b'Authority of HUD\xe2\x80\x99s Chief Financial Officer to Submit\nFinal Reports on Violations of Appropriations Laws\nThe Consolidated Appropriations Resolution for Fiscal Year 2003 requires the Chief Financial Officer\nof the Department of Housing and Urban Development to report to the President and Congress on\nviolations by the agency of the Anti-Deficiency Act and other appropriations laws concerning\nexpenditures, but the CFO must first submit his reports to the Secretary of HUD for review and\napproval.\n\nAugust 31, 2004\n\nMEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL\nDEPARTMENT OF HOUSING AND URBAN DEVELOPMENT\nYou have asked for our opinion concerning the proper interpretation of an\nappropriations statute that directs the Chief Financial Officer (\xe2\x80\x9cCFO\xe2\x80\x9d) of the\nDepartment of Housing and Urban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) to submit final reports\nto the Secretary of HUD, the President, and Congress concerning violations of the\nAnti-Deficiency Act (\xe2\x80\x9cADA\xe2\x80\x9d) and other statutes relating to HUD appropriations.\nIn particular, you have inquired whether this legislation overrides language in the\nADA that directs \xe2\x80\x9cthe head of the agency\xe2\x80\x9d to report ADA violations to the\nPresident and Congress and, if so, whether the CFO may submit reports on ADA\nviolations without first seeking the review and approval of HUD\xe2\x80\x99s Secretary. We\nconclude that the appropriations statute at issue does require the CFO to report to\nthe President and Congress on violations of the ADA and other applicable\nappropriations statutes, but that he must first submit his reports to the Secretary for\nreview and approval.\nThe ADA provides in relevant part that executive branch officials may not\nexpend funds or enter into contracts that impose financial obligations on the\nUnited States without express congressional authorization in appropriations\nlegislation. 31 U.S.C. \xc2\xa7 1341(a)(1) (2000); see also id. \xc2\xa7\xc2\xa7 1341\xe2\x80\x931342, 1349\xe2\x80\x931351,\n1511\xe2\x80\x931519. Violations of the ADA\xe2\x80\x94which enforces the Constitution\xe2\x80\x99s directive\nthat \xe2\x80\x9c[n]o Money shall be drawn from the Treasury, but in Consequence of\nAppropriations made by Law,\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 9, cl. 7\xe2\x80\x94require \xe2\x80\x9cappropriate\nadministrative discipline,\xe2\x80\x9d including possible reprimand, suspension without pay,\nor removal from office, and, if the violation is knowing and willful, may result in a\nfine or imprisonment. 31 U.S.C. \xc2\xa7\xc2\xa7 1349(a), 1350.\nTo ensure that the President and Congress are made aware of violations of the\nAct, Congress directed that \xe2\x80\x9c[i]f an officer or employee of an executive agency . . .\nviolates section 1341(a) or 1342 of this title, the head of the agency . . . shall report\nimmediately to the President and Congress all relevant facts and a statement of\nactions taken.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1351. Under the ADA, therefore, the heads of the\nexecutive agencies bear responsibility for reporting violations of the ADA to the\nPresident and Congress.\n\n248\n\n\x0cAuthority of HUD\xe2\x80\x99s CFO to Submit Final Reports on Violations of Appropriations Laws\n\nIn 2003, Congress established specific additional parameters for HUD\xe2\x80\x99s reporting of violations of the ADA and other statutes authorizing obligation of HUD\nfunds. In the Consolidated Appropriations Resolution for Fiscal Year 2003 (\xe2\x80\x9cFY\n2003 Appropriations Act\xe2\x80\x9d or \xe2\x80\x9c2003 Act\xe2\x80\x9d), Congress subjected the appropriation of\nfunds for administrative and other expenses of HUD\xe2\x80\x99s CFO to the following\nconditions:\nProvided further, That, notwithstanding any other provision of law,\nhereafter, the Chief Financial Officer of the Department of Housing\nand Urban Development shall, in consultation with the Budget Officer, have sole authority to investigate potential or actual violations\nunder the Anti-Deficiency Act (31 U.S.C. 1341 et seq.) and all other\nstatutes and regulations related to the obligation and expenditure of\nfunds made available in this, or any other Act; shall determine\nwhether violations exist; and shall submit final reports on violations\nto the Secretary, the President, the Office of Management and Budget and the Congress in accordance with applicable statutes and Office of Management and Budget circulars.\nPub. L. No. 108-7, 117 Stat. 11, 499 (2003) (emphasis added).\nThe question at issue focuses, first, on the relation between the reporting requirements of the FY 2003 Appropriations Act and those of the ADA\xe2\x80\x94in\nparticular, whether the 2003 Act vests HUD\xe2\x80\x99s CFO with authority, independent of\nthe Secretary, to report ADA violations to the President and Congress. More\ngenerally, in addressing your question, we must consider the relation between the\nreporting authority of the CFO under the 2003 Act and the supervisory authority of\nthe Secretary of HUD, and ultimately of the President as the head of the Executive\nBranch. The General Counsel of HUD has provided his view that the FY 2003\nAppropriations Act does not nullify the ADA\xe2\x80\x99s requirement that the \xe2\x80\x9chead of the\nagency\xe2\x80\x9d inform the President and Congress of any ADA violations, or that, at a\nminimum, the CFO\xe2\x80\x99s reports must first be reviewed and approved by the Secretary. See Letter for Jack L. Goldsmith III, Assistant Attorney General, Office of\nLegal Counsel, from Richard A. Hauser, General Counsel, U.S. Department of\nHousing and Urban Development (May 10, 2004). For the reasons set forth below,\nwe conclude that the FY 2003 Appropriations Act does require the CFO to report\nto the President and Congress on violations of the ADA and other applicable\nappropriations statutes, but that the CFO\xe2\x80\x99s reports are subject to prior review and\napproval by the Secretary or the President.1\n1\nWe have not analyzed the question whether the reporting requirements set forth in the FY 2003\nAppropriations Act are permanent requirements, but we are informed that HUD treats them as such. See\nE-mail for Steffen N. Johnson, Attorney-Adviser, Office of Legal Counsel, from Camille E. Acevedo,\nAssociate General Counsel for Legislation and Regulations, Department of Housing and Urban\nDevelopment (July 22, 2004). See also FY 2003 Appropriations Act, 117 Stat. at 499 (conditioning\n\n249\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nIn the FY 2003 Appropriations Act, Congress directed the CFO to submit his\nreports \xe2\x80\x9cin accordance with applicable statutes and Office of Management and\nBudget circulars.\xe2\x80\x9d 117 Stat. at 499 (emphasis added). Among the \xe2\x80\x9capplicable\nstatutes\xe2\x80\x9d must be the ADA, 31 U.S.C. \xc2\xa7 1351, which, as discussed above, imposes\non \xe2\x80\x9cthe head of the agency,\xe2\x80\x9d rather than the CFO, the responsibility of reporting\nADA violations to the President and Congress. Chief among the applicable OMB\ncirculars is Circular A-11, which implements the requirements of the ADA for the\nExecutive Branch and specifies that reports of ADA violations are to take the form\nof letters that shall be transmitted from the \xe2\x80\x9cagency head\xe2\x80\x9d to the President through\nthe Director of OMB. OMB Circular No. A-11, \xc2\xa7 145.7 (2004). OMB Circular A11 also directs the agency to \xe2\x80\x9creport identical letters to the Speaker of the House of\nRepresentatives and the President of the Senate,\xe2\x80\x9d and it specifies: \xe2\x80\x9cIf the letters to\nCongress are identical to the letter to the President, include a statement to this\neffect in the letter to the President. If the letters to Congress are not identical to the\nletter to the President, you will submit a copy of the letter to Congress with your\nletter to the President.\xe2\x80\x9d Id. Thus, although the phrase \xe2\x80\x9cnotwithstanding any other\nprovision of law\xe2\x80\x9d in the 2003 Act would generally override other laws to the\nextent they interfere with the CFO\xe2\x80\x99s exercise of his duties under the Act, that\nphrase cannot be read to override the terms of the ADA and OMB Circular A-11\nentirely, because the requirement in the same provision that the CFO submit his\nfinal reports \xe2\x80\x9cin accordance with\xe2\x80\x9d applicable statutes and OMB circulars expressly\npreserves the procedures prescribed by the ADA and Circular A-11. See Williams\nv. Taylor, 529 U.S. 362, 364 (2000) (noting \xe2\x80\x9cthe cardinal principle of statutory\nconstruction that courts must give effect, if possible, to every clause and word of a\nstatute\xe2\x80\x9d).\nOn the other hand, the ADA and OMB Circular A-11 have general application\nto the deficiency reports of all executive agencies, whereas the 2003 Act is specific\nto HUD. It is a usual rule of construction that the specific statutory provision will\ntrump the general where they conflict or address the same concern. See Edmond v.\nUnited States, 520 U.S. 651, 657 (1997) (\xe2\x80\x9cOrdinarily, where a specific provision\nconflicts with a general one, the specific governs.\xe2\x80\x9d); Morales v. Trans World\nAirlines, Inc., 504 U.S. 374, 384 (1992) (\xe2\x80\x9c[I]t is a commonplace of statutory\nconstruction that the specific governs the general.\xe2\x80\x9d). It is unlikely, in our view, that\nCongress intended to create two redundant reporting obligations for ADA\nviolations at HUD, one requiring a report to be submitted by the Secretary under\nthe general terms of the ADA and one requiring a separate and independent report\n\ncertain HUD appropriations on the requirement that the CFO \xe2\x80\x9chereafter\xe2\x80\x9d submit final reports on\nviolations of the ADA and other appropriations statutes to the Secretary and the President as well as to\nCongress); H.R. Rep. No. 108-235, at 77\xe2\x80\x9378 (2003) (describing the changes made in the FY 2003\nAppropriations Act as \xe2\x80\x9cpermanent changes\xe2\x80\x9d and stating that they \xe2\x80\x9cpermanently clarif[ied] responsibilities within the Department for investigating and reporting on potential and actual violations of all\nappropriations laws\xe2\x80\x9d).\n\n250\n\n\x0cAuthority of HUD\xe2\x80\x99s CFO to Submit Final Reports on Violations of Appropriations Laws\n\nto be submitted by the CFO under the specific terms of the 2003 Act. The\nlanguage in the 2003 Act requiring the CFO to \xe2\x80\x9csubmit final reports on violations\xe2\x80\x9d\nreinforces the view that only one report on a given violation is contemplated by the\nstatute. Accordingly, we conclude that the HUD-specific terms of the 2003 Act\nwere intended to assign to the CFO the duty of submitting reports to the President\nand Congress with respect to violations at HUD of the ADA and other applicable\nappropriations laws.\nBut it does not necessarily follow that, simply because the 2003 Act charges the\nHUD CFO, rather than the Secretary of HUD, with the duty to submit final reports\non violations, the HUD CFO has independent and unreviewable authority to\nprepare and submit final reports to the President and Congress without supervision\nby the Secretary. The language of the 2003 Act does not require such a reading,\nbut rather is reasonably susceptible to the interpretation that the Secretary retains\nhis ordinary supervisory authority over the CFO, as reflected in the statute spelling\nout the CFO\xe2\x80\x99s authority and functions. See 31 U.S.C. \xc2\xa7 902(a)(1) (2000) (the CFO\nshall \xe2\x80\x9creport directly to the head of the agency regarding financial management\nmatters\xe2\x80\x9d). The need to avoid raising a significant constitutional problem requires\nthat we adopt this interpretation\xe2\x80\x94i.e., that the CFO\xe2\x80\x99s duty to prepare and submit\nfinal reports under the 2003 Act, like his other duties, is subject to the ordinary\nsupervision of the Secretary, and ultimately of the President through the Secretary.\nAccordingly, we conclude that although the CFO is assigned the responsibility for\nsubmitting reports to the President and Congress on all violations of appropriations\nlaws at HUD, including the reports required by the ADA and OMB Circular A-11,\nthe CFO\xe2\x80\x99s exercise of that duty is subject to prior review and approval by the\nSecretary.2\nThis result follows from the rule of construction requiring that statutes be interpreted to avoid raising a significant constitutional problem, provided that doing so\ndoes not contravene the clear meaning of the statute. See Solid Waste Agency of N.\nCook Cnty. v. Army Corps of Eng\xe2\x80\x99rs, 531 U.S. 159, 173 (2001) (\xe2\x80\x9c[W]here an\notherwise acceptable construction of a statute would raise serious constitutional\nproblems, the Court will construe the statute to avoid such problems unless such\nconstruction is plainly contrary to the intent of Congress.\xe2\x80\x9d) (quoting Edward J.\nDeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S.\n568, 575 (1988)). Here, we conclude that it is most reasonable to construe the FY\n2003 Appropriations Act to require supervisory review by the Secretary of the\nCFO\xe2\x80\x99s reports to the President and Congress because a contrary conclusion would\n\n2\n\nThe legislative history does not elaborate on the relationship between the reporting requirements\nof the ADA and those of the FY 2003 Appropriations Act. The House Conference Report, which\nreflects the conferees\xe2\x80\x99 adoption of the House version of the bill, references an earlier House report that\ndiscusses HUD\xe2\x80\x99s past difficulties in complying with the ADA, but neither document discusses the issue\nof reporting in any depth. See H.R. Conf. Rep. No. 108-10, at 1427 (2003); H.R. Rep. No. 107-740, at\n78\xe2\x80\x9379 (2002).\n\n251\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nraise serious constitutional problems by interfering with the President\xe2\x80\x99s exercise of\nhis constitutional responsibility to supervise the unitary Executive Branch.\nThe President\xe2\x80\x99s ability to supervise and control the work of subordinate officers\nand employees of the Executive Branch, through his supervision of the principal\nofficers of the executive agencies, is vital to the exercise of his constitutional duty\nfaithfully to execute the laws. See U.S. Const. art. II, \xc2\xa7 3 (providing that the President \xe2\x80\x9cshall take Care that the Laws be faithfully executed\xe2\x80\x9d). As we have elsewhere\nexplained:\nThe [judicial] decisions and the long practical history concerning the\nright of the President to protect his control over the Executive\nBranch are based on the fundamental principle that the President\xe2\x80\x99s\nrelationship with his subordinates must be free from certain types of\ninterference from the coordinate branches of government in order to\npermit the President effectively to carry out his constitutionally assigned responsibilities. The executive power resides in the President,\nand he is obligated to \xe2\x80\x9ctake care that the laws are faithfully executed.\xe2\x80\x9d In order to fulfill those responsibilities, the President must be\nable to rely upon the faithful service of subordinate officials. To the\nextent that Congress or the courts interfere with the President\xe2\x80\x99s right\nto control or receive effective service from his subordinates within\nthe Executive Branch, those other branches limit the ability of the\nPresident to perform his constitutional function.\nConstitutionality of Statute Requiring Executive Agency to Report Directly to\nCongress, 6 Op. O.L.C. 632, 638\xe2\x80\x9339 (1982).\nApplying these general separation of powers principles, we have concluded that\nstatutory \xe2\x80\x9crequirement[s] that subordinate officials within the Executive Branch\nsubmit reports directly to Congress, without any prior review by their superiors,\nwould greatly impair the right of the President to exercise his constitutionally\nbased right to control the Executive Branch,\xe2\x80\x9d and that statutory reporting requirements should generally be construed to avoid such a result. Id. at 633. Similarly,\nwe have concluded that inspectors general in the Executive Branch may not be\nrequired to report information to Congress without review and approval by the\nhead of the relevant agency, explaining that \xe2\x80\x9c[r]eports of problems encountered . . .\nmay be required of the agencies in question, but . . . the statutory head of the\nagency . . . must reserve the power of supervision over the contents of those\nreports.\xe2\x80\x9d Inspector General Legislation, 1 Op. O.L.C. 16, 18 (1977). See also\nAuthority of the Special Counsel of the Merit Systems Protection Board to Litigate\nand Submit Legislation to Congress, 8 Op. O.L.C. 30, 31 (1984) (\xe2\x80\x9cCongress may\nnot grant [Special Counsel] the authority to submit legislative proposals directly to\nCongress without prior review and clearance by the President, or other appropriate\nauthority, without raising serious separation of powers concerns\xe2\x80\x9d). Thus, it would\n\n252\n\n\x0cAuthority of HUD\xe2\x80\x99s CFO to Submit Final Reports on Violations of Appropriations Laws\n\nbe constitutionally problematic to interpret the FY 2003 Appropriations Act to\ngrant HUD\xe2\x80\x99s CFO unreviewable authority to report to the President and Congress\nconcerning potential violations of the ADA and other appropriations laws.3\nBecause the plain terms of the 2003 Act, including its directive that reports be\nsubmitted \xe2\x80\x9cin accordance with\xe2\x80\x9d applicable statutes and OMB circulars, do not\nrequire such an interpretation, it must be avoided. The better reading of the statute\nis that the reports prepared by the CFO must be subject to the review and approval\nof the Secretary before they are finalized and submitted by the CFO to the\nPresident and Congress.4\nIn summary, we conclude that the FY 2003 Appropriations Act does give the\nCFO of HUD authority to report to the President and Congress on violations by the\nagency of the ADA and other appropriations laws concerning expenditures, but\nthat he must first submit his reports to the Secretary for review and approval.\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n3\nThe same fundamental constitutional concern would be raised by a statute requiring a principal\nofficer like the Secretary to make a report directly to Congress without prior review and approval by the\nPresident. We note that the ADA itself could be read to suggest such a requirement, though such a\nproblematic interpretation of the ADA is not required by the plain language of the statute. Of course,\nthe President, in his discretion, may permit the heads of departments to make simultaneous reports to\nCongress when they report ADA violations to the President through OMB, and that is the policy\nreflected in OMB Circular A-11.\n4\nOur conclusion is not altered by the fact that the FY 2003 Appropriations Act provides that the\nCFO \xe2\x80\x9cshall . . . prescribe the content, format and other requirements for the submission of final reports\non violations; and . . . prescribe such additional policies and procedures as may be required for\nconducting investigations of, and administering, processing, and reporting on, potential and actual\nviolations of the Anti-Deficiency Act and all other statutes and regulations governing the obligation and\nexpenditure of funds made available in this or any other Act.\xe2\x80\x9d FY 2003 Appropriations Act, 117 Stat. at\n500. These responsibilities of the CFO do not foreclose a substantive role for the Secretary in\noverseeing and directing the preparation of reports concerning violations of the appropriations laws.\nAlthough the CFO is charged in the first instance with preparing the content of his reports and\nestablishing policies and procedures for reporting violations, we construe these responsibilities\xe2\x80\x94like\nthe CFO\xe2\x80\x99s other duties\xe2\x80\x94to be subject to oversight by the President and the Secretary, for the reasons\ndiscussed in the text.\n\n253\n\n\x0c'