Committee Resolutions Under 40 U.S.C. § 3307(a) and the Availability of Enacted Appropriations ( 2018 )

(Slip Opinion)
Committee Resolutions Under 40 U.S.C. § 3307(a)
and the Availability of Enacted Appropriations
Under 40 U.SC. § 3307(a), committee approval resolutions do not establish binding limits
on how the General Services Administration may expend appropriated funds. If Con-
gress appropriates funds for a project that has not received committee approval, sec-
tion 3307(a) does not constrain what the Executive Branch may do with the funds.
Committee resolutions adopted under section 3307(a) have no effect on the availability of
appropriated funds for purposes of the Anti-Deficiency Act.
January 26, 2018
MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
GENERAL SERVICES ADMINISTRATION
Under 40 U.S.C. § 3307(a), an appropriation to construct, alter, acquire,
or lease certain buildings “may be made only if the Committee on Envi-
ronment and Public Works of the Senate and the Committee on Transpor-
tation and Infrastructure of the House of Representatives adopt resolutions
approving the purpose for which the appropriation is made.” An adjoining
provision directs the Administrator of General Services to “transmit to
Congress a prospectus of the proposed facility” in order to “secure con-
sideration for the approval referred to in subsection (a).” Id. § 3307(b).
Your office has asked whether committee resolutions adopted under
section 3307(a) create conditions on the availability of enacted appropria-
tions that bind the Executive Branch. See Letter for Karl R. Thompson,
Principal Deputy Assistant Attorney General, Office of Legal Counsel,
from Kris E. Durmer, General Counsel, General Services Administration
(May 13, 2016) (“GSA Letter”).1 This request follows a decision of the
1 We have also solicited and considered the views of other agencies. See Memorandum
for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from
Douglas K. Mickle, Assistant Director, Civil Division, National Courts Section, Re:
Prospective Application of 40 U.S.C. § 3307 by the General Services Administration
in Light of Springfield Parcel C, LLC v. United States, 124 Fed. Cl. 163 (2015) (June 29,
2016); E-mail for Daniel Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, from Heather Walsh, Deputy General Counsel, Office of Management and
Budget, Re: GSA Request for Opinion (June 24, 2016 1:13 PM); E-mail for Daniel
Koffsky, Deputy Assistant Attorney General, Office of Legal Counsel, from Richard
Hipolit, Deputy General Counsel, Department of Veterans Affairs, Re: GSA Request for
Opinion (Aug. 5, 2016 3:57 PM).
1
Opinions of the Office of Legal Counsel in Volume 42
Court of Federal Claims, Springfield Parcel C, LLC v. United States, 124
Fed. Cl. 163 (2015), which set aside a General Services Administration
(“GSA”) lease on precisely that ground, id. at 185–90, contravening the
Executive Branch’s longstanding interpretation of section 3307 and its
previous incarnations.
Having reviewed the matter again in light of Springfield Parcel, we re-
iterate this Office’s established position and conclude that section 3307(a)
does not impose independent limitations on the use of enacted appropria-
tions. By its plain terms, section 3307(a) sets an internal rule of congres-
sional procedure that no appropriations “may be made” for certain pro-
jects unless preceded by resolutions of approval from the relevant
committees. Section 3307(a) does not purport to make those committee
resolutions binding upon the actions of the Executive Branch. Thus, if
Congress disregards section 3307(a) and appropriates funds for projects
that have not received committee approval, then section 3307(a) does not
constrain what the Executive Branch may do with the appropriated funds.
I.
GSA “may enter into a lease agreement . . . for the accommodation of
a federal agency in a building (or improvement) which is in existence or
being erected by the lessor to accommodate the federal agency.” 40
U.S.C. § 585(a)(1). In fact, GSA has the “sole authority” to enter into such
leases for many federal agencies. Authority of Military Exchanges to Lease
General Purpose Office Space, 21 Op. O.L.C. 123, 124 (1997); see also,
e.g., 3 General Accounting Office, Principles of Federal Appropriations
Law 13-135 to -136 (3d ed. 2008) (“Federal Appropriations Law”) (not-
ing that GSA “serves as the government’s chief ‘leasing agent’”). GSA
finances its leasing operations and other real-estate activities through the
Federal Buildings Fund established by 40 U.S.C. § 592. GSA Letter at 9.
Money in the fund is “available for real property management and related
activities in the amounts specified in annual appropriation laws.” 40
U.S.C. § 592(c)(1). In 2015, for example, Congress appropriated more
than $10 billion to the fund, “of which . . . $5,579,055,000” was appro-
priated “for rental of space to remain available until expended.” Financial
Services and General Government Appropriations Act, 2016, Pub. L. No.
114-113, div. E, tit. V, 129 Stat. 2242, 2423, 2451–53 (2015).
2
Committee Resolutions Under 40 U.S.C. § 3307(a)
The statute at issue provides that “appropriations may be made” for cer-
tain substantial real-estate projects “only if the Committee on Environ-
ment and Public Works of the Senate and the Committee on Transporta-
tion and Infrastructure of the House of Representatives adopt resolutions
approving the purpose for which the appropriation is made.” 40 U.S.C.
§ 3307(a). The covered projects include those that require appropriations
“to lease any space at an average annual rental in excess of $1,500,000 for
use for public purposes,” id. § 3307(a)(2), or appropriations to “construct,
alter, or acquire any building to be used as a public building which in-
volve[] a total expenditure in excess of $1,500,000,” id. § 3307(a)(1). 2
The statute also establishes a process by which the committees are to
review and grant their approval for potential appropriations. Under sec-
tion 3307(b), the Administrator of General Services must send Congress a
prospectus to secure the committees’ consideration of the approval re-
ferred to in subsection (a). The prospectus must contain various details
about the project, including a “brief description of the building” and “an
estimate of the maximum cost to the Government of the facility to be
constructed, altered, acquired, or the space to be leased.” Id. § 3307(b)(1),
(2). Section 3307(c) provides that “[t]he estimated maximum cost of any
project approved under this section . . . may be increased by an amount
equal to any percentage increase, as determined by the Administrator, in
construction or alteration costs from the date the prospectus is transmitted
to Congress,” but “[t]he increase . . . may not exceed 10 percent of the
estimated maximum cost.” Finally, section 3307(d) provides that “[i]f an
appropriation is not made within one year” of the committees’ approval of
a prospectus for the project, either committee “may rescind its approval
before an appropriation is made.”
The project at issue in Springfield Parcel illustrates the typical opera-
tion of section 3307. In January 2014, GSA submitted a prospectus to the
congressional committees for a “lease of up to 625,000 rentable square
feet” of office space for the Transportation Security Administration
(“TSA”), with an estimated annual cost of more than $24 million. GSA
2 GSA may adjust the dollar figures in section 3307 to account for changes in construc-
tion costs. 40 U.S.C. § 3307(h). The Fiscal Year 2018 prospectus threshold for construc-
tion, alteration, and leasing projects is $3.095 million. See 41 C.F.R. § 102-73.35; GSA
Annual Prospectus Thresholds, http://www.gsa.gov/annualprospectusthreshold (last vis-
ited Jan. 26, 2018).
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Opinions of the Office of Legal Counsel in Volume 42
Letter, Ex. 2. The three-page prospectus described additional details of the
proposed project and explained its purpose—chiefly, consolidating TSA’s
offices from five buildings into one. In February 2014, the House Com-
mittee on Transportation and Infrastructure resolved, “pursuant to 40
U.S.C. § 3307,” that “appropriations are authorized for a replacement
lease of up to 625,000 rentable square feet,” as described in the prospec-
tus. GSA Letter, Ex. 3. In April 2014, the Senate Committee on Environ-
ment and Public Works similarly resolved, “pursuant to title 40 U.S.C.
§ 3307,” that the “prospectus . . . is approved.” GSA Letter, Ex. 4. Each
resolution recited some details of the proposed project, including the
625,000-square-foot cap, and described the prospectus as either “included
in” (Ex. 3) or “made part of ” (Ex. 4) the resolution. Congress did not
appropriate any funds on a line-item basis for the project, but it did later
appropriate lump-sum funds to the Federal Buildings Fund for leasing
activities. See, e.g., Financial Services and General Government Appro-
priations Act, 2015, Pub. L. No. 113-235, div. E, tit. V, 128 Stat. 2130,
2332, 2360 (2014). Congress never adopted or approved the prospectus
itself in legislation.
In September 2015, after GSA awarded a lease for the TSA project, an
unsuccessful offeror challenged the award in the Court of Federal Claims.
GSA Letter at 1–2. Among other things, the plaintiff alleged that GSA
had “violated the Public Buildings Act, specifically 40 U.S.C. § 3307(a),”
by awarding a lease for more than 625,000 rentable square feet of office
space, “because Congress authorized appropriations only for a building
with a maximum of 625,000 rentable square feet.” Springfield Parcel, 124
Fed. Cl. at 182. The court agreed, holding that committee resolutions
under section 3307(a) “create[] binding conditions upon the availability of
appropriations” and that “[a]ppropriations for TSA headquarters were
accordingly available only for a lease of up to 625,000 square feet be-
cause that was the limit included in the resolutions adopted by the rele-
vant congressional committees.” Id. at 189. The court also held that,
“[b]ecause no appropriation ha[d] been made for a space exceeding
625,000 rentable square feet,” id., GSA had violated the Anti-Deficiency
Act, 31 U.S.C. § 1341, in awarding the TSA lease. The government de-
clined to appeal the decision, and GSA complied with the judgment,
despite continuing to disagree with its reasoning. GSA Letter at 1, 3 n.4,
11. GSA later requested our views concerning the effect of committee
4
Committee Resolutions Under 40 U.S.C. § 3307(a)
resolutions adopted under section 3307 and their implications for the
Anti-Deficiency Act, in light of Springfield Parcel.
II.
A.
We first consider whether the committee approvals under section
3307(a) establish binding limits on how GSA may expend appropriated
funds. In answering that question, “we begin by analyzing the statutory
language.” Hardt v. Reliance Standard Life Ins. Co., 560 U.S. 242, 251
(2010).
Section 3307(a) states that “appropriations may be made” for prospec-
tus-level projects only after the relevant committees “adopt resolutions
approving the purpose for which the appropriation is made.” Under the
Constitution, appropriations must be “made by Law,” art. I, § 9, cl. 7,
which means they must be made by Congress. Here, section 3307(a)
makes committee approval a prerequisite to the enactment of an appropri-
ation, but it does not regulate the actions of the Executive Branch or
anyone else. Nothing in the text of section 3307(a) limits GSA’s use of
funds once “appropriations [have been] made.” Thus, contrary to the
conclusion of the Court of Federal Claims in Springfield Parcel, the
“plain text” of section 3307(a) does not make committee approval a
“precondition to availability of appropriations,” 124 Fed. Cl. at 186.
Rather, the plain text makes committee approval a condition only on
whether “appropriations may be made” by Congress itself in the future.
Cf. Cleveland Assets, LLC v. United States, 132 Fed. Cl. 264, 277 n.13
(2017) (“[T]he prohibition contained in § 3307 affects whether Congress
will appropriate funds for the lease at issue, and not GSA’s authority to
solicit proposals for a lease.”). As we explain below, because Congress
may decline to follow such internal directives, committee approval is not,
in fact, an invariable precondition to the availability of appropriations. 3
3 We are aware of no other judicial authority, apart from Springfield Parcel, that bears
directly on the question presented here. In Realty Income Trust v. Eckerd, 564 F.2d 447(D.C. Cir. 1977), the court of appeals stated that “[u]nder the Public Buildings Act of
1959” GSA “is required to obtain Congressional approval before entering into major
leaseholds.” Id. at 449. But that case did not address the effect of committee approval;
instead, the question before the court was whether the National Environmental Policy Act
5
Opinions of the Office of Legal Counsel in Volume 42
As Assistant Attorney General William Rehnquist explained in an opin-
ion of our Office discussing a similar 1954 law, a statute addressing when
Congress may make appropriations “is, by its terms, not a restriction on
the Executive, but rather a directive to Congress itself that there shall be a
condition precedent for the enactment of appropriation legislation for a
particular project or group of projects.” Constitutionality of “No Appro-
priation” Clause in the Watershed Protection and Flood Prevention Act,
1 Op. O.L.C. Supp. 296, 299 (Feb. 27, 1969) (“Rehnquist Memoran-
dum”). “Sponsors . . . have stated that such a requirement could, if de-
sired, be enforced by a point of order in any floor debate of an appropria-
tion bill containing funds for projects which have not been so approved by
committee resolution.” Id. Requiring committee preapproval, on threat
of a point of order, may give particular committees—such as the two
specified in section 3307(a)—a degree of control over appropriations,
which are otherwise principally the domain of the appropriations commit-
tees. But such a limitation on making appropriations “confines its opera-
tive effect to the Legislative Branch” and “by its terms does not seek to
reach out beyond the legislative preserve.” Id. at 300.
The Rehnquist Memorandum addressed a statute providing that “‘[n]o
appropriation shall be made’” absent committee approval. Id. at 296(quoting Watershed Protection and Flood Prevention Act, Pub. L. No. 83-
566, § 2, 68 Stat. 666, 666 (1954)). But the opinion’s reasoning also
applies to section 3307(a), which originated as section 7(a) of the Public
Buildings Act of 1959 and was phrased in the same terms. See Public
Buildings Act of 1959, Pub. L. No. 86-249, § 7(a), 73 Stat. 479, 480 (“no
appropriation shall be made” for certain construction projects “if such
construction . . . has not been approved by resolutions adopted by the
required GSA to submit an environmental impact statement when submitting a prospec-
tus. See id. at 449, 453. In 210 Earll, LLC v. United States, 77 Fed. Cl. 710 (2006), the
court observed that section 3307(a) did “not operate as a bar to [GSA’s] award” of a lease
above the prospectus threshold even though GSA had not submitted a prospectus (because
the project had been expected to fall below the threshold), but that the statute would
require GSA to “take the extra step . . . of obtaining Prospectus approval” before execut-
ing the lease. Id. at 718. The court was addressing the plaintiff ’s status as an eligible
bidder, not the effect of prospectus approval on the availability of enacted appropriations.
In any event, for the reasons discussed in the text, we do not believe that section 3307
itself makes committee approval a prerequisite to the availability of appropriations for any
GSA leasing projects.
6
Committee Resolutions Under 40 U.S.C. § 3307(a)
Committee on Public Works of the Senate and House of Representatives”)
(codified at 40 U.S.C. § 606(a) (1964)). Indeed, Rehnquist himself later
found his reasoning “equally applicable” to the “Public Buildings Act of
1959, 40 U.S.C. 606(a).” Memorandum for Egil Krogh, Staff Assistant to
the Counsel to the President, from William H. Rehnquist, Assistant Attor-
ney General, Office of Legal Counsel, Re: Encroachment Problem in “No
Appropriation” Provisions at 1 (June 11, 1969).
In 2002, in the course of enacting title 40 into positive law, Congress
created section 3307(a) by making minor stylistic changes to former
section 606(a), including replacing the “no appropriation shall be made”
formulation with the current statement that “appropriations may be made
only if ” the two committees have adopted resolutions. Pub. L. No. 107-
217, sec. 1, § 3307(a), 116 Stat. 1062, 1161 (2002). In doing so, Congress
specified that the new version “makes no substantive change in existing
law and may not be construed as making a substantive change in existing
law.” Id. sec. 5(b)(1), 116 Stat. at 1303; see, e.g., Northwest, Inc. v. Gins-
berg, 134 S. Ct. 1422, 1429 (2014) (relying on similar disclaimer of sub-
stantive change in recodification of title 49). The phrasing of section
3307(a) is therefore substantively indistinguishable from the kind of “no
appropriation” clause that we have long understood as “bind[ing] only the
Congress and not the Executive.” Rehnquist Memorandum, 1 Op. O.L.C.
Supp. at 301. It still means that committee approval should be understood
as a condition applicable only to Congress’s appropriation decision, and
not to GSA’s use of appropriated funds.
Similarly, section 3307(a) does not make binding on GSA any specific
term or condition that the committees may recite in approving a prospec-
tus, such as the 625,000-square-foot parameter for the TSA project. In
fact, the committee resolutions do not always recite identical terms. See
GSA Letter at 7. On the TSA headquarters project, for example, each
committee resolution contained provisos that were not found in the other
committee’s resolution. Compare GSA Letter, Ex. 3 (House committee
approval resolution, providing that GSA and tenant agencies “agree to
apply an overall utilization rate of 153 square feet or less per person”),
with GSA Letter, Ex. 4 (Senate committee approval resolution without
any such proviso, but providing that GSA “shall require that the procure-
ment include requirements requiring energy efficiency as would be re-
quired for the construction of a federal building,” to the “maximum extent
practicable”). If the committee resolutions were understood to set binding
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Opinions of the Office of Legal Counsel in Volume 42
conditions, then there could well be circumstances in which they would
conflict.
To the extent that it sheds light on the question, the legislative history
of the Public Buildings Act is consistent with our view that section
3307(a) limits only the legislative process for making appropriations. In
a hearing, one Senator asked GSA officials to address a professor’s criti-
cism that the “no appropriations” language gave the committees a legisla-
tive veto. Hearing on S. 1654 and H.R. 7645 before a Subcomm. of the
S. Comm. on Public Works, 86th Cong. 19–21 (1959) (statement of Sen.
Neuberger). GSA had assisted in drafting the legislation, and its general
counsel explained that the committee-approval mechanism was “not
strictly a legislative veto” because “it is committee approval for the mak-
ing of appropriations.” Id. at 21 (statement of Mr. Macomber). He later
elaborated:
And the way that leaves it is that if a prospectus, a project, is ap-
proved by the two committees, then an appropriation can be made,
and it is in the appropriation process that the consideration of the
Congress will occur. On the other hand, of course, there would be
nothing to prevent the inclusion in an appropriations bill of a project
that was not approved by the two committees, except that in that
event, such language would be subject to a point of order.
Id. at 23. The committee reports also suggest that legislators understood
that section 7(a) of the Public Buildings Act would operate as merely an
internal limit on making appropriations. See H.R. Rep. No. 86-557, at 9
(1959) (section 7 “generally prohibits an appropriation” absent committee
approval); S. Rep. No. 86-694, at 6 (1959) (same). 4
The Executive Branch has long adhered to this interpretation of “no
appropriation” clauses, including in section 7(a) of the Public Buildings
Act. Before the Rehnquist Memorandum, the Johnson Administration did
object on constitutional grounds to several “no appropriation” clauses,
treating them as the equivalent of a legislative veto. See, e.g., Statement
by the President Upon Signing the Water Resources Research Act (July
17, 1964), 2 Pub. Papers of Pres. Lyndon B. Johnson 861, 862 (1963–64);
4 The Senate committee report concerned a parallel bill that contained the same “no
appropriation” clause. See S. 1654, 86th Cong. § 7(a) (as reported by S. Comm. on Pub.
Works, Aug. 13, 1959).
8
Committee Resolutions Under 40 U.S.C. § 3307(a)
see also Rehnquist Memorandum, 1 Op. O.L.C. Supp. at 299–300 (dis-
cussing Johnson Administration objections). The Rehnquist Memoran-
dum, however, addressed that concern, and since then, the Executive
Branch has generally seen “no appropriation” clauses as consistent with
the separation of powers because they operate only as internal restraints
on Congress’s appropriations processes. In 1972, when Congress amended
section 7(a) to cover leases for the first time, President Nixon’s signing
statement memorialized, and “acquiesced in,” the understanding that
“Congress regards th[e] ‘no appropriation may be made’ provision as
internal Congressional rulemaking which does not affect the executive
branch.” Statement About Signing the Public Buildings Amendments of
1972 (June 17, 1972), Pub. Papers of Pres. Richard M. Nixon 686, 687
(1972); see also Public Buildings Amendments of 1972, Pub. L. No. 92-
313, sec. 2(4), § 7(a), 86 Stat. 216, 217 (amending section 7 to cover
certain leases). In the intervening decades, the Department of Justice has
repeatedly expressed the same view. 5
5 See, e.g., Letter for James T. McIntyre, Jr., Acting Director, Office of Management
and Budget, from Patricia M. Wald, Assistant Attorney General, Office of Legislative
Affairs, at 1 (Nov. 25, 1977) (“It is our view . . . that statutes such as [40 U.S.C.] § 606
. . . operate only as internal rules of Congress that may be overridden by a subsequent
appropriation bill disregarding their plain language.”); Memorandum for Nicholas P.
Wise, Deputy Assistant Attorney General, Office of Legislative Affairs, from David G.
Leitch, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Judicial Space
and Facilities Management Act of 1991, S. 2070, att. at 1 (Mar. 4, 1992) (“[W]e have long
interpreted the ‘no appropriation’ provision in the Public Buildings Act, 40 U.S.C.
§ 606(a), to be, in effect, an internal regulation by which Congress has established the
committee review procedure for handling the appropriations legislation necessary to fund
the particular building project described in the prospectus.”); Memorandum for Andrew
Fois, Assistant Attorney General, Office of Legislative Affairs, from Randolph Moss,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: S. 1005, at 1 (May 30,
1996) (“As it currently stands, . . . § 606 is an internal procedural rule governing Con-
gress’s deliberation with respect to appropriations for the covered categories of public
buildings projects.”); Memorandum for Daniel J. Bryant, Assistant Attorney General,
Office of Legislative Affairs, from Sheldon Bradshaw, Deputy Assistant Attorney Gen-
eral, Office of Legal Counsel, Re: General Services Administration Draft Bill to Raise
Certain Prospectus Submission Thresholds in the Public Buildings Act of 1959, at 3 (Feb.
20, 2002) (“[W]e have viewed the current version of 40 U.S.C. § 606 . . . as an internal
procedural rule governing Congress’s deliberation with respect to appropriations for the
covered categories of public building projects.”). On a few recent occasions, in the
context of commenting on proposed legislation, we have characterized section 3307 as an
unconstitutional legislative veto. We have reviewed these aberrant comments and, on
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Opinions of the Office of Legal Counsel in Volume 42
During that period, Congress amended section 7 of the Public Buildings
Act on several occasions, both before and after the 2002 codification of
title 40 discussed above. 6 But, so far as we are aware, Congress has never
disagreed with the Executive Branch’s construction of the “no appropria-
tion” clause. To the contrary, in 1980, the chairman of the pertinent Sen-
ate committee, joined by other committee members of both parties,
acknowledged GSA’s legal conclusion that the committee-approval re-
quirement “does no more than establish a rule internal to the Congress”
and that “action by th[e] Committee need not precede the negotiation and
execution of any lease” for which GSA “has obtained an appropriation
sufficient to meet the Government’s obligations under the lease.” Letter
for Rowland G. Freeman III, Administrator, GSA, from Jennings Ran-
dolph, Chairman, Senate Committee on Environment and Public Works,
et al., at 1 (June 26, 1980) (GSA Letter, Ex. 7). The Senators stated that
they would “not object” to GSA’s proceeding on the basis of that interpre-
tation. Id. And the Comptroller General has adopted the same interpre-
tation. See 3 Federal Appropriations Law at 13-194 to -195 (describing
the approval requirement as “a restriction on the appropriation of funds,”
and recognizing that “[l]imiting language in the approval is not legally
binding unless incorporated” in legislation). When Congress is thus
“aware of an administrative or judicial interpretation of a statute,” it
is “presumed . . . to adopt that interpretation when it re-enacts a statute
without change.” Lorillard v. Pons, 434 U.S. 575, 580 (1978).
B.
In concluding that committee resolutions under section 3307(a) estab-
lish binding conditions on GSA’s use of appropriated funds, the Court of
Federal Claims relied upon section 3307(c), which grants the Administra-
tor the authority to exceed the estimated maximum cost by 10 percent. See
Springfield Parcel, 124 Fed. Cl. at 186. The court reasoned that such
reflection, have concluded that they were incorrect in suggesting that section 3307(a)
constitutes a legislative veto, rather than merely an internal constraint on the appropria-
tions process.
6 See, e.g., Federal Assets Sale and Transfer Act of 2016, Pub. L. No. 114-287, § 17,
130 Stat. 1463, 1476; Energy Independence and Security Act of 2007, Pub. L. No. 110-
140, § 323, 121 Stat. 1492, 1589–90; Public Buildings Amendments of 1988, Pub. L. No.
100-678, §§ 2, 3(a), 102 Stat. 4049, 4049.
10
Committee Resolutions Under 40 U.S.C. § 3307(a)
express authority to deviate from the cost cited in the approved prospectus
implies the absence of authority to deviate from any other conditions set
forth in the prospectus. We disagree with that interpretation.
Section 3307(c) provides that “[t]he estimated maximum cost of any
project approved under this section as set forth in any prospectus may be
increased by an amount equal to any percentage increase, as determined
by the Administrator, in construction or alteration costs from the date the
prospectus is transmitted to Congress,” but that the “increase authorized
by this subsection may not exceed 10 percent of the estimated maximum
cost.”
In Springfield Parcel, the court assumed that section 3307(c) regulates
how GSA may expend appropriated funds and concluded that the “excep-
tion” in section 3307(c)—permitting GSA to depart from the “estimated
maximum cost” in the prospectus—implies that the specifications in a
prospectus approved under section 3307(a) are binding on GSA. See 124
Fed. Cl. at 186. But the court’s premise is questionable. While section
3307(c) does not itself mention the appropriations process, it plainly
refers to the subsections that do. Section 3307(c) addresses the “estimated
maximum cost . . . as set forth in [the] prospectus” and refers to projects
“approved under this section.” Insofar as the section 3307(a) approval
and the section 3307(b) prospectus concern when “appropriations may be
made,” section 3307(c) would most naturally be read to address when
Congress may appropriate funds beyond the initial estimate of the maxi-
mum cost of the project without the need for the committees to review
another prospectus. 7 Although the GSA Administrator may determine
when the project overruns its initial costs, it does not follow that section
3307(c) specifically regulates the actions of GSA. To the contrary, the
Administrator could spend additional funds on the project only if they
were or had been appropriated in the first place. 8
7 The Comptroller General appears to have adopted the same reading we find most
natural. See 3 Federal Appropriations Law at 13-194 (“The project cost may be in-
creased by up to 10 percent of the prospectus estimate without having to submit a revised
prospectus.”); see also 105 Cong. Rec. 12,987 (1959) (statement of Rep. Mack) (“If the
maximum costs of construction or alteration should, due to price advances, be increased
by more than 10 percent, the Administrator must secure further additional authorization of
the congressional committees.”).
8 Congress has included in annual appropriations acts a provision permitting GSA to
exceed by 10 percent the amount otherwise appropriated for line-item projects, assuming
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Opinions of the Office of Legal Counsel in Volume 42
For these reasons, we disagree with the Springfield Parcel court’s in-
terpretation of section 3307(c). In any event, we do not believe that any
ambiguity in subsection (c) would weigh in favor of a different interpreta-
tion of subsection (a). See, e.g., Arnold P’ship v. Dudas, 362 F.3d 1338,
1342 (Fed. Cir. 2004) (noting that “a vague implication in” one statutory
subsection “cannot override the unambiguous language in the remainder
of the section”). The language of section 3307(a) plainly establishes a
prerequisite to enacting “appropriations” and not a limit on what GSA
may do with appropriated funds. The language now found in section
3307(c) has coexisted with the “no appropriation” clause since the Public
Buildings Act was first enacted in 1959, yet it has never been thought to
make the committees’ approval binding on GSA. See Pub. L. No. 86-249,
§ 7(b), 73 Stat. at 480. The language of section 3307(c) does not override
the unambiguous language of section 3307(a) itself.
C.
Finally, even if section 3307 were ambiguous, principles of constitu-
tional avoidance would counsel in favor of our longstanding interpreta-
tion. See, e.g., Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. &
Constr. Trades Council, 485 U.S. 568, 575 (1988). If section 3307(a)
were read to mean that committee resolutions approving a prospectus may
bind GSA’s use of appropriated funds, then section 3307(a) would operate
as an unconstitutional legislative veto.
Federal legislative power must “be exercised in accord with a single,
finely wrought and exhaustively considered, procedure”: the bicamer-
alism and presentment procedure specified in Article I. INS v. Chadha,
462 U.S. 919, 951 (1983). “Congress may not delegate the power to
legislate to its own agents or to its own Members.” Metro. Wash. Airports
Auth. v. Citizens for the Abatement of Aircraft Noise, Inc., 501 U.S. 252,
funds are available. GSA Letter at 6; see, e.g., Financial Services and General Govern-
ment Appropriations Act, 2015, 128 Stat. at 2360–61 (“Provided, That each of the
foregoing limits of costs on new construction and acquisition projects may be exceeded
to the extent that savings are effected in other such projects, but not to exceed 10 percent
of the amounts included in a transmitted prospectus, if required[.]”). The inclusion of such
a proviso suggests that Congress itself does not view section 3307(c) as already regulating
GSA’s ability to spend appropriated funds in excess of the estimated maximum cost in
a prospectus.
12
Committee Resolutions Under 40 U.S.C. § 3307(a)
275 (1991) (“M WA A”); see also The Constitutional Separation of Powers
Between the President and Congress, 20 Op. O.L.C. 124, 136 (1996)
(“[T]he requirement of bicameralism and presentment is infringed when-
ever a single house, committee, or agent of Congress attempts to direct
the execution of the law[.]”). Instead, “when Congress ‘takes action that
has the purpose and effect of altering the legal rights, duties, and relations
of persons . . . outside the Legislative Branch,’ it must take that action by
the procedures authorized in the Constitution.” M WA A, 501 U.S. at 276(brackets omitted; quoting Chadha, 462 U.S. at 952).
Section 3307(a) would violate those precepts if—contrary to our
view—it were read to empower two congressional committees to control
GSA’s use of previously appropriated funds. “Such legislative action
cannot be validly accomplished by mere committees of the Congress.”
Severability and Duration of Appropriations Rider Concerning Frozen
Poultry Regulations, 20 Op. O.L.C. 232, 234 (1996); see also Constitu-
tionality of Committee Approval Provision in Department of Housing and
Urban Development Appropriations Act, 6 Op. O.L.C. 591, 592 (1982)
(“[C]ommittees of Congress may not, by the approval resolution mecha-
nism contemplated by the HUD appropriations statute, control the exe-
cution of the laws by an executive agency[.]”); Am. Fed’n of Gov’t Emps.
v. Pierce, 697 F.2d 303, 305–06 (D.C. Cir. 1982) (per curiam) (holding
committee-approval requirement unconstitutional). Section 3307(a) would
run afoul of the same constitutional prohibition were it read to give bind-
ing force to committee resolutions that were never adopted by both Hous-
es of Congress and presented to the President.
We therefore disagree with the footnote in Springfield Parcel conclud-
ing that committee resolutions under section 3307(a) may establish bind-
ing conditions on the use of appropriated funds without violating Chadha.
See 124 Fed. Cl. at 186 n.23. Raising the question sua sponte, the claims
court reasoned that such resolutions “precede, not follow, the pertinent
appropriation,” and therefore that “any conditions stated in the commit-
tees’ approving resolutions flow through to the appropriation.” Id. at 187
n.23. 9 But mere “[e]xpressions of committees” during the legislative
9In support of its reading, the court cited a post-Chadha letter from the Comptroller
General. See Letter to Silvio O. Conte, Ranking Minority Member, House Committee on
Appropriations, B-196854, 1984 WL 262173 (Comp. Gen. Mar. 19, 1984). That letter,
however, did not support the court’s conclusion that committee-approval resolutions
13
Opinions of the Office of Legal Counsel in Volume 42
process “cannot be equated with statutes enacted by Congress.” T VA v.
Hill, 437 U.S. 153, 191 (1978); see also Lincoln v. Vigil, 508 U.S. 182,
192–93 (1993) (explaining that statements in committee reports “do not
establish any legal requirements on the agency” when Congress appropri-
ates lump-sum amounts (internal quotation marks omitted)). Nor may
Congress decree in advance that committee resolutions, which are neither
approved by both Houses nor presented to the President, will automati-
cally “flow through” to future appropriations. “[W]hen Congress legis-
lates, when it makes binding policy, it must follow the procedures pre-
scribed in Article I.” M WA A, 501 U.S. at 274 n.19 (internal quotation
marks omitted). If Congress sought to impose conditions specified in
committee resolutions to limit the Executive Branch’s use of appropriated
funds on the basis of conditions in committee resolutions, then it would
be obliged to identify those conditions in legislation, either in the text
of the statute or by incorporating their terms by reference. See, e.g., Her-
shey Foods Corp. v. U.S. Dep’t of Agriculture, 158 F. Supp. 2d 37, 40–41
(D.D.C. 2001) (holding that Chadha is not violated when a law incorpo-
rates a prior unenacted bill by reference, as long as the law was enacted in
accordance with the bicameralism and presentment requirements). Con-
gress may not, however, give a committee resolution or report the force of
law when the appropriations law actually enacted is silent with respect to
the resolution or report. These constitutional concerns provide all the
more reason to read section 3307(a) as establishing merely an internal
constraint on the appropriations process.
III.
For similar reasons, we conclude that when Congress appropriates
funds for prospectus-level projects, those appropriations make funds
available to GSA without regard to whether the committees have ap-
proved them under section 3307(a). According to GSA, Congress regular-
ly appropriates funds for prospectus-level projects “for which the re-
“flow through” to any future appropriations. Instead, the letter concluded that “a convinc-
ing argument may be made” in support of a committee-approval requirement “for obliga-
tions or expenditures beyond those clearly authorized by the appropriations acts.” Id.
at *3. Moreover, subsequent guidance from the Comptroller General squarely contradicts
the court’s reading of the Public Buildings Act. See 3 Federal Appropriations Law at 13-
195.
14
Committee Resolutions Under 40 U.S.C. § 3307(a)
quirements of section 3307 have not been met.” GSA Letter at 5 n.8
(citing examples). Once Congress has appropriated the funds, section
3307(a) does not constrain GSA’s use of them consistent with the terms of
the applicable appropriations law.
As noted above, section 3307(a) should be regarded as an internal
directive to the relevant appropriations committees. If a proposed appro-
priation does not comply with those procedures, the statute “provide[s] a
member of Congress the right to interpose a point of order” in objection.
Letter for James T. McIntyre, Jr., Acting Director, Office of Management
and Budget, from Patricia M. Wald, Assistant Attorney General, Office of
Legislative Affairs, at 1 n.* (Nov. 25, 1977). But the procedures are not
self-implementing. No member is obligated to raise such points of order,
and, even when raised, they may be overruled. See 2 Federal Appropria-
tions Law at 2-20 to -21 & n.25 (4th ed. 2016) (explaining that points of
order can “[u]sually . . . be waived by a simple majority vote”); see also
Thomas J. Wickham, Constitution, Jefferson’s Manual, and the Rules of
the House of Representatives, H.R. Doc. No. 114-192, §§ 1043–44, at
871–75 (2017) (discussing House rules for points of order against unau-
thorized appropriations); Floyd M. Riddick & Alan S. Frumin, Riddick’s
Senate Procedure: Precedents and Practices, S. Doc. No. 101-28, at 150–
52, 210 (1992) (discussing Senate rules). In any event, Congress always
has the power to disregard section 3307(a)’s limitation and appropriate
funds for prospectus-level projects that have not received the committee
approval that the statute purports to require. That conclusion is compelled
by the fundamental principle that “statutes enacted by one Congress
cannot bind a later Congress, which remains free to . . . exempt the cur-
rent statute from the earlier statute, to modify the earlier statute, or to
apply the earlier statute but as modified.” Dorsey v. United States, 567
U.S. 260, 274 (2012).
When Congress wields that power, “the committees’ failure to approve
a prospectus is without any legal significance, because if Congress in fact
appropriates funds for a project, the Executive Branch may legally expend
those funds notwithstanding the failure of the committees to approve that
project prior to the appropriation.” Letter for Allie B. Latimer, General
Counsel, General Services Administration, from Larry L. Simms, Deputy
Assistant Attorney General, Office of Legal Counsel, at 2 (Sept. 27,
1983). The general counsel of GSA made this point in the 1959 hearings
on the Public Buildings Act, and we have consistently endorsed it. See
15
Opinions of the Office of Legal Counsel in Volume 42
Rehnquist Memorandum, 1 Op. O.L.C. Supp. at 301 (explaining that “if
Congress passes general, unspecified . . . appropriations, . . . the Execu-
tive is entitled to treat this money as finally appropriated and allocable
to projects which have not received committee approval”); supra note 5
(citing other opinions). And the Comptroller General has repeatedly
adopted the same construction. See Letter for Daniel Patrick Moynihan,
United State Senate, from R.F. Keller, Acting Comptroller General, at 2
(Sept. 27, 1978) (“[I]f the Congress, notwithstanding the [committee-
approval] restriction in question, appropriates funds to GSA for the
projects, we would not question the use of the funds for the purposes
appropriated, such appropriations being the latest expression of congres-
sional intent.”); 3 Federal Appropriations Law at 13-195 (“If GSA does
not comply with the prospectus approval requirement and Congress
chooses to appropriate the money anyway, the appropriation might be
subject to a point of order, but it would be a perfectly valid appropriation
if enacted.”).
Finally, we believe that our interpretation of section 3307 is buttressed
by the fact that annual appropriations acts sometimes include a rider that
purports directly to bar GSA from using lump-sum appropriations for
certain projects that have not received committee approval. The Fiscal
Year 2016 provision, for instance, prohibited the use of appropriations
“for expenses of any construction, repair, alteration and acquisition pro-
ject for which a prospectus, if required by 40 U.S.C. 3307(a), has not been
approved” (except for the expenses associated with preparing a prospec-
tus). Financial Services and General Government Appropriations Act,
2016, 129 Stat. at 2453; see also, e.g., Financial Services and General
Government Appropriations Act, 2015, 128 Stat. at 2362 (same); Finan-
cial Services and General Government Appropriations Act, 2014, Pub. L.
No. 113-76, div. E, tit. V, 128 Stat. 5, 184, 214 (same). Such a proviso
would be unnecessary if section 3307(a) itself already imposed mandatory
conditions upon the use of those appropriations for a project without an
approved prospectus. 10
10We note that the constitutionality of such an appropriations rider would depend upon
whether it merely incorporated existing committee approvals by reference, or instead
purported to grant individual congressional committees the authority to control the use of
already-appropriated funds through future committee actions. See supra Part II.C (dis-
cussing impermissible legislative vetoes). The Fiscal Year 2016 provision quoted in the
16
Committee Resolutions Under 40 U.S.C. § 3307(a)
IV.
Our conclusion with respect to section 3307 also means that GSA
would not violate the Anti-Deficiency Act, 31 U.S.C. § 1341, if it were to
expend appropriated funds in a manner inconsistent with a committee
approval resolution. As noted above, the Court of Federal Claims in
Springfield Parcel concluded that section 3307(a) “committee resolutions
create[] binding conditions upon the availability of appropriations” and
therefore that funds are “‘available in an appropriation or fund’” within
the meaning of the Anti-Deficiency Act only to the extent that GSA
complies with the committee resolutions. 124 Fed. Cl. at 189 (quoting 31
U.S.C. § 1341(a)(1)(A)). GSA contends that the court misunderstood that,
under 40 U.S.C. § 592, the Federal Buildings Fund will make funds
“available” under the Anti-Deficiency Act without regard to the putative
limitations in committee resolutions. GSA Letter at 9–10. We see no need
to address that theory, however. In our view, the Anti-Deficiency Act
discussion in Springfield Parcel is unpersuasive for a simpler reason:
The court’s premise regarding section 3307(a) resolutions was incorrect.
Committee resolutions adopted in accordance with section 3307(a) do not
establish binding conditions on GSA’s use of appropriated funds and,
therefore, have no effect on the availability of appropriated funds for
purposes of the Anti-Deficiency Act.
CURTIS E. GANNON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
text does not appear to apply to leasing projects like the one at issue in Springfield Parcel,
because it concerns expenses associated with “construction, repair, alteration and acquisi-
tion project[s],” which are covered by section 3307(a)(1), rather than leases covered by
section 3307(a)(2). That distinguishes it from similar provisos that Congress previously
enacted, which expressly included leases along with construction and other projects. See,
e.g., Independent Agencies Appropriations Act, 1994, Pub. L. No. 103-123, tit. IV, 107
Stat. 1226, 1238, 1243–44 (1993). Because the recent form of the appropriations rider
does not apply to the Springfield Parcel lease that occasioned the request for this opinion,
we do not address its lawfulness.
17