B-205180 L/M, NOV 27, 1981

B-205180 L/M, NOV 27, 1981

PRECIS-UNAVAILABLE

MR. STUART F. BALDERSON, UNITED STATES SENATE:

THIS RESPONDS TO YOUR LETTER OF OCTOBER 5, 1981, REQUESTING AN ANALYSIS OF CERTAIN ISSUES RAISED BY THE PASSAGE IN FISCAL YEAR 1982 OF PUBLIC LAW 97-51, THE JOINT RESOLUTION MAKING CONTINUING APPROPRIATIONS FOR THE FISCAL YEAR 1982, WHICH BY ITS TERMS AUTHORIZED AND APPROPRIATED CERTAIN FUNDS FOR FISCAL YEAR 1981. SPECIFICALLY, YOU ASK WHETHER SEC. 119(A) OF PUBLIC LAW 97-51 WHICH AUTHORIZED AND APPROPRIATED MONEY FOR FOUR NAMED INDIVIDUALS CAN BE GIVEN RETROACTIVE APPLICATION AND BE USED AS AUTHORITY TO CREATE AN ACCOUNT TO BE USED TO REIMBURSE THESE FOUR INDIVIDUALS FOR EXPENSES THEY INCURRED IN FISCAL YEAR 1981. WE CONCLUDE THAT THE ACCOUNT MAY BE ESTABLISHED TO REIMBURSE FOR THE FISCAL YEAR 1981 EXPENSES.

AS A GENERAL RULE, A STATUTE IS ONLY GIVEN PROSPECTIVE APPLICATION. UNION PACIFIC R. R. CO. V. LARAMIE STOCK YARDS CO., 231 U.S. 190, 199 (1913); SOUTH EAST CHICAGO COMMISSION V. HUD, 488 F.2D 1119, 1122-1123 (7TH CIR. 1973); B-191190, FEBRUARY 13, 1980. THE EXCEPTION TO THE GENERAL RULE IS WHEN CONGRESS STATES IN EXPRESS TERMS THAT THE STATUTE BE GIVEN RETROACTIVE APPLICATION. SEE DE RODULFA V. UNITED STATES, 461 F.2D 1240, 1247 (D.C.CIR. 1972); B-191190, SUPRA.

SECTION 119 OF PUBLIC LAW 97-51 STATES AS FOLLOWS:

"SEC. 119(A). NOTWITHSTANDING ANY OTHER PROVISION OF LAW, THERE IS HEREBY ESTABLISHED AN ACCOUNT, WITHIN THE SENATE, TO BE KNOWN AS THE 'EXPENSE ALLOWANCE FOR THE SECRETARY OF THE SENATE, SERGEANT AT ARMS AND DOORKEEPER OF THE SENATE AND SECRETARIES FOR THE MAJORITY AND FOR THE MINORITY, OF THE SENATE' (HEREINAFTER IN THIS SECTION REFERRED TO AS THE 'EXPENSE ALLOWANCE'). FOR EACH FISCAL YEAR (COMMENCING WITH THE FISCAL YEAR ENDING SEPTEMBER 30, 1981) THERE SHALL BE AVAILABLE FROM THE EXPENSE ALLOWANCE AN EXPENSE ALLOTMENT NOT TO EXCEED $2,000 FOR EACH OF THE ABOVE SPECIFIED OFFICERS. AMOUNTS PAID FROM THE EXPENSE ALLOTMENT OF ANY SUCH OFFICER SHALL BE PAID TO HIM ONLY AS REIMBURSEMENT FOR ACTUAL EXPENSES INCURRED BY HIM AND UPON CERTIFICATION AND DOCUMENTATION BY HIM OF SUCH EXPENSES. AMOUNTS PAID TO ANY SUCH OFFICER PURSUANT TO THIS SECTION SHALL NOT BE REPORTED AS INCOME AND SHALL NOT BE ALLOWED AS A DEDUCTION UNDER THE INTERNAL REVENUE CODE OF 1954.

"(B) FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1981, AND THE SUCCEEDING FISCAL YEAR, THE SECRETARY OF THE SENATE SHALL TRANSFER, FOR EACH SUCH YEAR, $8,000 TO THE EXPENSE ALLOWANCE FROM 'MISCELLANEOUS ITEMS' IN THE CONTINGENT FUND OF THE SENATE. FOR THE FISCAL YEAR ENDING SEPTEMBER 30, 1983, AND FOR EACH FISCAL YEAR THEREAFTER, THERE ARE AUTHORIZED TO BE APPROPRIATED TO THE EXPENSE ALLOWANCE SUCH FUNDS AS MAY BE NECESSARY TO CARRY OUT THE PROVISIONS OF SUBSECTION (A) OF THIS SECTION."

AS CAN BE DISCERNED, THIS PROVISION EXPRESSLY STATES THAT COMMENCING IN FISCAL YEAR 1981 AN ACCOUNT BE ESTABLISHED TO PROVIDE FUNDS TO REIMBURSE THE FOUR NAMED INDIVIDUALS FOR EXPENSES INCURRED, AND THAT FOR FISCAL YEAR 1981 FUNDS BE TRANSFERRED TO THE ACCOUNT. IT IS CLEAR FROM THE UNDERLINED LANGUAGE IN THE ABOVE QUOTE THAT THE CONGRESS INTENDED FOR THE PROVISION TO APPLY TO FISCAL YEAR 1981 REGARDLESS OF WHEN IT WAS ENACTED. THIS CONCLUSION IS SUPPORTED BY THE LEGISLATIVE HISTORY OF THE PASSAGE OF THE JOINT RESOLUTION.

THE PROVISION WAS FIRST REPORTED TO THE SENATE ON SEPTEMBER 23, 1981, AND WAS NOT FINALLY APPROVED BY BOTH HOUSES OF CONGRESS UNTIL SEPTEMBER 30, 1981. THUS, IT WAS NOT UNTIL THE LAST DAY OF FISCAL YEAR 1981 THAT THE CONGRESS TOOK FINAL ACTION ON THIS PROVISION. CLEARLY, THE CONGRESS RECOGNIZED THAT THE JOINT RESOLUTION WOULD NOT BE ENACTED INTO LAW UNTIL FISCAL YEAR 1982 AND THUS THE EMPHASIZED PORTION OF THE PROVISION WAS TO ENSURE RETROACTIVE APPLICATION.

ACCORDINGLY, IT IS PROPER TO ESTABLISH AN APPROPRIATION ACCOUNT FOR FISCAL YEAR 1981 AND TO USE THIS ACCOUNT TO REIMBURSE THE FOUR NAMED INDIVIDUALS, PURSUANT TO THE PROCEDURES ESTABLISHED IN SECTION 119(A) OF PUBLIC LAW 97-51, FOR EXPENSES THEY INCURRED DURING FISCAL YEAR 1981.