Applicability of the Antideficiency Act Upon a Lapse in an Agency's Appropriation ( 1980 )

Applicability of the Antideficiency Act Upon a
Lapse in an Agency’s Appropriation
If, after the expiration o f an agency’s appropriation, C ongress has not enacted an appro­
priation for the im m ediately subsequent period, the agency may obligate no further
funds except as necessary to bring about the orderly term ination o f its functions, and
the obligation or expenditure o f funds for any purpose not otherw ise authorized by law
w ould be a violation o f the A ntideficiency Act.
T he manifest purpose o f the A ntideficiency A ct is to insure that C ongress will determ ine
for w hat purpose the governm ent’s m oney is to be spent and how m uch for each
purpose.
Because no statute generally perm its federal agencies to incur obligations w ithout appro­
priations for the pay o f em ployees, agencies are not, in general, authorized to employ
the services o f their em ployees upon a lapse in appropriations.
April 25, 1980
T he P r e s id e n t
M y D e a r M r . P r e s i d e n t : Y o u have requested my opinion whether an
agency can lawfully permit its employees to continue work after the
expiration of the agency’s appropriation for the prior fiscal year and
prior to any appropriation for the current fiscal year. The Comptroller
General, in a March 3, 1980, opinion, concluded that, under the so-
called Antideficiency Act, 31 U.S.C. § 665(a), any supervisory officer
or employee, including the head of an agency, who directs or permits
agency employees to work during any period for which Congress has
not enacted an appropriation for the pay of those employees, violates
the Antideficiency Act. Notwithstanding that conclusion, the Comp­
troller General also took the position that Congress, in enacting the
Antideficiency Act, did not intend federal agencies to be closed during
periods o f lapsed appropriations. In my view, these conclusions are
inconsistent. It is my opinion that, during periods of “lapsed appropria­
tions,” no funds may be expended except as necessary to bring about
the orderly termination of an agency’s functions, and that the obligation
or expenditure of funds for any purpose not otherwise authorized by
law would be a violation of the Antideficiency Act.
Section 665(a) of Title 31 forbids any officer or employee of the
United States to:
Involve the Government in any contract or other obliga­
tion, for the payment of money for any purpose, in
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advance of appropriations made for such purpose, unless
such contract or obligation is authorized by law.
Because no statute permits federal agencies to incur obligations to pay
employees without an appropriation for that purpose, the “authorized
by law” exception to the otherwise blanket prohibition of § 665(a)
would not apply to such obligations.1 On its face, the plain and unam­
biguous language of the Antideficiency Act prohibits an agency from
incurring pay obligations once its authority to expend appropriations
lapses.
The legislative history of the Antideficiency Act is fully consistent
with its language. Since Congress, in 1870, first enacted a statutory
prohibition against agencies incurring obligations in excess of appropria­
tions, it has amended the Antideficiency Act seven times.2 On each
occasion, it has left the original prohibition untouched or reenacted the
prohibition in substantially the same language. With each amendment,
Congress has tried more effectively to prohibit deficiency spending by
requiring, and then requiring more stringently, that agencies apportion
their spending throughout the fiscal year. Significantly, although Con­
gress, from 1905 to 1950, permitted agency heads to waive their agen­
cies’ apportionments administratively, Congress never permitted an
administrative waiver of the prohibition against incurring obligations in
excess or advance of appropriations. Nothing in the debates concerning
any of the amendments to or reenactments of the original prohibition
has ever suggested an implicit exception to its terms.3
The apparent mandate of the Antideficiency Act notwithstanding, at
least some federal agencies, on seven occasions during the last 30 years,
have faced a period of lapsed appropriations. Three such lapses oc­
curred in 1952, 1954, and 1956.4 On two of these occasions, Congress
subsequently enacted provisions ratifying interim obligations incurred
during the lapse.5 However, the legislative history of these provisions
’ A n ex a m p le o f a s ta tu te th a t w o u ld p erm it th e in c u rrin g o f o b lig a tio n s in ex cess o f a p p ro p ria tio n s
is 41 U .S .C . § 11, p e rm ittin g s u c h c o n tra c ts fo r “ c lo th in g , su b sisten ce , fo ra g e , fuel, q u a rte rs, tra n s p o r ­
ta tio n , o r m edical a n d ho sp ital supplies*’ fo r th e A rm e d F o rc e s . S ee 15 O p . A tt'y G e n . 209. S ee also 25
U .S .C § 9 9 an d 31 U .S .C § 6 6 8 .
2 A c t o f M a rc h 3, 1905, c h . 1484, § 4 , 33 S la t. 1257; A c t o f F eb. 27, 1906, c h . 510, § 3, 34 S ta t. 48;
A c t o f S ept. 6, 1950, ch . 896, § 1211, 64 S ta t. 765; P ub. L. 8 5 -170, § 1401, 71 S tat. 4 4 0 (1957); P u b . L.
9 3 -1 9 8 , § 4 2 1 , 87 S tat. 789 (1973); P ub. L. 9 3 -3 4 4 , § 1002, 88 S ta t. 332 (1974); P u b . L . 9 3 -6 1 8 ,
§ 175(a)(2), 88 S tat. 2011 (1975).
3 T h e p ro h ib itio n ag ain st in c u rrin g o b lig a tio n s in ex cess o f a p p ro p ria tio n s w as e n a c te d in 1870,
a m e n d e d slig h tly in 1905 a n d 1906, an d re e n a c te d in its m o d e rn v e rsio n in 1950. T h e re le v a n t
le g islativ e d e b a te s o c c u r at C o n g . G lo b e , 41st C o n g ., 2d Sess. 1553, 3331 (1870); 39 C o n g . R ec . 3 6 8 7 -
692, 3 7 80-783 (1905); 40 C o n g . R ec. 1272-298, 1623-624 (1906); 96 C o n g . R ec. 6 7 2 5 -7 3 1 , 6 8 3 5 -8 3 7 ,
1 1 3 6 9 -3 70(1950).
4 In 1954 a n d 1956, C o n g re s s e n a c te d te m p o ra ry a p p ro p ria tio n s m e asu res la te r th a n J u ly 1, th e start
o f fiscal y ea rs 1955 a n d 1957. A c t o f J u ly 6, 1954, c h . 460, 68 S tat. 448; A c t o f J u ly 3. 1956, c h . 516,
70 S tat. 496. In 1952, C o n g re s s e n a c te d , tw o w e e k s late, su p p lem en ta l a p p ro p ria tio n s fo r fiscal y ea r
1953 w ith o u t h a v in g p re v io u sly e n a c te d a te m p o ra ry a p p ro p ria tio n s m e asu re. A c t o f J u ly 15, 1952, ch.
758, 66 S tat. 637.
5 A c t o f J u ly 15, 1952, c h . 758, § 1414, 66 S ta t. 661; A c t o f A u g . 26, 1954, c h . 935, § 1313, 68 S tat.
831.
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does not explain Congress’ understanding of the effect of the
Antideficiency Act on the agencies that lacked timely appropriations.6
Neither are we aware that the Executive Branch formally addressed the
Antideficiency Act problem on any of these occasions.
The four more recent lapses include each of the last four fiscal years,
from fiscal year 1977 to fiscal year 1980. Since Congress adopted a
fiscal year calendar running from October 1 to September 30 of the
following year, it has never enacted continuing appropriations for all
agencies on or before October 1 of the new fiscal year.7 Various
agencies of the Executive Branch and the General Accounting Office
have internally considered the resulting problems within the context of
their budgeting and accounting functions. Your request for my opinion,
however, apparently represents the first instance in which this Depart­
ment has been asked formally to address the problem as a matter of
law.
I understand that, for the last several years, the Office of Manage­
ment and Budget (OMB) and the General Accounting Office (GAO)
have adopted essentially similar approaches to the administrative prob­
lems posed by the Antideficiency Act. During lapses in appropriations
during this Administration, OMB has advised affected agencies that
they may not incur any “controllable obligations” or make expenditures
against appropriations for the following fiscal year until such appropria­
tions are enacted by Congress. Agencies have thus been advised to
avoid hiring, grantmaking, nonemergency travel, and other nonessential
obligations.
When the General Accounting Office suffered a lapse in its own
appropriations last October, the Director of General Services and Con­
troller issued a memorandum, referred to in the Comptroller General’s
opinion,8 indicating that GAO would need “to restrain our FY 1980
obligations to only those essential to maintain day-to-day operations.”
Employees could continue to work, however, because of the Director’s
determination that it was not “the intent of Congress that GAO close
down.”
M n 1952, n o te m p o ra ry a p p ro p ria tio n s w e re e n a c te d fo r fiscal y e a r 1953. T h e su p p le m e n ta l a p p r o ­
p ria tio n s m e asu re e n a c te d o n J u ly 15, 1952 d id , h o w e v e r , in c lu d e a p ro v is io n ra tify in g o b lig atio n s
in c u rre d o n o r sin ce J u ly 1, 1952. A c t o f J u ly 15, 1952, c h . 758, § 1414, 66 S ta t. 661. T h e ratifica tio n
w as in c lu d e d , w ith o u t e la b o ra tio n , in th e H o u se C o m m itte e -re p o rte d b ill, H . R ep . N o . 2316, 82d
C o n g ., 2d Sess. 69 (1952), a n d w a s n o t d e b a te d o n th e floor.
In 1954, a te m p o ra ry a p p ro p ria tio n s m e asu re fo r fiscal y e a r 1955 w as p re s e n te d to th e P resid en t on
J u ly 2 a n d sig n ed o n J u ly 6. A c t o f J u ly 6, 1954, c h . 460, 68 S tat. 448. T h e S e n a te C o m m itte e on
A p p ro p ria tio n s s u b se q u e n tly in tro d u c e d a flo o r am e n d m e n t to th e e v e n tu a l su p p le m e n ta l a p p r o p r ia ­
tio n s m e a su re th a t ratified o b lig a tio n s in c u rre d on o r a fte r J u ly 1, 1954, an d w as a c c e p te d w ith o u t
d e b a te . A c t o f A u g . 26, 1954, c h . 935, § 1313, 68 S ta t. 831. 100 C o n g . R ec . 13065 (1954).
In 1956, C o n g re s s ’ te m p o ra ry a p p ro p ria tio n s m e a su re w as passed o n J u ly 2 a n d a p p ro v e d o n J u ly 3.
A c t o f J u ly 3, 1956, c h . 516, 70 S ta t. 496. N o ra tific a tio n m e asu re fo r p o s t-J u ly 1 o b lig a tio n s w as
e n a c te d .
7 P u b . L. 9 4 -4 7 3 , 9 0 S ta t. 2065 (O c t. I I , 1976); P u b . L. 9 5 -1 3 0 , 91 S tat. 1153 (O c t. 13, 1977); Pub.
L . 9 5 -4 8 2 , 92 S tat. 1603 (O c t. 18, 1978); P u b . L. 9 6 -8 6 , 93 S tat. 656 (O c t. 12, 1979).
8T h e e n tire m e m o ra n d u m a p p e a rs at 125 C o n g . R ec . S13784 (d aily ed . O c t. 1, 1979) [rem ark s o f
S en. M ag n u so n ].
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In my view, these approaches are legally insupportable. My judg­
ment is based chiefly on three considerations.
First, as a matter of logic, any “rule of thumb” excepting employee
pay obligations from the Antideficiency Act would have to rest on a
conclusion, like that of the Comptroller General, that such obligations
are unlawful, but also authorized. I believe, however, that legal author­
ity for continued operations either exists or it does not. If an agency
may infer, as a matter of law, that Congress has authorized it to operate
in the absence of appropriations, then in permitting the agency to
operate, the agency’s supervisory personnel cannot be deemed to vio­
late the Antideficiency Act. Conversely, if the Antideficiency Act
makes it unlawful for federal agencies to permit their employees to
work during periods of lapsed appropriations, then no legislative au­
thority to keep agencies open in such cases can be inferred, at least
from the Antideficiency Act.
Second, as I have already stated, there is nothing in the language of
the Antideficiency Act or in its long history from which any exception
to its terms during a period of lapsed appropriations may be inferred.
Faithful execution of the laws cannot rest on mere speculation that
Congress does not want the Executive Branch to carry out Congress’
unambiguous mandates.
It has been suggested, in this regard, that legislative intent may be
inferred from Congress’ practice in each of the last four years of
eventually ratifying obligations incurred during periods of lapsed appro­
priations if otherwise consistent with the eventual appropriations.9 Put­
ting aside the obvious difficulty of inferring legal authority from expec­
tations as to Congress’ future acts, it appears to me that Congress’
practice suggests an understanding of the Antideficiency Act consistent
with the interpretation I have outlined. If legal authority exists for an
agency to incur obligations during periods of lapsed appropriations,
Congress would not need to confirm or ratify such obligations. Ratifi­
cation is not necessary to protect private parties who deal with the
government. So long as Congress has waived sovereign immunity with
respect to damage claims in contract, 28 U.S.C. §§ 1346, 1491, the
apparent authority alone of government officers to incur agency obliga­
tions would likely be sufficient to create obligations that private parties
could enforce in court. The effect of the ratifying provisions seems thus
to be limited to providing legal authority where there was none before,
implying Congress’ understanding that agencies are not otherwise em­
powered to incur obligations in advance of appropriations.
Third, and of equal importance, any implied exception to the plain
mandate of the Antideficiency Act would have to rest on a rationale
that would undermine the statute. The manifest purpose of the
9 Pu b . L. 9 4 -473, § 108, 90 S tat. 2066 (1976); P ub. L. 9 5 -1 3 0 , § 108, .91 S tat. 1154 (1977); P u b . L.
9 5 -4 8 2 , § 108, 92 S tat. 1605 (1978); P ub. L. 9 6 -8 6 , § 117, 93 S tat. 662 (1979).
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Antideficiency Act is to insure that Congress will determine for what
purposes the government’s money is to be spent and how much for
each purpose. This goal is so elementary to a proper distribution of
governmental powers that when the original statutory prohibition
against obligations in excess of appropriations was introduced in 1870,
the only responsive comment on the floor of the House was, “I believe
that is the law of the land now.” Cong. Globe, 41st Cong., 2d Sess.
1553 (1870) (remarks of Rep. Dawes).
Having interpreted the Antideficiency Act, I would like to outline
briefly the legal ramifications of my interpretation. It follows first of all
that, on a lapse in appropriations, federal agencies may incur no obliga­
tions that cannot lawfully be funded from prior appropriations unless
such obligations are otherwise authorized by law. There are no excep­
tions to this rule under current law, even where obligations incurred
earlier would avoid greater costs to the agencies should appropriations
later be enacted.10
Second, the Department of Justice will take actions to enforce the
criminal provisions of the Act in appropriate cases in the future when
violations of the Antideficiency Act are alleged. This does not mean
that departments and agencies, upon a lapse in appropriations, will be
unable logistically to terminate functions in an orderly way. Because it
would be impossible in fact for agency heads to terminate all agency
functions without incurring any obligations whatsoever in advance of
appropriations, and because statutes that impose duties on government
officers implicitly authorize those steps necessary and proper for the
performance of those duties, authority may be inferred from the
Antideficiency Act itself for federal officers to incur those minimal
obligations necessary to closing their agencies. Such limited obligations
would fall within the “authorized by law” exception to the terms of
§ 665(a).
This Department will not undertake investigations and prosecutions
of officials who, in the past, may have kept their agencies open in
advance of appropriations. Because of the uncertainty among budget
and accounting officers as to the proper interpretation of the Act and
Congress’ subsequent ratifications of past obligations incurred during
periods of lapsed appropriations, criminal sanctions would be inappro­
priate for those actions.
Respectfully,
B e n j a m i n R. C iv ile tti
10S ee 21 O p . A tt’y G e n . 288.
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