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.