NOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement

NOAA Corps Eligibility for Professional Liability

Insurance Costs Reimbursement

Members of the NOAA Commissioned Corps may constitute qualified employees eligible for

professional liability insurance cost reimbursement under a federal appropriations statute, if they

otherwise satisfy the statutory definition for “law enforcement officer,” “supervisor,” or “manage-

ment official.”

January 19, 2001

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF COMMERCE

This responds to the Department of Commerce’s letter of May 15, 2000,

requesting our opinion as to whether members of the National Oceanic and

Atmospheric Administration’s (“NOAA”) Commissioned Corps (“Corps”)

constitute “qualified employees” eligible for reimbursement for professional

liability insurance costs authorized by the Treasury and General Government

Appropriations Act, 2000, Pub. L. No. 106-58, 113 Stat. 430, 477 (1999). See

Letter for Randolph Moss, Acting Assistant Attorney General, Office of Legal

Counsel, from Andrew J. Pincus, General Counsel, Department of Commerce

(May 15, 2000) (“DOC Letter”). We conclude that NOAA Corps members who

otherwise satisfy the statutory definitions for law enforcement officers, supervi-

sors, or management officials constitute “qualified employees” who are eligible

for such reimbursement. While we conclude that being a member of the uniformed

services as defined in 5 U.S.C. § 2103(3) does not preclude eligibility for this

benefit, we do not reach the application of this statute to the Armed Forces as

defined in 5 U.S.C. § 2101(2).

I.

In 1996, as part of the Omnibus Consolidated Appropriations Act for Fiscal

Year 1997, Congress enacted legislation authorizing the reimbursement of

“qualified employee[s]” of the government for up to one-half the costs incurred by

such employees for professional liability insurance. Treasury, Postal Service, and

General Government Appropriations Act, 1997, Pub. L. No. 104-208, div. A, sec.

101(f), § 636(a), 110 Stat. 3009, 3009-314, 3009-363 (1996) (“Treasury Act”). 1 As

1

For brevity and clarity, we will sometimes refer to the reimbursement provisions in section 636 of

the Treasury Act, as amended, as the “Reimbursement Law” or “the statute.”

Editor’s Note: For the book edition of this memorandum opinion, this footnote was moved forward

and some naming conventions and citations were adjusted to make the presentation of sources more

precise.

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NOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement

subsequently amended—including an amendment making reimbursement

mandatory rather than permissive—the statute now provides in relevant part:

Notwithstanding any other provision of law, amounts appropriated

by this Act (or any other Act for fiscal year 1997 or any fiscal year

thereafter) for salaries and expenses shall be used to reimburse any

qualified employee for not to exceed one-half the costs incurred by

such employee for professional liability insurance.

Id. § 636(a) (as amended by Treasury and General Government Appropriations

Act, 2000, Pub. L. No. 106-58, § 642(a), 113 Stat. 430, 477 (1999)). These

provisions were not enacted in the form of an amendment or addition to title 5,

U.S. Code, although their text is set out as an uncodified note under subchapter IV

(“Miscellaneous Allowances”) of chapter 59 of title 5.

The statute provides that a “‘qualified employee’ means an agency employee

whose position is that of—(1) a law enforcement officer; or (2) a supervisor or

management official.” Treasury Act § 636(b). It defines the term “agency” to

mean an “Executive agency” as defined by 5 U.S.C. § 105 (1994); “any agency or

court in the Judicial Branch”; or “any agency of the Legislative Branch of

Government including any office or committee of the Senate or the House of

Representatives.” Treasury Act § 636(c)(1) (as amended by Treasury and General

Government Appropriations Act, 1999, Pub. L. No. 105-277, div. A, sec. 101(h),

§ 644(1), 112 Stat. 2681, 2681-480, 2681-526 (1998)). The basic term “employ-

ee,” however, is not separately defined under the statute.

Your inquiry presents the question whether members of the NOAA Commis-

sioned Corps would constitute “qualified employee[s]” under the foregoing statute

if they otherwise fall within the covered work categories (i.e., law enforcement

officers, supervisors, or management officials).

The NOAA Corps, which succeeded to the authorities and responsibilities

previously held in turn by the officers of the Coast and Geodetic Survey and the

Environmental Science Services Administration, see 33 U.S.C.A. § 851 historical

note (West Supp. 2000), consists of roughly 250 to 300 commissioned officers,

with a rank system corresponding to that of the Navy. See id. § 853a. The duties

and functions of the NOAA Corps include operating NOAA’s fleet of research and

survey vessels and aircraft and extend to such matters as hydrographic and

topographic surveys, tide and current observations, geodetic-control surveys, field

surveys for aeronautical charts, and other scientific investigations and observations

that fall within the responsibility of the Secretary of Commerce and NOAA. See

33 U.S.C. § 883a (1994); Department of Commerce, NOAA Commissioned Corps

History, http://www.noaacorps.noaa.gov/history.html (last visited Oct. 16, 2004).

Officers of the NOAA Corps may be transferred to the service of the military

departments when the President determines that a sufficient national emergency

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exists and that such transfer is in the best interests of the nation. See 33 U.S.C.

§ 855. Like members of the Armed Forces, NOAA Corps officers do not have the

freedom to terminate their commissions at any time of their choosing—rather, they

are required to tender their resignations at least six months in advance and their

approved date of separation is “determined by the [NOAA] Director based on the

needs of the Service and may be either sooner or later than the date requested.”

See DOC Letter at 8 n.17; NOAA Corps Regulations § 08202. 2 For purposes of

veterans benefits administered by the Secretary of Veterans Affairs, moreover,

active service with the NOAA Corps is treated the same as active service with the

military services. See 33 U.S.C. § 857 (1994). On the other hand, the NOAA

Corps is not itself considered a part of the Armed Forces of the United States,

which include only the Army, Navy, Air Force, Marine Corps, and Coast Guard.

See 10 U.S.C. § 101(a)(4) (1994); 5 U.S.C. § 2101(2) (1994). Members of the

NOAA Corps, moreover, are not subject to the Uniform Code of Military Justice,

except “when assigned to and serving with the armed forces.” See 10 U.S.C.

§ 802(a)(8) (1994).

Together with military personnel of the Armed Forces (including the Coast

Guard) and members of the Commissioned Corps of the U.S. Public Health

Service, members of the NOAA Corps are part of the “uniformed services” of the

United States, as distinguished from the civilian “civil service” for various

statutory purposes. See 5 U.S.C. §§ 2101(1), (3), 2105(a)(1) (1994). Of particular

relevance here, members of the uniformed services do not constitute members of

the “civil service,” and therefore do not constitute “employees” as defined for

purposes of the general provisions of title 5, U.S. Code, governing federal

government organizations and employees. 3

Because the Reimbursement Law neither expressly defines the term “employ-

ee” nor expressly incorporates by cross-reference the title 5 definition of that term,

you have inquired whether the term “qualified employee” as used in the insurance

reimbursement provisions encompasses members of the uniformed services, such

2

In this respect, NOAA Corps members may differ from officers of the Public Health Service, the

only other uniformed service that is not part of the Armed Forces. See DOC Letter at 8 n.17; Milbert v.

Koop, 830 F.2d 354, 359 (D.C. Cir. 1987) (asserting that, unlike members of the Armed Forces, “a

commissioned officer of the PHS is free unilaterally to terminate his status as a commissioned officer

of the PHS”).

3

Part III of title 5, U.S. Code, governs “Employees” of the federal government and provides the

following definition for “employees” as that term is used in title 5:

For the purpose of this title, “employee,” except as otherwise provided by this section

or when specifically modified, means an officer and an individual who is . . . appoint-

ed in the civil service . . . .

5 U.S.C. § 2105 (emphasis added). That definition would not encompass members of the NOAA Corps

because they are members of the uniformed service and, as such, are not “appointed in the civil

service.” See 5 U.S.C. § 2101(1) (defining “civil service” to include all appointive positions in the

Executive, Judicial, or Legislative Branches “except positions in the uniformed services”).

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NOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement

as members of the NOAA Corps, as well as “civilian” federal employees in the

civil service.

After considering a number of alternative approaches to determining the mean-

ing of the term “employee” as used in the Reimbursement Law, the DOC letter to

this Office states: “The title 5 definition of ‘employee’ best fits the broader statute

under review and thus should be consulted to determine who is eligible for

professional liability insurance reimbursement under Pub. L. No. 104-208.” DOC

Letter at 10. That interpretation would exclude NOAA Corps members and all

other members of the uniformed services from coverage as “qualified employ-

ee[s]” eligible for reimbursement under the Reimbursement Law. Acknowledging

that this interpretation of the issue “is certainly not free from doubt,” however,

your office has submitted the question to this Office for our legal opinion. Id.

Having considered the views of your department and the other concerned

departments, 4 we conclude that members of the NOAA Commissioned Corps who

otherwise satisfy the statutory definitions for “law enforcement officers,” “super-

visors,” or “management officials” may constitute “qualified employees” eligible

for reimbursement under the Reimbursement Law, even though they are excluded

from the definition of “employee” for purposes of title 5, U.S. Code. See 5 U.S.C.

§ 2105.

II.

In considering whether NOAA Corps members constitute “qualified employ-

ee[s]” eligible for coverage under the Reimbursement Law, the Department of

Commerce letter places considerable emphasis on the fact that the statute contains

no separate definition for the term “employee.” See DOC Letter at 3. In the

absence of such a statutory definition, your office seeks to ascertain the meaning

of that term by examining the “broader context” of the enactment, citing the

Supreme Court’s opinion in Robinson v. Shell Oil Co., 519 U.S. 337, 345-46

(1997). 5 Reasoning that the subject matter of the Reimbursement Law fits well

4

We invited and received submissions of their views from the Department of Defense (containing

the three military departments), the Department of Health and Human Services (containing the U.S.

Public Health Service), and the Department of Transportation (containing the U.S. Coast Guard). See

Letter for Vicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from Douglas

A. Dworkin, General Counsel, Department of Defense (Aug. 11, 2000) (“DoD Letter”); Letter for

Vicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from Timothy M. White,

Associate General Counsel, Department of Health and Human Services (July 14, 2000) (“HHS

Letter”); Letter for Vicki Jackson, Deputy Assistant Attorney General, Office of Legal Counsel, from

Nancy E. McFadden, General Counsel, Department of Transportation (July 19, 2000) (“DOT Letter”).

5

As the DOC letter also points out, one line of cases has taken the position that “when Congress . . .

[uses] the term ‘employee’ without defining it, we . . . [conclude] that Congress intend[s] to describe

the conventional master-servant relationship as understood by common-law agency doctrine.”

Community for Creative Non-Violence v. Reid, 490 U.S. 730, 739-40 (1989) (citations omitted);

Nationwide Mutual Ins. Co. v. Darden, 503 U.S. 318, 322-23 (1992). As your letter also properly notes,

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within the general framework of title 5, U.S. Code, and noting that it expressly

incorporates other significant definitions from title 5, the DOC letter suggests that

it is therefore appropriate to apply the title 5 definition of “employee” to limit the

class of persons who constitute “qualified employee[s]” for purposes of the

insurance reimbursement coverage in issue. DOC Letter at 10. Such a limitation

would exclude members of the NOAA Corps (as well as all other members of the

uniformed services) from coverage because members of the uniformed services

are excluded from title 5’s definition of “employee.” Although this approach is not

without merit, we decline to adopt it because we conclude that an individual who

otherwise satisfies the Reimbursement Law’s express definition of a “qualified

employee” (which incorporates the additional definitions of “law enforcement

officer,” “supervisor,” or “management official”) need not also satisfy another

statute’s definition of the term “employee” in order to be eligible for the reim-

bursement benefit.

A.

We consider it significant that the Reimbursement Law expressly defines those

terms that Congress apparently considered important to define—“qualified

employee,” “agency,” “law enforcement officer,” “supervisor,” and “management

official”—either with original statutory definitions or by express cross-reference to

existing definitions in other statutes. The Reimbursement Law defines the term

“agency” by express cross-reference to the definition for the term “Executive

agency” contained in the general definitions for title 5, U.S. Code (a definition that

encompasses all of the executive departments employing uniformed service

personnel). See 5 U.S.C. § 105. Although not dispositive, Congress’s failure to

cross-reference expressly title 5’s definition of “employee” to govern the Reim-

bursement Law is noteworthy. Congress’s failure to include reference to that title 5

definition in the context of this statute suggests that the statute’s express defini-

tions of “qualified employee,” “agency,” and other defined terms were deemed

adequate to describe and limit the class of persons Congress intended to be eligible

for the reimbursement benefit.

The critical operative term in the Reimbursement Law for purposes of eligibil-

ity for reimbursement is “qualified employee,” and the statute does provide a

detailed definition of that term. If a person is an “agency employee” serving in the

position of a “law enforcement officer,” “supervisor,” or “management official,”

then he is a “qualified employee” eligible for reimbursement. See Treasury Act

however, those cases focus on the distinct question of whether a particular individual is an employee as

distinguished from an independent contractor, rather than whether a particular category of federal

government personnel constitutes government “employees” for a particular statutory purpose. DOC

Letter at 4.

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§ 636(b). Members of the NOAA Corps are employed in the Department of

Commerce, which is an “agency” as that term is defined under the Reimbursement

Law. See 5 U.S.C. §§ 101, 105 (1994). For reasons discussed below, we do not

believe that an individual’s status as a member of a uniformed service is somehow

inherently incompatible with status as an “agency employee.” 6 Thus, we think that

eligibility under the Reimbursement Law depends on whether that individual

satisfies the statutory definition for either “law enforcement officer,” “supervisor,”

or “management official,” regardless of whether he or she also conforms to some

definition of “employee” contained in another statute, such as 5 U.S.C. § 2105,

that is not incorporated by reference in the Reimbursement Law. We believe that

these rather detailed statutory provisions can be interpreted on their own terms,

without reaching out to other statutes to “borrow” limiting definitions that

Congress did not incorporate expressly in this statute.

In reaching this conclusion, we have considered whether service in the uni-

formed services is in some way inherently incompatible with being considered an

“employee” of the United States for purposes of a statute such as the Reimburse-

ment Law. We do not believe that it is. First (leaving aside the express definitions

that the Reimbursement Law does include), we see nothing in the Reimbursement

Law that would draw or require a distinction between civilian and uniformed

government personnel (e.g., if the benefit conferred by the statute were separately

or differently provided to uniformed services personnel). 7 Cf. Feres v. United

States, 340 U.S. 135, 144-45 (1950) (noting the existence of a separate scheme for

compensation of injured armed services personnel in holding Federal Tort Claims

Act remedy unavailable to serviceman suffering injuries arising in course of or

incident to military service). Nor, as discussed below, can we discern any general

principle in federal statutory law that would invariably require the conclusion that

members of the uniformed services are not “employees” for purposes of particular

statutory provisions. Finally, we see no way in which the Reimbursement Law

6

The Department of Defense (“DoD”), while taking no position as to the coverage of NOAA Corps

members under the Reimbursement Law, strongly urges that members of the Armed Forces (i.e., the

Air Force, Army, Marine Corps, Navy, and Coast Guard, see 5 U.S.C. § 2101(2) (1994)) are not

covered by the term “employee” as used in statutes directed at the federal workforce in the absence of

express language to that effect or another affirmative expression of such congressional intent. See DoD

Letter at 2. The Department of Transportation, in contrast, does not take the position that Coast Guard

personnel, who are also members of the Armed Forces, are excluded from coverage under the

Reimbursement Law for that reason. See DOT Letter at 1-2. Members of the NOAA Corps and officers

of the U.S. Public Health Service are members of the uniformed services, but are not members of the

Armed Forces. For this reason, it is unnecessary for us to opine on, and we do not decide, the distinct

issue as to whether the Reimbursement Law also covers members of the Armed Forces.

7

We also note that dictionary definitions of “employee” would not on their face exclude uniformed

service personnel. See, e.g., Black’s Law Dictionary 471 (5th ed. 1979) (defining employee as “[o]ne

who works for an employer; a person working for salary or wages.”); The American Heritage

Dictionary of the English Language 428 (New College Ed. 1976) (“A person who works for another in

return for financial or other compensation.”).

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would implicate considerations (such as the unique nature of military discipline,

hierarchy, and command arrangements) that sometimes have been found to

demand distinctive treatment of members of the uniformed as compared to the

civil services.

In construing the Reimbursement Law’s use of the term “employee” in the

defined term “qualified employee,” we have considered whether federal statutory

law uniformly and consistently excludes uniformed service members from

treatment or coverage as government “employees.” We find no such pattern. The

Federal Tort Claims Act, for example, includes “members of the military or naval

forces of the United States” under its definition of “Employee of the government.”

28 U.S.C. § 2671 (1994). Other federal statutes that encompass uniformed services

personnel within their definition of “employee” or “employee of the United

States” include 5 U.S.C. § 7342(a)(1)(D) (1994) (receipt and handling of foreign

gifts and decorations); id. § 7905(a)(1) (program to encourage car-pooling by

federal employees by, inter alia, providing subsidized mass transit passes); id.

§ 8311(1) (provisions governing forfeiture of annuities and retired pay); 22 U.S.C.

§ 2403(j) (1994) (foreign assistance general provisions); id. § 3902(5) (foreign

service general provisions); and Pub. L. No. 105-264, § 2, 112 Stat. 2350 (1998)

(federal employees’ travel charge card). These statutes demonstrate that service in

the uniformed services is not always incompatible with the status of an “employ-

ee” of the federal government for various statutory purposes, including federal

employee benefit provisions. 8

A number of judicial decisions likewise recognize that uniformed service per-

sonnel are not invariably excluded from coverage as “employees” under federal

statutes that do not expressly provide for such exclusion. As noted in your letter,

for example, two federal courts have held that commissioned officers of the PHS

(who, like officers of the NOAA, are members of the uniformed services, but not

members of the Armed Forces) are protected employees for purposes of the

employment discrimination provisions of Title VII of the Civil Rights Act of 1964.

See Milbert v. Koop, 830 F.2d at 358-59; Carlson v. United States Dep’t of Health

and Human Servs., 879 F. Supp. 545, 548 (D. Md. 1995). But see Salazar v.

Heckler, 787 F.2d 527 (10th Cir. 1986) (holding to the contrary). 9

8

We note, moreover, that a number of federal statutes using the term “employee” contain provi-

sions expressly excluding members of the uniformed services from the scope of that term. See, e.g.,

3 U.S.C. § 411(c)(1)(C); 5 U.S.C. § 7103(a)(2)(ii); 5 U.S.C. § 7322(1). It is thus apparent that there is

no uniform pattern governing the treatment of uniformed services members under federal statutes using

the term “employee”—some statutes expressly include, others expressly exclude, and others are silent.

But we do not believe an inference either of inclusion or exclusion of uniformed services employees

can necessarily be drawn when a statute, such as the Reimbursement Law, simply uses the term

“employee.” Whether uniformed services personnel are included in that term would depend on the

particular statutory context. See also Robinson v. Shell Oil, 519 U.S. at 343.

9

We note that numerous federal courts of appeals have held that members of the Armed Forces are

not protected “employees” for purposes of Title VII of the Civil Rights Act of 1964. See, e.g., Roper v.

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Further, application of the Reimbursement Law to the uniformed services

would not present any special risk of interference with their duties or functions.

Some courts, for example, have viewed Title VII as posing the threat of inappro-

priate interference with the disciplinary and command arrangements that are

unique to the military services. See, e.g., Mier v. Owens, 57 F.3d 747, 749-51 (9th

Cir. 1995); Roper, 832 F.2d at 248. The Reimbursement Law, however, does not

regulate intra-agency employee relations as Title VII does. Rather, it simply

extends a benefit to qualified employees of partial reimbursement for liability

insurance should they seek to purchase it.10 In this respect, this statute is more

analogous to miscellaneous employee benefit statutes such as the Federal Employ-

ees Clean Air Incentive Act, 5 U.S.C. § 7905, which authorizes subsidized transit

passes for commuting federal employees, including those in the uniformed

services, see id. § 7905(a)(1).

In light of the foregoing considerations, we conclude that if a member of the

NOAA Corps otherwise satisfies the Reimbursement Law’s requirements for a

“qualified employee”—including the functional definitions of “law enforcement

officer,” “supervisor,” or “management official”—it is irrelevant whether he or

she also satisfies the definition of “employee” set forth at 5 U.S.C. § 2105. As we

read the Reimbursement Law, a NOAA Corps member is employed in an “agen-

cy” as defined in 5 U.S.C. § 105—i.e., the Department of Commerce—and thus

constitutes a “qualified employee” eligible for reimbursement benefits as long as

he or she satisfies the requirements for any one of those three functional categories

of service.

B.

In reaching this conclusion, we acknowledge that the contrary arguments made

by DOC are not without merit. As DOC points out in applying the “broader

context” approach of Robinson v. Shell Oil, the Reimbursement Law could be said

to fall within the general body of laws codified in title 5 covering government

organization and employees, although Congress did not choose to enact it as an

amendment or addition to title 5 that would be incorporated and codified as part of

Dep’t of the Army, 832 F.2d 247, 248 (2d Cir. 1987); Gonzalez v. Dept. of the Army, 718 F.2d 926, 928

(9th Cir. 1983); Johnson v. Alexander, 572 F.2d 1219, 1223-24 (8th Cir. 1978). Only one federal

district court opinion appears to have held to the contrary. See Hill v. Berkman, 635 F. Supp. 1228

(E.D.N.Y. 1986).

10

We note that, because the Reimbursement Law requires reimbursement of only up to one-half of

the cost of professional liability insurance, it seems unlikely that large numbers of uniformed services

personnel who do not have genuine concerns regarding potential liability would be willing to absorb

the expense of paying one-half the cost of a policy and thus qualify for the reimbursement benefit. This

consideration reduces the likelihood that the applicability of the Reimbursement Law to uniformed

services personnel would open the floodgates to substantial unanticipated expenditures under the

provision.

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the actual text of title 5. See DOC Letter at 6. Absent some contrary indication of

congressional intent, it may sometimes be appropriate to fill in the definitional

gaps of statutes dealing with federal personnel matters by “borrowing” the

appropriate title 5 definition on the reasonable assumption that Congress clearly

intended that definition to apply and simply considered it unnecessary to make that

intention explicit.11 Here, however, we cannot say that Congress left a manifest

definitional “gap” that requires cross-reference to extraneous statutes in order to

make the Reimbursement Law “work” or make sense. On the contrary, the

Reimbursement Law contains a rather elaborate series of functionally-related

definitions which appear to set forth adequately the intended reach and limits of

the reimbursement benefit. The statutory scheme indicates that Congress intended

to extend this benefit to federal personnel working in the described functional

categories—law enforcement, supervision, and management—because it consid-

ered those categories to be most in need of the liability insurance reimbursement

benefit in question. And we find nothing in the statute indicating that Congress

viewed persons working in federal law enforcement, supervisory, or management

capacities as falling outside the beneficial purposes of the statute merely because

they happen to be in the uniformed, rather than the civil, service.12

The Reimbursement Law’s emphasis on these functional criteria in defining a

“qualified employee” distinguishes this matter from a prior opinion where we

interpreted the term “employee” as used in an executive order to exclude appoint-

ed members of the Regional Fishery Management Councils (“RFM Councils”).

See Applicability of Executive Order No. 12674 to Personnel of Regional Fishery

Management Councils, 17 Op. O.L.C. 150 (1993). The executive order in question

set forth ethical standards for Executive Branch employees and defined the term

“employee” as “any officer or employee of an agency, including a special

Government employee.” It further defined the term “agency” by reference to the

title 5 definitions of executive departments, Government corporations, and

independent establishments in the Executive Branch. See id. at 152. We concluded

that the term “employee” as used in the executive order was identical in scope and

11

For an example of a court employing this line of reasoning, see Salazar v. Heckler, 787 F.2d at

530 (relying on the exclusion of Public Health Service officers from title 5 definition of “employee” in

concluding that they are not “employees” for purposes of Title VII); but cf. Milbert v. Koop, 830 F.2d

at 358-59 (concluding that “military exception” to Title VII and Rehabilitation Act did not preclude

Public Health Service officers from bringing suit); Carlson, 879 F. Supp. at 548 (to the same effect).

12

We agree with your assertion that the legislative history on the Reimbursement Law is “scant”

and contains “nothing that addresses whether officers of the NOAA Corps may be ‘qualified

employees.’” DOC Letter at 9. Although the Department of Defense’s submission cites certain

statements by Senator Warner mentioning various categories of federal employees he hoped would

benefit from the 1999 amendment to the Reimbursement Law (making reimbursement mandatory

rather than discretionary), and notes that the Senator did not refer to organizations representing the

interests of military personnel, see DoD Letter at 4-5, these statements simply do not address the

question whether uniformed services personnel may constitute “qualified employees” under the statute.

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meaning to that term as defined in title 5, see 5 U.S.C. § 2105, and that such term

excluded appointed members of the RFM Councils. 17 Op. O.L.C. at 153. Among

the three considerations on which we relied in reaching this conclusion was that

“although the Order does not expressly adopt title 5’s definition of an ‘employee,’

it does adopt that title’s definition of an ‘agency.’” We further explained that

“[w]e think it unlikely that the Order was intended to cover personnel who were

employed by ‘agencies’ within the meaning of title 5 but who were not themselves

‘employees’ within the same title.” Id. at 154. We believe the Reimbursement Law

is distinguishable from the executive order addressed in our 1993 opinion because

the Reimbursement Law’s functional definition of “qualified employee” demon-

strates that Congress was focusing upon specific criteria (distinct from title 5’s

definition of “employee”) in deciding who would be eligible for the reimburse-

ment benefit—providing functional definitions lacking in the executive order.

We also note that one prominent federal court of appeals decision has expressly

declined to “borrow” the title 5 definition of “employee” in construing a statute

that explicitly incorporated title 5’s definition of “agency” but not its definition of

“officer” and “employee.” Although the issues resolved in that case are not

precisely analogous to that presented here, they nonetheless indicate that close

construction of the particular statute under consideration, rather than routine

incorporation of the title 5 definition, is a more appropriate approach to statutory

interpretation in this context. In Association of American Physicians and Sur-

geons, Inc. v. Clinton, 997 F.2d 898 (D.C. Cir. 1993), the issue was whether the

First Lady constituted a “full-time officer or employee of the federal government”

for purposes of a provision of the Federal Advisory Committee Act, 5 U.S.C. app.

2 (“FACA”), exempting from FACA’s coverage any committee composed wholly

of full-time officers or employees of the federal government. The district court, in

holding that the First Lady did not constitute such a federal government employee

and that the FACA exemption therefore did not apply, had “quite reasonably

turned to title 5 of the U.S. Code to find a definition.” 997 F.2d at 903. But the

Court of Appeals reversed, holding that the title 5 definitions of “officer” and

“employee” do not govern the question whether the First Lady is a federal officer

or employee for purposes of FACA. See id. at 915. The court instead applied the

definition of “officer” in title 1, U.S. Code, in concluding that the First Lady was

an “officer” for the purposes in question. In explaining its refusal to adopt the title

5 definitions of officer or employee, the court explained:

Nevertheless, it is true, as the government insists, that Congress

did not adopt explicitly all of Title 5’s definitions in FACA. FACA

is not part of Title 5, which was enacted six years before FACA’s

passage, but, instead is only temporarily housed there as an appen-

dix. Typically, when Congress wishes to add a statute to Title 5, it

amends the Title. It did not do so when it passed FACA, but at that

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Opinions of the Office of Legal Counsel in Volume 25

time it specifically did adopt certain Title 5 definitions. For example,

adjacent to the definition of an advisory committee is FACA’s defi-

nition of any agency, which incorporates the definition in Title 5:

“‘agency’ has the same meaning as in section 551(1) of title 5,

United States Code.” But Congress actually deleted from the Senate

version of FACA definitions of “officer” and “employee” that paral-

leled those of sections 2104 and 2105.

Id. at 904 (internal citations omitted). The statutory framework addressed by the

court in Clinton is quite similar in key respects to that presented here—e.g., a

statute not codified in title 5 that expressly incorporates title 5’s definition of

“agency,” but omits its definition of “employee”—and the reasons underlying that

court’s refusal to borrow the title 5 definitions of “employee” and “officer” are

consistent with our conclusion on this issue.

C.

Finally, we have considered whether there is any manifest incongruity in apply-

ing the Reimbursement Law’s definitions of law enforcement, supervisor, or

management personnel to the NOAA Corps that would cast doubt on our interpre-

tation. We conclude that there is not.

To begin with, the statute’s definition of “law enforcement officer” provides:

[T]he term “law enforcement officer” means an employee, the duties

of whose position are primarily the investigation, apprehension,

prosecution, detention, or supervision of individuals suspected or

convicted of offenses against the criminal laws of the United States,

including any law enforcement officer under section 8331(20) or

8401(17) of such title 5, or under section 4823 of title 22, United

States Code.

Treasury Act § 636(c)(2) (as amended by Treasury and General Government

Appropriations Act, 1999, Pub. L. No. 105-277, div. A, sec. 101(h), § 644(2), 112

Stat. 2681, 2681-480, 2681-526 (1998)). This definition, unlike the definitions for

“supervisor” and “management official” discussed below, applies only to one who

is “an employee.” For reasons explained above, however, we do not believe that

members of the uniformed services are excluded from the term “employee” for

purposes of this particular statute.13 The statute’s language directs attention to

whether the government personnel in question are employed by a covered

executive agency and perform the functions that Congress had in mind when it

13

As pointed out by the Supreme Court in Robinson v. Shell Oil Co., 519 U.S. at 344 n.4, the term

“employee” does not have some “intrinsically plain meaning.”

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NOAA Corps Eligibility for Professional Liability Insurance Costs Reimbursement

authorized reimbursement benefits for professional liability insurance. Insofar as

members of the NOAA Commissioned Corps hold positions whose duties are

“primarily the investigation, apprehension, prosecution, or detention of individuals

suspected or convicted of offenses against the criminal laws of the United States,”

we conclude that they would be entitled to insurance reimbursement as authorized

by the Reimbursement Law.

This Office, however, lacks sufficient factual knowledge of NOAA personnel

assignments, or those of the other uniformed services, to assess which particular

positions would satisfy the criteria for the “law enforcement officer” classification.

Such determinations must be made by the particular employing agency, based on

its knowledge of its own personnel and their assignments. See infra note 14.

The Reimbursement Law also authorizes reimbursement coverage for qualified

employees who are “supervisors.” The statute provides that “supervisor” has the

same meaning given it by 5 U.S.C. § 7103(a), which provides:

“[S]upervisor” means an individual employed by an agency having

authority in the interest of the agency to hire, direct, assign, promote,

reward, transfer, furlough, layoff, recall, suspend, discipline, or

remove employees, to adjust their grievances, or to effectively rec-

ommend such action, if the exercise of the authority is not merely

routine or clerical in nature but requires the consistent exercise of

independent judgment, except that, with respect to any unit which

includes firefighters or nurses, the term “supervisor” includes only

those individuals who devote a preponderance of their employment

time to exercising such authority.

Id. § 7103(a)(10). Although this definition does not require that an individual be a

title 5 “employee” in order to be a supervisor, it does require that a supervisor

serve in a position authorizing him or her to perform the enumerated activities

with respect to “employees.” For purposes of section 7103 and all other sections of

chapter 71 of title 5, the term “employee” expressly excludes all members of the

uniformed services. See 5 U.S.C. § 7103(a)(2)(ii). Accordingly, we conclude that

while members of the uniformed services are not excluded from qualifying as

supervisors under the Reimbursement Law, only those who exercise at least one of

the enumerated supervisory activities with respect to civilian employees (i.e.,

employees who are not members of the uniformed services) may qualify for

reimbursement as supervisors under the statute. Cf. Plowman v. U.S. Dept. of the

Army, 698 F. Supp. 627 (E.D. Va. 1988) (Army colonel who supervised civilian

employees named as co-defendant in suit for breach of contract and privacy

violations).

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As with “supervisor[s],” the Reimbursement Law defines “management offi-

cial” by direct incorporation of the definition of that term provided by 5 U.S.C.

§ 7103(a), which provides:

“[M]anagement official” means an individual employed by an agen-

cy in a position the duties and responsibilities of which require or

authorize the individual to formulate, determine, or influence the

policies of the agency.

Id. § 7103(a)(11). This definition does not exclude persons who fail to conform to

the title 5 definition of “employee,” nor does it otherwise exclude personnel of the

uniformed services.14 The application of this definition to particular positions in a

uniformed services is a matter to be determined in the first instance by the

department employing persons in those positions. We conclude here only that

members of the uniformed services who otherwise qualify as “management

officials” are not excluded from eligibility for reimbursement because they do not

constitute “employees” as that term is defined in 5 U.S.C. § 2105 or other statutory

definition of that term.

III.

For all of the foregoing reasons, we conclude that members of the NOAA

Commissioned Corps may constitute “qualified employees” under the Reim-

bursement Law if they otherwise satisfy the statutory definitions for law enforce-

ment officers, supervisors, or management officials. While we conclude that being

a member of the uniformed services as defined in 5 U.S.C. § 2101(3) does not

preclude eligibility for this benefit, we do not reach the application of this statute

to the Armed Forces as defined in 5 U.S.C. § 2101(2).

VICKI C. JACKSON

Deputy Assistant Attorney General

Office of Legal Counsel

14

Our conclusion that the functional categories for qualified employees under the Reimbursement

Law are not incongruous when applied to members of the uniformed services is fortified by the

Department of Health and Human Services’ statement with regard to commissioned officers of the

PHS:

Commissioned officers do perform duties that fall within the duties describing super-

visors and management officials in title 5. Also, some Public Health Service officers

are detailed to the Bureau of Prisons, Immigration and Naturalization Service and the

Marshals’ Service and may be considered “law enforcement officers” for purposes of

the provision in question. These officers, in particular, are often sued in their individu-

al capacities.

HHS Letter at 1.

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