Attorney General's Authority to Reprogram Funds for the United States Marshals Service to Avoid Deficiencies ( 1980 )

Attorney General’s Authority to Reprogram Funds for the
United States Marshals Service to Avoid Deficiencies
T h e A tto rn e y G e n e ra l has a u th o rity to re a llo c a te funds am o n g p ro g ra m s o f th e U n ited
S tates M arsh als S e rv ic e an d to m ake av ailab le to th e S e rv ic e funds p resen tly allo cated
to o th e r p ro g ram s an d a ctiv ities fun d ed th ro u g h th e sam e lum p sum ap p ro p ria tio n .
A n ag en cy h ead 's d isc retio n to re p ro g ra m a p p ro p ria te d funds w ithin a lu m p sum a p p ro ­
p riatio n account in an an tid eficien cy situ atio n w o u ld be lim ited o n ly if a specific
sta tu to ry d ire c tiv e req u ired th e e x p e n d itu re o r d istrib u tio n o f funds in a p a rtic u la r
m anner.
June 20, 1980
M EMORANDUM OPINION FOR T H E DEPUTY ATTORNEY
G EN ER A L
This memorandum responds to your request for our analysis of the
Attorney General’s authority to allocate funds for the United States
Marshals Service (USMS) in order to avoid a deficiency in USMS
appropriations prior to the end of fiscal year 1980. We conclude that, in
order to achieve compliance with the Antideficiency Act (the Act), 31
U.S.C. §665, the Attorney General has authority to reprogram funds
among programs within the USMS, and to make available to the USMS
funds presently allocated to other programs and activities funded
through the same lump sum appropriation.
Like all federal agencies, the Department of Justice, including the
USMS, is subject to the requirements of the Antideficiency Act.
Among other things, the Act requires that funds appropriated to an
agency for a definite period of time
be so apportioned as to prevent obligation or expenditure
[of the appropriation] in a manner which would indicate a
necessity for deficiency or supplemental appropriations
for such period . . .
§ 665(c)(1). Such an apportionment, in effect, is a scheduling o f antici­
pated obligations or expenditures to assure that an agency will not run
out of funds prior to the end of the period for which funds have been
appropriated. The Office of Management and Budget (OMB), under
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§ 665(d), apportions Department of Justice funds on a quarterly basis.1
It would be unlawful for any officer or employee of the Department to
authorize or create obligations or make expenditures in excess of any
OMB apportionment. § 665(h).
In order to help ensure that the USMS will not encounter deficiency
spending in the fourth quarter of this fiscal year, and thus to achieve
compliance with the Antideficiency Act, the USMS, on May 30, 1980,
submitted a plan to you for reduced USMS spending and a redistribu­
tion of anticipated spending among the USMS’s various functions. This
plan raises the question whether the Attorney General may reprogram
funds among various USMS functions in order to fulfill the purposes of
the Antideficiency Act.
The existence of such general reprogramming authority is clear.
Congress implicitly recognized such authority in § 8 of the Department
of Justice Appropriation Authorization Act for Fiscal Year 1980,
Pub. L. No. 96-132, 93 Stat. 1040, 1046 (1979), which requires the
Attorney General to report to Congress concerning the circumstances
of certain reprogrammings.2
It is also the rule that such reprogramming authority extends to the
expenditure of funds under lump sum appropriations. The Comptroller
General has taken the position that a lump sum appropriation may be
used for any authorized purpose, even if the legislative history of the
appropriation statute prescribes specific priorities with regard to allo­
cating funds among authorized purposes. See e.g., Newport News Ship­
building and Dry Dock Co., 55 Comp. Gen. 812, 819-21 (1976); L T V
Aerospace Corp., 55 Comp. Gen. 307, 318-19 (1975). We have recently
examined this issue in a related context and have reached the same
conclusion.3 By the same token, the absence in the terms of an appro­
priations act of a prohibition against certain expenditures under that
appropriation implies that Congress did not intend to impose restraints
upon an agency’s flexibility in shifting funds among activities or func­
tions within a particular lump sum account.4 Funds for the USMS for
1 U nder limited circum stances, e.g., w hen law s requiring expenditures have been enacted subsequent
to the transm ittal to C ongress o f an agency budget estimate, the A ntideficiency A ct permits apportion­
m ents to be m ade that anticipate the need for supplem ental appropriations. 31 U.S.C. § 665(e).
2 U nder this section each organizational com ponent o f the D epartm ent is required to give 15 days’
notice to specified congressional com m ittees o f any decision to “ reprogram ” funds in excess o f a
certain am ount. N otification must be given w h en ev er funds are shifted from one “ program ” to
another, as that term is defined in the D ep artm en t's budget submission to Congress.
* See M em orandum O pinion o f June 5, 1980, to the D eputy A ttorney G eneral, “ Use o f Law
E nforcem ent A ssistance A dm inistration P rogram G ran t Funds for A dm inistrative Purposes” (p. 67^
supra],
4 See Fisher, Reprogramming o f Funds by the Defense Department, 36 T he Journal o f Politics 77, 78
(1974):
T h e [congressional] com m ittees and the agencies recognize that it is often necessary
and desirable to depart from budget justifications. T h e D epartm ent o f D efense must
estim ate m onths and som etim es years in advance o f the actual obligation and expendi­
ture o f funds. A s the budget year unfolds, new and better applications o f m oney com e
to light. R eprogram m ings are m ade for a num ber o f reasons, including unforeseen
C ontinued
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the current fiscal year were appropriated as part of a lump sum account
covering expenses of United States Attorneys, the USMS, and the
United States Trustees. See Pub. L. No. 96-68, 93 Stat. 416, 420 (1979).
Nothing in the terms of the Department’s 1980 Appropriations Act
suggests that funds must be allocated among the three programs funded
by that account in any particular manner.
We believe that, as a general matter, the agency head’s discretion to
reprogram appropriated funds within or among programs in a lump
sum account in an antideficiency situation would be limited only if a
specific statutory directive required the expenditure or distribution of
funds in a particular manner. In City o f Los Angeles v. Adams, 556 F.2d
40, 49-50 (D.C. Cir. 1977), the D.C. Circuit affirmed this proposition:
If Congress does not appropriate enough money to meet
the needs of a class of beneficiaries prescribed by Con­
gress, and if Congress is silent on how to handle this
predicament, the law sensibly allows the administering
agency to establish reasonable priorities and classifica­
tions.
In an analogous situation, the Supreme Court, in Morton v. Ruiz, 415
U.S. 199, 230-31 (1974), recognized an agency head’s “power to create
reasonable classifications and eligibility requirements in order ’to allo­
cate the limited funds available to him.” Limitations on this discretion
might take the form of a line-item appropriation specifically required to
be expended in full during the fiscal year for one particular activity and
no other. Or they might take the form of a provision in an authorizing
statute specifying a particular manner of apportionment, or indicating
congressional intent to continue one particular activity at the expense of
others in an antideficiency situation.5
We have examined the statutes that prescribe the authority and duties
of the USMS and are satisfied that they place no limitation on the
Attorney General’s discretion to reprogram funds for USMS activities
in such a way as will ensure both compliance with the Antideficiency
Act and the most efficient and effective performance of the USMS’s
developm ents, changing requirem ents, incorrect price estimates, w age-rate adjustm ents,
changes in the international situation, and legislation enacted subsequent to appropria­
tions.
It is significant that C ongress has explicitly recognized this flexibility in the executive branch. See e.g.,
H R . Rep. No. 662, 93d C ong., 1st Sess. 16 (1973); H .R. Rep. No. 1607, 87th C ong., 2d Sess. 21 (1962);
H.R. Rep. No. 408, 86th C ong., 1st Sess. 20 (1959).
5 F o r example, in City o f Los Angeles v. Adams, supra, the court held that congressional curtailm ent
o f funding in an appropriations statute did not justify the Federal A viation A dm inistration's departure
from statutory provisions requiring funds to be apportioned in a specific m anner. Compare Scholder v.
United Slates, 428 F. 2d 1123 (9th Cir. 1970), cert, denied, 400 U.S. 942 (1970) w here the c ourt rejected
a claim that the Bureau o f Indian A ffairs’ expenditure o f appropriated funds on an Indian irrigation
project, part o f w hich w ould benefit solely non-Indians, was unauthorized. In doing so, it stated that
"if Congress had w anted to impose on the Bureau the restrictions urged by appellants, it could have
done so easily.” 428 F. 2d at 1129.
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overall mission when a deficiency is threatened.6 In the absence of
statutory restrictions, the Attorney General has the discretion to deter­
mine how projected deficiencies in total appropriations available for the
fiscal year shall be distributed among the various functions the USMS is
authorized to perform.7
J o h n M. H a r m o n
Assistant Attorney General
Office o f Legal Counsel
6 Section S69 o f T itle 28, U nited States C ode, describes generally the pow ers and duties o f the
U nited States marshals. Subsection (c) provides that the A tto rn e y G eneral “shall supervise and direct
U nited States m arshals in th e perform ance o f public duties and accounting for public moneys.*’
Subsection (a) states that th e U nited States m arshal o f each district “ m ay, in the discretion o f the
[district co u rt] be required to atten d any session o f c o u rt.” So far as w e can determ ine from the
legislative history o f these tw o provisions, subsection (a) w as not intended to operate as a limit on the
supervisory a u th o rity given the A tto rn ey G eneral in subsection (c). W e believe that the m ost reason­
able explanation o f the discretion given the c o u rts under subsection (a) is that it was intended to
perm it them to relieve the m arshal o f his responsibility to attend e v ery session, rather than give the
c o u rts som e independent au th o rity to supervise and direct the m arshal w hich w ould o verlap that of
the A tto rn ey G eneral in §(c).
W e are aw are o f no provision in any o th e r statute w hich limits the A ttorney G eneral's discretion to
supervise and direct the m arshals in c a n n in g o u t their responsibilities under law.
7 E v en a decision to discontinue en tirely o n e o f several authorized functions funded by a lum p sum
acco u n t because o f a shortfall in appropriations w ould, w e believe, be w ithin the A ttorney G eneral's
discretion. Cf. C o m p tro ller G eneral D ecision B—115398 at 12, June 23, 1977 (“ N either the C om ptroller
G en eral n o r the co u rts are authorized under the [Im poundm ent C ontrol] A ct to constrain the
E xecutive branch in the w ay the funds are to be used o nce released” ).
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