TITLE:   District of Columbia Courts Appropriation Accounting, B-284566, April 3, 2000
BNUMBER:  B-284566
DATE:  April 3, 2000
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District of Columbia Courts Appropriation Accounting, B-284566, April 3,
2000

B-284566

April 3, 2000

Ms. Anne Wicks
Acting Executive Officer
District of Columbia Courts

Subject: District of Columbia Courts Appropriation Accounting

Dear Ms. Wicks:

By letter dated January 20, 2000, the former Executive Officer, District of
Columbia Courts, asked the following questions concerning the proper
accounting for certain payments by D.C. Courts for the D.C. Criminal Justice
Act (CJA), the Counsel for Child Abuse and Neglect (CCAN), and the
Guardianship programs. [1]

  1. Is the appropriation for "Defender Services in the District of Columbia
     Courts" the "applicable appropriation" to charge prior fiscal year
     obligations for purposes of section 108 of a joint resolution making
     continuing appropriations for fiscal year 2000 (continuing resolution)?
     [2]
  2. Are the "Federal Payment to the District of Columbia Courts" and
     "Defender Service in the District of Columbia Courts" appropriations
     for fiscal year 2000 available to pay any prior fiscal year(s) CJA,
     CCAN, and Guardianship program obligations not paid before enactment of
     the District of Columbia Appropriations Act, 2000 [3] or not paid out
     of interest earned on the fiscal year 1999 "Federal Payment to the
     District of Columbia Courts"?
  3. Would the D.C. Courts violate the Antideficiency Act by continuing to
     incur obligations for court-appointed attorneys if fiscal year 2000
     appropriations are insufficient to pay all fiscal year 2000 obligations
     for these programs?

Regarding payments made under the continuing resolution, the "Defender
Services in the District of Columbia Courts" appropriation is an "applicable
appropriation" to charge these payments although not the only "applicable
appropriation." We also agree that the "Federal Payment to the District of
Columbia Courts" and the "Defender Services in the District of Columbia
Courts" appropriations are available to cover prior year(s) obligations.
Finally, D.C. Courts would not violate the Antideficiency Act if it incurs
and charges CJA, CCAN, and Guardianship program obligations against the
fiscal year 2000 Defender Services appropriation after it is exhausted.
Congress has authorized, but not required, the D.C. Courts to use the
Federal Payment fiscal year 2000 appropriation to pay these obligations. As
discussed in more detail below, the D.C. Courts should use the financing
flexibility Congress has provided to reduce, if not eliminate, the risk that
fiscal year 2000 obligations for the CJA, CCAN, and Guardianship programs
would not be timely paid.

Background

The District of Columbia Appropriation Act for 1998 authorized $108 million
in the "Federal Payment to the District of Columbia – Criminal Justice
System" appropriation to be used to fund D.C. Courts activities, including
payments for attorneys appointed to represent indigents under the CJA, CCAN,
and the Guardianship program. [4] D.C. Courts overobligated its 1998
appropriation in violation of the Antideficiency Act and deferred a
significant amount of attorney payments until fiscal year 1999. [5]

Congress became aware of the deferred payments and changed the appropriation
for D.C. Courts. Instead of including funds for court appointed attorneys in
a lump sum appropriation, the District of Columbia Appropriation Act, 1999,
specifically provided up to a specific amount for the CJA and CCAN programs
as part of the "Federal Payment to the District of Columbia Courts." [6]

During fiscal year 1999, it became clear that D.C. Courts would not be able
to pay all its fiscal year 1999 and prior year obligations for the CJA,
CCAN, and Guardianship programs with fiscal year 1999 appropriations. In
response, Congress significantly changed the way it appropriated funds for
D.C. Courts by establishing two separate appropriation accounts. The
District of Columbia Appropriation Act, 2000, provides a "Federal Payment to
the District of Columbia Courts" to fund salaries and expenses of court
operations and capital improvements. The Act separately appropriates funds
for "Defender Services in the District of Columbia Courts" to fund the CJA,
CCAN, and Guardianship programs.

Congress also included two provisos in the Defender Services appropriation
to reduce the likelihood that there would be unpaid CJA, CCAN, and
Guardianship Program obligations at the end of fiscal year 2000. The first
proviso authorizes D.C. Courts to use the "Federal Payment to the District
of Columbia Courts" account to make payments for the same purposes that the
Defender Services account is available. The second proviso provides that in
addition to the Defender Services appropriation, D.C. Courts may use
interest earned on the fiscal year 1999 Federal Payment made to the District
of Columbia Courts and the fiscal year 2000 "Federal Payment to the District
of Columbia Courts" account to pay prior year obligations. [7] Congress
included these provisos because of concern that D.C. Courts had
underestimated the amount needed to pay obligations carried over from fiscal
year 1999 and to be incurred in fiscal year 2000, and that the planned
fiscal year 2000 appropriation for Defender Services would be inadequate to
meet these needs. [8]

"Applicable Appropriation" for Purposes of Section 108 of the Continuing
Resolution

From October 1 to November 28, 1999, D.C. Courts received funding for fiscal
year 2000 through a continuing resolution. During this period, D.C. Courts
used authority provided by the continuing resolution to pay some fiscal year
1999 obligations for attorney services provided under the CJA, CCAN, and
Guardianship programs. Section 108 of the continuing resolution clearly
provides that expenditures made under the continuing resolution should
subsequently be charged to the applicable appropriation, fund, or
authorization when the fiscal year 2000 appropriation bill is enacted.
Accordingly, once the District of Columbia Appropriation Act, 2000, became
law on November 29, 1999, D.C. Courts had to determine the applicable
appropriation, fund, or authorization for paying the fiscal year 1999
obligations. D.C. Courts has decided to charge the payments for prior year
obligations made from October 1 to November 28 against the Defender Services
appropriation account. According to an apportionment schedule dated December
30, 1999, the Office of Management and Budget apportioned $6 million from
the Defender Service account for fiscal year 1999 obligations based on D.C.
Courts October 1999 estimates. The District of Columbia Appropriation Act,
2000, as illuminated by its legislative history, supports a conclusion that
the Defender Services funds are the primary source of funds for paying CJA,
CCAN, and Guardianship Program attorneys. However, the first proviso in the
"Federal Payment to the District of Columbia Courts" account also made it
available to pay for fiscal year 1999 defender services. Accordingly, the
"Federal Payment to the District of Columbia Courts" account also may be
considered an applicable appropriation for paying the fiscal year 1999
obligations. Therefore, charging the payments for prior year obligations
made from October 1 to November 28 against the Defender Services
appropriation account is a reasonable, although not the only, application of
the law.

Payments Chargeable to the Two Fiscal Year 2000 Appropriations

After November 28, 1999, D.C. Courts paid some fiscal year 1999 obligations
to CJA, CCAN, and Guardianship Program attorneys under authority provided by
the District of Columbia Appropriation Act, 2000. D.C. Courts decided to
charge these payments against the interest earned on the fiscal year 1999
"Federal Payment to the District of Columbia Courts." The District of
Columbia Appropriation Act, 2000, authorized using the interest, but only to
pay fiscal year 1999 obligations. [9] Thus if it is not used for prior year
obligations, it may not be used at all. Accordingly, using all the interest
first is not only authorized, but good fiscal management because it reduces
the amount of the fiscal year 2000 appropriations for "Defender Services in
the District of Columbia Courts" and "Federal Payment to the District of
Columbia Courts" that will be needed to pay prior year obligations.

We agree that the District of Columbia Appropriation Act, 2000, makes both
the fiscal year 2000 "Defender Services in District of Columbia Courts" and
"Federal Payment to the District of Columbia Courts" accounts available for
payments of prior year obligations made after November 28. D.C. Courts
suggests that after using the interest, it will charge the Defender Services
account rather than the Federal Payment account. After we issued the
necessary certification, the second proviso authorizes, but does not
require, D.C. Courts to use the Federal Payment account to pay prior year
obligations. As with the payments made from October 1 to November 28
discussed above, charging the payments for prior year obligations made after
November 28 against the Defender Services appropriation account is a
reasonable, although not the only, application of the law.

Antideficiency Act

D.C. Courts suggests that after using the fiscal year 2000 Defender Services
appropriation to pay prior year obligations not covered by the interest, the
Defender Services appropriation will be inadequate to pay all fiscal year
2000 obligations for the CJA, CCAN, and Guardianship programs. You therefore
ask whether D.C. Courts may continue to incur obligations for the CJA, CCAN,
and Guardianship programs and would violate the Antideficiency Act if D.C.
Courts does not use the Federal Payment account to pay fiscal year 2000
obligations after exhausting the Defender Services appropriation.

We previously agreed with D.C. Courts that obligations for attorneys
appointed under the CJA, CCAN, and Guardianship programs are mandatory in
nature; and we stated that when a law establishes an appropriation for the
sole purpose of paying obligations of a mandatory nature, overobligating the
appropriation does not violate the Antideficiency Act. D.C. Courts: Planning
and Budgeting Difficulties During Fiscal Year 1998, GAO/AIMD/OGC-99-226,
September 1999, p. 12 (citing 65 Comp. Gen. 4 (1985)). Accordingly, the
Antideficiency Act does not affect the authority of the D.C. Courts to
appoint attorneys under the CJA, CCAN, and Guardianship programs and record
the resulting obligations against the fiscal year 2000 appropriation for
"Defender Services in District of Columbia Courts."

We also believe that no violation of the Antideficiency Act would result if
D.C. Courts does not use the Federal Payment account to pay obligations for
the CJA, CCAN, and Guardianship programs after exhausting the Defender
Services appropriation. The fiscal year 2000 appropriation for "Defender
Services in District of Columbia Courts" authorizes but does not require
D.C. Courts to use the Federal Payment account for attorney payments.
Further, the Federal Payment's primary purpose is to fund D.C. Courts
operations and capital improvements. The Antideficiency Act does not require
an agency to exercise discretionary authority to use funds in one
appropriation in order to pay mandatory obligations properly chargeable
against a different appropriation. [10]

Congress provided D.C. Courts with considerable discretion to reduce, if not
eliminate, the risk that fiscal year 2000 obligations for CJA, CCAN, and
Guardianship attorneys would not be timely paid. Charging the fiscal year
2000 Defender Services appropriation with all prior year obligations not
paid with interest reduces the amount of the Defender Services appropriation
available for fiscal year 2000 obligations. D.C. Courts may decide not to
use the Federal Payment to pay any prior year obligations for CJA, CCAN, and
Guardianship attorneys until the Defender Services appropriation is
exhausted. While this is permissible as a matter of law, it delays use of
the Federal Payment for CJA, CCAN, and Guardianship attorneys until late in
the fiscal year, at which point the amount of the Federal Payment not needed
for basic operating needs of the D.C. Courts may be relatively small.

While it may be difficult to accurately quantify the amount necessary to
supplement the Defender Services account, D.C. Courts need to anticipate
possible exhaustion of the Defender Services account and develop plans to
reduce the likelihood that it will be unable to pay some CJA, CCAN, and
Guardianship obligations at the end of fiscal year 2000. For example, D.C.
Courts could identify low priority fiscal year 2000 spending for general
operations that can either be canceled or postponed and reserve the amount
to pay CJA, CCAN, and Guardianship obligations before or after the Defender
Services account is exhausted. D.C. Courts could manage the amount of budget
authority reserved as a contingency in the event needed to make attorney
payments and, if not needed, release it to fund postponed spending. We will
separately respond to the question on the government-wide rescission in the
near future. I trust this otherwise responds to your inquiry.

Sincerely yours,

Robert P. Murphy

General Counsel

Notes

1. The former Executive Officer also asked about the applicability of a
government-wide rescission to the fiscal year 2000 appropriation for D.C.
Courts. We will address this issue in a separate response. Also, for ease of
presentation, we will hereafter characterize questions and representations
from the former Executive Officer as from D.C. Courts.

2. Pub. L. No. 106-62, 113 Stat. 505, 507 September 30, 1999, as amended.

3. Pub. L. No. 106-113, Division A, Title I, 113 Stat. 1501, November 29,
1999.

4. Pub. L. No. 105-100, 111 Stat. 2160, 2161 (1997).

5. D.C. Courts: Planning and Budgeting Difficulties During Fiscal Year 1998
GAO/AIMD/OGC-99-226, September 1999.

6. Pub. L. No. 105-277, sec. 101 (c), 112 Stat. 2681, 2681-122, October 21,
1998.

7. The proviso authorizes the use of these funding sources only "if the
Comptroller General certifies that the amount of obligations lawfully
incurred for such payments during fiscal year 1999 exceeds the obligational
authority otherwise available for making such payments." We made the
certification to the Joint Committee on Judicial Administration, D.C.
Courts. DC Courts: Review of Fiscal Year 1999 Defender Services Obligations,
B-284464, January 27, 2000.

8. H.R. Rep. No. 106-299 (1999)(conference report on H.R. 2587); 145 Cong.
Rec. H111097 (daily ed. October 28, 1999) (statement of Chairman Istook on
H.R. 3064). For reasons not relevant here, the President vetoed H.R. 2587
and H.R. 3064, the first two District of Columbia appropriations bills for
fiscal year 2000 passed by Congress.

9. D.C. Courts discussed the use of interest for fiscal year 1999
obligations only in the context of payments made after November 28, 1999.
Payments for fiscal year 1999 obligations made between October 1 and
November 28 under the continuing resolution also could have been charged
against the interest. After enactment of the District of Columbia
Appropriation Act, 2000, and our issuance of the certification provided for
by the act, the interest became an applicable appropriation, fund, or
authorization for purposes of charging expenditures pursuant to section 108
of the continuing resolution. Whether the interest is used to cover fiscal
year 1999 obligations paid between October 1 and November 28 or those paid
after November 28 has no practical effect under the circumstances here.

10. This is not like the Antideficiency Act issue we addressed in D.C.
Courts: Planning and Budgeting Difficulties During Fiscal Year 1998,
GAO/AIMD/OGC-99-226, September 1999. Unlike fiscal year 2000, fiscal year
1998 funding for mandatory obligations under the CJA, CCAN, and Guardianship
programs was included in a larger, lump sum appropriation for operating D.C.
Courts, which was overobligated. We found an Antideficiency Act violation
because the overobligations resulted from discretionary spending, not from
unexpected mandatory spending. Here, instead of one appropriation account
available to cover the mandatory and discretionary obligations, we have two
separate appropriations, one of which is available for mandatory obligations
and against which the overobligation would be charged.