January 15, 1979

79-2 MEMORANDUM OPINION FOR THE

COMMISSIONER, IMMIGRATION AND

NATURALIZATION SERVICE

Immigration and Naturalization Service—Special

Litigation Unit—Alleged Nazi War Criminals—

Funds Available for the Operation of the Unit—

Appropriation Act—Authorization Act

This responds to your request for the opinion of the Office of Legal 

Counsel concerning the availability of funds for the Immigration and Naturalization Service’s (INS) Special Litigation Unit. This unit handles 

cases involving alleged Nazi war criminals. The Department of Justice 

Authorization Act, Pub. L. No. 95-624 § 2(9), 92 Stat. 3459, 3460, 

authorizes funding for INS of “ $320,722,000, of which $2,052,000 shall 

be made available for the investigation and prosecution of denaturalization and deportation cases involving alleged Nazi war criminals.” The 

earlier Department of Justice Appropriation Act of 1979, Pub. L. No. 

95-431, 92 Stat. 1021, appropriates $299,350,000 for “ salaries and expenses” of INS and does not specify any portion thereof for the Special 

Litigation Unit. As you point out, Congress passed the Authorization Act 

after the Appropriation Act with knowledge of the $21 million difference.

Your request raises three issues: first, whether the absence of a specific 

item for the Special Litigation Unit in the Appropriation Act and INS 

budget estimate restricts the availability of funds for the Unit; second, 

whether the Authorization Act permits or requires INS to devote 

$2,052,000 of available funds for the Unit; third, if INS is required or permitted to commit appropriated funds to the Unit, the roles, if any, of the 

Office of Management and Budget and the Department’s Office of 

Management and Finance in the process. We conclude that INS is required 

to make $2,052,000 of the total funds already appropriated for INS available to the Unit. We have requested the views of the Assistant Attorney 

General for Administration before responding to the third question, since 

it involves a technical problem within the competence of his office.

The Appropriation Act authorizes a general, lump sum appropriation 

for INS with no restrictions or subdivisions. A long-standing rule of the 

Comptroller General is that an agency may use appropriated funds for the 

accomplishment of its mission unless another specific fund is created or 

the particular expenditure is prohibited. See, e.g., 42 Comp. Gen. 708, 712 

(1963); 29 Comp. Gen. 419, 421 (1950). The enforcement of the denaturalization and deportation laws against alleged Nazi war criminals is clearly

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within the scope of INS’s mission, and the Appropriation Act places no 

restriction on using funds for this purpose.' In the absence of other legislation, INS may therefore use appropriated funds to support its Special 

Litigation Unit.

The second question concerns the effect the subsequently passed 

Authorization Act has on INS’s funding of the Unit. Section 2(9) of the 

Act expressly earmarks $2,052,000 of the authorized $320,722,000 for the 

Special Litigation Unit. The legislative history of the Act shows that Congress intended to require INS to allocate that amount out of whatever 

funds were appropriated. Before the House Judiciary Committee, you 

testified that INS intended to reprogram $1.6 million from its other activities to support a Special Litigation Unit of a given size.2 The committee’s report expressed dissatisfaction with the reprogramming method 

because it would necessitate the Unit “ to compete for already scarce 

resources with other programs within INS.” 3 Therefore, the report continued, the Authorization Act would earmark $2,052,000 for the Special 

Litigation Unit “ to assure financing and maximum operational efforts” 

with a larger staff.4 This report expressed a clear legislative intent to reserve $2,052,000 for the functions of the Special Litigation Unit out of 

whatever resources were available to INS.

Although the Authorization Act was passed after the Appropriation Act 

and although it authorized $21 million more for INS than originally appropriated, this alone does not indicate a contrary intent. As your 

memorandum points out, the conference report on the Authorization Act 

noted the difference between the amount authorized and that already appropriated, and it invited the Administration to request a supplemental 

appropriation to cover the difference.5 The report attributed the increase 

to the need “ to improve INS efforts to control the illegal alien problem, as 

well as to reduce the adjudication and naturalization backlogs in the various INS offices around the country.” 6 The three areas in which the House 

had authorized additional positions than INS had requested or the Senate

1 We note that the Comptroller General has long held that “ subdivisions of an appropriation contained in an agency’s budget request or in committee reports are not legally binding 

on the department or agency concerned unless they are specified in the appropriation act 

itself.” 55 Comp. Gen. 812, 819-20 (1976); see also 55 Comp. Gen. 307, 319-21 (1975); 17 

Comp. Gen. 147, 150 (1937). Therefore, the lack of a specific item for the Special Litigation 

Unit in INS’s budget request or the Appropriations Committee reports does not prevent it 

from expending funds for the Unit.

2 INS intended to staff the unit with eight attorneys, three investigators, three paralegals, 

and three secretaries. Hearings Before the Committee on the Judiciary of the House of 

Representatives on Department of Justice Appropriation Authorizations, 95th Cong., 2d 

sess., at 71-72, 372.

’ H. Rept. 95-1148, 95th Cong., 2d sess., at 13.

4 H. Rept. 95-1148, 95th Cong., 2d sess., at 13. The report states that the increase will permit the Unit to have 10 attorneys, 8 investigators, 4 paralegals, and the necessary number of 

clericals. Id.

' H. Rept. 95-1777, 95th Cong., 2d sess., at 12.

‘ H. Rept. 95-1777, 95th Cong., 2d sess., at 12.

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had authorized are antismuggling investigators, adjudication personnel, 

and naturalization processing personnel.7 Unlike the Special Litigation 

Unit, funds for these positions were not earmarked specifically in the 

Authorization Act, and the House report points to the provision of additional resources in these areas rather than allocation of existing funds. 

Therefore the “ additional positions” for which the conference report 

stated a supplemental appropriation would be necessary are not related to 

the Special Litigation Unit.

In summary, funds appropriated to INS in the Department of Justice 

Appropriation Act are available for the Special Litigation Unit. The intent 

of Congress in subsequently enacting § 2(9) of the Department of Justice 

Appropriation Authorization Act was to commit the use of $2,052,000 of 

the appropriated funds to that purpose.

L e o n U l m a n 

Deputy Assistant Attorney General

Office o f Legal Counsel

’ See H. Rept. 95-1148, 95th Cong., 2d sess., at 7-12.

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