Crandon v. United States Boeing Company Inc./Concurrence Scalia

by Antonin Scalia

Justice SCALIA, with whom Justice O'CONNOR and Justice KENNEDY join, concurring in the judgment.

I agree with the Court that the Government has failed to prove that any of the petitioners violated 18 U.S.C. § 209(a), and that its claim to a common-law remedy premised upon such a violation accordingly must fail. My reasons, however, are somewhat different. I do not think that payments which are made before or after the term of federal employment are necessarily excluded from § 209(a); but I do think that payments which are neither made periodically during the term of federal service, nor calculated with reference to periodic compensation, are excluded.

* Subsection (a) of § 209 makes criminally liable:

"Whoever receives any salary, or any contribution to or supplementation of salary, as compensation for his services as an officer or employee of the executive branch of the United States Government . . . from any source other than the Government of the United States[; and]

"Whoever . . . pays, or makes any contribution to, or in any way supplements the salary of, any such officer or employee under circumstances which would make its receipt a violation of this subsection. . . ."

I agree with the Court that these two clauses are "coextensive in their coverage of both sides of a single transaction," ante, at 159, so that if the phrase "such officer or employee" in the second clause implies a requirement that the payment be made while the recipient was an officer or employee, such a requirement must have been meant in the first clause as well. Surely, however, the evidence of such an implication should be fairly clear before one concludes that Congress has slipped in an additional requirement in such an unusual fashion, importing it retroactively into the earlier clause from a provision that is otherwise only the mirror image of what preceded. To my mind the evidence is not only not fairly clear; it is nonexistent. The Court is led astray, I think, by its perception that the statute "is directed to every person who 'pays' . . . 'any such officer or employee,' " ibid.-which leads to the reasonable enough contention that unless the recipient is an officer or employee at the time of payment the provision is not violated. But in order to make "any such officer or employee" the object of the verb "pays," the clause must be rendered ungrammatical, reading "[w]hoever pays . . . any such officer or employee under circumstances which would make its receipt a violation of this subsection." The pronoun "its" has no antecedent (or more precisely, I suppose, the phrase "under circumstances which would make its receipt a violation of this subsection" has no application to "[w]hoever pays"). It seems to me quite clear that the object of "pays" must be, not "any such officer or employee," but rather "the salary of, any such officer or employee," so that the later phrase "its receipt" refers to the receipt of the salary. Substance as well as grammar dictates this result, because only in this fashion does the second clause of subsection (a) achieve the apparent purpose of mirroring the first. The first clause does not apply to "whoever receives any payment, or any contribution to or supplementation of salary," but rather to "[w]hoever receives any salary, or any contribution to or supplementation of salary." One would therefore expect the second clause to cover whoever pays any salary, or any contribution to or supplementation of salary. I acknowledge that this interpretation of the second clause means that the comma after the phrase "the salary of" should instead have been placed after the word "supplements." But a misplaced comma is more plausible than a gross grammatical error, plus the destruction of an apparently intended parallelism, both leading to the peculiar introduction of a condition in the second clause which one would surely have expected to find in the first.

The Court apparently concedes that when the first clause of subsection (a) refers to someone who "receives any salary, or any contribution to or supplementation of salary, as compensation for . . . services as an officer or employee of the executive branch of the United States," it does not imply that the recipient must be an officer or employee at the time of receipt. There is no more reason to think that the second clause imports such a requirement when it refers to someone who "pays, or makes any contribution to, or in any way supplements, the salary of any such officer or employee." Perhaps it is not possible to pay an officer when he is not anoffi cer; but it is surely possible to pay, to contribute to, or to supplement the salary of an officer (just as it is possible to receive payment, contribution to, or supplementation of such salary) either before or after the service to which the salary pertains has been completed.

For a different reason, unaddressed by the Court, I agree that the payment in the present case is not covered by § 209(a).

It is an ancient and sound rule of construction that each word in a statute should, if possible, be given effect. An interpretation that needlessly renders some words superfluous is suspect. In seeking to hold the present petitioners liable, the Government treats § 209(a) as though it read "[w]hoever receives compensation for his services as an officer or employee of the executive branch of the United States Government . . . from any source other than the Government of the United States." But it does not read that way. Another of the ethics statutes, 18 U.S.C. § 203, does read that way, covering the receipt or payment of "any compensation" for services as a Government employee relating to a particular matter. Subsection 209(a), however, does not refer to "whoever receives compensation," but to "whoever receives any salary, or any contribution to or supplementation of salary, as compensation." The second clause, as we have seen, is likewise entirely tied to salary. It would be bad construction to ignore this language (if it can be given reasonable meaning) in the interpretation of any statute; but it is particularly bad construction to ignore it in a criminal statute, where the rule of lenity applies. See Adamo Wrecking Co. v. United States, 434 U.S. 275, 284-285, 98 S.Ct. 566, 572-573, 54 L.Ed.2d 538 (1978).

Salary is not the same as compensation, but is one species of that genus. It is "[t]he recompense or consideration paid, or stipulated to be paid, to a person at regular intervals for services . . .; fixed compensation regularly paid, as by the year, quarter, month, or week." Webster's Second New International Dictionary 2203 (1957) (emphasis added). See also Benedict v. United States, 176 U.S. 357, 360, 20 S.Ct. 458, 459, 44 L.Ed. 503 (1900) ("The word 'salary' may be defined generally as a fixed annual or periodical payment for services, depending upon the time and not upon the amount of services rendered"). To "receive salary as compensation" is to receive periodic payments as compensation. And in the context of the present statute it must reasonably be thought that to "receive contribution to or supplementation of salary as compensation" is to receive contribution to or supplementation of periodic payments, in the sense that the contribution or supplementation itself must be periodic. To read it differently-to regard any single payment from a nongovernment source as a "contribution to or supplementation of salary"-is to render all the references to salary superfluous, so that the statute might as well have prohibited (like § 203) all "compensation." ^[1] It is significant that when the Office of Personnel Management sought to embody the substance of § 209(a) in its ethics regulations, in a fashion that would be understood to mean what the Government thinks it means, it revised the references to contribution and supplementation of salary, as follows: "An employee shall not receive any salary or anything of monetary value from a private source as compensation for his services to the Government (18 U.S.C. 209)." 5 CFR § 735.203(b) (1989).

Under the original version of § 209(a), enacted in 1917, it was even clearer that "contribution to" or "supplementation of" salary envisioned regular, salary-like payments. That read in relevant part as follows:

"[N]o Government official or employee shall receive any salary in connection with his services as such an official or employee from any source other than the Government of the United States, . . . and no person, association, or corporation shall make any contribution to, or in any way supplement the salary of, any Government official or employee for the services performed by him for Government of the United States." Act of Mar. 3, 1917, 39 Stat. 1106.

Even when Congress amended the provision in 1948, it left the structure substantially the same, making criminally liable:

"Whoever, being a Government official or employee, receives any salary in connection with his services as such an official or employee from any source other than the Government of the United States, . . . or

"Whoever, whether a person, association, or corporation, makes any contribution to, or in any way supplements the salary of, any Government official or employee for the services performed by him for the Government of the United States. . . ." 62 Stat. 793.

In each of these versions, if one interpreted the phrase "make(s) any contribution to, or in any way supplement(s) the salary of" to include not only periodic payments but also lump-sum payments, then the prohibitions upon payor and payee would not match: the Government official who received a lump-sum payment would be guiltless (since he did not "receive any salary") whereas the payor would be criminally liable. This obviously was not intended. At both ends, salary was the object of the prohibition. The Government does not rely upon any change in the meaning of the statute effected by the 1962 revision and recodification, but to the contrary acknowledges-indeed boasts that its position was "firmly established" under the earlier versions. Nor would it be appropriate to regard the 1962 legislation as congressional approval and ratification of the prior interpretation. That would in any circumstance be a doubtful basis for disregarding the text of a criminal statute, but is particularly unjustified when, as I shall discuss in Part III below, the interpretation in question was not that of the courts or of an agency that had primary responsibility for administering the law, and was full of inconsistencies to boot.

I must acknowledge that subsections (d) and (e) of § 209 exclude from the coverage of subsection (a) some payments that are not periodic payments, so that the interpretation I have described is no more successful than the Government's in giving effect to all the language of the section. But superfluous exceptions (to "make assurance doubly sure") are a more common phenomenon than the insertion of utterly pointless language at the very center of the substantive restriction. Moreover, since (as I shall discuss in Part III below) the Government is not so foolish as to apply literally its interpretation that all lump-sum payments as compensation are covered, subsections (d) and (e) turn out to be largely superfluous under its view of the statute as well. See May 31, 1961, Memorandum of Office of Legal Counsel (OLC) (advising that the proposed subsection (d) would be "a clarification of existing law" rather than "an exemption" from 18 U.S.C. § 1914 (1958 ed.)); 33 Op.Atty.Gen. 273 (1922); 42 Op.Atty.Gen. 111, 125 (1962). In any case, granting that the only reasonable implication of subsections (d) and (e) is that subsection (a) applies to payments in addition to periodic payments, it remains true that the only reasonable meaning of subsection (a) itself is that it applies exclusively to periodic payments. Even if one does not think that a meaning trumps an implication, at most we have an ambiguity-and since this is a criminal statute the rule of lenity demands that it be resolved in favor of the more narrow criminal liability.

It may seem strange nowadays that Congress should think of categorically criminalizing only periodic payments (salary or supplementation of salary), rather than all payments, to Government employees. But it would not have seemed strange in 1917, when the substance of subsection (a) was originally enacted. There existed at that time, in apparently more than one Government agency, a regular practice of hiring, at nominal salary, individuals whose real compensation would be paid by private organizations. 54 Cong.Rec. 2039-2047, 4011-4013; B. Manning, Federal Conflict of Interest Law 148-149 (1964). Cf. 31 Op.Atty.Gen. 470 (1919); 2 Comp.Gen. 775 (1923). Apart from the fact that Congress often acts only "one step at a time" to eliminate one abuse that has become the focus of its attention but not all allied abuses, there are good practical reasons why the payment or supplementation of salary would have been singled out. Surely receipt of a regular salary from a private source poses the greatest risk of corruption; one commonly characterizes the corrupt official by saying that "he is on someone's payroll." Moreover, the payment or supplementation of salary can be categorically eliminated (as lump-sum payments cannot) without criminalizing a large number of harmless, perfectly innocent, and often desirable, arrangements. For example: It is rare, I think, for well-to-do parents to make periodic, salary-like payments to their child so that he might continue in a low-paying Government job that they are proud of his performing and wish him to continue. I suspect it is not at all rare, however, for such parents to make occasional gifts to the child, or to leave a particularly generous bequest, with precisely that end in mind. Under the interpretation of § 209 adopted by the Government, each such act of generosity, if rendered and accepted with that objective, would seemingly violate the law. That alone, I should think, would be reason enough not to criminalize all "supplementation of salary" in the sense the Government would have us understand the term.

I must address at some length what seems to me the strongest argument against interpreting § 209(a) to mean what it says: the fact that it has long been interpreted differently. On analysis, that proves to be a weaker consideration than one might suppose. Indeed, the long and unsatisfactory experience with a countertextual interpretation is one of the prime reasons for adhering to what Congress enacted.

Two points must be made clear at the outset: First, the substantial history of interpretation that exists is not a history of judicial interpretation. In the more than 70 years that § 209 and its predecessors have been in existence, this Court has discussed them, in passing, only three times, see Muschany v. United States, 324 U.S. 49, 67, 65 S.Ct. 442, 451, 89 L.Ed. 744 (1945); United States v. Myers, 320 U.S. 561, 567, 64 S.Ct. 337, 341, 88 L.Ed. 312, 88 L.Ed. 1051 (1944); International R. Co. v. Davidson, 257 U.S. 506, 515, 42 S.Ct. 179, 182, 66 L.Ed. 341 (1922). Prior to the present litigation, the Courts of Appeals have discussed them only three times, see United States v. Oberhardt, 887 F.2d 790, 793-794 (CA7 1989); United States v. Raborn, 575 F.2d 688, 691-692 (CA9 1978); United States v. Muntain, 198 U.S.App.D.C. 22, 27-28, 610 F.2d 964, 969-970 (1979), and the District Courts only four times, see United States v. Pezzello, 474 F.Supp. 462, 463 (ND Tex.1979); Exchange National Bank of Chicago v. Abramson, 295 F.Supp. 87, 89-91 (Minn.1969); United States v. Gerdel, 103 F.Supp. 635, 638-639 (ED Mo.1952); United States v. Morse, 292 F. 273, 276-277 (SDNY 1922). Only one of these scarce judicial references, a 1952 District Court opinion, explicitly discusses the issue of salary versus lump-sum payment, agreeing with the Government's position here; that discussion, moreover, was by its own admission "gratuitous," since the statute was in no way at issue. See Gerdel, supra, at 638. And in only two of these cases-one from a District Court, one from a Court of Appeals, and both relatively recent-was the (unchallenged) assumption that lump-sum payments were covered apparently necessary to the court's holding. See United States v. Oberhardt, supra; United States v. Pezzello, supra. In sum, the Government's position is not supported by a long, or even appreciable, body of judicial interpretation.

Second, the vast body of administrative interpretation that exists-innumerable advisory opinions not only of the Attorney General, the OLC, and the Office of Government Ethics, but also of the Comptroller General and the general counsels for various agencies-is not an administrative interpretation that is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). The law in question, a criminal statute, is not administered by any agency but by the courts. It is entirely reasonable and understandable that federal officials should make available to their employees legal advice regarding its interpretation; and in a general way all agencies of the Government must interpret it in order to assure that the behavior of their employees is lawful-just as they must interpret innumerable other civil and criminal provisions in order to operate lawfully; but that is not the sort of specific responsibility for administering the law that triggers Chevron. The Justice Department, of course, has a very specific responsibility to determine for itself what this statute means, in order to decide when to prosecute; but we have never thought that the interpretation of those charged with prosecuting criminal statutes is entitled to deference.

Besides being unentitled to what might be called ex officio deference under Chevron, this expansive administrative interpretation of § 209(a) is not even deserving of any persuasive effect. Any responsible lawyer advising on whether particular conduct violates a criminal statute will obviously err in the direction of inclusion rather than exclusion-assuming, to be on the safe side, that the statute may cover more than is entirely apparent. That tendency is reinforced when the advice-giver is the Justice Department, which knows that if it takes an erroneously narrow view of what it can prosecute the error will likely never be corrected, whereas an erroneously broad view will be corrected by the courts when prosecutions are brought. Thus, to give persuasive effect to the Government's expansive advice-giving interpretation of § 209(a) would turn the normal construction of criminal statutes upside-down, replacing the doctrine of lenity with a doctrine of severity.

The body of administrative interpretation is nonetheless useful in the present case, for one purpose: It demonstrates beyond question the unmanageable problems that arise when § 209(a) is not interpreted as it was written, limited to the payment or supplementation of salary. The administrative history of § 209(a) is a record of poignant attempts by the Attorney General and the OLC to derive reasonable results from the rigid and undiscriminating criminal statute they have invented. To follow their logic is to glimpse behind the looking glass.

An example is employee receipt of cash awards from nonprofit organizations for meritorious public service. Unless one believes that the statutory term "as compensation" (or its predecessor term "in connection with") imports the commonlaw requirement of bargained-for consideration-which no one contends-it is difficult to imagine any lump-sum payments more clearly covered by § 209(a) than cash grants conferred specifically to reward the work of Government officials. But the Justice Department has approved them. The first OLC opinion doing so, rendered on June 26, 1959, exemplifies the benign if unpredictable discretion that has guided the administrative interpretation of this criminal statute. The opinion quotes a 1922 Attorney General's opinion to make the obvious point that the " 'object of the provision . . . was that no Government official or employee shall serve two masters to the prejudice of his unbiased devotion to the interests of the United States.' " June 26, 1959, Memorandum of OLC 4 (quoting 33 Op.Atty.Gen., at 275). It then continues: "When such a conflict has not been present, the statute has been liberally construed not to apply in situations in which, strictly construed, it might have been held to be applicable but in which there appeared to be no violation of the spirit of the statute." June 26, 1959, Memorandum, at 4. It is of course absurd to interpret a criminal statute on the basis of one's perception as to whether its "spirit" has been violated; and doubly absurd to interpret a prophylactic measure on the basis of whether the evil against which the prophylaxis was directed in fact exists. The OLC opinion also finds that the award in the subject case is "not based upon the 'master-servant' relationship between the payor and the payee which usually attends or may be expected to attend application of the statute," id., at 5-a principle which, as far as I can tell, has no basis in law and which the Government assuredly does not apply to the statute in other contexts. On the basis of such reasoning, and because "[i]n short, a conflict of interest such as the legislative history of the statute indicates that it was designed to prevent would not be created," ibid., the opinion approves receipt of the Rockefeller Public Service Awards, established under a grant from John D. Rockefeller III. ^[2]

Later OLC opinions and memoranda continue this essentially catch-as-catch-can approach to public-service awards, unified mostly by the extraordinary principle that this criminal statute is violated if and when its purposes seem to be offended. "[A]n award of this kind is so far removed from the purposes of the statutory prohibition as not to be covered by it." July 31, 1974, Memorandum of OLC 1.

"[Title] 18 U.S.C. § 209(a) prohibits only those payments made or received with the intent that they reward past government services or compensate for future ones. . . . Intent is to be inferred from the circumstances, particularly the past and prospective connection between the employee and the payor and the ability of the employee to benefit the payor in the performance of his official duties.

"This office has advised that [the Rockefeller Public Service Awards] were not prohibited by the statute because they were not intended to and did not in fact give rise to the sort of dual loyalty which it was designed to prevent. The same would appear to be true here. [The payor] is a non-profit educational institution. The . . . Prize is a one-time-only payment, based on your achievements before you entered the government. While no one factor is determinative, it is our opinion, based on our understanding of the situation, that your receipt of the award is not prohibited by 18 U.S.C. § 209(a)." April 7, 1977, Memorandum of OLC 2-3.

There would certainly be no objection to this "we'll - look - at - all - the - circumstances - and - see - if - it - looks - dangerous" approach if it were applied in the exercise of the President's discretion-laden power to "prescribe regulations for the conduct of employees in the executive branch," 5 U.S.C. § 7301. But it is an unprecedented way of interpreting the criminal law.

There are many other areas besides "meritorious public-service awards" in which the unworkability of the Government's interpretation has led to what can charitably be called convoluted reasoning. I will mention only two. In 1922 the Attorney General opined that it would not violate the predecessor of § 209(a) for an employee of the Department of Commerce, dispatched on official business for a speech before a business organization, to accept from that organization reimbursement of the travel expenses and hotel bills that he would otherwise have to bear personally. The extent of the reasoning was as follows:

"Where, as in the arrangement proposed to you, the officer or employee concerned does not personally benefit by the payments from outside sources, any more than he would if he paid his own traveling expenses, the statute is not violated. Literally there may be said to be a 'contribution to' the officer or employee for services performed by him for the Government, but in reality the contribution is to the Government itself, and is in furtherance, not prejudice, of its interests." 33 Op.Atty.Gen., at 275.

Of course the same could have been said of the private payment of the salaries of federal employees that was prevalent in 1917, see supra, at 175, so long as the amounts were no more than necessary to induce the employees to continue in their federal jobs, and (in combination with their federal salary) no more than they could have earned elsewhere.

Finally, I may mention the 1940 opinion from Attorney General Robert Jackson to President Roosevelt, advising that the predecessor of § 209(a) did not prohibit universities from granting leave with pay to faculty members serving as consultants to the Government-not as part of a regular sabbatical program, but only to enable the rendering of consulting services to the United States during the wartime emergency. That opinion is genuinely devoid of analysis, unless one gives that name to the ipse dixit that "[t]he payments in such circumstances are made with respect to the former employment and incidental to the leave granted; they are not made 'in connection with' the services of the individual as an official or employee of the United States within the contemplation of the statute." 39 Op.Atty.Gen. 501, 503. I mention that opinion because it demonstrates that the "spirit-of-the-matter" approach to § 209(a), necessitated by the interpretation that expands it beyond its language, ultimately (and quite predictably) will affect even the proper applications of the statute. The consultants with salaries paid by universities in 1940 were almost the precise equivalent of the employees with salaries paid by foundations in 1917. ^[3]

As the last example shows, the liberties that the Government has taken with its interpretation of § 209(a), to the extent they appeal to anything more concrete than the "spirit" of the statute, rely upon the phrase "as compensation for" (or its predecessor, "in connection with"). The proper interpretation of § 209(a) will not eliminate that troublesome phrase, but it will eliminate most of the temptation to give it something other than a clear and constant meaning. If § 209(a) covers only the payment of salary, there would be little difficulty in following the principle that the statute is violated when the reason for paying the salary is, in whole or in part, the recipient's status as, or work that the recipient has performed or will perform as, a federal officer or employee. But one balks at applying such a clear principle to, for example, the reimbursement of transportation and lodging for a federal employee who gives a speech, see 33 Op.Atty.Gen. 273 (1922), meritorious public-service awards, see Memorandum of June 26, 1959, reduced-price registration fees for federal employees at American Bar Association meetings, reduced-price entertainment tickets for members of the armed services, or many other situations one can envision. Until a criminal statute reasonable enough to be accorded a clear interpretation can be enacted, lump-sum payments that do not consist of bribes (which are already covered by 18 U.S.C. § 201) or of compensation for services in a particular matter (which are already covered by 18 U.S.C. § 203) are better handled by administrative prohibition, through Executive Order under the President's authority and pursuant to 5 U.S.C. § 7301, see Exec. Order No. 11222, 3 CFR 306 (1964-1965 Comp.), and by agency regulations adopted under delegation of that authority. Operating in that manner, the Executive can make, and can experiment with, all sorts of reasonable distinctions that § 209(a), if interpreted to cover lump-sum payments, cannot honestly be said to permit-according special treatment, for example, to privately paid compensation that consists of cash reimbursement for travel and subsistence expenses, see 3 CFR § 100.735-15(d)(1) (1989), and to compensation that consists of awards, but only if conferred by a nonprofit organization, see 3 CFR § 100.735-15(d)(3) (1989); 5 CFR § 735.203(e)(3) (1989).

I come, finally, to applying § 209(a) as I think it must be interpreted to the facts of the present case: The payments to all the recipients here were in lump sums. Perhaps there is room for argument that they would nonetheless fall within the statute if their existence and their amounts were strictly tied to a period of federal service-that is, if they had been computed on the basis of so much per month or so much per year that each recipient promised to serve. But even this argument is eliminated by the District Court's finding that "[t]he severance payments . . . were not contingent upon the individuals [sic ] entering into federal government service, [or] their remaining in government service for any stated period of time. . . ." 653 F.Supp. 1381, 1384 (ED Va.1987). There is, in short, no basis for holding that what transpired here was the receipt of "salary, or any contribution to or supplementation of salary" within the meaning of § 209(a). I therefore agree with the Court that the judgment of the Court of Appeals must be reversed.

Notes

1. Under such an interpretation, the one possible effect of the "salary" language would be to allow an unsalaried Government officer or employee to receive a lump-sum payment for his services from a private source. That would result because the lump-sum payment would not be a "salary," nor could it be a "contribution to or supplementation of salary," since no salary exists to be supplemented or contributed to. But even that effect (strangely contrived as it is) is largely if not completely eliminated by subsection (c), which entirely excludes from the section's coverage special Government employees, as defined in 18 U.S.C. § 202, and uncompensated Government officers and employees. The only class that remains as a possible recipient of lump-sum payments so obscurely validated by the otherwise pointless "salary" language consists of Government officers and employees who are not special employees and who are compensated in some manner other than by payment of salary. I am not aware that such a class exists.
2. The OLC opinion notes, but apparently misses the delicious irony in, the fact that the sponsor of the original version of § 209(a) "objected particularly to the employment of persons whose actual salary was paid by the Rockefeller and Carnegie Foundations." June 26, 1959, Memorandum of OLC 3.
3. While I have limited my discussion in text to Justice Department opinions, those of the Comptroller General are no more rational. Consider, for example, the following:

"Donations of cash to employees by private sources are, therefore, prohibited, even though the money is to be used to purchase transportation tickets or hotel accommodations. However, where the services are furnished in kind, we believe a different conclusion is justifiable." 36 Comp.Gen. 268, 270 (1956).