Transactions Between the Federal Financing Bank and the Department of the Treasury

• Decision Date: 13 February 1996
• Docket Number: 96-11
• Citation: 20 Op. O.L.C. 64
• Parties: Transactions Between the Federal Financing Bank and the Department of the Treasury
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

20 Op. O.L.C. 64

Transactions Between the Federal Financing Bank and the Department of the Treasury

No. 96-11

United States Department of Justice

February 13, 1996

RICHARD L. SHIFFRIN Deputy Assistant Attorney General Office of Legal Counsel.

Transactions Between the Federal Financing Bank and the Department of the Treasury

This opinion reviews a possible Federal Financing Bank sale of loan assets to the Civil Service Retirement and Disability Fund and other possible related transactions between the FFB and the Department of the Treasury, and concludes that the contemplated transactions would be permissible under existing law.

MEMORANDUM OPINION FOR THE GENERAL COUNSEL DEPARTMENT OF THE TREASURY

This memorandum responds to your request for advice concerning the legal issues raised by a possible Federal Financing Bank ("FFB" or "Bank") sale of loan assets to the Civil Service Retirement and Disability Fund ("CSRDF" or "Fund") and other related transactions between the FFB and the Department of the Treasury ("Treasury"). The FFB loan assets would be sold to the CSRDF in exchange for a portion of the United States debt obligations ("public debt obligations") Treasury has previously issued to the CSRDF pursuant to 5 U.S.C. § 8348 and chapter 31 of title 31, United States Code.

You have requested specific advice as to:

(1) the FFB's authority to sell to the Fund loan assets evidencing indebtedness incurred by the United States Postal Service ("USPS") and Tennessee Valley Authority ("TVA");

(2) the Treasury Secretary's ("Secretary") authority to invest Fund monies in obligations of the USPS and obligations of the TVA;

(3) the FFB's authority to accept, in exchange for the USPS and TVA indebtedness, payment in the form of public debt obligations;

(4) whether Treasury may legally enter into a transaction with the FFB whereby Treasury would secure the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury;

(5) whether the FFB may sell the public debt obligations to Treasury and whether the FFB may accept as payment for the public debt obligations the cancellation by Treasury of FFB obligations of equivalent value held by Treasury [ 65] (6) the implications of the proposed transfer of public debt obligations to Treasury with respect to 31 U.S.C. §3101 the debt limit; and

(7) whether the USPS and TVA obligations the FFB proposes to sell to the CSRDF are subject to the debt limit.

For the reasons indicated below, we conclude that the transactions you contemplate would be permissible under existing law. We conclude that the Federal Financing Bank Act of 1973, Pub. L No. 93-224, 87 Stat. 937 (codified as amended at 12 U.S.C §§2281-2296) ("FFB Act"), empowers the FFB to sell obligations that were issued by "federal agencies, " including obligations of the USPS and TVA. We also conclude that the Secretary is authorized to invest CSRDF monies in the USPS and TVA obligations the FFB intends to sell. In addition, we conclude that the FFB has the authority to receive payment for the USPS and TVA obligations in public debt obligations. Moreover, we conclude that Treasury has the authority to enter into a transaction with the FFB whereby Treasury would acquire the public debt obligations from the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. We also conclude that the FFB has the authority to accept the cancellation of the FFB obligations as payment for the public debt obligations. In addition, we conclude that the transaction between Treasury and the FFB would result in Treasury's acquiring the previously issued public debt obligations, thus freeing up debt issuance capacity under the debt limit and permitting the Secretary to issue additional public debt obligations to the public in a commensurate amount. Finally, we conclude that the USPS and TVA obligations the FFB proposes to sell to the CSRDF in exchange for the previously issued public debt obligations are not subject to the debt limit.

I. Background

Congress established the FFB in 1973 to "assure coordination of [federal and federally assisted borrowing] programs with the overall economic and fiscal policies of the Government, to reduce the costs of Federal and federally assisted borrowings from the public, and to assure that such borrowings are financed in a manner least disruptive of private financial markets and institutions." 12 U.S.C. §2281. In order to further these purposes, the FFB is authorized to purchase the obligations of federal agencies. Id. § 2285(a).^[1] As part of its regular financing activities, the FFB acquired as loan assets certain obligations of the USPS and TVA. Under the proposed transactions, the FFB would sell those loan assets to [ 66] the CSRDF in exchange for public debt obligations of equivalent value that are currently being held by that government-managed trust fund. Treasury would then enter into a transaction with the FFB whereby Treasury would purchase the public debt obligations received by the FFB in exchange for the cancellation by Treasury of FFB obligations of equivalent value held by Treasury. This series of transactions would result in Treasury's acquiring the public debt obligations that had been previously held by the CSRDF and the CSRDF's holding the USPS and TVA obligations that had been previously held by the FFB.

Your office believes that such a series of transactions would create debt issuance capacity under the debt limit in an amount equal to the public debt obligations that would be transferred to Treasury from the CSRDF. In addition, your office believes it has sufficient legal authority to undertake all the transactions described above. Moreover, your office holds the view that the USPS and TVA obligations that would be used to replace the public debt obligations previously held by the CSRDF would not count against the debt limit.

II. Legal Discussion

A. The FFB has the authority to sell the USPS and TVA obligations it holds as loan assets.

We believe the FFB has the authority to sell the USPS and TVA obligations it currently holds as loan assets. Section 6 of the FFB Act authorizes the FFB to "make commitments to purchase and sell, and to purchase and sell on terms and conditions determined by the Bank, any obligation which is issued, sold, or guaranteed by a [f]ederal agency." 12 U.S.C. § 2285(a); see also Consolidated Aluminum Corp. v. TVA, 462 F.Supp. 464, 469 (M.D. Tenn. 1978) ("The Federal Financing Bank may resell in the public markets any bonds of federal agencies which it holds.").

The USPS and TVA obligations the FFB contemplates selling to the CSRDF are "obligations" as that term is defined in the FFB Act. The FFB Act defines "obligation" as "any note, bond, debenture, or other evidence of indebtedness." 12 U.S.C. §2282(2). According to your office, the USPS obligations the FFB intends to sell are indebtedness in the form of notes issued by the USPS under 39 U.S.C. §2005. Your office has also informed us that the TVA obligations the FFB intends to sell are indebtedness in the form of bonds issued by the TVA under 16 U.S.C. §831n-4. Accordingly, the USPS and TVA obligations the FFB contemplates selling qualify as "obligations" within the terms of the FFB Act.

Both the USPS and the TVA satisfy the FFB Act's definition of "[f]ederal agency." The FFB Act defines the term "federal agency" as "an executive department, an independent [f]ederal establishment, or a corporation or other entity established by the Congress which is owned in whole or in part by the United [ 67] States." 12 U.S.C. §2282(1). Section 201 of title 39, United States Code, the statutory provision establishing the USPS, provides that the USPS is "an independent establishment of the executive branch of the Government of the United States." The TVA, for its part, was created by Congress as a "body corporate, " 16 U.S.C. §831, and its board of directors is "appointed by the President, by and with the advice and consent of the Senate." Id. §83la. The TVA has also been described by federal courts as "an agency of the Federal Government, " Ashwander v. TVA, 297 U.S. 288, 315 (1936), "an instrumentality of the United States, " Tennessee Elec. Power Co. v. TVA, 306 U.S. 118, 134 (1939) and "a wholly owned corporate agency and instrumentality of the United States." United States ex rel. TVA v. An Easement And Right-Of-Way, 246 F.Supp. 263, 269 (W.D. Ky. 1965), aff'd, 375 F.2d 120 (6th Cir. 1967).^[2] In sum, since the loan assets the FFB contemplates selling are "obligations" that were "issued" by entities that qualify as "federal agencies" under the FFB Act, the FFB has the authority to sell them.

B. The loan assets the FFB contemplates selling to the CSRDF are suitable investments for that government-managed trust fund.

The legality of the proposed transactions will also depend on whether the USPS and TVA obligations the FFB intends to sell are suitable investments for the CSRDF. We conclude that they are. The statutes authorizing the USPS and TVA obligations in question both provide that obligations issued thereunder "shall":

be lawful investments and may be accepted as security for all fiduciary, trust, and public funds, the investment or deposit of which shall be under the authority or control of any officer or agency of the [United States].

39 U.S.C. §2005(d)(3) (emphasis added); 16 U.S.C §831n-4(d) (emphasis added). Congress incorporated this boilerplate trust fund investment eligibility language^[3] in the statute authorizing the USPS to issue the obligations the FFB intends to sell in the Postal Reorganization Act, Pub. L. No. 91-375, sec. 2, § 2005(d)(3), 84 Stat. 719, 740 (1970), several...