Reimbursement for Detail of Judge Advocate General Corps Personnel to a United States Attorney's Office

• Court: Department of Justice Office of Legal Counsel
• Decided: June 27, 1989
• Status: Published

Opinion

Reimbursement for Detail of Judge Advocate General Corps Personnel to a United States Attorney’s Office

The Economy Act requires the Department of Defense to be reimbursed for the detail of Judge Advocate General Corps attorneys to a United States Attorney’s Office.

The authonty of the Director of National Drug Control Policy temporarily to reassign fed­ eral personnel under the Anti-Drug Abuse Act of 1988 does not displace the requirements of the Economy Act.

June 27, 1989

M e m o r a n d u m O p in io n fo r t h e A c t in g A s s o c ia t e A t t o r n e y G e n e r a l

You have asked for our opinion whether the United States Attorney’s Office for the District of Columbia ( “DCUSA”) must reimburse the Department o f Defense (“DOD”) for costs associated with the detail o f ten lawyers from the Judge Advocate General Corps ( “JAGC”) to the DCUSA for one year pursuant to an official request by the Director o f National Drug Control Policy William Bennett ( “Director”), under sec­ tions 1003(d)(2) or 1005(c)(1)(A) o f the Anti-Drug Abuse Act o f 1988 ( “the 1988 Act”), Pub. L. No. 100-690, 102 Stat. 4181 (codified at 21 U.S.C. §§ 1502(d)(2), 1504(c)(1)(A).1 DOD contends that DCUSA must reim­ burse the various departments from which JAGC personnel would be detailed for salaries and expenses, at an estimated cost o f $300,000. For the reasons stated below, we conclude that the Economy Act, 31 U.S.C. § 1301,* requires reimbursement for the detailed JAGC personnel, and that the Director’s authority temporarily to reassign federal person­ nel under the 1988 Act does not displace the requirements o f the Economy Act. However, the 1988 Act provides for the Director to report to the Congress regarding the need for any transfer o f appropriated funds for National Drug Control Program activities. 21 U.S.C. § 1502(c)(6). To the extent this situation may be deemed to present a need for such a

1 Memorandum fo r William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Joe D. Whitley, Acting Associate Attorney General (May 12, 1989) See Letter for Joe D Whitley, Acting Associate Attorney General, from Jay B Stephens, United States Attorney fo r the District o f Columbia (M ay 9, 1989). * Editor’s Note: This opinion incorrectly refers to 31 U S.C § 1301 as the Economy Act, when that A ct is actually codified at 31 U.S.C. § 1535. This mistake in term inology does not affect the conclusions or essential analysis o f the opinion

188 transfer, the Director’s report is the appropriate vehicle for seeking such a transfer o f funds.

Analysis

1. The Economy Act

Under the Economy Act, a federal agency must spend its funds on the objects for which they were appropriated. 31 U.S.C. § 1301(a). A corollary to this statutory rule is that an agency may not augment its appropria­ tions from outside sources without specific statutory authority. See gen­ erally United States General Accounting Office, Office o f General Counsel, Principles of Federal Appropriations Law 5-62 to 5-63 (1st ed. 1982) (explaining the non-augmentation theory). In combination, these rules require an agency to spend its appropriated funds — and only its appropriated funds — as directed by its relevant appropriation legisla­ tion. These dual requirements consistently have been interpreted as gen­ erally prohibiting the detail o f employees from one federal agency to another on a nonreimbursable basis. As the Comptroller General has held, “[t]o the extent that agencies detail employees on a nonreim­ bursable basis ... they may be avoiding congressional limitations on the amount o f moneys appropriated to the receiving agency for particular programs.” 64 Comp. Gen. 370, 380 (1985).2 Three exceptions to the general rule against nonreimbursable details have been recognized. First, Congress may, o f course, specifically autho­ rize nonreimbursable details by statute. See, e.g., 5 U.S.C. § 3343 (autho­ rizing nonreimbursable details to international organizations). Second, a loaning agency may authorize nonreimbursable details involving “a mat­ ter [that is] similar or related to matters ordinarily handled by the loaning agency and will aid the loaning agency in accomplishing a purpose for which its appropriations are provided.” 64 Comp. Gen. 370, 380 (1985) (concluding that nonreimbursable detail o f employees to other agencies or to different programs within the same agency is unlawful; opinion given prospective application only); see also 65 Comp. Gen. 635, 637

2 The Comptroller General is an officer o f the legislative branch, see Bowsher v Synar , 478 U S 714, 727-32 (1986), and historically, the executive branch has not considered itself bound by the Com ptroller General’s legal opinions if they conflict with the legal opinions o f the Attorney Genera] and the O ffice o f Legal Counsel. Under som e circumstances the opjruons supply vaJuable guidance, however, and this Office generally has found these opinions persuasive on the application o f the Economy A ct to the ques­ tion o f nonreimbursable details See Memorandum for Arthur B. Culvahouse, Jr., Counsel to the President, from Douglas W Kmiec, Assistant Attorney General, Office o f Legal Counsel, Re Executive Agency Assistance to the Presidential Transition at 3 (Jan 3, 1989) ( “Kmiec M em o”); Reimbursement o f the Internal Revenue Seivicc f o r Investigative Sei'viccs Provided to the Independent Counsel, 12 Op O .L C 233 (1988); Assignment o f Army lawyers to the Department o f Justice, 10 Op. O L.C 115, 118 (1986) With one exception desenbed in footnote 3 below, the Com ptroller General’s construction o f appropriations law is consistent with our interpretation here

189 (1986) (detail o f administrative law judges from National Labor Relations Board to Department of Labor to hear black lung cases is not directly related to the objects of NLRB’s appropriations and therefore must be reimbursed). Third, the Comptroller General would recognize a de min­ imis exception for details that have a negligible effect on the loaning agency’s appropriations. Cf. 65 Comp. Gen. 635, 637 (1985) ($674,250 for costs o f detail o f 15-20 NLRB employees to Department o f Labor not de minimis).3 Neither o f the latter two exceptions applies here. Even assuming that the de minimis exception is lawful, we would not regard this detail, which would cost DOD approximately $300,000, as having a negligible effect on DOD’s appropriations. The exception for details involving matters relat­ ed to the loaning agency’s appropriations also does not appear applicable here. JAGC lawyers ordinarily do not engage in civilian litigation.4 A case can be made that nonreimbursable details should be allowed when the loaning agency is the “client” on whose behalf litigation is undertaken, such as if the JAGC attorneys were to be used for military matters or mil­ itary prosecutions. In such cases, the detailed personnel would provide specialized knowledge or assistance related to the objects o f their agency’s appropriations. The reassignment o f JAGC attorneys to DCUSA pursuant to the 1988 Act does not meet these criteria, however. Rather, the apparent purpose of the reassignment is to provide additional per­ sonnel for prosecution of civilians for narcotics and narcotics-related offenses committed in the District o f Columbia. In U.S. Attorney Jay B. Stephens’ letter o f May 9, 1989, to Acting Associate Attorney General Joe D. Whitley, reference is made to the DCUSA’s “ lon g history o f maintaining a nonreimbursable Specials Program which involves the assignment o f attorney personnel from vari­ ous federal agencies to this Office for a period o f four to six months.” However, we understand those short-term details to have had a different purpose — the training of inexperienced trial attorneys. Details for such purposes might well fall within the exception for details involving mat­ ters related to the loaning agency’s appropriation, in that intensive train­ ing in litigation skills may assist the loaning agency by improving the abil­ ities and performance of its attorney personnel.5 While the DCUSA doubtless also receives a benefit from the detail o f attorneys under the Specials Program, the primary purpose o f the program appears to be for the training o f the detailed attorneys.

3 P n o r opinions o f this O ffice have regarded the “de mjrumis exception” with some caution. See Kmiec M em o at 7 n 8 The Com ptroller General’s opinions acknowledge that the de minimis exception actually violates 31 U S C § 1301(a). See 65 Comp Gen. at 638; 64 Comp. Gen at 381. 4 We have reached this conclusion in a p n o r memorandum. See 10 Op O L.C. at 118 & n.4 (discussing circumstances under which JAGC attorneys may be detailed to Department o f Justice to assist in litiga­ tion). 5 We do not here address the validity o f the Specials Program at the DCUSA

190 In contrast, the reassignment o f JAGC attorneys pursuant to the 1988 Act does not appear to be for the purpose o f training. Rather, we under­ stand the proposed detail to involve the reassignment o f relatively expe­ rienced attorneys to supplement the DCUSA’s resources for combatting narcotics offenses. Moreover, the training o f JAGC attorneys for special­ ized civilian narcotics prosecutions in civilian courts would not appear to be directly related to more than a small fraction o f the work customarily done by JAGC attorneys for their military departments.6 In sum, we conclude that the Economy Act does not permit the pro­ posed detail on a nonreimbursable basis, unless the 1988 Act specifically authorizes nonreimbursable details.

2. The 1988 Act

The 1988 Act gives the Director o f National Drug Control Policy broad powers to reassign federal personnel to further the National Drug Control Program. Section 1502(d)(2) empowers the Director to

direct, with the concurrence o f the Secretary o f a depart­ ment or head o f an agency, the temporary reassignment within the Federal Government o f personnel employed by such department or agency, in order to implement United States drug control policy.

21 U.S.C. § 1502(d)(2). In addition, section 1504(c)(1) permits the tempo­ rary assignment o f personnel to provide assistance where the Director has designated a specific locale as a “high intensity drug trafficking area.”7 Neither o f these provisions addresses directly whether the temporary reassignment o f personnel should be on a reimbursable basis. In addi­ tion, nothing in the legislative history o f the 1988 Act suggests that Congress intended for details made pursuant to the Director’s reassign­ ment authority to be on a nonreimbursable basis. There are no commit­ tee reports on the 1988 Act, and statements o f individual legislators speak only in general terms o f the need for a “drug czar” who would have

°In addition, a substantial question would be presented concerning the Director’s authonty to order reassignment fo r "training" purposes The 1988 Act authorizes the Director to direct, with agency con­ currence, temporary reassignment o f personnel “in order to implement United States drug control poli­ c y ” 21 U.SC § 1502(d)(3). See also id. § 1504(c)(1)(A). It is unclear whether the ordering o f training details falls within the Director’s powers to reassign personnel in order to implement drug control poli­ cy It could be argued that details specifically fo r training in narcotics prosecutions would be within the Director’s statutory authority; however, the more narrow the focus o f the training, the weaker the argu­ ment that the detail would further the objects o f the loaning agency’s appropnations, so as to be permit­ ted on a nonreimbursable basis. 7 We are informed by Chuck WexJer, Special Assistant to the Director, that as o f this date the Director has not designated the Distnct o f Columbia as a “high intensity drug trafficking area,” though he may do so in the future

191 broad powers to coordinate action within the federal government relat­ ed to the drug problem.8 The only reference to the issue o f reimbursement occurs in section 1502(d)(3), which authorizes the Director to use services, equipment, or personnel o f other agencies for administrative purposes on a reim­ bursable basis. It could be argued by negative inference from this provi­ sion that Congress intended the Director’s reassignment authority under section 1502(d)(2) to be exercised on a nonreimbursable basis because Congress failed to provide specifically for reimbursement, as in section 1502(d)(3). This construction fails, however, for two reasons. First, the structure o f the 1988 Act cuts against the negative inference o f nonreimbursable details. To read the 1988 Act as authorizing nonre­ imbursable details would create a tension between section 1502(d)(2) and section 1502(c)(6), which requires the Director “to report to the Congress on a quarterly basis regarding the need for any reprogramming or transfer o f appropriated funds for National Drug Control Program activities.” Section 1502(c)(6) suggests that Congress intended to reserve for itself the decision whether National Drug Control Program policies require changes in appropriations, including any transfer o f appropriated funds necessary to accomplish temporary personnel reas­ signments.9 Reserving this pow er would be consistent with the Economy Act and Congressional retention o f control over its constitutional power o f the purse.

y A recent Com ptroller General decision held that the Econom y A ct prohibits nonreimbursable details under circumstances in which there w ere far stronger indications o f legislative intent to permit such details. 65 Comp. Gen 635 (1986) There, the National Labor Relations Board planned to detail 15-20 administrative law judges to the Department o f Labor to handle a backlog o f 20,000 black lung cases. The legislative history o f both a 1985 Supplemental Appropriations A ct and the fiscal year 1986 Department o f Labor Appropriations A ct reflected congressional concern about the backlog and provide[dJ suggestions about how to resolve it The Senate report accompanying the 1985 Supplemental directed the Department (o f Labor], to the extent practical, to increase its efforts to temporarily borrow ALJs from other agen­ cies with less pressing workloads F o r fiscal year 1986, aside from recommending an addi­ tional $4 4 m illion for 15 new AU s, and a substantial number o f attorneys and support posi­ tions, the Senate again directed the Department to actively pursue borrowing ALJs from other agencies Both congressional debate and hearings accompanying the 1986 appropria­ tions act contain similar comments 65 Comp. Gen. at 636 (citations and footn ote om itted) Despite this legislative history, the Comptroller General concluded that, because the statute itself did not specifically authorize nonreimbursable details, the concerns expressed m the legislative history remained merely generalized concerns that w ere left unaddressed in the actual legislation. Id. at 639 ( “[I]t is well settled that suggestions or expressions o f congressional intent in comm ittee reports, flo o r debates and hearings are not legally binding unless they are incorporated either expressly or by reference in an appropriations act itself or in some other statute.”). Accord Train v City of New York, 420 U.S 35, 45 (1975) (involving issue o f Executive com ­ pliance with appropriations laws and noting that “ legislative intention, without more, is not legislation”) 9 This inference is also supported by changes made from earlier versions o f the legislation S 2852, 100th Cong., 2d Sess. (1988) (the “Omnibus Anti-Substance Abuse A ct o f 1988”) at one point provided m sections 1006(d)(2) and (3). (2 ) The D irector may reprogram funds within National Drug Control Programs Continued

192 Moreover, title X, chapter I o f the 1988 Act provides specific supple­ mental appropriations for United States Attorney’s Offices for salaries and expenses for increased narcotics prosecution efforts. It reasonably can be inferred that further enhancements o f funding, such as by detail­ ing additional personnel pursuant to the Director’s temporary reassign­ ment authority, were not intended. See 31 U.S.C. § 1301(d) (rule of con­ struction against implied appropriations) (discussed below). Cf. United States General Accounting Office, Office o f General Counsel, Principles of Federal Appropriations Law, supra, at 5-62 to 5-63 (non-augmentation theory); Second, reading the 1988 Act as authorizing nonreimbursable details requires the conclusion that Congress made an “implied appropriation” through the Director’s reassignment authority. The Economy Act pro­ vides, however, that “[a] law may be construed to make an appropriation out o f the Treasury or to authorize making a contract for the payment o f money in excess o f an appropriation only if the law specifically states that an appropriation is made or that such a contract may be made.” 31 U.S.C. § 1301(d). Thus, reading the 1988 Act to require nonreimbursable details would be inconsistent with the Economy Act. Statutes ordinarily are to be read as consistent with one another, where possible. See Ruckelshaus v. Monsanto, 467 U.S. 986, 1017, 1018 (1984) (repeals by implication are disfavored). Under these circumstances, the 1988 Act should not be read to autho­ rize nonreimbursable details. If nonreimbursable details are necessary to accomplish the Director’s goals o f implementing national drug control policy, he can report to Congress under section 1502(c)(6) on the need for a transfer o f appropriated funds to accomplish the detail o f the JAGC attorneys.

9( continued) (3 ) The Director may transfer, after providing notification to the Committees on Appro­ priations o f the Senate and the House o f Representatives, an amount not to exceed 5 per cen­ tum of the funds appropriated fo r one such program to another such program within the same National Drug Control Program agency. 134 Cong Rec 27,467 (1988) (emphasis added). This provision was deleted In its place, the 1988 Act, as enacted into law, provides The Director shall report to the Congress on a quarterly basis regarding the need f o r any reprogramming or tmnsfer o f appropriated funds for National Drug Control Program activ­ ities. 21 U.S C. § 1502(c)(6) (emphasis added). The same, early version o f S 2852 provided in section 1010(a), with respect to the D irector’s pow ers to designate “High Intensity Drug Areas,” that: Upon making such a designation and in order to provide Federal assistance to such area, the Director may —

(2 ) transfer, after providing notification to the Committees on Appropriations o f the Senate and the House o f Representatives, an amount not to exceed 5 per centum o f the funds appro­ priated for one such program to another such program, .. 134 Cong Rec. 27,468 (1988). See also id. at 27,414, 27,416 (statement o f Sen Nunn, including section- by-section analysis o f bill) As passed, the 1988 A ct contains no such provision

193 Conclusion

We believe that the Economy Act prevents the detail o f JAGC attorneys to the DCUSA on a nonreimbursable basis, absent clear language in the 1988 Act that provides for such details. We conclude that no such clear intent is expressed in sections 1502(d)(2) and 1504(c)(1)(A) o f the 1988 Act. If the Director determines that the inability to direct the detail of JAGC attorneys to the DCUSA on a nonreimbursable basis impedes his ability to further national drug control policy, section 1502(d)(6) o f the 1988 Act provides an appropriate mechanism for seeking a remedy from Congress.

WILLIAM P. BARR Assistant Attorney General Office o f Legal Counsel