GAB Decision 501
January 31, 1984
Mississippi Department of Public Welfare;
Settle, Norval; Teitz, Alexander Ford, Cecilia
The Mississippi Department of Public Welfare (MDPW, State) appealed
the disallowance by the Office of Human Development Service (OHDS,
Agency) of $468,216 in federal financial participation (FFP) claimed
under Title XX of the Social Security Act. The disallowance was based
on two audit reports (Audit Control Nos. 04-30550 and 04-30551)
reviewing contracts executed by the State with private corporations for
the provision of Title XX services.
In the course of this appeal the State argued that legislation
enacted by the 98th Congress effectively forgave the disallowance. Both
parties agreed that if the Board were to accept this argument, the
disallowance would be moot and there would be no need to further examine
the underlying issues concerning the allowability of the costs in
question. The Board decided, with the agreement of the parties, to
issue a decision solely on the preliminary question of whether Congress
did in fact forgive the disallowance (State's Proposition I). For the
reasons stated below, we conclude that the effect of the legislation in
question was not to forgive the disallowance, but merely to prohibit the
offset of the disallowed amount against certain funds appropriated for
fiscal year 1983.
Our decision is based on the written record and telephone conferences
held with the parties.
Case Background
OHDS issued its notification of disallowance to the State on February
16, 1983. On March 24, 1983, Congress enacted the Emergency Jobs
Appropriations Act, Pub. L. 98-8, an appropriations act "to provide
productive employment for hundreds of thousands of jobless Americans, to
hasten or initiate Federal projects and contraction of lasting value to
the Nation and its citizens, and to provide humanitarian assistance to
the indigent for fiscal year 1983, and for other purposes."
(2) The following was included in the act:
INCREASING DAY CARE AND SOCIAL SERVICES
(SOCIAL SERVICES BLOCK GRANTS)
42 USC 1397.
To expand the availability of day care and other social services
available to unemployed and disadvantaged Americans, which also shall
include Expanded Food and Nutrition Education (Nutrition Aides), an
additional $225,000,000 for "Social Services Block Grants", Department
of Health and Human Services, for carrying out title XX of the Social
Security Act: Provided, That the State allotment for fiscal year 1983
shall not be reduced to offset any reduction in a prior year allotment
made pursuant to the Department of Health and Human Services, OIG
control number 030550 and 030551: Provided further, That no grant shall
be awarded to a State under this paragraph unless such State offers
assurances satisfactory to the Secretary that it will use these funds in
addition to rather than in lieu of existing Federal or State funds
currently available for these purposes.
Discussion
The State argued that any disallowances arising from OIG Audit
Control Nos. 04-30550 and 04-30551 were "forgiven erased, pardoned, or
conceled" by the passage of Pub. L. 98-8. (State's Brief, p. 15)
According to the State, the Board must accept, without appraisal of its
merits, the will of Congress as expressed in this legislation.
The Agency responded that the language of the statute falls far short
of the broad pardoning effect the State attributed to it. While
agreeing with the State that the statute should be construed to
accomplish its intent, the Agency contended that the statute's intent
was not what the State claimed. Asserting that there was no legislative
history on this particular provision of Pub. L. 98-8, the Agency argued
that the plain meaning of the language chosen by Congress is a
satisfactory guide to what Congress intended to accomplish. According
to the Agency, terms such as "forgive" or "pardon" do not
appear in the
statute, and in no manner does the statute purport to cancel, eliminate,
or terminate any monetary liability that may be found based on the two
audits. Rather, the Agency contended, the statute only affects the
means of collecting the debt by not allowing the 1983 Social Services
Allotment, as supplemented by the appropriations of Pub. L. 98-8, to be
reduced to satisfy the debt. The Agency (3) argued that the statute
thus does not restrict later year appropriations or affect other sources
of funds that may be available by way of offset. The Agency concluded
that the statute is nothing more than a restriction on the source of
funds available to the Agency to satisfy the debt owed by the State and
does not affect the State's liability or raise a barrier to the debt's
collection.
The State replied that the provision of Pub. L. 98-8 at issue was
specifically included in the legislation by the Mississippi
Congressional delegation and that the intent of the statute is shown by
an April 28, 1983 letter from Senator John C. Stennis of Mississippi to
the MDPW Commissioner. This letter stated in part:
I certainly enjoyed your personal visit with me regarding legislative
matters and particularly the Social Services Block Grant under Public
Law 98-8.
The reference in this bill to audit control 04-30550 and 04-30551 was
to forgive the disallowance under these audits.
It is our hope that this problem can be resolved satisfactorily,
promptly, and finally. The language in Public Law 98-8 was intended for
this purpose. If this issue has still not been resolved by the time we
consider the appropriations measure for next year, then we may well have
to address the matter once again just as we did in P.L. 98-8.
State's Supplement to Appeal File, Ex. C.
The issue before us then is whether this particular provision of Pub.
L. 98-8 -- "That the State allotment for fiscal year 1983 shall not be
reduced to offset any reduction in a prior year allotment made pursuant
to the Department of Health and Human Services, OIG control number
030550 and 030551" -- forgave the disallowance at issue. We analyze
this question below in light of the relevant principles of statutory
construction.
I. Is the language of the provision in question subject to more than
one reasonable interpretation?
A fundamental rule of statutory construction is that the meaning of a
statute is first sought in the plain language of the act itself.
Generally, if a statute's language is clear and unambiguous, there is no
need to consult outside sources to determine the meaning or intent of
the statute.
In determining the scope of a statute, we look first to its language.
If the statutory language is unambiguous, (4) in the absence of "a
clearly expressed legislative intent to the contrary, that language must
ordinarily be regarded as conclusive."
United States v. Turkette, 452 U.S. 576, 580 (1981), quoting Consumer
Products Safety Commission v. GTE Sylvania, Inc., 447 U.S. 102, 108
(1980).
For other authority, see Sutherland Statutory Construction, 4th Ed.,
Vol 2A, Secs. 46.01 and 46.04; 73 Am. Jur. 2d, Statutes Sec. 194.
If, however, a literal interpretation of a statute would lead to an
unreasonable or absurd result, outside sources can be used to determine
legislative meaning or intent.
(The) principle is to be applied to override the literal terms of a
statute only under rare and exceptional circumstances . . . to justify a
departure from the letter of the law upon that ground, the absurdity
must be so gross as to the shock the general moral or common sense . .
. and there must be something to make plain the intent of Congress that
the letter of the statute is not to prevail (citation).
Crooks v. Harrelson, 282 U.S. 55, 60 (1930). See also Sutherland,
supra, Sec. 46.07.
The State and the Agency offered different interpretations of the
provision in question. The State contended that the statute forgave the
disallowance. The Agency argued that the statute merely restricted the
source of funds available to repay the disallowance. In looking at the
plain language of the statute, we find no basis for the State's
interpretation of the act.
As the Agency pointed out, the provision contains no words directly
conveying the idea that the disallowance was to be forgiven, pardoned,
cancelled, or waived. What the statute says is that the amount of
funding the State receives as its allotment for 1983 must not be reduced
in order to offset any reduction in a prior year's funding arising from
the audits. The language unambiguously affects only the 1983 allotment.
Nothing in the provision explicitly precludes the Agency from taking
other actions to collect the disallowed amount, and we (5) do not think
this result is implied. /1/ We do not find that reading the language
literally leads to an absurd or unreasonable result. It is reasonable
to conclude, in light of the purpose of the act, that Congress simply
intended that the level of federal funds available under the allotment
not be reduced in order to offset any debt arising from the specified
audits.
Clearly if Congress had desired that the disallowance be forgiven or
pardoned, it could have explicitly achieved that result, as it has done
in the past with other debts owed the federal government. Both parties
referred to Pub. L. 95-291, another appropriations will for social
services. There, at section 3(b), Congress stated:
Neither the Secretary nor any other official of the Federal
Government may seek to recover any amount paid to a State prior to April
1, 1977, or pursuant to this Act, as reimbursement of expenditures made
by the State of the type described by the first section of this Act.
While we agree with the State that the specific terms "forgive"
or
"pardon" need not be used by Congress to extinguish a debt, we do
not
find the pertinent words in Pub. L. 98-8 to be comparable to the above
words of Pub. L. 95-291, where Congress enacted an absolute bar to the
recovery by the federal government of certain funds paid to states under
the Social Security Act. Congress could have included similar language
in Pub. L. 98-8 if it wished the federal government to be permanently
prohibited from recovering funds disallowed as a result of the specified
audits.
We therefore find no ambiguity in the language of this provision of
Pub. L. 98-8 and conclude that the plain meaning (6) of the language
contained therein requires the result favored by the Agency. /2/
II. Can the legislative intent behind the provision be satisfactorily
determined based on the Stennis letter?
The State would have the Board go beyond the plain wording of the
provision. The State contended that the April 28, 1983 letter from
Senator Stennis should be given persuasive value in establishing
Congressional intent to forgive these disallowances.
While it is possible to speculate that this particular provision of
Pub. L. 98-8, because of its unique applicability to the State of
Mississippi, was written into the (7) appropriations bill by the
Mississippi Congressional delegation in hopes of cancelling the Agency's
disallowances, this does not mean that it was the intention of Congress
as a whole that the disallowance should be forgiven or that the effect
of the language itself was to do this. Neither party has been able to
provide the Board with any contemporaneous legislative history to shed
any light on the intent of Congress.
Because of this lack of legislative history, the Agency contended,
the Congressional motivation for the provision can only be a matter of
speculation and the plain meaning of the language of the provision
should thus control. As to the letter from Senator Stennis, the Agency
cited National School of Aeronautics, Inc. v. United States, 142 F.
Supp. 933, 938 (Ct. Cl. 1956), arguing that such post-enactment
statements of a legislator are not admissible evidence of legislative
intent. /3/ In concluding that the testimony of a former Senator who
had chaired the subcommittee responsible for the bill in question there
should have been neither tendered nor admitted, the Court of Claims
said:
A legislature speaks through statutes, and, in cases where the
statutes require interpretation, through committee reports and debates.
No member of a legislature, outside the legislature, is empowered to
speak with authority for the body. If he may testify voluntarily, other
members of his legislative body with different views or different
recollections may be summoned to give their differing versions. The
debate, which, so far as the lawmaking body is concerned, should have
been ended by the enactment of the statute, would be transferred to the
court, with disturbing possibilities of embarrassment and friction. 142
F. Supp. at 938.
The Agency alleged further that the Stennis letter itself is
ambiguous in its description of the intent of the provision because the
last paragraph of the letter seems to imply that only yearly
restrictions, and not an absolute bar, on sources of funds were
intended.
(8) The State responded by citing Bell v. New Jersey, U.S. 103
S. Ct. 2187 (1983), in which the Supreme Court quoted a statement by
Senator Stennis as an indication of the legislative intent behind the
Elementary and Secondary Education Act of 1965 and its 1978
amendments. According to the State, the Supreme Court chose to quote
Senator Stennis' post-enactment views because of his outstanding
experience and expertise in legislative matters. The State argued th
this expertise, along with Senator Stennis' understanding of the
set-off procedure in Title XX and his familiarity with legislative
matters relating to the forgiveness of audit disallowances, resulted
"in contemporaneous silence of HHS and other members of Congress
relating to the language added at the Senate Appropriations Committee
level relating to 42 U.S.C. Sec. 1397 . . . ." (Appellant's
Supplemental Brief to Proposition I, p. 19)
While we do not dispute Senator Stennis' considerable experience and
expertise in legislative matters, we consider the State's conclusions
highly speculative. Even assuming that Senator Stennis was the author
of the provision, it is a general rule of statutory interpretation that
the post-enactment view of the draftsman of a bill or of any other
legislator is not generally considered proper grounds on which to base
the interpretation of an act.
We have held, properly, that post-enactment statements by individual
Members of Congress as to the meaning of a statute are entitled to
little or no weight.
TVA v. Hill, 437 U.S. 153, 209 (1978) (Powell, J. dissenting).
Only if the draftsman's views were clearly and permanently
communicated to the legislature when the bill was being considered for
enactment may his post-enactment statements be considered. Sutherland,
supra, Sec. 48.12. There is no evidence in the record of any such
contemporaneous communication from Senator Stennis. Furthermore,
Senator Stennis here made his views known in private correspondence, not
in the recorded atmosphere of the Senate floor as in the instance
referred to in Bell. Moreover, the thrust of the discussion in Bell was
that the Court's interpretation "enjoys the support of later
Congresses"; the Court also referenced other legislators' statements
from the Congressional Record. Senator Stennis' statement cited in Bell
("It has to be paid back"), at 2194, was unambiguous. Here Senator
Stennis' letter appears to say two different things: the disallowance
was meant to be forgiven, yet the issue may have to be addressed again
next year. Finally, the Court in Bell cited Senator Stennis' comment
only for its persuasive value, not as the definitive establishment of an
earlier legislative intent. The cases cited by the State in support of
the significance of the (9) Stennis letter, Sioux Tribe of Indians v.
United States, 316 U.S. 317 (1942), and United States v. Solvents
Recovery Service, 496 F. Supp. 1127 (D. Conn. 1980), can be
distinguished from the present case. In those two instances courts
recognized as "entitled to considerable weight" (496 F. Supp. at 1140)
or "virtually conclusive as to the significance of the Act" (316 U.S.
at
317) post-enactment reports by congressional committees, not statements
of an individual legislator made in private correspondence.
Consequently, the statement in the Stennis letter is not sufficient to
establish a legislative intent to forgive the disallowances. /4/
Conclusion
For the reasons stated above, we find that the pertinent language of
Pub. L. 98-8 unambiguously affected only the 1983 appropriations and
that there is no substantial indication that Congress intended the debts
arising from the specified audits to be forgiven. /5/
(10) As this decision was restricted to resolving the State's
Proposition I, the State now has the opportunity to proceed with its
appeal of the disallowance on other grounds. Within 30 days of receipt
of this decision, the State should file a notice of appeal which states
all the grounds which the State intends to pursue. If the State elects
to appeal, the Board will inform the parties of the procedures to be
followed. /1/ It is not within the Board's province to dictate by what
method the Agency recovers disallowed funds. See Maryland Department of
Human Resources, Decision No. 344, September 29, 1982, pp. 5-7. In the
August 12, 1983 telephone conference the Agency stated that it believed
that it had three remedies available to recover the funds: judicial
action, recoupment, or set-off. (Tr., p. 12) /2/ In an August
12, 1983 conference call the State argued that, although the Board would
not have to "squarely rely" on the Stennis letter, the letter's
statement of legislative intent was in accord with the interpretation
the Board should reach using basic rules of statutory construction. The
State cited Kennedy v. Mathews, 413 F. Supp. 1240 (1976) and Stewart v.
Board of Medical Quality Assurance, 143 Cal. Rptr. 641 (1978). As
discussed above, we used the basic rules of statutory construction to
determine that the provision was not ambiguous and did not forgive the
disallowance. Moreover, neither case provides any support for the
State's view that the Board should determine that Congress forgave the
disallowances at issue here. In Kennedy, the court explicitly stated
that a letter to this Department from the Senator who chaired the Senate
subcommittee responsible for the appropriation act in question there was
"not properly considered legislative history." 413 F. Supp. at 1244.
In
Stewart, although the California court stated that it could
appropriately rely on "affidavits of the author of the subject
legislation," it did not do so but rather noted that such an affidavit
was "in accord with the construction derived from the statute by this
court applying basic rules of statutory construction." 143 Cal. Rptr. at
647. In addition, in Stewart, the court's views, both that it could
appropriately consider affidavits by the author of legislation and that
for statements (i.e. affidavits after the fact) of individual
legislators it is a question of weight not admissibility, are not in
accord with the general refusal to consider testimony of individual
legislators as to the legislative intent behind a particular enactment.
Sutherland, supra, Sec. 48.16. /3/ The Agency has not asked that the
Stennis letter be excluded from the record and has not directly
disputed its "admissibility" before this Board. The letter is Exhibit
C
in the State's Supplement to Appeal File. Consequently, we view this as
a question of whether we can determine the legislative intent from the
Stennis letter. /4/ In addition, we are reluctant to use the
Stennis letter to establish doubt as to the proper interpretation of the
statute where there is no other support for the State's interpretation
and the plain meaning of the statutory language is clear. Railroad Com.
of Wisconsin v. Chicago, B. & Q.R.Co., 257 U.S. 563 (1922); 73 Am.
Jur. 2d, Statutes Sec. 195. /5/ As we found that the pertinent
statutory language is unambiguous and does not absolutely bar the Agency
from recovering the disallowed funds, we consider it unnecessary to
examine the Agency's argument, but forth in its Second Supplemental
Brief, that appropriations acts are strictly construed to avoid altering
existing law. The Agency claimed that Pub. L. 98-8, an appropriations
measure, did not repeal "the long-standing, well-established common law
that the Federal Government can recover through set-off or lawsuit,
monies misunderstandingly or erroneously paid out . . ."
NOVEMBER 14, 1984