Department of Health and Human ServicesChief Actuary's Communications with Congress, B-302911, September 7, 2004

TITLE: Department of Health and Human ServicesChief Actuary's Communications with Congress, B-302911, September 7, 2004
BNUMBER: B-302911
DATE: September 7, 2004
**********************************************************************
B-302911

September 7, 2004

The Honorable Frank R. Lautenberg

The Honorable Tom Daschle

The Honorable Edward M. Kennedy

The Honorable Jack Reed

The Honorable Jon S. Corzine

The Honorable John F. Kerry

The Honorable Patrick J. Leahy

The Honorable Debbie Stabenow

The Honorable Tim Johnson

The Honorable Mark Pryor

The Honorable Maria Cantwell

The Honorable Joseph I. Lieberman

The Honorable Carl Levin

The Honorable Paul Sarbanes

The Honorable Barbara A. Mikulski

The Honorable Charles Schumer

The Honorable John Edwards

The Honorable Hillary Rodham Clinton

United States Senate

Subject: Department of Health and Human Services*Chief Actuary's
Communications with Congress

By letter dated March 18, 2004, you asked for our legal opinion regarding
a potential violation of the prohibitions in the Consolidated
Appropriations Act of 2004 and the Consolidated Appropriations Resolution
of 2003 on the use of appropriated funds to pay the salary of a federal
official who prohibits another federal employee from communicating with
Congress. Pub. L. No. 108-199, Div. F, tit. VI, S 618, 188 Stat. 3, 354
(Jan. 23, 2004); Pub. L. No. 108-7, Div. J, tit. V, S 620, 117 Stat. 11,
468 (Feb. 20, 2003). Specifically, you ask whether alleged threats made
by Thomas A. Scully, the former Administrator of the Centers for Medicare
& Medicaid Services (CMS), to CMS Chief Actuary Richard S. Foster to
terminate his employment if Mr. Foster provided various cost estimates of
the then-pending prescription drug legislation to members of Congress and
their staff made CMS's appropriation unavailable for the payment of Mr.
Scully's salary.

As agreed, this opinion relies on the factual findings of the Office of
Inspector General (OIG) for the Department of Health and Human Services
(HHS), who conducted an independent investigation into whether Mr. Foster
was prohibited from communicating with congressional offices and whether
he was threatened with dismissal if he did so.[1] Tom Scully and Chief
Actuary - Information, Report of the Office of Inspector General,
Department of Health and Human Services, July 1, 2004 (OIG Report). The
OIG concluded that CMS did not provide information requested by members of
Congress and their staff, that Mr. Scully ordered Mr. Foster not to
provide information to members and staff, and that Mr. Scully threatened
to sanction Mr. Foster if he made any unauthorized disclosures. OIG
Report, at 4.

As we explain below, in our opinion, HHS's appropriation, which was
otherwise available for payment of Mr. Scully's salary, was unavailable
for such purpose because section 618 of the Consolidated Appropriations
Act of 2004 and section 620 of the Consolidated Appropriations Resolution
of 2003 prohibit the use of appropriated funds to pay the salary of a
federal official who prevents another employee from communicating with
Congress.[2] While the HHS Office of General Counsel and the Office of
Legal Counsel for the Department of Justice raised constitutional
separation of powers concerns regarding the application of section 618, in
our view, absent an opinion from a federal court concluding that section
618 is unconstitutional, we will apply it to the facts of this case.

Background

In December 2003, Congress passed and the President signed into law the
Medicare Prescription Drug, Improvement, and Modernization Act of 2003,
which added a prescription drug benefit to the Medicare program. Pub. L.
No. 108-173, 117 Stat. 2066 (Dec. 8, 2003). During the previous summer
and fall as Congress debated various proposals, several members of
Congress and committee staff asked Mr. Foster, a career civil servant and
the Chief Actuary for CMS, to provide estimates of the cost of various
provisions of the Medicare bills under debate.[3] OIG Report, at 2-3.

Members and staff also made requests for technical assistance, including
requests that Mr. Foster perform analyses of various provisions of the
Medicare legislation. Id.

Mr. Foster did not respond to several of these requests because Thomas
Scully, CMS Administrator and Mr. Foster's supervisor, stated that there
would be adverse consequences if he released any information to Congress
without Mr. Scully's approval.[4] OIG Report, at 3. Mr. Foster stated
that the first time he felt his job was threatened was in May 2003 when he
provided information on private insurance plan enrollment rates to the
Majority Staff Director of the House Ways and Means Committee and Mr.
Scully rebuked him for doing so. Id. Later, on June 4, 2003, at Mr.
Scully's request, Mr. Scully's special assistant instructed Mr. Foster not
to respond to any requests for information from the House Ways and Means
Committee and warned him that "the consequences of insubordination are
extremely severe." Id. Mr. Foster interpreted this statement to mean
that Mr. Scully would terminate his employment at CMS if he released any
information to Congress without Mr. Scully's approval.[5] Id. at 4.

The OIG Report concluded that, because of Mr. Scully's prohibition, Mr.
Foster did not respond to several congressional requests for cost
estimates and technical assistance, including requests from the minority
staff of the House Ways and Means Committee for the total estimated cost
of the legislation and for analyses of premium support provisions in the
bill, and requests from Senators Mark Dayton and Edward Kennedy for
premium estimates.[6] Id. at 2-3.

There is no indication in the OIG Report that Mr. Scully objected to Mr.
Foster's methodology or to the validity of his estimates. Rather, Mr.
Foster testified before the House Ways and Means Committee that Mr. Scully
determined which information to release to Congress on a "political
basis." Board of Trustees 2004 Annual Reports: Hearing Before the House
Comm. on Ways and Means, Federal News Service,

Mar. 24, 2004. Furthermore, Mr. Scully never objected to Mr. Foster and
his staff performing the analyses required to respond to congressional
requests; he simply objected to certain analyses being released to
Congress. During the same time period, Mr. Foster provided similar
analyses to the Office of Management and Budget.

Discussion

At issue here is the prohibition on using appropriated funds to pay the salary
of a federal official who prohibits or prevents another federal employee from
communicating with Congress. Specifically, this prohibition states:

"No part of any appropriation contained in this or any other
Act

shall be available for the payment of the salary of any officer or

employee of the Federal Government, who . . . prohibits or prevents, or

attempts or threatens to prohibit or prevent, any other officer or

employee of the Federal Government from having any direct oral or

written communication or contact with any Member, committee, or
subcommittee of the Congress in connection with any matter

pertaining to the employment of such other officer or employee

or pertaining to the department or agency of such other officer or

employee in any way, irrespective of whether such communication

or contact is at the initiative of such other officer or employee or

in response to the request or inquiry of such Member, committee,

or subcommittee."

Pub. L. No. 108-199, Div. F, tit. VI, S 618, 188 Stat. 3, 354 (Jan. 23,
2004); Pub. L. No. 108-7, Div. J, tit. V, S 620, 117 Stat. 11, 468 (Feb.
20, 2003).

Legislative History of Section 618

The governmentwide prohibition on the use of appropriated funds to pay the
salary of any federal official who prohibits or prevents or threatens to
prohibit or prevent a federal employee from contacting Congress first
appeared in the Treasury and General Government Appropriations Act, 1998,
Pub. L. No. 105-61, S 640, 111 Stat. 1272, 1318 (1997). In 1997, the
Senate passed a prohibition that applied only to the Postal Service, while
the House of Representatives passed a governmentwide prohibition.[7] The
conference report adopted the House version, and a governmentwide
prohibition has been included in every Treasury-Postal appropriations act
since fiscal year 1998. H.R. Conf. Rep. No. 105-284, at 50, 80 (1997).

This provision has its antecedents in several older pieces of legislation,
including the Treasury Department Appropriation Act of 1972, the Lloyd-La
Follette Act of 1912, and the Civil Service Reform Act of 1978. The
legislative history of these antecedents informs our analysis of section
618 because of the similarity of wording of these provisions and the
references that the sponsors of later provisions made to earlier acts.

Prior to fiscal year 1998, the Treasury-Postal appropriations acts
annually contained a nearly identical prohibition applying only to the
Postal Service. This provision first appeared in the fiscal year 1972
Treasury Department Appropriation Act in response

to a 1971 Postal Service directive restricting postal employees'
communications with Congress. Pub. L. No. 92-49, S 608 (1971). The
Postmaster General's directive, which was printed in the Congressional
Record, stated that, "In order to avoid the possibility for incorrect
information and misinterpretation, it is critical that the Postal Service
speak to the Congress with only one voice. Accordingly, I am directing
that the Congressional Liaison Office be the sole voice of the Postal
Service in communicating with the Congress." 117 Cong. Rec. 151 (1971).
The directive spelled out specific procedures to implement this order, and
directed postal employees to "immediately cease [any] direct or indirect
contacts with congressional officers on matters involving the Postal
Service," and in the future, forward any congressional communications to
the Liaison Office and coordinate any direct contacts with a congressional
office with the Liaison. Id. The directive ended with the disclaimer
that the new procedures "do not affect the right of any employee to
petition, as a private citizen, his U.S. Representative or Senators on his
own behalf." 117 Cong. Rec. 152 (1971).

Representative William Ford sponsored this prohibition as an amendment to
the 1972 appropriations act. 117 Cong. Rec. 22443 (1971). He complained
that the directive declared it a violation of the rules of the Postal
Service "for any employee either individually or through his organization
to contact any member or any committee" of Congress. Id. Representative
John Saylor also objected to the directive for "cutting the ties between
postal employees and their representatives" and for "abridg[ing] a
fundamental right of American citizens." 117 Cong. Rec. 151 (1971).
Saylor also cited two newspaper editorials about the directive, which
called it a "gag rule" and noted the postal union's concern that the
directive violated their constitutional rights to petition Congress. 117
Cong. Rec. 152 (1971). One of the editorials cited the conflict between
the directive's order that all employees were to cease contacts with
members of Congress and the disclaimer that the directive preserved
employees' right to petition Congress. Id.

Postmaster General Blount discussed this issue at both the House and
Senate Appropriations Committee hearings on the Postal Service's fiscal
year 1972 budget request. At the House Appropriations Committee hearing,
Representative John Myers asked Blount if it was true that postal
employees were prohibited from communicating with their member of Congress
under any circumstance. Blount responded that was not the case and noted
that his directive simply said "that we are going to centralize our
communications with Members of Congress." Treasury, Post Office, and
General Government Appropriations for Fiscal Year 1972, Hearing Before the
House Comm. on Appropriations, 92nd Cong. 63 (1971). He stated, "as a
matter of operations and technique . . . we will centralize the requests
and problems of Congress in our congressional liaison department and we
will then be able to control our responsiveness to the Members." Id.
Blount also mentioned that it was "very clearly spelled out . . . that all
the employees have a constitutional right to petition Members of Congress
. . . about their own matters but as far as the Postal Service is
concerned, if I am going to be held responsible for it by the Members of
Congress and by the American public, I have to have control of it." Id.

At the Senate Appropriations Committee hearing, Senator Joseph Montoya
complained that prior to the directive, members of Congress "could call
the Postal

Department on any matter involving a constituent and get a ready answer
from the Department . . . [but now] if we have an inquiry to the regional
office or to a local postmaster, they must refer it straight to Washington
under this regulation and it causes unnecessary delay." Treasury, Post
Office, and General Government Appropriations for Fiscal Year 1972,
Hearing Before the Senate Comm. on Appropriations, 92nd Cong. 1435
(1971). Senator Montoya added, "I can call any other department in the
Government and call the man in charge, the man at the wheel, and he will
give me an answer. But I can't do this with the Post Office Department."
Id. at 1438.

Blount responded to such criticisms, "It is difficult to control our
responses [to members of Congress] if these responses go out from some
30,000 post offices around the country." Id. at 1435. He stated that the
Post Office "is a vast department . . . and it is difficult to be certain
that our replies always comply with the policies of the Postal Service,
and that is the reason we took this action." Id. at 1438. Blount
emphasized again that the directive "has to do with the official postal
matters

only . . . and has nothing to do with the employees' rights to contact
Members of Congress. We so stated in the regulation itself . . . [but] it
has been misinterpreted by others." Id. at 1435. Senator Montoya
concluded his questioning about the directive by stating his intention to
add language to the Postal appropriations committee report that would
prohibit the Post Office from restricting its employees from communicating
with members of Congress. Id. at 1439.

In introducing his amendment to the 1972 Treasury Department Appropriation
Act, Representative Ford noted that "the law that this amendment attempts
to enforce has been on the books . . . since 1912." 117 Cong. Rec. 22443
(1971). Ford was referring to a provision in the fiscal year 1913 Post
Office Appropriation Bill, commonly known as the Lloyd-La Follette Act,
that states, "The right of persons employed in the civil service of the
United States, either individually or collectively, to petition Congress,
or any Member thereof, or to furnish information to either House of
Congress, or to any committee or member thereof, shall not be denied or
interfered with." Post Office Appropriation Act, Pub. L. No. 336, ch. 389
S 6, 66 Stat. 539, 540 (Aug. 24, 1912). The committee report accompanying
the House version of the bill stated that the provision was intended to
"protect employees against oppression and in the right of free speech and
the right to consult their Representatives." H.R. Rep. No. 62-388, at 7
(1912).

Congress enacted the Lloyd-La Follette Act in response to two executive
orders issued by Presidents Theodore Roosevelt and Howard Taft. Several
congressmen referred to these orders as "gag rules" and quoted the text of
the orders in the Congressional Record.[8] Both the House and the Senate
had a vigorous floor debate

on this provision, as well as a related section of the bill allowing
postal employees the right to unionize.[9] The majority of the debate
focused on preserving the constitutional rights of federal employees.[10]
Representative Thomas Reilly stated his opposition to the gag order
because it prevented federal employees from "uttering any word of
complaint even against the most outrageous treatment." 48 Cong. Rec. 4656
(1912). He hoped that the Act would ensure the rights of employees to
discuss "conditions of employment, hours of labor, and matters affecting
the working and sanitary conditions surrounding their employment" with
Congress.[11] Id.

Members of Congress also raised concerns that the executive orders would
foreclose an important source of information for Congress. As Senator
James Reed stated, the executive orders instructed federal employees "not
[to], even at the demand of Congress or a committee of Congress or a
Member of Congress, supply information in regard to the public business."
48 Cong. Rec. 10673 (1912). Representative James Lloyd argued that the
representatives of the American people "should have the right to inquire
as to any of the conditions of government and the method of conducting any
line of departmental business." 48 Cong. Rec. 5634 (1912).

Other members of Congress disagreed and argued that the provision would
undermine discipline in the Postal Service.[12] However, after a lengthy
debate Congress approved the Lloyd-La Follette Act, and the President
signed it into law as part of the Post Office Appropriation Act. Pub. L.
No. 336, 66 Stat. 539 (Aug. 24,

1912). In 1978, a nearly identical version of the Lloyd-La Follette Act
was enacted as part of the Civil Service Reform Act. Pub. L. No. 94-454,
92 Stat. 1138, 1217 (Oct. 13, 1978) (codified at 5 U.S.C. S 7211).[13]

Congress expressed many of the same concerns that surrounded enactment of
the Lloyd-La Follette Act during debate surrounding the whistleblower
provisions in the Civil Service Reform Act, which prohibit federal
agencies from taking any personnel action in response to a federal
employee's disclosure of a violation of law, gross mismanagement, a gross
waste of funds, an abuse of authority, or a danger to public health or
safety. 5 U.S.C. S 2302(b)(8). For example, the Senate Committee on
Governmental Affairs noted:

"Federal employees are often the source of information about agency

operations suppressed by their superiors. Since they are much closer to

the actual working situation than top agency officials, they have
testified

before Congress, spoken to reporters, and informed the public . . .
Mid-level employees provide much of the information Congress needs to
evaluate programs, budgets, and overall agency performance."

Senate Comm. on Governmental Affairs, 95th Cong., The Whistleblowers, 40
(Comm. Print 1978). These concerns led to the enactment of the first
whistleblower protections and the codification of the Lloyd-La Follette
Act. Civil Service Reform Act of 1978, Pub. L. No. 95-454, SS 2302, 7211,
92 Stat. 1217 (Oct. 13, 1978).

Application of the Prohibition to the Inspector General's Findings

As noted above, section 618 prohibits an agency from paying the salary of
any federal officer or employee who prohibits or prevents, or threatens to
prohibit or prevent, another officer or employee from communicating with
members, committees or subcommittees of Congress. The OIG report
concluded that Mr. Scully both prohibited and threatened to prohibit Mr.
Foster from communicating with various members of Congress and
congressional committees on issues that pertained to his agency and his
professional responsibilities. OIG Report, at 4. In May 2003, Mr. Scully
rebuked Mr. Foster for providing information requested by the Majority
Staff Director for the House Ways and Means Committee. Id. at 3. In June
2003, Mr. Scully's special assistant, pursuant to Mr. Scully's direction,
instructed Mr. Foster not to respond to any requests for information from
the House Ways and Means Committee. Because of Mr. Scully's actions, we
view HHS's appropriation as unavailable to pay his salary. Pub. L. No.
108-199, Div. F, tit. VI, S 618, 188 Stat. 3, 354 (Jan. 23, 2004); Pub. L.
No. 108-7, Div. J, tit. V, S 620, 117 Stat. 11, 468 (Feb. 20, 2003).

As the legislative history of section 618 demonstrates, Congress intended
to advance two goals: to preserve the First Amendment rights of federal
employees and to ensure that Congress had access to programmatic
information from frontline employees. Mr. Scully's actions implicate the
latter of these goals. Congressional offices had asked Mr. Foster for
information and for technical and analytic assistance that concerned the
cost and impact of proposed Medicare legislation under debate in both the
House and the Senate. OIG Report, at 2-3. Many members considered such
information critical to their consideration of the Medicare Prescription
Drug, Improvement, and Modernization Act, a historic piece of legislation
with significant implications for federal fiscal policy.[14] This
information is a prime example of the programmatic information from
frontline federal employees upon which Congress focused in enacting the
Lloyd-La Follette Act and its subsequent incarnations.

According to the OIG's findings, congressional offices were interested in
the total estimated cost of the legislation, premium estimates, the data
underlying certain premium estimates, and a technical analysis of the
premium support provisions in the Medicare legislation. OIG Report, at
2-3. This information was typical of the regular, ordinary work product
of Mr. Foster and the Office of the Chief Actuary, and as the frontline
employee, he was competent to provide the information to Congress. See
H.R. Conf. Rep. No. 105-217, at 837 (1997) (stating that the actuary has
an important role in "developing estimates of the financial effects of
potential legislative and administrative changes in the Medicare and
Medicaid programs"). Mr. Foster was more knowledgeable about the
estimates than other officials within HHS and thus was able to provide
information so that Congress could evaluate the Medicare program and
budget. See Senate Comm. on Governmental Affairs, 95th Cong., The
Whistleblowers, 40 (Comm. Print 1978).

Thus, the legislative history of section 618 and its predecessors suggest
that Mr. Scully's bar on Mr. Foster responding to congressional requests
is a prime example of what Congress was attempting to prohibit by those
provisions. Accordingly, Mr. Scully's actions fall squarely within
section 618, and HHS's appropriation was unavailable for the payment of
his salary.

Constitutional Issues Raised by HHS and OLC

While the OIG Report concluded that Mr. Scully had indeed threatened Mr.
Foster if he communicated with Congress, it also contained in its
attachments, legal opinions by the HHS Office of General Counsel and by
the Office of Legal Counsel (OLC) for the Department of Justice. Memo
from Katherine M. Drews, Associate General Counsel, HHS, to Lewis Morris,
Counsel, HHS OIG, May 12, 2004 (Drews Memo); Letter from Jack L. Goldsmith
III, Assistant Attorney General, to Alex M. Azar II, General Counsel, HHS,
May 21, 2004 (Goldsmith Letter). These legal opinions state that the
application of section 618 to the present case would be unconstitutional.
Drews Memo, at 3-5; Goldsmith Letter, at 2-4.

Laws passed by Congress and signed by the President come to us with a
heavy presumption in favor of their constitutionality.[15] B-300192, Nov.
13, 2002. We have long observed that it is not our role to adjudicate the
constitutionality of duly enacted legislation. B-245028.2, June 4, 1992;
B-215863, July 26, 1984. We apply the laws as we find them absent a
controlling judicial opinion that such laws are unconstitutional.
B-300192, Nov. 13, 2002. Indeed, even in such cases, we will construe a
statute narrowly to avoid constitutional issues. Id. Here, no court has
found section 618 or its predecessors unconstitutional. Likewise, the
courts have never held unconstitutional the Whistleblower Protection Act,
which authorizes federal employees to disclose violations of law, gross
mismanagement, the gross waste of funds, abuses of authority, and threats
to public health or safety. 5 U.S.C. SA 2302(b)(8).

HHS and OLC first argue that section 618 is unconstitutional because it
could force the disclosure of privileged, classified, or deliberative
information. Drews Memo, at 4-5; Goldsmith Letter, at 2-3.
Constitutional concerns could be raised if Congress were to attempt to
force the disclosure of classified or national security information, given
the President's role as Commander in Chief.[16] However, Mr. Foster was
not asked for classified information.

Similarly, Mr. Foster was not asked for information subject to a claim of
deliberative process privilege.[17] To invoke the deliberative process
privilege, the material must be both pre-decisional and deliberative,
requirements that stem from the privilege's purpose of granting officials
the freedom "to debate alternative approaches in private." In re: Sealed
Case, 121 F.3d 729, 737 (D.C. Cir. 1997). The deliberative process
privilege does not apply to the information requested of Mr. Foster
because it was neither pre-decisional nor deliberative. The
Administration had already formulated its Medicare prescription drug plan
and had released it to the public and to the Congress in March 2003. See
Framework to Modernize and Improve Medicare, White House Fact Sheet, March
4, 2003. Thus, the information requested from Mr. Foster in June through
November 2003, which involved cost estimates and data formulated after the
Administration's release of its Medicare plan, was not part of the

deliberative process for the Administration's proposal. Furthermore, some
of the information that Mr. Scully prohibited Mr. Foster from
communicating to congressional offices, including the House Ways and Means
Committee's request of June 13, 2003, for an analysis of the premium
support provisions, was not preexisting data. Such information cannot be
considered deliberative because the analysis was not preexisting nor was
it tied to any decision-making process at CMS. Thus, HHS's and OLC's
arguments that section 618 is unconstitutional because it could force the
disclosure of classified or privileged information are inapplicable to the
facts of this case.

HHS and OLC also argue that section 618 unconstitutionally limits the
President's ability to supervise and control the work of subordinate
officers and employees of the executive branch. Drews Memo, at 4-5;
Goldsmith Letter, at 2-3. In making this argument, HHS and OLC fail to
balance the President's constitutional interest in managing the official
communications of the executive branch with Congress's equally important
need for information in order to carry out its legislative and oversight
responsibilities. As OLC itself has recognized, Congress has "important
oversight responsibilities and a corollary interest in receiving
information [from federal employees] that enables it to carry out those
responsibilities." Whistleblower Protections For Classified Disclosures:
Hearing Before the House Permanent Select Committee on Intelligence, 105th
Cong. (May 20, 1998) (statement of Randolph Moss, Deputy Assistant
Attorney General, Office of Legal Counsel). As the Attorney General has
pointed out, Congress's interest in obtaining information from the
executive branch is strongest when "specific legislative proposals are in
question."

43 Op. Att'y Gen. 327 (Oct. 13, 1981).

HHS and OLC have overstated section 618's threat to the President's
constitutional prerogatives.[18] Executive agencies have the right to
designate official spokesmen for the agency and institute policies and
procedures for the release of agency information and positions to Congress
and the public.[19] Separation of powers concerns could be raised if
Congress, by legislation, were to dictate to the executive branch who
should communicate the official positions of the Administration, given the
President's constitutional duty to "recommend to [Congress's]
consideration such measures as he shall judge necessary and
expedient."[20] U.S. Const. Art. II, S 3.

Federal agencies and employees making separate legislative recommendations
to Congress, without coordination with the President, could interfere with
the President's constitutional duty, on behalf of the executive branch, to
judge which proposals are "necessary and expedient" and make such
recommendations to Congress. 8 Op. Off. Legal Counsel 30. Designating an
official agency or executive branch spokesman would be entirely
appropriate in the case of legislative recommendations or a statement of
the Administration's official positions. However, Mr. Foster was not
asked for a CMS policy position or legislative recommendation, but rather
for specific and limited technical assistance.[21]

Thus, while certain applications of section 618 could raise constitutional
concerns, application of section 618 to the facts of this case does not
raise such concerns, because Mr. Foster was asked for estimates, technical
assistance, and data, rather than any information which could be
considered privileged.[22] Furthermore, Congress was considering
extensive changes to Medicare, and members requested cost estimates and
analyses to inform debate on this legislation and to carry out the
legislative powers vested by the Constitution. U.S. Const. Art. I, S 1.
Indeed, if some of the Chief Actuary's estimates had been disclosed in a
timely matter, Congress would have had better information on the magnitude
of the legislation it was considering and its possible effect on the
nation's fiscal health.[23]

Mr. Scully's prohibitions, therefore, made HHS's appropriation, otherwise
available for payment of his salary, unavailable for such purpose, because
his actions are covered by section 618 of the Consolidated Appropriations
Act of 2004 and section 620 of the Consolidated Appropriations Resolution
of 2003. Because HHS was prohibited from paying Mr. Scully's salary after
he barred Mr. Foster from communicating with Congress, HHS should consider
such payments improper.[24]

Therefore, we recommend that HHS seek to recover these payments, as
required by 31 U.S.C. S 3711.[25]A

Conclusion

As a result of Mr. Scully's prohibition on Mr. Foster providing certain
information to Congress, HHS's appropriation was unavailable to pay Mr.
Scully's salary because section 618 of the Consolidated Appropriations Act
of 2004 and section 620 of the Consolidated Appropriations Resolution of
2003 bar HHS from using appropriated funds to pay the salary of an
official who prohibited another federal employee from communicating with
Congress on an issue related to his agency. While certain applications of
section 618 could raise constitutional concerns, we have applied the
prohibition to the present facts, given the narrow scope of information
requested and Congress's need for such information in carrying out its
legislative duties, as well as the fact that no court has held section 618
unconstitutional.

Sincerely yours,

Anthony H. Gamboa

General Counsel

------------------------

[1] We advised your staff that we would, as appropriate, rely on the
factual findings of the OIG. Letters to Senator Frank R. Lautenberg and
additional requestors from Gary L. Kepplinger, Deputy General Counsel,
GAO, April 15, 2004. In addition, the Office of the Inspector General
agreed to allow us access to their investigative workpapers. This opinion
is based on the factual findings contained in the OIG Report and the
supporting workpapers. While this opinion relies on the factual findings
of the OIG, it does not adopt or rely upon any legal conclusions reached
by the OIG, HHS, or OLC.

[2] For ease of reference, we will refer to the identical prohibitions in
the Consolidated Appropriations Act of 2004 and the Consolidated
Appropriations Resolution of 2003 as "section 618."

[3] Congress established the position of Chief Actuary in statute in
1997. Balanced Budget Act, Pub. L. No. 105-33, tit. IV, subtitle G, ch.
4, S 4643, 111 Stat. 487 (Aug. 5, 1997) (codified at 42 U.S.C. S 1317).
The statute directs the Chief Actuary to carry out his duties "in
accordance with the professional standards of actuarial independence." 42
U.S.C. S 1317(b)(1). The Act also directs that the Chief Actuary is to be
appointed based on "education, experience [and] superior expertise in the
actuarial sciences" and could be removed "only for cause." Id. The
Balanced Budget Act conference report cites the long history and tradition
of a "close and confidential working relationship" between the Social
Security and Medicare actuaries and the congressional committees of
jurisdiction. H.R. Conf. Rep. No. 105-217, at 837 (1997). The report
then states that the "independence of the Office of the Actuary with
respect to providing assistance to the Congress is vital," and that
"reforming the Medicare and Medicaid programs is greatly enhanced by the
free flow of actuarial information from the Office of the Actuary to the
committees of jurisdiction in the Congress." Id. at 837-8.

[4] HHS paid Mr. Scully's salary during this time period from its "Program
Management" appropriations account. Pub. L. No. 108-199, Div. E, tit. II,
188 Stat. 3, 244 (Jan. 23, 2004); Pub. L. No. 108-7, Div. G, tit. II, 117
Stat. 11, 316 (Feb. 20, 2003).

[5] Third parties also confirmed Mr. Scully's threats. For example, Mr.
Scully told the Minority Staff Director for the Ways and Means
Subcommittee on Health that he would "fire [Foster] so fast his head would
spin" if he released certain information to Congress. OIG Report, at 3.

[6] Senator Max Baucus made a similar request for premium estimates. Mr.
Foster stated that Mr. Scully directed him to brief Senator Baucus's
staff, but he never received approval to respond to Senators Dayton and
Kennedy. OIG Report, at 2-3.

[7] Compare S. 1023, 105th Cong. S 506 (1997), with H.R. 2378, 105th Cong.
S 505 (1997).

[8] See, e.g., 48 Cong. Rec. 4513 (1912). President Roosevelt's executive
order reads as follows: "All officers and employees of the United States
of every description, serving in or under any of the executive departments
or independent Government establishments, and whether so serving in or out
of Washington, are hereby forbidden, either directly or indirectly,
individually or through associations, to solicit an increase of pay or to
influence or attempt to influence in their own interest any other
legislation whatever, either before Congress or its committees, or in any
way save through the heads of the departments or independent Government
establishments in or under which they serve, on penalty of dismissal from
the Government service." Exec. Order No. 1142 (1906). President Taft's
order reads as follows: "It is hereby ordered that no bureau, office, or
division chief, or subordinate in any department of the Government, and no
officer of the Army or Navy or Marine Corps stationed in Washington, shall
apply to either House of Congress, or to any committee of either House of
Congress, or to any Member of Congress, for legislation, or for
appropriations, or for congressional action of any kind, except with the
consent and knowledge of the head of the department; nor shall any such
person respond to any request for information from either House of
Congress, or any committee of either House of Congress, or any Member of
Congress, except through, or as authorized by, the head of his
department." Exec. Order No. 1514 (1909).

[9] See 48 Cong. Rec. 4512-3, 4656-7, 4738-9, 5223-4, 5235-6, 5633-6,
10670-7, 10728-33, 10793-804 (1912).

[10] See, e.g., 48 Cong. Rec. 4513 (1912) (statement of Rep. Gregg)
(stating that the provision was "intended to protect employees against
oppression and in the right of free speech and the right to consult their
representatives"); 48 Cong. Rec. 5635 (1912) (statement of Rep. Goldfogle)
(stating that "[w]hether the citizen holds office under the Government or
not, his right to petition for a redress of grievances should not, and
constitutionally speaking, can not be interfered with").

[11] Several congressmen spoke about the dangerous working conditions
faced by railway mail clerks and emphasized that the provision would
ensure that such conditions were brought to the attention of Congress.
See, e.g., 48 Cong. Rec. 10671(1912) (statement of Sen. Ashurst) (quoting
an article from La Follette's Weekly); 48 Cong. Rec. 10674 (1912)
(statement of Sen. Warren).

[12] See, e.g., 48 Cong. Rec. 100676 (1912) (statement of Senator Bourne)
(stating that "the right of the individual employee to go over the head of
his superior . . . on matters appertaining to his own particular
grievances, or for his own selfish interest, would be detrimental to the
service itself . . . [and] would absolutely destroy the discipline
necessary for good service"). The Senate Appropriations Committee also
disapproved of the provision. S. Rep. No. 62-955, at 21 (1912) (stating
that "good discipline and the efficiency of the service requires that
[federal employees] present their grievances through the proper
administrative channels").

[13] Section 7211 states: "The right of employees, individually or
collectively, to petition Congress or a Member of Congress, or to furnish
information to either House of Congress, or to a committee or Member
thereof, may not be interfered with or denied." There are no federal
judicial decisions interpreting section 7211, aside from cases ruling that
it does not imply a private cause of action, Nixon v. Fitzgerald, 457 U.S.
731 (1981), and that it does not apply to government contractors, Bordell
v. General Electric Co., 732 F. Supp. 327 (1990).

[14] See, e.g., 150 Cong. Rec. S2761 (daily ed. Mar. 12, 2004) (statement
of Senator Tom Daschle); 150 Cong. Rec. S3911-2 (daily ed. Apr. 7, 2004)
(statement of Senator Bob Graham).

[15] The Supreme Court also begins with the presumption that a statute is
constitutional. See, e.g., United States v. Morrison, 529 U.S. 598, 607
(2000) (holding that "due respect for the decisions of a coordinate branch
of Government demands that we invalidate a congressional enactment only
upon a plain showing that Congress has exceeded its constitutional
bounds").

[16] See Department of the Navy v. Egan, 484 U.S. 518, 527 (1988)
(stating that the Constitution grants the President authority to classify
and control access to national security information); National Fed'n of
Fed. Employees v. United States, 688 F. Supp. 671 (D.D.C. 1988), vacated
and remanded, American Foreign Serv. Ass'n v. Garfinkel, 490 U.S. 153
(1989); Memorandum Opinion for the General Counsel, Central Intelligence
Agency, Access to Classified Information, OLC Opinion (Nov. 26, 1996)
(asserting that granting individual federal employees the right to
disclose intelligence and other national security information would
threaten the President's constitutional role as Commander in Chief).

[17] Traditionally, courts have allowed the executive branch to withhold
documents from the public and in litigation that would reveal advisory
opinions, recommendations, and deliberations comprising part of a process
by which governmental decisions and policies are formulated. In re:
Sealed Case, 121 F.3d 729, 737 (D.C. Cir. 1997) (addressing scope of
privilege in context of grand jury investigation).

[18] Section 618 does not prohibit agencies from requiring their employees
to report on their communications with Congress and from requesting that
agency congressional liaisons be included in employees' discussions with
Congress, nor does it require executive branch employees to initiate
congressional contacts or even to respond to congressional
inquiries.

[19] For example, section 301 of Title 5, U.S. Code, commonly known as the
Housekeeping Statute, delegates to the head of an agency the right to
prescribe regulations for "the conduct of its employees, the distribution
and performance of its business, and the custody, use, and preservation of
its records, papers, and property." However, the Housekeeping Statute is
explicit in that it does not "authorize withholding information from the
public." This second sentence of S 301 was added in 1958 because Congress
was concerned that the statute had been "twisted from its original purpose
as a *housekeeping statute' into a claim of authority to keep information
from the public and, even, from the Congress." H.R. Rep. No. 85-1461
(1958).

[20] See also Authority of the Special Counsel of the Merit Systems
Protection Board to Litigate and Submit Legislation to Congress, 8 Op.
Off. Legal Counsel 30 (Feb. 22, 1984) (asserting that requiring an
executive branch agency to submit legislative proposals directly to
Congress without Presidential review would be unconstitutional);
Constitutionality of Statute Requiring Executive Agency to Report Directly
to Congress, 6 Op. Off. Legal Counsel 632 (Nov. 5, 1982) (asserting that
requiring an executive branch agency to submit budget requests or
legislative proposals directly to Congress without presidential review
would be unconstitutional).

[21] Indeed, the two OLC opinions cited in the Goldsmith Letter (and cited
in the prior footnote) deal with budget or legislative proposals and thus
are inapplicable to the present case.

[22] OLC admits in its opinion that it did not review the specific
information requested of Mr. Foster and thus "cannot opine on the
privileged status" of the information.

[23] See, e.g., GAO, Fiscal Year 2003 U.S. Government Financial
Statements: Sustained Improvement in Federal Financial Management Is
Crucial to Addressing Our Nation's Future Fiscal Challenges, GAO-04-477T
(March 3, 2004) (describing the drug benefit as "one of the largest
unfunded commitments ever undertaken by the federal government").

[24] Section 618 and the legislative history surrounding similar
provisions provide no guidance as to what time period an agency is
prohibited from paying the salary of an official who prohibits a federal
employee from contacting Congress. Federal salaries are obligated when
earned and are earned on a biweekly pay period basis. See 24 Comp. Gen.
676, 678 (1945) and 5 U.S.C. S 5504. Given the continuing nature of Mr.
Scully's prohibition, we recommend that HHS treat as an improper payment
Mr. Scully's salary beginning with the pay period when his initial
prohibition to Mr. Foster was made until his departure from CMS.

[25] HHS should keep the House and Senate Appropriations Committees, as
well as its oversight committees, apprised of the actions it takes to
recover these improper payments.