Continuation of Federal Prisoner Detention Efforts During United States Marshals Service Appropriation Deficiency ( 2000 )

Continuation of Federal Prisoner Detention Efforts During
United States Marshals Service Appropriation Deficiency
It is doubtful that the “ authorized by law ” exception to the A ntideficiency A ct would allow the
U nited States M arshals Service to continue to provide prisoner detention-related functions during
a deficiency in its Federal Prisoner Detention budget, but it is likely that the “ em ergency” excep­
tions set forth in § 1342 and § 1515 o f that statute would apply, in many, if not all, circum stances.
April 5, 2000
M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
U n it e d S t a t e s M a r s h a l s S e r v ic e
I. Introduction and Summary
Facing a possible deficiency in its FY 1999 Federal Prisoner Detention Budget
( “ FPD” ), the Marshals Service sought our opinion on the potential applicability
of certain exceptions to the Antideficiency Act, 31 U.S.C. §§ 1341-1342, 1349-
1350, 1511-1519 (1994). See Memorandum for Randolph Moss, Acting Assistant
Attorney General, Office of Legal Counsel, from Deborah'C. Westbrook, General
Counsel, United States Marshals Service, Re: Possible Anti-Deficiency Act Viola­
tion — Request fo r Legal Opinion (Dec. 23, 1998) (“ USMS Memorandum” ). In
response to this request, we issued an interim opinion outlining the USMS’s
affirmative obligation to address the anticipated deficiency in the FPD appro­
priated budget either by procuring supplemental funding through reprogramming
or by curtailing expenditures and obligations that would eventually cause a defi­
ciency or necessitate supplemental appropriation. See United States Marshals
Service Obligation to Take Steps to Avoid Anticipated Appropriations Deficiency ,
23 Op. O.L.C. 105 (1999) (“ Interim Opinion” ). It is our understanding that, in
the end, the Marshals Service was able to avoid the potential deficiency, and thus
was not required to face the question of whether, and in what manner, it could
continue to perform its mission after having expended all appropriated funds.
Although the current threat of deficiency has passed, you have asked that we
nonetheless consider whether the “ authorized by law” or “ emergency” excep­
tions contained in the Antideficiency Act are applicable to the prisoner detention
functions performed by the USMS. We conclude that it is doubtful that the
“ authorized by law” exception would permit the USMS to continue to provide
prisoner detention-related functions during a deficiency, but it is likely that the
USMS could in many, if not all, circumstances continue to perform detention func­
tions under the “ emergency” exceptions set forth in § 1342 and § 1515 of the
Antideficiency Act. We stress, however, that this authority only permits entering
into an obligation to make payment for services, and related material, during a
period of deficiency and does not authorize actually making payment on such
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obligations without returning to Congress for an appropriation. We also stress,
as we did in our Interim Opinion, that the USMS would, if again faced with
a risk of deficiency, have an affirmative obligation to take steps, to the extent
possible, to avoid the deficiency.
II. Analysis
As we indicated in our Interim Opinion, the Antideficiency Act reinforces the
prohibition in Article 1, Section 9 of the Constitution that “ [n]o Money shall
be drawn from the Treasury, but in Consequence of Appropriations made by
Law,” U.S. Const, art. I, §9, cl. 7, by imposing administrative and criminal pen­
alties on officers and employees o f the United States Government and the District
of Columbia who “ make or authorize an expenditure or obligation exceeding an
amount available in an appropriation” or “ involve either government in a contract
or obligation for the payment o f money before an appropriation is made unless
authorized by law.” See 31 U.S.C. §1341; see also id. §1349 (subjecting
Antideficiency Act violators to “ appropriate administrative discipline including,
when circumstances warrant, suspension from duty without pay or removal from
office” ); id. §1350 (imposing a criminal fine of not more than $5,000 and/or
a term of imprisonment for not more than two years for Antideficiency Act viola­
tions). It establishes a broad prohibition against such expenditures, indeed even
against attempts to incur obligations in excess of appropriated funds, and admits
only two statutory exceptions, the exception for services “ authorized by law”
and for “ emergencies involving the safety of human life or the protection of prop­
erty.” See 31 U.S.C. §§ 1341, 1342; but see Armster v. United States Dist. Court
fo r the Cent. D ist., 792 F.2d 1423 (9th Cir. 1986) (holding that Seventh Amend­
ment right to a jury trial in civil cases precluded court system from suspending
civil trials as part of an effort to comply with the Antideficiency Act).
Previously, we have most often examined the ‘‘authorized by law’’ and ‘ ‘emer­
gency” exceptions in the context of a lapsed appropriation.1 Your request calls
for us to interpret those exceptions in the context of an appropriation that has
not lapsed but, instead, is likely to be exceeded. We think our more recent prece­
dents concerning lapsed appropriations are relevant to our analysis of the excep­
tions that apply where an agency has exhausted its appropriated funds and there­
fore review some of the history and principles outlined in our earlier memoranda.
1 See, e .g , Effect o f Appropriations fo r O ther Agencies and Branches on the Authonty to Continue Department
o f Justice Functions During the Lapse in the Department's Appropriations, 19 Op. O.L.C. 337 (1995); Maintaining
Essential Services in the District o f Columbia in the Event Appropriations Cease, 12 Op. O.L C. 290 (1988); Continu­
ation o f Agency Activities During a Lapse in Both Authorization and Appropriation, 6 Op O.L.C. 555 (1982); Pay­
m ent o f Travel Costs to Witnesses During a Period o f Lapsed Appropriations, 5 Op O L.C 429 (1981), Applicability
o f the Antideficiency A ct Upon a Lapse in an Agency's Appropriation, 4A Op. O.L C. 16 (1980)
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Continuation o f Federal Prisoner Detention Efforts During United States M arshals Service
Appropriation Deficiency
A. “ Authorized By Law” Exception of Section 1341 of the Antideficiency Act.
We begin with the “ authorized by law” exception set forth in § 1341 of the
Antideficiency Act, which was first incorporated into the statute in 1905. Act of
Mar. 3, 1905, ch. 1484, §4, 33 Stat. 1214, 1257; see also 39 Cong. Rec. 3690-
92, 3780-81 (1905). Section 1341 provides, in relevant part, that:
[a]n officer or employee of the United States Government or of
the District of Columbia government may not — (A) make or
authorize an expenditure or obligation exceeding an amount avail­
able in an appropriation or fund for the expenditure or obligation;
[or] (B) involve either government in a contract or obligation for
the payment of money before an appropriation is made unless
authorized by law.
31 U.S.C. § 1341 (emphasis added). Although § 1341 creates a general prohibition
against expenditures in excess of appropriations, we have interpreted its “ author­
ized by law” provision to permit the obligation of funds in advance of appropria­
tions, where such obligations are:
(1) funded by moneys, the obligational authority of which is not
limited to one year, e.g., multi-year appropriations; (2) authorized
by statutes that expressly permit obligations in advance of appro­
priations; or (3) authorized by necessary implication from the spe­
cific terms of duties that have been imposed on, or of authorities
that have been invested in, the agency.
Authority fo r the Continuance o f Government Functions During a Temporary
Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981) (“ 1981 Civiletti Opinion” ).
Because the obligational authority for the FPD appropriations is limited to one
year and we are aware of no statute expressly giving the USMS authority to carry
out its prisoner detention functions despite a lack of available funds, the issue
here is whether authority for the continuance of such functions during a funding
deficiency can be inferred from the broadly defined powers and duties of the
USMS. Under 28 U.S.C. § 566(a) (1994), the “ primary role and mission of the
United States Marshals Service” is “ to provide for the security and to obey, exe­
cute, and enforce all orders of the United States District Courts, the United States
Courts of Appeals and the Court of International Trade.” Among other duties,
the USMS must “ execute all lawful writs, process, and orders issued under the
authority of the United States,” id. § 566(c); may make certain arrests, id.
§ 566(d); may provide defined protective services, id. § 566(e)(1)(A); and may
“ investigate such fugitive matters . . . as directed by the Attorney General,” id.
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§ 566(e)(1)(B). Moreover, in executing the laws of the United States, each U.S.
Marshal is vested with the same sweeping authority as that vested under state
law in the sheriff of the state in which the Marshal is serving. 28 U.S.C. § 564(1994).
We doubt that the authority to obligate expenditures in the face of a deficiency
can be inferred from the USMS duties described in § 566. Although the USMS
is statutorily required to “ execute[] and enforce all orders of the United States
District Courts,” including orders remanding prisoners to the custody of the
USMS, and is authorized to arrest, and thus to hold, certain persons,2 we have
previously stated that “ statutory authority to incur obligations in advance of
appropriations . . . may not ordinarily be inferred, in the absence of appropria­
tions, from the kind of broad, categorical authority, standing alone, that often
appears . . . in the organic statutes of government agencies.” 5 Op. O.L.C. at
4. A conclusion that obligations in excess of appropriations are “ authorized by
law” must be supported by something more than a finding that the functions for
which the obligations are to be made can reasonably be said to fall within the
agency’s general responsibilities. Id. For that reason, Attorney General
McReynolds concluded in a 1913 opinion that, without more, the Postmaster Gen­
eral’s broad authority for operating the mail service would be insufficient
authorization for attempting to avoid an interruption in such service by obligating
funds in excess of appropriations to employ temporary mail carriers. Postal
Service — Employment o f Temporary and Auxiliary Clerks and Letter Carriers,
30 Op. A tt’y Gen. 157, 160-61 (1913); see also 5 Op. O.L.C. at 5.
Although we recognize that there is an argument that the USMS’s statutory
obligation to “ provide for the security . . . of the United States” confers the
special authority contemplated by the “ authorized by law” exception, we cannot
conclude with any certainty that permission to continue the performance of pris­
oner detention functions in the face of a deficiency can reasonably be inferred
from this provision. The legal and administrative precedents do not provide any
clear direction on this point, but raise doubt about the argument. In your memo­
randum, you suggested that authorization for expenditures in excess of appropria­
tion might be found in court orders requiring the USMS to transport and detain
federal prisoners. USMS Memorandum at 4—6. In our view, the “ authorized by
law” exception must refer to congressional, as opposed to judicial, authorization
to expend funds. The Antideficiency Act was intended to reaffirm congressional
control of the purse. See Interim Opinion, 23 Op. O.L.C. at 108. As a result,
it is necessary to consider whether Congress, at least implicitly, “ authorized”
the expenditure of funds in excess o f appropriations in order to satisfy court orders
2 See 28 U.S C §§564, 566(a) and (d) See also 28 C .F R. § 0 l l l ( k ) (1999) (Director of USMS shall direct
and supervise “ Isjustention o f custody of Federal prisoners from the time of their arrest by a marshal or their
remand to a marshal by the court, until the prisoner is committed by order o f the court to the custody o f the Attorney
G eneral for the service o f sentence, otherwise released from custody by the court, or returned to the custody of
the U[nited] S[tates] Parole Commission or the Bureau o f Prisons ” )
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Continuation o f Federal Prisoner Detention Efforts During United States Marshals Service
Appropriation Deficiency
requiring the USMS to detain prisoners. This inquiry, however, would seem to
lead back to the guiding principle that statutory authority contained in an agency’s
organic statute generally provides an insufficient basis to satisfy the “ authorized
by law” exception to the Antideficiency Act. Thus, finding no clear authority
for USMS detention-related expenditures in excess of appropriation, we look next
to whether the prisoner detention functions performed by the USMS fall within
the “ emergency” exception contained in the Antideficiency Act.
B. “ Emergency” Exception of Section 1342 of the Antideficiency Act.
The second exception from the Antideficiency Act’s proscription is for “ emer­
gencies involving the safety of human life or the protection of property” and
is contained in § 1342 of the Act. Under that provision,
[a]n officer or employee of the United States Government or of
the District of Columbia government may not accept voluntary
services for either government or employ personal services
exceeding that authorized by law except fo r emergencies involving
the safety o f human life or the protection o f property.
31 U.S.C. § 1342 (emphasis added). Although this provision refers only to the
acceptance of voluntary services, we have previously interpreted its exception also
to permit agencies to “ incur obligations in advance of appropriations for material
to enable the employees involved to meet the emergency successfully.” 5 Op.
O.L.C. at 11. Significantly, this provision authorizes entering into obligations to
pay for services, and related material, but it does not itself authorize making pay­
ment on any such obligations. See Memorandum for Alice Rivlin, Director, Office
of Management and Budget, from Walter Dellinger, Assistant Attorney General,
Office of Legal Counsel, Re: Government Operations in the Event o f a Lapse
in Appropriations at 6 (Aug. 16, 1995) (“ Rivlin Memorandum” ). Before payment
could be made in case of a deficiency, it would be necessary to return to Congress
for an appropriation. See id.
The exception for “ emergencies” contained in § 1342 has long been recognized
as an important component of the Antideficiency Act. 5 Op. O.L.C. at 8. It bears
noting, however, that the earliest version of the statute, enacted in 1870, included
no exception for emergency situations. Id. It set forth only a very general prohibi­
tion against the expenditure of “ any sum in excess of appropriations” or
“ involving] the Government in any contract for the future payment of money
in excess of such appropriations.” 3 Congress did not include an exception for
2See Rev Slat §3679, Act o f July 12, 1870, 16 Stat. 230, 251 As we noted in our Intenm Opinion, the
Antideficiency Act has been amended a number o f umes since its enactment in 1870 See, e g .. Act o f Mar 3,
1905, ch 1484, § 4 , 33 Slat. 1214, 1257, Act o f Feb. 27, 1906, ch 510, §3 , 34 Stat 27, 48, Act of Aug 23,
Continued
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emergencies until 1884, when, as part of an urgent deficiency appropriation, it
enacted a measure designed to curb the incidence of claims for compensation
stemming from the unauthorized provision of services to the government by non­
governmental employees, and claims advanced by government employees seeking
compensation for services performed after hours. 5 Op. O.L.C. at 8. Legislators
were concerned that a complete ban on all “ voluntary” or non-gratuitous services
would impede federal “ life-saving” measures undertaken during periods of lapsed
or exhausted appropriations, and urged the adoption of an exception for emergency
situations. See 15 Cong. Rec. 2143 (1884) (statement of Sen. Beck). The provision
adopted in 1884 read as follows:
To enable the Secretary o f the Interior to pay the employees
temporarily employed and rendering service in the Indian Office
from January first up to July first, eighteen hundred and eighty-
four, two thousand one hundred dollars, and hereafter no D epart­
m ent o r officer o f the United States shall accept voluntary service
fo r the Government or employ personal service in excess o f that
authorized by law except in cases o f sudden emergency involving
the loss o f human life or the destruction o f property.
Act of May 1, 1884, ch. 37, 23 Stat. 15, 17 (emphasis added).
Congress amended other aspects of the Antideficiency Act in the years fol­
lowing initial adoption of the “ emergency” exception, but did not alter that provi­
sion until 1950, when it enacted the modem version of the Antideficiency Act.
See Act o f Sept. 6, 1950, ch. 896, §1211, 64 Stat. 595, 765. The Comptroller
General and the Director of the Bureau of the Budget jointly proposed new lan­
guage in a 1947 report to Congress recommending certain changes in the
Antideficiency Act and its administration. See Report and Recommendations by
the D irector o f the Bureau of the Budget and the Comptroller General o f the
United States with respect to the Antideficiency A ct and Related Legislation and
Procedures 29-31 (June 5, 1947) (attachment to Letter for Honorable Styles
Bridges, Chairman, Senate Committee on Appropriations) (“ Antideficiency Act
Report” ). Congress accepted this recommendation and revised the language con­
cerning the provision of emergency services in the context of an appropriations
deficiency as follows:
No officer or employee o f the United State shall accept voluntary
service for the United States or employ personal service in excess
1912, ch. 350, § 6 , 37 Stat 360, 414, Act o f Sept. 6, 1950, ch. 896, §1211, 64 Stat. 595, 765; Act of Aug 1,
1956, ch. 814, § 3 , 70 Stat 782, 783, Pub. L. No 85-170, § 1401, 71 Stat 426, 440 (1957), Pub. L. No 9 3 -
344, § 1002, 88 Stat. 297, 332 (1974), Pub. L. No. 93-618, § 175(a), 88 Stat. 1978, 2011 (1975); Pub. L. No.
101-508, § 13213(a), 104 Stat. 1388, 1388-621 (1990).
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Continuation o f Federal Prisoner Detention Efforts During United States Marshals Service
Appropriation Deficiency
of that authorized by law, except in cases o f emergency involving
the safety o f human life or the protection o f property.
Act of Sept. 6, 1950, ch. 896, § 1211, 64 Stat. 595, 765 (emphasis added). Neither
the 1947 report nor the legislative history sheds any light on why the language
of this provision was amended to focus on “ cases of emergency,” rather than
on “ cases of sudden emergency.” 4 In a 1981 opinion, however, Attorney General
Civiletti inferred from the plain language of the amendment an intent ‘ ‘to broaden
the authority for emergency employment.” 5 Op. O.L.C. at 9. He explained that,
“ [i]n essence, [Congress] replaced the apparent suggestion of a need to show
absolute necessity with a phrase more readily suggesting the sufficiency o f a
showing of reasonable necessity in connection with the safety of human life or
the protection of property in general.” Id. He also identified two rules for identi­
fying the functions for which emergency services could be procured:
First, there must be some reasonable and articulable connection
between the function to be performed and the safety of human life
or the protection of property. Second, there must be some reason­
able likelihood that the safety of human life or the protection of
property would be compromised, in some degree, by delay in the
performance of the function in question.
Id. at 8.
In 1990, Congress added a clarifying statement to the “ emergency” exception
incorporated in the 1950 Act. The clarifying provision reads:
As used in this section, the term “ emergencies involving the safety
of human life or the protection of property” does not include
ongoing, regular functions of government the suspension o f which
would not imminently threaten the safety of human life or the
protection of property.
“ The section o f the 1947 Comptroller General and Bureau o f the Budget report addressing this provision merely
provides information on the desired effect of the revised language and explains lhat “ [tjhis clause is intended to
permit apportionments on a basis indicating a necessity for a deficiency or a supplemental estimate when the rate
of obligating an appropriation must be increased to provide for emergencies involving the safety of human life
or the protection o f property.” Antideficiency Act Report at 29. Report sections discussing the predecessor to § 1515,
which contains a similar “ em ergency” exception from the apportionment requirements of the Antideficiency Act,
do, however, offer insight into the purpose underlying amendments made to the apportionment statute. The report
drafters described the version o f that statute employing the phrase “ some extraordinary emergency or unusual cir­
cumstance which could not be anticipated at the time of making such an apportionment” as “ vague ” Antideficiency
Act Report at 30 They also included the phrase “ em ergencies] involving the safety of human life or the protecuon
of property” in the draft bill included in the document they submitted to Congress See Antideficiency Act Report,
att at 1; see also Act o f Sept 6, 1950, ch 896, § 1211, 64 Stat. 595, 765 (incorporating a variation o f the rec­
ommended language).
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31 U.S.C. § 1342. The legislative history underlying the inclusion of the clarifying
statement is sparse. See Rivlin Memorandum at 8. In a 1995 opinion, in which
we considered the meaning of the 1990 amendment, we noted that the reference
to the amendment appearing in a conference report concerning the Omnibus
Budget Reconciliation Act of 1990, Pub. L. No. 101-508, 104 Stat. 1388, suggests
that the change was made to narrow the range of functions that could reasonably
be understood to fall within the “ emergency” exception, and to avoid the possi­
bility that the 1981 Civiletti Opinion might be read to permit the continuance
of too broad of an array of government services during a shutdown. The con­
ference report explained that:
The [bill] also makes conforming changes to title 31 of the
United States Code to make clear that funds sequestered are not
available for expenditure and that ongoing, regular operations of
the Government cannot be sustained in the absence of appropria­
tions, except in limited circumstances. These changes guard against
what the conferees believe might be an overly broad interpretation
o f an opinion of the Attorney General issued on January 16, 1981,
regarding the authority for the continuance of Government func­
tions during the temporary lapse of appropriations, and affirm that
the constitutional power of the purse resides with Congress.
H.R. Rep. No. 101-964, at 1170 (1990), reprinted in 1990 U.S.C.C.A.N. 2374,
2875. Although it is evident that the amendment was “ intended to limit the cov­
erage of [the term emergency], narrowing the circumstances that might otherwise
be taken to constitute an emergency within the meaning of the statute,” the
amendment did not require a dramatic change in this Office’s approach to and
interpretation of the “ emergency” exception. See Rivlin Memorandum at 8. We
concluded that we might avoid misinterpretation of the 1981 Civiletti Opinion
by replacing the phrase “ in some degree” in the second of the interpretative rules
outlined in the opinion with the phrase “ in some significant degree,” but we
already were interpreting the “ emergency” exception narrowly, encompassing
only those cases of threat to human life or property in which “ the threat can
be reasonably said to [be] near at hand and demanding of immediate response.”
Id. at 7. The clarifying text added by the 1990 amendment merely provided a
gloss on the term “ emergency,” reinforcing what is implicit in the concept of
an emergency — that there must exist an imminent threat or set of circumstances
requiring an immediate response or action. Id. at 8-9.
Against this backdrop, we now consider the question whether the prisoner-deten-
tion functions performed by the USMS fall within the “ emergency” exception
on the ground that a decision not to continue them in the face of an appropriations
deficiency would pose a threat to the safety of human life or to property that
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Continuation o f Federal Prisoner Detention Efforts During United Stales Marshals Service
Appropriation Deficiency
could reasonably be described as near at hand or imminent. As we have noted,
under 28 U.S.C. §566, the USMS must provide for the security of the United
States courts, and is responsible for executing and enforcing federal court orders.
See also 28 U.S.C. §564 (providing Marshals with “ the same powers which a
sheriff of the State may exercise in executing the laws th ereo f’). In this capacity,
and under its FPD appropriation, the USMS shoulders primary responsibility, not
only for transporting prisoners ordered to appear in federal court, but also for
providing them with food, shelter, and medical services during the pendency of
their court proceedings. This task is usualJy accomplished through contracts
executed with local jails and prisons for the care and supervision of federal
detainees. In a typical year, the USMS has more than 20,000 such detainees in
its custody.5
It is likely that even a temporary suspension o f the prisoner detention functions
provided by the USMS would in many, and perhaps all, circumstances create an
emergency involving the safety of human life or the protection of property within
the meaning of § 1342. Certainly, to the extent suspension of prisoner detention
functions would require the release of dangerous prisoners, or would preclude
the provision of essential prisoner care or supervision, the exception would apply.
In our judgment, hardship of this sort is what Congress intended to avoid in cre­
ating an “ emergency” exception to the Antideficiency Act, and it satisfies the
rigorous § 1342 standard identified in our earlier opinions on this subject.
It is possible that the failure to perform specific FPD functions would not rise
to this level, and that the failure to provide certain benefits to federal prisoners
would pose no imminent threat to the safety of human life or the protection of
property. Some prisoners, might, for example, be transferred to the custody of
the Bureau of Prisons and some services provided to prisoners might be terminated
without posing a risk to the safety of human life or the protection of property.
For this reason, should an unavoidable deficiency occur in the future, it will be
necessary to evaluate obligations on a case-by-case basis. It seems clear to us,
however, that at least a substantial portion of FPD-related obligations will likely
fall within the exception. The precise application of the “ emergency” exception,
however, cannot be specified in the abstract and will inevitably turn on particular
facts and circumstances.
Our conclusion that many, if not all, FPD-related obligations will likely fall
within the “ emergency” exception is bolstered by administrative determinations
previously made by the Office of Management and Budget ( “ OMB” ) in the con­
text of anticipated or actual appropriations lapses. In September of 1980, OMB
prepared for the possibility of an appropriations lapse by issuing a memorandum
instructing agencies on the activities and functions that could lawfully continue
in the event Congress failed to pass a continuing resolution for fiscal year 1981.
The memorandum listed activities related to the “ [c]are of prisoners and other
5 FY 1997 Annual Report o f the U.S. Marshals Service at 3 -9 (1998).
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Opinions o f the Office o f Legal Counsel in Volume 24
persons in the custody of the United States” among the functions protecting life
and property for which obligations could be incurred without running afoul of
§ 1341’s prohibition. Memorandum for Heads of Executive Departments and
Agencies, from James T. McIntyre, Jr., Director, Office of Management and
Budget, Re: Agency Operations in the Absence o f Appropriations at 2 (Sept. 30,
1980). A year later, in 1981, OMB issued another memorandum listing prisoner
care-related services among those agency services that could continue despite a
lack o f appropriations, when delay in the passage of an appropriation for fiscal
year 1982 again required agencies to prepare for an orderly shutdown of non-
essential government services and operations. Memorandum for Heads of Execu­
tive Departments and Agencies, from David A. Stockman, Director, Office of
Management and Budget, Re: Agency Operations in the Absence o f Appropriations
at 2 (Nov. 17, 1981). Similarly, past policies of the Department of Justice
regarding the continuation of operations during an appropriations lapse also pro­
vide support for our conclusion. In a 1996 memorandum approved by this Office,
the Department of Justice listed “ functions relating to the incarceration of pris­
oners” among those that could lawfully continue during a lapse in appropriations.
Memorandum for Heads of Department Components, from Stephen R. Colgate,
Assistant Attorney General for Administration, Re: Effects o f Continuing Resolu­
tions on D epartm ent o f Justice Resources, att. at 4 (Apr. 1, 1996).
C. Emergency Exception of Section 1515 of the Antideficiency Act.
W e understand your request also to include the question whether the USMS
could invoke the “ emergency” exception as a basis for failing to apportion funds
under § 1512 of the Antideficiency Act.6 As we explained in our Interim Opinion,
an “ emergency” exception similar to that set forth in § 1342 applies to § 1512’s
apportionment requirement. See Interim Opinion, 23 Op. O.L.C. at 106 n.2. Sec­
tion 1515(b)(1), (b)(1)(B) provides, inter alia, that
an official may make, and the head of an executive agency may
request, an apportionment under section 1512 of this title that would
indicate a necessity for a deficiency or supplemental appropriation
only when the official or agency head decides that the action is
required because of . . . an emergency involving the safety o f
human life, the protection o f property, or the immediate welfare
o f individuals . . . .
31 U.S.C. § 1515(b)(1), (b)(1)(B) (emphasis added).
6 Section 1512(a) provides, in relevant part, that “ an appropriation available for obligation for a definite penod
shall be apportioned to prevent obligation o r expenditure at a rate that would indicate a necessity for a deficiency
or supplemental appropriation for [that] period ” 31 U S.C § 1512(a).
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Although, as we indicated in our Interim Opinion, we think it unlikely that
a finding that an agency qualifies for an exception to the apportionment require­
ments of § 1512 would also be enough automatically to exempt that agency from
§ 1341’s more demanding mandate, see Interim Opinion, 23 Op. O.L.C. at 106
n.2, we think it clear that, if an agency’s functions fall within § 1342’s exception
for emergency situations, the standard for the “ emergency” exception under
§ 1515 also will be met. We have previously held that § 1342 and § 1515, “ [a]s
provisions containing the same language, enacted at the same time, and aimed
at related purposes . . . should be deemed in pari materia and given a like
construction,” and can find no justification for following a different course in
this case. 5 Op. O.L.C. at 9 n .ll (citing Northcross v. Board o f Educ., 412 U.S.
427, 428 (1973)); see also General Accounting Office, 2 Principles o f Federal
Appropriations Law 6-82 to 6-83 (2d ed. 1992). Thus, for the reasons identified
in the previous section of this memorandum, we conclude that it is likely that
many, if not all, of the prisoner-detention functions performed by the USMS
would satisfy the § 1515 standard for “ emergencfies] involving the safety of
human life.”
Conclusion
We conclude that the § 1342 and § 1515 exceptions for “ emergencies involving
the safety of human life or the protection of property” would likely apply to
many, if not all, of the USMS’s prisoner-detention functions. A determination
whether particular obligations would satisfy this narrow exception, however,
cannot be made in the abstract and would require case-by-case evaluation.
Although the conclusion we reach here would permit the USMS to continue many,
if not all, of its prisoner detention-related functions despite a deficiency in its
FPD budget, we reaffirm the principles articulated in our Interim Opinion, and
thus emphasize that the USMS is not free to invoke the “ emergency” exception
in the absence of an actual deficiency in its apportioned funds or overall appropria­
tion. The USMS is under a general statutory obligation to reduce its prisoner
detention-related expenditures to avoid the need for deficiency spending.
RANDOLPH D. MOSS
Acting Assistant Attorney General
Office o f Legal Counsel
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