### Attorney General’s Authority to Reprogram Funds for the

United States Marshals Service to Avoid Deficiencies

T h e A tto rn ey G eneral has authority to reallocate funds am ong program s o f the U nited States M arshals S ervice and to m ake available to the Service funds presently allocated to o th e r program s and activities funded th ro u g h the sam e lum p sum appropriation.

A n agency head's discretion to reprogram approp riated funds w ithin a lum p sum ap p ro ­ priation account in an antideficiency situation w ould be lim ited only if a specific statutory directive required the expenditure o r distribution o f funds in a p articular

m anner.

June 20, 1980

MEMORANDUM OPINION FOR TH E DEPUTY ATTORNEY
GENERAL

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 of anticipated 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

701§ 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 redistribution 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 theappropriation statute prescribes specific priorities with regard to allocating funds among authorized purposes. See e.g., Newport News Shipbuilding and Dry Dock Co., 55 Comp. Gen. 812, 819-21 (1976); LTV Aerospace Corp., 55 Comp. Gen. 307, 318-19 (1975). We have recently
examined this issue in a related context and have reached the sameconclusion.3 By the same token, the absence in the terms of an appropriations act of a prohibition against certain expenditures under that appropriation implies that Congress did not intend to impose restraintsupon an agency’s flexibility in shifting funds among activities or functions within a particular lump sum account.4 Funds for the USMS for

1 Under limited circumstances, e.g., when laws requiring expenditures have been enacted subsequentto the transmittal to Congress o f an agency budget estimate, the Antideficiency Act permits apportionments to be made that anticipate the need for supplemental appropriations. 31 U.S.C. § 665(e). 2 Under 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 amount. Notification must be given w henever funds are shifted from one “program ” to another, as that term is defined in the D epartm ent's budget submission to Congress. * See M emorandum Opinion o f June 5, 1980, to the D eputy A ttorney General, “ Use of Law Enforcem ent Assistance A dm inistration Program G rant Funds for Administrative Purposes” (p. 67^ supra],

4 See Fisher, Reprogramming o f Funds by the Defense Department, 36 The Journal of Politics 77, 78 (1974): The [congressional] com m ittees and the agencies recognize that it is often necessary and desirable to depart from budget justifications. T he D epartm ent of Defense mustestimate months and sometimes years in advance of the actual obligation and expenditure o f funds. As the budget year unfolds, new and better applications o f money come to light. R eprogram m ings are made for a number o f reasons, including unforeseen

Continued

702the 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 of 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 meetthe needs of a class of beneficiaries prescribed by Congress, and if Congress is silent on how to handle this predicament, the law sensibly allows the administeringagency to establish reasonable priorities and classifications.
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 createreasonable classifications and eligibility requirements in order ’to allocate 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

developments, changing requirements, incorrect price estimates, wage-rate adjustments,changes in the international situation, and legislation enacted subsequent to appropriations. It is significant that Congress has explicitly recognized this flexibility in the executive branch. See e.g., H R . Rep. No. 662, 93d Cong., 1st Sess. 16 (1973); H.R. Rep. No. 1607, 87th Cong., 2d Sess. 21 (1962); H.R. Rep. No. 408, 86th Cong., 1st Sess. 20 (1959). 5 For example, in City o f Los Angeles v. Adams, supra, the court held that congressional curtailm ent of funding in an appropriations statute did not justify the Federal Aviation A dm inistration's departure from statutory provisions requiring funds to be apportioned in a specific manner. Compare Scholder v. United Slates, 428 F. 2d 1123 (9th Cir. 1970), cert, denied, 400 U.S. 942 (1970) w here the court rejected a claim that the Bureau o f Indian Affairs’ expenditure of appropriated funds on an Indian irrigation project, part of w hich would 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.

703overall mission when a deficiency is threatened.6 In the absence of

statutory restrictions, the Attorney General has the discretion to determine 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 Title 28, United States Code, describes generally the pow ers and duties o f the United States marshals. Subsection (c) provides that the A ttorney G eneral “shall supervise and direct United States marshals in the perform ance o f public duties and accounting for public moneys.*’ Subsection (a) states that the United States marshal o f each district “may, in the discretion of the [district court] be required to attend any session o f court.” So far as w e can determ ine from the legislative history o f these tw o provisions, subsection (a) was not intended to operate as a limit on thesupervisory authority given the A ttorney G eneral in subsection (c). W e believe that the most reasonable explanation o f the discretion given the courts under subsection (a) is that it was intended to permit them to relieve the marshal o f his responsibility to attend every session, rather than give the courts some independent authority to supervise and direct the marshal w hich w ould overlap that of the A ttorney G eneral in §(c). W e are aw are o f no provision in any other statute w hich limits the A ttorney G eneral's discretion to supervise and direct the m arshals in can n in g out their responsibilities under law. 7 E ven a decision to discontinue entirely one o f several authorized functions funded by a lum p sum account because o f a shortfall in appropriations would, we believe, be w ithin the A ttorney G eneral's
discretion. Cf. C om ptroller G eneral Decision B—115398 at 12, June 23, 1977 (“ N either the C om ptroller G eneral nor the courts are authorized under the [Im poundm ent C ontrol] A ct to constrain the Executive branch in the way the funds are to be used once released”).

704