sid ered by the H ouse o f R e p resen tativ es; th e re fo re , th e S en ate rid e r did not o p e ra te (u n d e r § 101(a)(3) o f th e C o n tin u in g A p p ro p ria tio n s R e so lu tio n ) to restrict th e S e c re ta ry ’s a u th o rity to issue N e w Y o rk C ity loan g u aran tees.

T h e A tto rn e y G e n e ra l d o es n ot h av e th e a u th o rity to issue o p in io n s on qu estio n s arising o u t o f a business tra n sa c tio n b etw e e n a p riv a te p erso n an d th e g o v e rn m e n t w h en the p riv a te p erso n has insisted on re c e iv in g an A tto rn e y G e n e ra l op in io n for his benefit and th e req u estin g d e p a rtm e n t h ead has no real c o n c e rn a b o u t th e question.

T h e A tto rn e y G e n e ra l w ill issue o p in io n s re lated to business tran sactio n s b etw e e n the g o v e rn m e n t an d p riv a te perso n s o n ly w h e n th e tra n sa c tio n raises a substantial and g en u in e issue o f law arising in th e ad m in istratio n o f a D e p a rtm e n t.

O ctober 2, 1980

T h e S ecreta ry of th e T reasury

M y D e a r M r . S e c r e t a r y ; Y o u have asked my opinion w hether a rider contained in the Senate-passed version o f H.R. 7631, concerning adm inistrative funds for the N ew York City Loan G uarantee program, affects your authority to issue guarantees pursuant to the New York C ity Loan G uarantee A ct o f 1978, Pub. L. Nos. 95-339 and 95-415. F o r reasons elaborated below, I conclude that the rider in question has not taken effect, and therefore does not restrict your authority under the G uarantee Act.

In pertinent part, H.R. 7631, as passed by the Senate, provided:

F o r necessary adm inistrative expenses as authorized by the N ew York City Loan G uarantee A ct o f 1978 (Public L aw 95-415), $922,000: Provided, That none o f these funds

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m ay be used to adm inister programs to issue loan guarantees to New York City fo r the purpose o f perm itting the M unici­ p a l Assistance Corporation to use the proceeds o f its borrow­ ings in fiscal years 1981 and 1982 to m eet the City's financ­ ing needs after fiscal year 1982.

T he italicized language is the rider, which was a com m ittee am end­ ment. 126 Cong. Rec. S 12,589 (daily ed. Sept. 15, 1980). T here is no provision similar to the rider in the House-passed version o f the bill.

As fiscal year 1980 drew to a close, there was no opportunity for the normal conference procedure to resolve differences between the bills, and Congress found it necessary to provide continuing appropriations through H.J. Res. 610 for a num ber o f agencies having pending appro­ priations. F o r agencies whose appropriations had passed both Houses, the Resolution provides as follows, in § 101(a)(3):

W henever the am ount which would be made available or the authority w hich would be granted under an A ct listed in this subsection as passed by the House as of O ctober 1, 1980, is different from that w hich would be available or granted under such A ct as passed by the Senate as of O ctober 1, 1980, the pertinent project or activity shall be continued under the lesser am ount or the m ore restrictive authority: Provided, T hat w here an item is included in only one version o f an A ct as passed by both Houses as o f O ctober 1, 1980, the pertinent project or activity shall be continued under the appropriation, fund, or authority granted by the one House, but at a rate for operations not exceeding the current rate o r the rate per­ mitted by the action o f the one House, w hichever is lower, and under the authority and conditions provided in applicable appropriation A cts for the fiscal year 1980.

T he apparent purpose of § 101(a)(3) is to distinguish between m atters considered by both Houses, for which the m ore restrictive o f the tw o provisions is to govern, and m atters considered by only one House, for w hich “authority and conditions” are to revert to those found in fiscal year 1980 appropriations.

Because the rider is found only in the Senate version o f the underly­ ing 1981 appropriations bill, and the issue of restricting the m ode of administering New York City loan guarantees was not taken up in the House, § 101(a)(3) of H.J. Res. 610 specifies that the rider falls within the proviso as an “ item included in only one version o f an A c t.” Therefore, it is superseded by the “authority and conditions” found in applicable 1980 appropriations.

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This reading o f the resolution is confirm ed by the following explana­ tion provided by the M anagers in the C onference Com mittee R eport on H.J. Res. 610:

T he Com m ittee o f C onference agrees that, for the pur­ poses o f this resolution in interpreting the language con­ tained in Section 101(a)(3) concerning restrictive authority included in only one version o f an A ct as passed by the House and Senate, the restrictive authority, as it applies to the proviso concerning the N ew York City Loan G uaran­ tee Program , contained in the 1981 H U D Independent A gency A ppropriation A ct, must have been carried in the applicable A ppropriation A ct for Fiscal Year 1980, before it is operative in Fiscal Year 1981.

T he rider was “included in only one version of an A c t” within the meaning o f the proviso to § 101(a)(3), and was therefore, by the terms o f the proviso, superseded by the applicable appropriation act for fiscal year 1980, w hich contains no such limitation. I therefore conclude that the rider has not taken effect, and does not restrict your authority in administering the G uarantee Act.*

Sincerely, B e n ja m in R. C iv il e t t i

•A s you know , A tto rn ey G eneral Elliot R ichardson adopted the formal policy on O ctober 1, 1973, o f not issuing opinions regarding the validity o f guarantees o r o ther obligations issued by federal agencies unless the opinion request raises a genuine issue o f law. Successive A ttorneys G eneral, including myself, have adhered to this policy. In addition, A tto rn eys G eneral have opined that they do not have the authority to issue opinions w hen it is apparent that the request has been made, not because the requestor has any real co ncern about his authority, but because private persons, w ho engage in transactions w ith the U nited States, have insisted upon such an opinion for their benefit. 39 Op. A tt'y G en. II, 17-19 (1937); 20 Op. A tt’y G en. 463, 464 (1892). Because your request raises a genuine issue o f law, I believe that an A tto rn ey G en eral’s opinion on the narrow issue presented is appropriate. I am also persuaded that this is a legal issue o v er w hich you have a serious concern and, for that reason, I believe 1 have the au th o rity to issue this opinion. I am troubled, how ever, by the insistence o f private law yers involved in the N ew York guarantee transaction on receiving an A ttorn ey G eneral opinion addressing this question. I ask you to inform private persons w ho transact business w ith y our departm ent that the A tto rn ey G eneral will not issue opinions solely because they feel it is im portant to protect them o r guide them in their transactions, and that opinions related to business transactions w ith the governm ent will be issued only w hen the transaction raises a substantial and genuine issue o f law arising in the adm inistration o f a departm ent.