BNUMBER:  B-279886 
DATE:  April 28, 1998
TITLE: [Letter], B-279886, April 28, 1998
**********************************************************************

B-279886

April 28, 1998

The Honorable Peter Hoekstra
Chairman, Subcommittee on Oversight
     and Investigations
Committee on Education and the Workforce
House of Representatives

Dear Mr. Chairman:

By letter dated April 22, 1998, you raised a number of issues 
concerning the availability of federal funds to pay the expenses of 
supervising a rerun of the 1996 International Brotherhood of Teamsters 
election.  You asked for our response by April 28, 1998.  Although we 
would typically solicit the views of interested departments and 
agencies in preparing our response, because of the short time frame 
requested, we did not obtain the views of the Departments of Justice, 
Treasury, or Labor.

Your questions relate generally to the availability of funds 
appropriated in the Departments of Commerce, Justice, and State, the 
Judiciary, and Related Agencies Appropriations Act, 1997, Pub. L. No. 
104-208, Division A, title I, 110 Stat. 3009 (1996) (1997 Justice 
Appropriations Act), the Departments of Commerce, Justice, and State, 
the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. 
No. 105-119, 111 Stat. 2440 (1997) (1998 Justice Appropriations Act) 
and the Departments of Labor, Health and Human Services, and 
Education, and Related Agencies Appropriations Act, 1998, Pub. L. No. 
105-78, 111 Stat. 1467 (1997) (1998 Labor Appropriations Act), and the 
permanent, indefinite appropriation commonly referred to as the 
Judgment Fund, 31 U.S.C.  sec.  1304.  For ease of discussion we have 
grouped our analysis of the issues under one of three headings:  the 
1997 Justice Appropriations Act, the 1998 Justice and Labor 
Appropriations Acts, and the Judgment Fund.  Your questions and our 
answers are set out below.
I.  Background
On March 14, 1989, the United States District Court for the Southern 
District of New York (the District Court) entered a consent order (the 
Consent Decree) embodying a voluntary settlement of charges brought by 
the United States pursuant to the Racketeer Influenced and Corrupt 
Organizations Act (RICO), 18 U.S.C.  sec.  1964, against the International 
Brotherhood of Teamsters (the Union).  In the Consent Decree, the 
Union agreed to a number of "sweeping changes in the [Union's] 
electoral and disciplinary processes."  United States v. International 
Brotherhood of Teamsters, 86 F.3d 271, 272 (2d Cir. 1996).  The 
purpose of the Consent Decree and the changes it mandated was the 
elimination of the "hideous influence of organized crime" in the 
Union's operations.  United States v. International Brotherhood of 
Teamsters, 742 F. Supp. 94, 97 (S.D.N.Y. 1990).

One of the reforms mandated by the Consent Decree was the appointment 
of an Election Officer to supervise, at Union expense, the 1991 
election of Union officers.  Consent Decree, para. 12(D).  The Consent 
Decree specified that the Election Officer had the right to distribute 
election materials to Union members and to supervise the balloting 
process and certify the election results.  Id.  In October 1989, the 
District Court concluded that the Election Officer's duty to 
"supervise" the 1991 election was "expansive and proactive," giving 
the Election Officer a "broad mandate to intervene in, and coordinate, 
the [Union's] electoral process up to and including the next general 
convention."  United States v. International Brotherhood of Teamsters, 
723 F. Supp. 203, 206 (S.D.N.Y. 1989). 

The Union also agreed in the Consent Decree that the United States had 
the option to have the Election Officer supervise, at the government's 
expense, the Union's 1996 election.[1]  The United States availed 
itself of this option, covering the cost of the Election Officer's 
supervision of the 1996 election out of funds appropriated to the 
Departments of Labor and Justice.  See United States v. International 
Brotherhood of Teamsters, 88 Civ. 4486 (DNE), slip op. at 6-7 
(S.D.N.Y. Dec. 18, 1997) (Teamsters (D. Ct.)).[2]  The United States 
and the Union agreed that "the Election Officer in 1996 would function 
'as similarly as possible to the 1991 Election Officer.'"  Memorandum 
of Law in Support of Election Officer Application No. XIII For an 
Order Securing Funding for the Rerun Election, at 2 (quoting Feb. 7, 
1995, order approving stipulation between Union and United States), 
Teamsters (D. Ct.).  At the conclusion of the election, the Election 
Officer uncovered serious violations of the 1996 election rules, 
refused to certify the election results, and subsequently, in August 
1997, ordered a rerun of the election.  Id. at 4-5.

In the fall of 1997, the Justice Department negotiated a tentative 
agreement with the Union to share the rerun election costs.  To pay 
the government's share, Justice identified two funding sources.  
First, Justice proposed to use the unobligated balance (an estimated 
$900,000) of $1.9 million in no-year funds appropriated in its 1997 
Appropriations Act "for supervision of the International Brotherhood 
of Teamsters national election."  1997 Justice Appropriations Act, 110 
Stat. at 3009-3.  Second, the conference report accompanying the 1997 
Justice Appropriations Act stated that the Attorney General might 
"provide an additional $1,900,000 for [Union] election supervision 
from funds provided to the Department of Justice" subject to 
satisfying the reprogramming and transfer requirements found in the 
appropriations act.  H.R. Conf. Rep. No. 104-863, at 779 (1996).  

In October 1997, Justice proposed to both the House and Senate 
Appropriations Committees the transfer of $1.9 million from other 
Justice appropriations to cover the costs of the rerun.  Letter from 
Assistant Attorney General, Office of Legislative Affairs, Department 
of Justice, to Chairman, Senate Committee on Appropriations, at 3, 
Nov. 3, 1997 (DOJ Letter (Nov. 3, 1997)).  The Committees objected to 
the use of federal funds to pay for the election rerun.  In deference 
to the Committees' objections, Justice canceled its plans to transfer 
funds and opted not to apply its no-year funds to the rerun costs.  
Teamsters (D. Ct.), at 9, 13-16. 

With respect to fiscal year 1998 funds, Congress included in the 1998 
Justice and Labor Appropriations Acts a restriction on the use of any 
funds appropriated in those acts to pay for the Election Officer's 
supervision of a rerun.  The language found in both acts is identical 
and reads as follows:

     "None of the funds made available in this Act may be used to pay 
     the expenses of an election officer appointed by a court to 
     oversee an election of any officer or trustee for the 
     International Brotherhood of Teamsters."  1998 Justice 
     Appropriations Act,  sec.  619, 111 Stat. at 2519; 1998 Labor 
     Appropriations Act,  sec.  518, 111 Stat. at 1519.

On December 1, 1997, the Interim Election Officer applied to the 
District Court for an order securing funding for the 1996 election 
rerun.  The Union argued that despite the prohibitions in the fiscal 
year 1998 appropriations acts, "the Government must still pay for the 
rerun election."  Teamsters (D. Ct.), at 16.  The Union noted that 
"Congress did not completely bar Government funding of the [Union] 
election in these appropriations laws."  Id. at 11.  The District 
Court concluded that "the Consent Decree does not impose a legal duty 
on the Government to continue indefinitely to have the 1996 election 
process supervised at the Government's expense."  Id. at 27.  It held 
that "[b]ecause additional costs must now be incurred due to the 
actions taken by persons affiliated with and acting for the [Union], 
it is equitable to require that the [Union] bear the additional costs 
caused by its own conduct."  Id. at 28.

The Union appealed the District Court's judgment.  On March 30, 1998, 
the United States Court of Appeals for the Second Circuit reversed.  
In its opinion, the Court of Appeals (like the District Court before 
it) accepted the proposition that the rerun is a continuation or part 
of the 1996 election.  Unlike the District Court, the Court of Appeals 
agreed with the Union's argument that "under the terms of the 
[Consent] Decree, the government must pay the cost of supervision if 
it chooses to have the rerun supervised."  United States v. 
International Brotherhood of Teamsters, No. 97-6324, slip op. at 3 (2d 
Cir. Mar. 30, 1998) (Teamsters (Ct. App.)).  The court noted that as 
part of the Consent Decree, "the government has the right, but not the 
obligation, to have the 1996 [Union] elections supervised by an 
Election Officer.  If the government chooses to exercise that right . 
. . the Decree provides that the government must bear the costs of the 
supervision."  Id. at 8.

II.  1997 Justice Appropriations Act
The fiscal year 1997 Justice Department appropriation for "Salaries 
and Expenses, United States Attorneys" made $1.9 million specifically 
available "for supervision of the International Brotherhood of 
Teamsters national election."  1997 Justice Appropriations Act, 110 
Stat. at 3009-3.  It provided that the funds "shall remain available 
until expended."  Id.  In November 1997, Justice expected to have an 
unobligated balance of approximately $900,000 after paying all 
remaining costs of the 1996 election.  DOJ Letter (Nov. 3, 1997), at 
3.  You ask whether Justice may apply any unobligated balance of the 
$1.9 million to defray costs of supervising the 1996 election rerun.  
Because the funds remain available until expended, and because the 
District Court and the Court of Appeals consider the rerun to be a 
continuation of the Union's 1996 election, Justice may apply any 
unobligated balance to the cost of supervising the 1996 election 
rerun.

It is well established that the Congress can impose terms and 
conditions as to purpose, amount, and time on the use of appropriated 
funds.  See, e.g., Cincinnati Soap Co. v. United States, 301 U.S. 308, 
321 (1937).  When the Congress expressly provides in an appropriation, 
as it did here, that the appropriation "shall remain available until 
expended," it has removed all statutory time limits as to when the 
funds may be obligated and expended.  43 Comp. Gen. 657, 661 (1964); 
40 Comp. Gen. 694, 696 (1961).  The appropriation is subject, 
nevertheless, to purpose limitations.  31 U.S.C.  sec.  1301(a).  What this 
means is that Justice may use the unobligated balance of the 
appropriation only "for supervision of the International Brotherhood 
of Teamsters election," the purpose specified in the appropriations 
act.  

At the time Congress earmarked the $1.9 million, it envisioned its use 
to cover the 1996 election.  E.g., S. Rep. No. 104-353, at 15 (1996) 
("to fund supervision of the 1996 [Union] election").  The fact that 
the Election Officer refused to certify a result for the 1996 election 
does not preclude the use of any remaining balance of those funds for 
another election, including an election rerun.  Both the Court of 
Appeals and the District Court accept the proposition that the 1996 
election rerun is a continuation of the 1996 election.  Teamsters (Ct. 
App.), at 7 ("It is undisputed that the rerun is a part of the 1996 
elections."); Teamsters (D. Ct.), at 21-22 ("[T]his Court agrees with 
both parties that the rerun of the 1996 election is necessarily part 
of a continuation of the 1996 [Union] election.").  We accept the 
courts' views.  Thus, Justice may apply any unobligated balance of the 
no-year appropriation to defray the cost of supervising the rerun, if 
the United States chooses to have the Election Officer supervise it.

In addition to the $1.9 million of no-year funds specifically made 
available to Justice in its 1997 Appropriations Act, the Conferees 
stated that the Attorney General could transfer or reprogram an 
additional $1.9 million to pay for the 1996 election from funds 
provided the Department, subject to the reprogramming requirements of 
section 605 or the transfer authority of section 107.  H.R. Conf. Rep. 
No. 104-863, at 779.  See also S. Rep. No. 104-353, at 15.  
Accordingly, you ask whether Justice may transfer or reprogram any of 
this $1.9 million.[3]  In addition, you ask a related question, 
namely, whether Justice may use any unobligated balances from 
unexpired funds provided by prior appropriations acts.  For the 
reasons discussed below, we think the answer to both questions is 
"no."  

The reprogramming and transfer authorities contained in the 1997 
Justice Appropriations Act require Justice to provide the House and 
Senate Appropriations Committees 15-days notice prior to transferring 
or reprogramming funds.  Section 605(a) provides as follows:

     "None of the funds provided under this Act . . . shall be 
     available for obligation or expenditure through a reprogramming 
     of funds which . . . (3) increases funds or personnel by any 
     means for any project or activity for which funds have been 
     denied or restricted . . . unless the Appropriations Committees 
     of both Houses of Congress are notified fifteen days in advance 
     of such reprogramming of funds."  1997 Justice Appropriations 
     Act,  sec.  605, 110 Stat. at 3009-64.

Since the $1.9 million of no-year funds provided in the 1997 Justice 
Appropriations Act is an earmark (that is, a separate appropriation 
account), Justice in fiscal year 1997 would have had to rely on 
transfer, not reprogramming, authority to increase the amount 
available in that account.[4]  In this regard, Congress provided 
Justice with transfer authority in section 107 which provided as 
follows:

     "Not to exceed 5 percent of any appropriation made available for 
     the current fiscal year for the Department of Justice in this Act 
     . . . may be transferred between such appropriations, but no such 
     appropriation, except as otherwise specifically provided, shall 
     be increased by more than 10 percent by any such transfers:  
     Provided, That any transfer pursuant to this section shall be 
     treated as a reprogramming of funds under section 605 of this Act 
     and shall not be available for obligation except in compliance 
     with the procedures set forth in that section."  1997 Justice 
     Appropriations Act,  sec.  107, 110 Stat. at 3009-18 (emphasis added). 

The transfer and reprogramming authorities provided Justice in its 
1997 Appropriations Act lapsed at the close of fiscal year 1997.  As a 
general proposition, a provision in an appropriations act is effective 
only for the covered fiscal year unless Congress indicates otherwise.  
65 Comp. Gen. 588, 589 (1986).  This is because appropriations acts 
are by their very nature non-permanent legislation.  Id.  Unless 
Congress indicates that it intends to make a provision permanent law, 
the provisions of an annual appropriations act expire at the end of 
the covered fiscal year.  We see nothing in the language or nature of 
sections 605 or 107 of the 1997 Justice Appropriations Act to suggest 
that Congress intended that they survive the close of fiscal year 
1997.  Thus, with the close of fiscal year 1997, Justice's authority 
to transfer funds from any appropriation made available for fiscal 
year 1997 in the 1997 Justice Appropriations Act expired.  
Accordingly, the transfer authority provided in the 1997 Justice 
Appropriations Act would not support a transfer of funds in fiscal 
year 1998 to cover the expenses of a 1996 election rerun.  This is 
true whether the funds proposed for transfer were annual funds 
provided in the 1997 Justice Appropriations Act[5] or unobligated 
balances from unexpired funds (multiple- or no-year funds) 
appropriated in prior appropriations acts.[6]   
 
III.  1998 Justice and Labor Appropriations Acts

The 1998 Justice and Labor Appropriations Acts restrict the use of any 
funds appropriated in those acts to pay for election supervision.  See 
1998 Justice Appropriations Act,  sec.  619, 111 Stat. at 2519, and 1998 
Labor Appropriations Act,  sec.  518, 111 Stat. at 1519, as quoted above.  
You ask if these provisions prohibit Justice and Labor from using 
funds made available by those acts to pay the costs of supervising the 
1996 election rerun.  We think they do.

The language of the prohibitions refer to overseeing, or supervising, 
"an election of any officer or trustee" of the Union.  We accept the 
courts' view that the rerun of the 1996 election is a continuation of 
the 1996 election.  Certainly, the rerun of an election has the same 
attributes as the "election," that is, the offering of a slate of 
candidates for particular offices to a qualified body of voters for a 
vote.  Further, it is intended to take the place of the original 
election.  However characterized, it is an election of Union officers.  
The conferees addressing the prohibition in the 1998 Labor 
appropriations bill clearly understood the prohibition to apply to a 
rerun.  H.R. Conf. Rep. No. 105-390, at 115-16 (1997). Nor is there 
anything in the legislative history of the Justice appropriation 
prohibition to indicate that Members did not intend it to apply to a 
rerun.  Rather, there is ample evidence that the possible use of 
appropriated funds to pay for supervising the election rerun is 
precisely what motivated insertion of these prohibitions.  E.g., 143 
Cong. Rec. S8794 (daily ed., Sept. 4, 1997) (statement of Sen. 
Nickles) ("The Nickles-Jeffords amendment is this:  Taxpayers should 
not have to pay for the Teamsters' election twice.").

You also ask whether Justice may use the reprogramming and transfer 
authorities contained in the 1998 Justice Appropriations Act to 
supplement the no-year appropriation for Union elections with funds 
made available in the 1998 Justice Appropriations Act.[7]  Because of 
the restriction in section 619 on the use of funds made available in 
the 1998 Justice Appropriations Act, Justice could not use any funds 
reprogrammed or transferred pursuant to its 1998 authority for the 
expenses of a 1996 election rerun.

This is true for multiple- and no-year funds previously made 
available, as well as funds currently available in the 1998 Justice 
Appropriations Act.  The language of section 107 of the 1998 
Appropriations Act, by its very terms, applies only to appropriations 
"made available for the current fiscal year for the Department of 
Justice in this Act."  Although any multiple- or no-year funds 
appropriated to the Justice Department in prior years remain available 
for obligation and expenditure in fiscal year 1998, the 1998 transfer 
authority would not permit their transfer since they were not "made 
available for the current fiscal year" in the 1998 Justice 
Appropriations Act.  In other words, Congress has drafted Justice's 
transfer authority to preclude transfers between different fiscal 
years.

You also ask if the Secretary of Labor may reprogram or transfer 
fiscal year 1998 Labor appropriations to make them available for 
paying the costs of the 1996 election rerun.  Labor has transfer 
authority similar to Justice's:  

     "Not to exceed 1 percent of any discretionary funds . . . which 
     are appropriated for the current fiscal year for the Department 
     of Labor in this Act may be transferred, but no such 
     appropriation shall be increased by more than 3 percent by any 
     such transfer: Provided, That the Appropriations Committees of 
     both Houses of Congress are notified at least fifteen days in 
     advance of any transfer."  1998 Labor Appropriations Act,  sec.  102, 
     111 Stat. at 1476-77 (emphasis added).  

We identified no specific requirements or restrictions in Labor's 
fiscal year 1998 appropriations act on Labor reprogramming.  
Nevertheless, to the extent that Labor might otherwise have been able 
to transfer or reprogram any of its fiscal year 1998 appropriations, 
the prohibition in section 518 clearly precludes Labor from applying 
those funds to this purpose.

IV.  The Judgment Fund
Your letter also asks about the availability of the Judgment Fund, 31 
U.S.C.  sec.  1304, as a source of funding for the costs of supervising the 
1996 election rerun.  Specifically, you ask whether, given the Court 
of Appeals opinion, the Justice Department may charge the costs of 
supervising the rerun to the Judgment Fund if the government chooses 
to have the rerun supervised.  Your second question asks whether the 
Judgment Fund would be available to pay the costs of supervising the 
rerun if the District Court were to issue an order for the government 
to pay those costs.  

The Judgment Fund is a permanent, indefinite appropriation available 
to pay most litigative and many administrative awards against the 
United States.  31 U.S.C.  sec.  1304.  Generally, the Judgment Fund is 
available to pay final awards certified by the Secretary of the 
Treasury[8] as made under one of the authorities specified in section 
1304(a)(3), and the payment of which is "not otherwise provided for" 
from some other appropriation.  31 U.S.C.  sec.  1304(a).

We have long viewed the Judgment Fund as available only to pay 
specific monetary damage awards, as distinguished from the costs of 
complying with injunctive orders.  70 Comp. Gen. 225 (1991); B-259065, 
Dec. 21, 1995.   Compliance with any court order can be translated 
into a monetary amount in the sense that the costs of compliance with 
the order can be calculated and quantified.  However, the fact that 
virtually any adverse judgment has a measurable cost to the government 
does not mean that the cost of compliance with the order is payable 
from the Judgment Fund.  70 Comp. Gen. at 228; 69 Comp. Gen. 160, 162 
(1990).  As a general rule, unless the government is directly ordered 
to pay a sum of money to an identified adverse party, the costs of 
compliance with a court order are not considered payable from the 
Judgment Fund.  Id.  

The Justice Department's Office of Legal Counsel (OLC) concurs in this 
view.  13 Op. Off. Legal Counsel 118, 119 (1989).  As OLC has noted, 
the legislative history of the Judgment Fund statute "manifests an 
understanding that the Judgment Fund was designed to effect payments 
of final judgments without the need for the enactment of specific 
appropriations bills."  Id. at 121-22 n.5.  See also, e.g., B-236958, 
Oct. 3, 1989.  OLC further observed that "by definition, [the law] 
only provides for disbursements from the Judgment Fund that are 
payable, i.e., judgments that, by their terms, require the United 
States to pay specified sums of money to certain parties."  13 Op. 
Off. Legal Counsel at 121-22 n.5 (underscoring omitted).

With respect to your first question concerning the Judgment Fund, 
although the Court of Appeals reversed the District Court's holding 
that the Union must bear the cost of funding the 1996 election rerun, 
the Court of Appeals did not order the government to supervise the 
1996 election rerun, let alone pay the cost of supervision.  Teamsters 
(Ct. App.), at 3.  Given the Court of Appeals opinion, there is no 
final monetary award pending against the government, and an essential 
prerequisite to the availability of the Judgment Fund is missing.  
Accordingly, the Justice Department, if it chooses to have the rerun 
supervised, cannot charge the costs of supervising the 1996 election 
rerun to the Judgment Fund.

The answer to your second question concerning the Judgment Fund is 
more involved.  As noted earlier, Congress created the Judgment Fund 
to avoid the need to enact specific appropriations to pay monetary 
awards against the government.  As also noted earlier, the Judgment 
Fund was not created to cover the cost of judgments or settlements 
that are injunctive in nature, that is, that either direct the 
government to perform, or not to perform, some particular action.  70 
Comp. Gen. at 228; 69 Comp. Gen. at 162.  The OLC opinion captures the 
point well-the Judgment Fund is only available to pay judgments that, 
by their terms, require the payment of "specified sums of money to 
certain parties."  13 Op. Off. Legal Counsel at 122 n.5.  Thus, a 
court order directing the government to pay the costs of supervising 
the 1996 election rerun would appear more in the nature of injunctive 
relief, than a monetary award of damages payable to a party for the 
government's breach of a duty owed.[9]  

The costs of supervising the 1996 election rerun, like the 1996 
election, are programmatic costs that, but for the restrictions in 
sections 619 and 518 of the 1998 Justice and Labor Appropriations 
Acts, would be payable from available Justice and Labor operating 
accounts.  The fact that Congress has chosen to bar the use of funds 
made available in the 1998 Justice and Labor Appropriations Acts to 
pay the cost of the Election Officer's supervision of the 1996 
election rerun should not be viewed as an open invitation to convert 
the Judgment Fund from an appropriation to pay damage awards against 
the United States to a program account to circumvent congressional 
restrictions on the appropriations that would otherwise be available 
to cover these expenses.  Accordingly, we believe that the Judgment 
Fund would not be available to pay such an order, even if the court 
were to award a specific sum equivalent to the actual or anticipated 
costs of supervising the rerun.  B-259065, Dec. 21, 1995, n.4.

We trust that you will find the above discussion useful.  Please 
contact Mr. Tom Armstrong of my staff, at 202-512-5644, should you 
require additional assistance on this matter.

Sincerely yours,

James F. Hinchman
Acting Comptroller General
of the United States

B-279886

April 28, 1998

DIGEST

1.  In the 1997 Justice Appropriations Act, Congress provided $1.9 
million of no-year funding to the Justice Department to cover the 
costs of supervising the 1996 International Brotherhood of Teamsters 
election.  The court-appointed Election Officer refused to certify the 
results of that election after finding serious violations of the 
governing election rules.  Since the funds remain "available until 
expended" and the election rerun is a continuation of the 1996 
election, Justice may use the unobligated balance, if any, from the 
$1.9 million appropriation to pay the costs of supervising an election 
rerun.     

2.  Since an appropriation act is non-permanent legislation, the 
transfer and reprogramming provisions of the 1997 Justice 
Appropriations Act do not authorize Justice to transfer or reprogram 
funds in fiscal year 1998 (whether annual funds provided in the 1997 
Justice Appropriations Act or unobligated balances of unexpired, 
multiple- or no-year prior appropriations) to cover the expenses of a 
rerun of the 1996 International Brotherhood of Teamsters election.  

3.  Specific restrictions contained in the 1998 Justice and Labor 
Appropriations Acts prohibit those departments from using funds 
appropriated in those acts to pay the expenses in 1998 of supervising 
the rerun of the 1996 International Brotherhood of Teamsters election.  
Consequently, Justice and Labor may not use funds transferred or 
reprogrammed under general authorities contained in those acts to pay 
for supervising the election rerun.  Neither may Justice or Labor pay 
the expenses of supervising the election rerun using funds transferred 
from other multiple-year and no-year funds previously made available 
to them, because the general transfer authorities provided in their 
1998 Appropriations Acts preclude transfers between different fiscal 
years.

4.  The costs of supervising a rerun of a 1996 International 
Brotherhood of Teamsters election are programmatic costs that, but for 
specific restrictions in the 1998 Justice and Labor Appropriations 
Acts, Justice and Labor could pay from available Justice and Labor 
operating accounts.  A court ruling that the terms of a governing 
consent decree require the government to pay the costs of the election 
rerun if the government chooses to supervise the election rerun does 
not amount to an award payable from the Judgment Fund, 31 U.S.C.  sec.  
1304.  Neither would that fund be available to pay for those costs if 
the court were to directly order the government to pay those costs (in 
the manner of injunctive relief), or to pay a specific sum of money 
equivalent to the actual or anticipated costs of supervising the 
rerun.   

1."The union defendants consent to the Election Officer, at Government 
expense, to supervise the 1996 [Union] elections."  Consent Decree, 
para. 12(D).

2. Justice advised the District Court that from fiscal years 1994 
through 1996, the government funded supervision expenses from 
Justice's annual appropriations for "Salaries and Expenses, United 
States Attorneys" and from a number of reprogrammings and transfers 
from the Justice and Labor Department appropriations.  As of September 
30, 1997, the government had spent approximately $17.5 million.  
Teamsters (D. Ct.), at 6-7.

3. As noted in the background section, Justice notified the House and 
Senate Appropriations Committees of its intent to transfer funds in 
the fall of 1997, but the Committees objected.  We understand that 
Justice has deferred to the Committees' desire and has not 
reprogrammed or transferred any funds.

4."Transfer" is the shifting of funds from one appropriations account 
to another.  It is prohibited except where expressly permitted by law.  
31 U.S.C.  sec.  1532.  See also 31 U.S.C.  sec.  1301(a) (purpose limitation).  
"Reprogramming" is using funds in a lump sum appropriation account for 
specific purposes other than those originally budgeted or 
contemplated, but still within the general purposes of the 
appropriation account.  Agencies may reprogram funds without specific 
statutory authority, subject to any specific statutory controls or 
non-statutory agreements between the agencies and their congressional 
oversight committees.  See generally GAO, Principles of Federal 
Appropriations Law, vol. 1, at 2-20 through 2-28 (2d. ed. 1991).

5. For the same reasons, any annual funds provided in the 1997 Justice 
Appropriations Act expired at the close of fiscal year 1997.  As 
expired funds, they remain available only to support adjustments to 
valid 1997 obligations.  31 U.S.C.  sec.  1553(a).

6. We separately discuss Justice's and Labor's 1998 authorities to 
transfer or reprogram funds in Part III of this opinion.

7. With the exception of the substitution of "1998" for "1997" in 
section 605, the reprogramming and transfer authorities contained in 
the 1998 Justice Appropriations Act are identical to those found in 
the 1997 Justice Appropriations Act.

8. Effective June 30, 1996, the duty to certify payments to be made 
from the Judgment Fund was transferred from GAO to the Treasury 
Department.  See Pub. L. No. 104-53,  sec.  211, 109 Stat. 514, 535 (1995); 
Pub. L. No. 104-316,  sec.  202(k)-202(m), 110 Stat. 3826, 3843 (1996).

9. We agree with the United States Attorney for the Southern District 
of New York that "it is important to understand that the Consent 
Decree does not impose a legal duty on the government to continue to 
have the election supervised at the government's expense."  For this 
reason, a hypothetical court order directing the government to pay the 
costs of a 1996 election rerun resting on a contrary construction of 
the Consent Decree "would raise serious constitutional concerns 
regarding separation of powers and the appropriations process.  See 
e.g., OPM v. Richmond, 496 U.S. 414 (1990); Evans v. City of Chicago, 
10 F.3d 474, 478-79 (7th Cir. 1993)."  Government's Response to 
Election Officer Application No. XIII For an Order Securing Funding 
for the Rerun Election, at 2 n.1.