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B-221687, MAR 13, 1986

B-221687 Mar 13, 1986
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SPENDING AUTHORITY IS REPORTED BY THE PRESIDENT AS AN IMPOUNDMENT. OUR AUTHORITY UNDER THE IMPOUNDMENT CONTROL ACT IS LIMITED TO REPORTING THAT FACT TO THE CONGRESS. 1986 WHEN THE FUNDS WERE WITHHELD. THE CONGRESS HAD IMMEDIATELY DISAPPROVED IT (THE CONGRESS WAS THEN IN RECESS). THE IMPOUNDMENT WOULD HAVE BEEN TERMINATED BEFORE WE COULD HAVE FIRST FILED SUIT TO COMPEL RELEASE OF THE FUNDS (THE FUNDS WERE RELEASED ON JANUARY 17). THIS OFFICE IS REQUIRED TO COMMENT ON DEFERRALS PROPOSED BY THE PRESIDENT UNDER THE IMPOUNDMENT CONTROL ACT (THE ACT). 2 U.S.C. WE ARE ENCLOSING A COPY OF OUR REPORT TO THE CONGRESS ON THE SUB- SAHARAN AFRICA DEFERRAL IN WHICH WE EXPLAIN THAT. 000 OF THE $75 MILLION INITIALLY DEFERRED WAS RELEASED FOR OBLIGATION.

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B-221687, MAR 13, 1986

APPROPRIATIONS - IMPOUNDING - EXECUTIVE BRANCH'S FAILURE TO EXPEND APPROPRIATED FUNDS DIGEST: WHEN WHAT WE CONSIDER TO BE MANDATORY, HENCE UNIMPOUNDABLE, SPENDING AUTHORITY IS REPORTED BY THE PRESIDENT AS AN IMPOUNDMENT, OUR AUTHORITY UNDER THE IMPOUNDMENT CONTROL ACT IS LIMITED TO REPORTING THAT FACT TO THE CONGRESS. WE CANNOT TAKE ACTION TO COMPEL RELEASE OF THE FUNDS UNLESS THE CONGRESS DISAPPROVES THE PROPOSED IMPOUNDMENT. EVEN IF WE HAD REPORTED AS UNAUTHORIZED THE DEFERRAL OF FUNDS FOR THE SPECIAL FACILITY FOR SUB- SAHARAN AFRICA ON JANUARY 1, 1986 WHEN THE FUNDS WERE WITHHELD, AND THE CONGRESS HAD IMMEDIATELY DISAPPROVED IT (THE CONGRESS WAS THEN IN RECESS), THE IMPOUNDMENT WOULD HAVE BEEN TERMINATED BEFORE WE COULD HAVE FIRST FILED SUIT TO COMPEL RELEASE OF THE FUNDS (THE FUNDS WERE RELEASED ON JANUARY 17).

THE HONORABLE DAVID R. OBEY:

CHAIRMAN, SUBCOMMITTEE ON FOREIGN OPERATIONS

COMMITTEE ON APPROPRIATIONS

HOUSE OF REPRESENTATIVES

THIS RESPONDS TO YOUR JANUARY 16 REQUEST FOR OUR FINDINGS ON THE LEGAL IMPLICATIONS OF THE DEFERRAL BY THE ADMINISTRATION OF FUNDS FOR THE SPECIAL FACILITY FOR SUB-SAHARAN AFRICA. YOU ASKED ALSO THAT WE DISCUSS POSSIBLE REMEDIES AVAILABLE TO THE CONGRESS.

AS YOU KNOW, THIS OFFICE IS REQUIRED TO COMMENT ON DEFERRALS PROPOSED BY THE PRESIDENT UNDER THE IMPOUNDMENT CONTROL ACT (THE ACT). 2 U.S.C. SEC. 685(B). WE ARE ENCLOSING A COPY OF OUR REPORT TO THE CONGRESS ON THE SUB- SAHARAN AFRICA DEFERRAL IN WHICH WE EXPLAIN THAT, ON JANUARY 17, 1986, $71,775,000 OF THE $75 MILLION INITIALLY DEFERRED WAS RELEASED FOR OBLIGATION. THE REMAINDER OF THE ACCOUNT WAS SEQUESTERED PURSUANT TO THE BALANCED BUDGET AND EMERGENCY DEFICIT CONTROL ACT OF 1985, TITLE II, PUB.L. NO. 99-177, 99 STAT. 1038 (BALANCED BUDGET ACT).

THE LANGUAGE OF THE CONTINUING APPROPRIATIONS ACT FOR FISCAL YEAR 1986, PUB.L. NO. 99-190, DECEMBER 19, 1985, DIRECTS THAT THE FUNDS BE PAID TO THE SPECIAL FACILITY BY DECEMBER 31, 1985, BUT ALSO PROVIDES THAT THEY ARE TO REMAIN AVAILABLE UNTIL EXPENDED. AS A RESULT, SOME QUESTION REMAINS WHETHER THE IMPOUNDMENT CONTROL ACT AUTHORIZED THE PRESIDENT TO IMPOUND THE $75 MILLION. SECTION 1001(4) OF THE ACT, 2 U.S.C. SEC. 681(4), PROVIDES THAT THE ACT DOES NOT SUPERSEDE "ANY PROVISION OF LAW WHICH REQUIRES THE OBLIGATION OF BUDGET AUTHORITY." IF THE APPROPRIATION FOR THE SPECIAL FACILITY WERE SUCH A PROVISION, IT WOULD NOT, IN OUR VIEW, BE SUBJECT TO IMPOUNDMENT.

HOWEVER, IN SUCH CASES-- THAT IS, WHEN WHAT WE CONSIDER TO BE MANDATORY, HENCE UNIMPOUNDABLE, SPENDING AUTHORITY IS REPORTED AS AN IMPOUNDMENT-- OUR AUTHORITY UNDER THE IMPOUNDMENT CONTROL ACT IS LIMITED TO REPORTING THAT FACT TO THE CONGRESS. WE CANNOT TAKE ACTION TO COMPEL RELEASE OF THE FUNDS UNLESS THE CONGRESS DISAPPROVES THE PROPOSED IMPOUNDMENT. HERE, AS NOTED IN OUR REPORT, THE IMPOUNDMENT HAS ALREADY CEASED AND ITS ONLY EFFECT, APART FROM A 17-DAY DELAY, WAS TO BRING THE PROGRAM WITHIN THE REACH OF THE BUDGET REDUCTIONS THE CONGRESS MANDATED IN THE BALANCED BUDGET ACT.

EVEN IF WE HAD REPORTED THIS AS AN UNAUTHORIZED IMPOUNDMENT ON JANUARY 1, AND THE CONGRESS HAD IMMEDIATELY DISAPPROVED IT (THE CONGRESS WAS THEN IN RECESS), THEREBY PROVIDING THE BASIS FOR US TO TAKE ACTION, THE IMPOUNDMENT WOULD HAVE TERMINATED BEFORE WE COULD HAVE FIRST FILED SUIT TO COMPEL RELEASE OF THE FUNDS. (THE LAW REQUIRES THAT WE GIVE THE CONGRESS 25 LEGISLATIVE DAYS NOTICE OF OUR INTENTION TO FILE SUIT.)

THUS, WITH REGARD TO YOUR QUESTION ABOUT REMEDIES, NO REMEDY EXISTS UNDER THE IMPOUNDMENT CONTROL ACT. ON OCCASION, MEMBERS OF THE CONGRESS AND OTHERS HAVE SUED FOR THE RELEASE OF FUNDS WHICH THEY REGARD AS UNLAWFULLY IMPOUNDED. HERE, THE FUNDS ALREADY HAVING BEEN RELEASED, THE ONLY REMEDY WHICH COULD BE SOUGHT IN SUCH A SUIT IS A DECLARATION THAT THE BALANCED BUDGET ACT REDUCTION SHOULD NOT HAVE BEEN APPLIED TO THIS ACCOUNT. CANNOT PREDICT THE OUTCOME OF SUCH A SUIT. SOME PRECEDENT EXISTS, ALTHOUGH NOT TO OUR KNOWLEDGE IN SITUATIONS PRECISELY PARALLEL TO THIS ONE, FOR THE PROPOSITION THAT A STATUTE PROVIDING A TIME FOR PERFORMANCE OF AN OFFICIAL DUTY, BUT NOT IMPOSING ANY PENALTY OR CONSEQUENCE FOR FAILURE TO MEET THE DEADLINE, IS NOT MANDATORY. SEE, FOR EXAMPLE, FT. WORTH NAT'L CORP. V. FED'L SAVINGS AND LOAN INS. CORP., 469 F.2D 47 (5TH CIR. 1972), AND CASES CITED THEREIN.

ALSO, AS WE POINTED OUT IN ANOTHER CONTEXT, AGENCIES IGNORE CONGRESSIONAL INTENT "AT THE PERIL OF STRAINED RELATIONS WITH THE CONGRESS" (LTV AEROSPACE CORPORATION, 55 COMP.GEN. 307, 325 (1975)), WHICH MAY BE MANIFESTED IN SUBSEQUENT APPROPRIATIONS OR OVERSIGHT COMMITTEE ACTIONS.

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