B-219721, AUG 18, 1986

B-219721, AUG 18, 1986

PRECIS-UNAVAILABLE

MR. L. RALPH MECHAM:

DIRECTOR

ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS

WASHINGTON, D.C. 20544

IN RESPONSE TO YOUR LETTER AND SUBSEQUENT TELEPHONE CONVERSATIONS WITH YOUR STAFF, WE AGREED TO ADDRESS WHETHER YOU MAY USE FUNDS APPROPRIATED IN THE DEPARTMENT OF COMMERCE, JUSTICE AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATION ACT, 1986, PUB.L. NO. 99-180, 99 STAT. 1136 (1986 APPROPRIATION ACT), TO HIRE ADDITIONAL PROBATION OFFICE PERSONNEL FOR THE PURPOSE OF PROVIDING PRETRIAL SERVICES. IN YOUR VIEW, SUCH USE IS NOT RESTRICTED EITHER BY THAT ACT OR BY THE PRETRIAL SERVICES ACT OF 1982, PUB.L. NO. 97-267, 96 STAT. (18 U.S.C. SEC. 3152 3155) (ACT). WE CONCUR.

ALTHOUGH IT IS CLEAR THAT THE CONFEREES ON THE 1986 APPROPRIATION ACT HAD A SPECIFIC ALLOCATION IN MIND WHICH YOUR AGENCY IS WELL-ADVISED NOT TO IGNORE, THAT LIMITATION WAS NOT CARRIED FORWARD INTO THE 1986 APPROPRIATION ACT AND THUS IS NOT LEGALLY BINDING ON YOU. MATTER OF LTV AEROSPACE CORPORATION, 55 COMP.GEN. 307 (1975). IN ADDITION, DESPITE REPRESENTATIONS IN THE LEGISLATIVE HISTORY OF THE PRETRIAL SERVICES ACT TO THE CONTRARY, WE ARE NOT PERSUADED THAT THE ACT RESTRICTS THE USE OF APPROPRIATED FUNDS TO PAY FOR ADDITIONAL PROBATION OFFICE PERSONNEL TO PERFORM PRETRIAL SERVICES.

IN VIEW OF THE TENSION WHICH EXISTS BETWEEN THE ACT'S STATUTORY LANGUAGE AND ITS LEGISLATIVE HISTORY, YOU MAY WISH TO REACH A PRACTICAL ARRANGEMENT WITH THE COGNIZANT LEGISLATIVE OVERSIGHT COMMITTEES ON THE EXTENT TO WHICH ADDITIONAL PROBATION OFFICE PERSONNEL WILL BE HIRED TO PERFORM PRETRIAL SERVICES. IN OUR OPINION, HOWEVER, AS FURTHER EXPLAINED IN THE ENCLOSED LEGAL ANALYSIS, NEITHER THE 1986 APPROPRIATIONS ACT NOR THE PRETRIAL SERVICES ACT COMPELS ANY RESTRICTION ON THE HIRING OF ADDITIONAL PROBATION OFFICE PERSONNEL FOR THE PURPOSE OF PROVIDING PRETRIAL SERVICES.

ANALYSIS

USE OF APPROPRIATED FUNDS TO PAY FOR ADDITIONAL PROBATION OFFICE PERSONNEL TO PROVIDE PRETRIAL SERVICES

FOR FISCAL YEAR 1986, THE JUDICIARY REQUESTED FUNDS FOR ADDITIONAL PROBATION OFFICE PERSONNEL. /1/ THE REQUEST INCLUDED FUNDS TO STAFF 467 ADDITIONAL PROBATION OFFICE POSITIONS, 307 OF WHICH WERE TO PROVIDE PRETRIAL SERVICES.

IN RESPONSE TO THE REQUEST, THE HOUSE AND SENATE APPROPRIATED SLIGHTLY DIFFERING AMOUNTS FOR SALARIES OF OFFICIALS, INCLUDING PROBATION AND PRETRIAL SERVICES OFFICERS. THE HOUSE APPROPRIATIONS COMMITTEE REPORT OBSERVED THAT THE USE OF ADDITIONAL PERSONNEL PAID FROM THESE FUNDS WOULD BE RESTRICTED TO COURTS THAT HAVE ESTABLISHED SEPARATE PRETRIAL SERVICES AGENCIES (AND TO THOSE AGENCIES PREVIOUSLY ESTABLISHED ON A DEMONSTRATION BASIS). H.R. REP. NO. 99-197 AT 58 (1985). THE CONFERENCE COMMITTEE, ON THE OTHER HAND, STIPULATED THAT HALF OF THE ADDITIONAL POSITION BEING FUNDED WERE EXCLUSIVELY FOR DISTRICTS WITH SEPARATE PRETRIAL SERVICES OFFICES, AND THAT HALF WERE FOR ADDITIONAL PROBATION OFFICERS. THE CONFEREES AGREED THAT IN DISTRICTS WITH SMALL CRIMINAL CASE LOADS THE ALLOCATION OF THE PROBATION OFFICE POSITIONS COULD TAKE INTO ACCOUNT PRETRIAL SERVICES DUTIES PROVIDED BY THOSE OFFICES. H.R. CONF. REP. NO. 99-414 AT 31, 32 (1985). HOWEVER, NEITHER THE SENATE NOR HOUSE BILLS, NOR THE VERSION OF THE BILL REPORTED OUT BY THE CONFERENCE COMMITTEE AND ENACTED INTO LAW ADDRESSED IN ANY MANNER ANY DIVISION OF RESOURCES BETWEEN THE TWO TYPES OF OFFICERS.

THE 1986 APPROPRIATIONS ACT PROVIDES:

"COURTS OF APPEALS, DISTRICT COURTS, AND OTHER JUDICIAL SERVICES

"SALARIES OF SUPPORTING PERSONNEL

"FOR THE SALARIES OF SECRETARIES AND LAW CLERKS TO CIRCUIT, DISTRICT, AND BANKRUPTCY JUDGES, MAGISTRATES AND STAFF, CIRCUIT EXECUTIVES, CLERKS OF COURT, PROBATION OFFICERS, PRETRIAL SERVICE OFFICERS, STAFF ATTORNEYS, LIBRARIANS, THE SUPPORTING PERSONNEL OF THE UNITED STATES CLAIMS COURT, AND ALL OTHER OFFICERS AND EMPLOYEES OF THE FEDERAL JUDICIARY, NOT OTHERWISE SPECIFICALLY PROVIDED FOR, $474,900,000: PROVIDED, THAT THE SECRETARIES AND LAW CLERKS TO JUDGES SHALL BE APPOINTED IN SUCH NUMBER AND AT SUCH RATES OF COMPENSATION AS MAY BE DETERMINED BY THE JUDICIAL CONFERENCE OF THE UNITED STATES: PROVIDED FURTHER, THAT THE NUMBER OF STAFF ATTORNEYS TO BE APPOINTED IN EACH OF THE COURTS OF APPEALS SHALL NOT EXCEED THE RATIO OF ONE ATTORNEY FOR EACH AUTHORIZED JUDGESHIP."

PUB.L. NO. 99-180, 99 STAT. 1136 (DEC. 13, 1985).

THE APPROPRIATION IS A "LUMP-SUM" APPROPRIATION THAT COVERS A NUMBER OF SPECIFIC PROJECTS OR ITEMS. IT AUTHORIZES FUNDING FOR, AMONG OTHER ACTIVITIES, "THE SALARIES OF *** PROBATION OFFICERS, PRETRIAL SERVICE OFFICERS." ALTHOUGH IT CONTAINS LANGUAGE RESTRICTING THE APPOINTMENT OF SECRETARIES AND LAWYERS, IT CONTAINS NO RESTRICTIONS CONCERNING THE APPOINTMENTS OF ADDITIONAL PROBATION OFFICE PERSONNEL TO PERFORM PRETRIAL SERVICES. AS NOTED ABOVE, THE CONFERENCE COMMITTEE DIRECTED THAT HALF THE ADDITIONAL PERSONNEL AUTHORIZED BE ALLOCATED ONLY TO THOSE COURTS THAT HAVE ESTABLISHED SEPARATE PRETRIAL SERVICES AGENCIES. HOWEVER, THAT LIMITATION WAS NOT CARRIED FORWARD INTO THE APPROPRIATION ACT ITSELF AND THUS IS NOT LEGALLY BINDING. 55 COMP.GEN.307 (1975). FOR A DISCUSSION OF SIMILAR CASES APPLYING THIS PRINCIPLE, SEE GAO, PRINCIPLES OF FEDERAL APPROPRIATION LAW, 5-94 TO 5 103 (1982).

NOW ARE WE PERSUADED THAT THE PRETRIAL SERVICES ACT OF 1982, 18 U.S.C. SEC. 3152 ET SEQ., RESTRICTS THE USE OF APPROPRIATIONS TO PAY FOR ADDITIONAL PROBATION OFFICE PERSONNEL TO PERFORM PRETRIAL SERVICES.

THE PRETRIAL SERVICES ACT REQUIRES THE DIRECTOR OF THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (ADMINISTRATIVE OFFICE), UNDER THE SUPERVISION AND DIRECTION OF THE JUDICIAL CONFERENCE OF THE UNITED STATES, TO "PROVIDE *** (TO SUCH EXTENT AND IN SUCH AMOUNTS AS ARE PROVIDED IN APPROPRIATION ACTS), FOR THE ESTABLISHMENT OF PRETRIAL SERVICES IN EACH JUDICIAL DISTRICT." 18 U.S.C. SEC. 3152(A). PRETRIAL SERVICES ARE TO BE ADMINISTERED BY A CHIEF PROBATION OFFICER THROUGH THE EXISTING PROBATION OFFICE OF A DISTRICT COURT; OR, PURSUANT TO A RECOMMENDATION BY THE DISTRICT COURT AND THE CIRCUIT JUDICIAL COUNCIL, BY A CHIEF PRETRIAL SERVICES OFFICER, NOT A PROBATION OFFICER, THROUGH A NEW AND SEPARATE PRETRIAL SERVICES OFFICE. 18 U.S.C. SEC. 3152. APPROPRIATIONS FOR THE SEPARATE PRETRIAL SERVICES OFFICES ARE SPECIFICALLY AUTHORIZED. PUB.L. NO. 97-267, SEC. 9, 96 STAT. 1136, 1139 (CODIFIED AS NOTE TO 18 U.S.C. SEC. 3152).

AS IS CLEAR FROM THE FACE OF THE STATUTE, THE PRETRIAL SERVICES ACT IMPOSES A DUTY ON THE ADMINISTRATIVE OFFICE TO FURNISH PRETRIAL SERVICES IN EVERY FEDERAL JUDICIAL DISTRICT; IN OUR VIEW IT LEAVES TO EACH JUDICIAL DISTRICT THE DECISION OF HOW TO DELIVER SUCH SERVICES. /2/ 18 U.S.C. SEC. 3152(A).

NEVERTHELESS, PROPONENTS OF THE VIEW THAT THE LAW LIMITS HOW FUNDS FOR SALARIES MAY BE USED ATTACH CONSIDERABLE IMPORTANCE TO THE ACT'S SPECIFIC AUTHORIZATION OF SEPARATE PRETRIAL SERVICES OFFICES, AND TO THE ABSENCE OF ONE FOR PROBATION OFFICES PERFORMING PRETRIAL SERVICES. THEY ALSO EMPHASIZE THAT THE ACT REQUIRES PROBATION OFFICERS TO "DESIGNATE" RATHER THAN "APPOINT" PERSONNEL TO PERFORM PRETRIAL SERVICES. THIS LANGUAGE, WHEN READ IN LIGHT OF LEGISLATIVE HISTORY RELEVANT TO THE PROVISION, IS SAID TO INDICATE THAT CONGRESS PERMITTED THE USE OF PROBATION OFFICES TO PROVIDE PRETRIAL SERVICES, ONLY SO LONG AS SUCH OFFICES DID NOT REQUIRE ADDITIONAL RESOURCES TO PROVIDE THOSE SERVICES. FINALLY, THE PROPONENTS POINT TO OTHER LEGISLATIVE HISTORY, MOST NOTABLY THE STATEMENT OF THE MANAGERS ACCOMPANYING THE CONFERENCE COMMITTEE'S SUBSTITUTE TO THE DIFFERING HOUSE AND SENATE VERSIONS OF THE ACT. THIS LEGISLATIVE HISTORY DEMONSTRATES AN EXPECTATION THAT ADDITIONAL PERSONNEL FOR PRETRIAL SERVICES WOULD BE PROVIDED ONLY TO THOSE DISTRICTS WHERE PRETRIAL SERVICES ARE DELIVERED THROUGH A SEPARATE PRETRIAL SERVICES OFFICE.

WE DO NOT FIND THESE ARGUMENTS CONVINCING. AN EXPLICIT AUTHORIZATION IS NOT REQUIRED TO PRECEDE AN APPROPRIATION, SINCE A STATUTE IMPOSING SUBSTANTIVE FUNCTIONS IS ITSELF SUFFICIENT AUTHORIZATION FOR APPROPRIATIONS. B-167710-O.M., JUNE 5, 1981. THEREFORE, THE ACT'S SPECIFIC AUTHORIZATION OF APPROPRIATIONS ONLY FOR SEPARATE OFFICES DOES NOT IMPLY THE ABSENCE OF AN AUTHORIZATION OF APPROPRIATIONS FOR PROBATION OFFICERS TO PROVIDE PRETRIAL SERVICES.

MOREOVER, THE DISTINCTION MADE IN THE STATUTE BETWEEN "APPOINTING" PERSONNEL AND "DESIGNATING" APPOINTED PERSONNEL PRESUMABLY IS NECESSARY TO REFLECT THE INDEPENDENT AUTHORITY OF CHIEF PROBATION OFFICER TO APPOINT PROBATION OFFICERS (CHAPTER 231, TITLE 18, U.S.C. 18 U.S.C. SEC. 3654). IT DOES NOT SUPPORT THE ARGUMENT THAT ADDITIONAL PROBATION OFFICERS MAY NOT BE USED TO PROVIDE PRETRIAL SERVICES. NEVERTHELESS, ACCORDING TO THE HOUSE CONFERENCE REPORT,

"AUTHORITY FOR THE CHIEF PROBATION OFFICER TO 'DESIGNATE,' RATHER THAN 'APPOINT,' IS NECESSARY TO REMAIN CONSISTENT WITH THE DETERMINATION OF THE MANAGERS THAT ADDITIONAL PERSONNEL WILL BE APPOINTED ONLY IN SPECIAL DISTRICTS UNDER THE SUPERVISION OF CHIEF PRETRIAL SERVICES OFFICERS."

H.R. CONF. REP. NO. 97-792 AT 8.

HOWEVER, "THE DETERMINATION OF THE MANAGERS" TO RESTRICT ADDITIONAL PERSONNEL TO PRETRIAL SERVICE OFFICERS, IS NOT ANCHORED BY ANY LANGUAGE IN THE ACT THAT IT MIGHT BE EXPLAINING OR AMPLIFYING.

THE PRETRIAL SERVICES ACT MANDATES THAT SUCH SERVICES BE PROVIDED, EITHER BY PROBATION OFFICERS OR PRETRIAL SERVICES OFFICERS. THEY MUST BE PROVIDED BY PRETRIAL SERVICES OFFICERS ONLY IF, IN EFFECT, THE DISTRICT COURT AND CIRCUIT JUDICIAL COUNCIL SO RECOMMEND. IF THEY DO NOT MAKE THIS RECOMMENDATION, THE SERVICES NEVERTHELESS MUST BE PROVIDED. NOTHING IN SECTION 3153 REQUIRES THE SERVICES TO BE PROVIDED BY PRETRIAL SERVICES OFFICERS IN THE ABSENCE OF A RECOMMENDATION BY THE DISTRICT COURT AND CIRCUIT JUDICIAL COUNCIL. ON THE CONTRARY, THAT SECTION EXPRESSLY AUTHORIZES CHIEF PROBATION OFFICERS, IN ALL DISTRICTS WHERE THERE HAS BEEN NO RECOMMENDATION BY THE DISTRICT COURT AND CIRCUIT JUDICIAL COUNCIL, TO USE PROBATION OFFICE PERSONNEL TO PROVIDE PRETRIAL SERVICES.

FOR THE REASONS SET FORTH ABOVE, WE ARE COMPELLED TO CONCLUDE THAT NEITHER THE 1986 APPROPRIATIONS ACT NOR THE PRETRIAL SERVICES ACT RESTRICTS THE HIRING OF ADDITIONAL PROBATION OFFICE PERSONNEL FOR THE PURPOSE OF PROVIDING PRETRIAL SERVICES.

/1/ THE PRETRIAL SERVICE AND PROBATION ACTIVITIES ARE FEDERAL JUDICIARY SUPPORT SERVICES AND THUS ARE JUDICIARY EXPENSES.

/2/ EIGHT-FIVE DISTRICTS HAVE CHOSEN TO PROVIDE PRETRIAL SERVICES THROUGH EXISTING PROBATION OFFICES, REGARDLESS OF WHETHER A NEED EXISTS FOR ADDITION AL RESOURCES. THE REMAINING NINE HAVE ESTABLISHED SEPARATE OFFICES.