Interpretations of the Anti-Pinkerton Act

B-139965, JUN. 7, 1978, 57 COMP.GEN. 524

PERSONAL SERVICES - DETECTIVE EMPLOYMENT PROHIBITION - APPLICABILITY FIFTH CIRCUIT COURT OF APPEALS, IN UNITED STATES EX REL. WEINBERGER V. EQUIFAX, CONSTRUED 5 U.S.C. 3108, THE ANTI-PINKERTON ACT, AS APPLYING ONLY TO ORGANIZATIONS WHICH OFFER "QUASI-MILITARY ARMED FORCES FOR HIRE." ALTHOUGH THE COURT DID NOT DEFINE "QUASI-MILITARY ARMED FORCE," WE DO NOT BELIEVE TERM COVERS COMPANIES WHICH PROVIDE GUARD OR PROTECTIVE SERVICES. GENERAL ACCOUNTING OFFICE WILL FOLLOW COURT'S INTERPRETATION IN THE FUTURE. PRIOR DECISIONS INCONSISTENT WITH EQUIFAX INTERPRETATION WILL NO LONGER BE FOLLOWED. SEE 57 COMP.GEN. 480 (B-190784, MAY 25, 1978).

TO THE HEADS OF FEDERAL DEPARTMENTS AND AGENCIES, JUNE 7, 1978:

OVER THE YEARS WE HAVE HAD NUMEROUS OCCASIONS TO INTERPRET AND APPLY THE SO-CALLED ANTI-PINKERTON ACT, 5 U.S.C. 3108 (1976). IT OCCURS MOST FREQUENTLY IN CONNECTION WITH PROTESTS AGAINST THE AWARD OF CONTRACTS FOR GUARD SERVICES, BUT OCCASIONALLY ARISES IN OTHER CONTEXTS AS WELL. THE ACT PROVIDES:

AN INDIVIDUAL EMPLOYED BY THE PINKERTON DETECTIVE AGENCY, OR SIMILAR ORGANIZATION, MAY NOT BE EMPLOYED BY THE GOVERNMENT OF THE UNITED STATES OR THE GOVERNMENT OF THE DISTRICT OF COLUMBIA.

THE ORIGINAL ANTI-PINKERTON ACT WAS ENACTED AS PART OF THE SUNDRY CIVIL APPROPRIATION ACT OF AUGUST 5, 1892, 27 STAT. 368. IT WAS MADE PERMANENT THE FOLLOWING YEAR BY THE ACT OF MARCH 3, 1893, 27 STAT. 591. THE LEGISLATION WAS THE RESULT OF CONGRESSIONAL CONCERN OVER THE USE OF PRIVATE DETECTIVES AS STRIKEBREAKERS AND LABOR SPIES BY PRIVATE INDUSTRY IN THE LABOR DISPUTES OF THE 1880'S AND 1890'S, A PRACTICE WHICH GAVE RISE TO ACTS OF VIOLENCE AND BECAME AN EMOTIONALLY CHARGED ISSUE. THE ACT WAS GIVEN ITS PRESENT WORDING BY THE 1966 RECODIFICATION OF TITLE 5 OF THE UNITED STATES CODE, PUBLIC LAW 89-554, 80 STAT. 378, 416 (5 U.S.C. 1-- 8913 (1970). MANY BILLS HAVE BEEN INTRODUCED OVER THE YEARS TO REPEAL OR MODIFY THE ACT, BUT NONE HAVE BEEN ENACTED. A COMPREHENSIVE DISCUSSION OF THE ORIGINS OF THE ACT IS CONTAINED IN S. REPT. NO. 447 (TO ACCOMPANY S. 1543), 88TH CONG., 1ST SESS. (1963). IT HAS BECOME APPARENT IN RECENT YEARS THAT THE ACT HAS OUTLIVED THE CIRCUMSTANCES WHICH PRODUCED IT, AND WHETHER THE ACT CONTINUES TO SERVE A USEFUL PURPOSE HAS BEEN FREQUENTLY QUESTIONED.

INTERPRETATION OF THE ACT BEGAN SHORTLY AFTER ITS ENACTMENT, AND HAS EVOLVED THROUGH A SERIES OF DECISIONS BY THIS OFFICE AND ITS PREDECESSOR, THE OFFICE OF THE COMPTROLLER OF THE TREASURY. IN BRIEF, THE DECISIONS HAVE HELD THAT THE ACT APPLIES TO CONTRACTS WITH "DETECTIVE AGENCIES" AS FIRMS OR CORPORATIONS AS WELL AS TO CONTRACTS WITH OR APPOINTMENTS OF INDIVIDUAL EMPLOYEES OF SUCH AGENCIES; THAT IT PROHIBITS THE EMPLOYMENT OF A DETECTIVE AGENCY OR ITS EMPLOYEES REGARDLESS OF THE CHARACTER OF THE SERVICES TO BE PERFORMED, BUT DOES NOT PROHIBIT THE EMPLOYMENT OF A "PROTECTIVE AGENCY"; THAT IT APPLIES ONLY TO DIRECT EMPLOYMENT AND DOES NOT EXTEND TO SUBCONTRACTS; THAT IT DOES NOT EXTEND TO A WHOLLY OWNED SUBSIDIARY OF A DETECTIVE AGENCY IF THE SUBSIDIARY ITSELF IS NOT A DETECTIVE AGENCY. IN DISTINGUISHING BETWEEN A DETECTIVE AGENCY AND A PROTECTIVE AGENCY, WE HAVE CONSIDERED THE NATURE OF THE FUNCTIONS THE AGENCY MAY PERFORM UNDER ITS CORPORATE CHARTER AND STATE LICENSING ARRANGEMENTS, AS WELL AS THE FUNCTIONS IT IN FACT PERFORMS. 8 COMP.GEN. 89 (1928); 26 ID. 303 (1946); 38 ID. 881 (1959); 41 ID. 819 (1962); 44 ID. 564 (1965); 55 ID. 1472 (1976); 56 ID. 225 (1977).

THESE ADMINISTRATIVE DECISIONS EVOLVED WITHOUT THE BENEFIT OF JUDICIAL PRECEDENT SINCE, UNTIL RECENTLY, THE ANTI-PINKERTON ACT HAD NEVER BEEN INTERPRETED OR DISCUSSED IN A REPORTED DECISION OF ANY COURT. IN 1977, THE FIFTH CIRCUIT COURT OF APPEALS CONSTRUED THE ACT IN CONNECTION WITH UNITED STATES EX REL. WEINBERGER V. EQUIFAX, 557 F.2D 456 (5TH CIR. 1977), CERT DENIED JANUARY 16, 1978 (46 U.S.L.W. 3445), REHEARING DENIED MARCH 6, 1978 (46 U.S.L.W. 3556). IN THAT CASE, THE PLAINTIFF-RELATOR CONTENDED THAT THE DEFENDANT, A CREDIT REPORTING COMPANY, WAS A DETECTIVE AGENCY FOR PURPOSES OF THE ACT, WAS THEREBY BARRED FROM DOING BUSINESS WITH THE GOVERNMENT, AND THAT ITS BILLING OF THE GOVERNMENT FOR SERVICES RENDERED VIOLATED THE FALSE CLAIMS ACT, 31 U.S.C. 231-32. THE COURT OF APPEALS AFFIRMED THE DISTRICT COURT'S DISMISSAL OF THE COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION. IN SO DOING, THE COURT CONCLUDED AS FOLLOWS:

IN LIGHT OF THE PURPOSE OF THE ACT AND ITS LEGISLATIVE HISTORY, WE CONCLUDE THAT AN ORGANIZATION IS NOT "SIMILAR" TO THE (QUONDAM) PINKERTON DETECTIVE AGENCY UNLESS IT OFFERS QUASI-MILITARY ARMED FORCES FOR HIRE. 557 F.2D AT 463.

WE HAVE CAREFULLY CONSIDERED THE COURT'S DECISION AND FIND OURSELVES IN ESSENTIAL AGREEMENT WITH IT. WE NOTE THAT THE COURT DID NOT DEFINE "QUASI- MILITARY ARMED FORCE," NOR DO WE SEE THE NEED TO ATTEMPT IT HERE. NEVERTHELESS, IT SEEMS CLEAR THAT A COMPANY WHICH PROVIDES GUARD OR PROTECTIVE SERVICES DOES NOT THEREBY BECOME A "QUASI-MILITARY ARMED FORCE," EVEN IF THE INDIVIDUAL GUARDS ARE ARMED, AND EVEN THOUGH THE COMPANY MAY ALSO BE ENGAGED IN THE BUSINESS OF PROVIDING GENERAL INVESTIGATIVE OR "DETECTIVE" SERVICES.

IN THE FUTURE, WE WILL FOLLOW THE DECISION OF THE FIFTH CIRCUIT IN EQUIFAX IN INTERPRETING AND APPLYING THE ANTI-PINKERTON ACT; THAT IS, THE STATUTORY PROHIBITION WILL BE APPLIED ONLY IF AN ORGANIZATION CAN BE SAID TO OFFER QUASI-MILITARY ARMED FORCES FOR HIRE. PRIOR DECISIONS OF THIS OFFICE INCONSISTENT WITH THE EQUIFAX INTERPRETATION WILL NO LONGER BE FOLLOWED.