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GAO-05-425SP: 

Digests Of Appropriations Law Decisions And Opinions: 
(October 2003 to December 2004) 

List of Appropriations Law Decisions and Opinions: 
(October 2003 to December 2004) 

B-301126: 
National Weather Service – Georgia 9-1-1 Charge: 
10/22/03: 

B-301367: 
Department of the Air Force – Purchase of Decals for Installation on 
Public Utility Water Tower: 
10/23/03: 

B-302230: 
Reconsideration: District of Columbia 9-1-1 Emergency Telephone System 
Surcharge and Effect of New Amendments: 
12/30/03: 

B-300248: 
Small Business Administration Imposition of Oversight Review Fees on 
Preferred Lender Program Lenders: 
01/15/04: 

B-301184
U.S. Army Corps of Engineers, North Atlantic Division – Food for a 
Cultural Awareness Program: 
01/15/04: 

B-302335: 
Rescission by the Department of Commerce of Unobligated Emergency Steel 
Loan Guarantee Program Appropriation: 
01/15/04: 

B-301721: 
Fish and Wildlife Service – Reimbursement for Individual Financial 
Planning for Retirement: 
01/16/04: 

B-301714: 
Assignment of Losses Incurred by Library of Congress FEDLINK Revolving 
Fund: 
01/30/04: 

B-301022: 
Office of National Drug Control Policy Advice to State Prosecutors: 
03/10/04: 

B-302504: 
Medicare Prescription Drug Improvement and Modernization Act of 
2003—Use of Appropriated Funds for Advertisements: 
03/10/04: 

B-300829: 
U.S. Agency for International Development – Availability of Funds under 
31 U.S. C. § 3721: 
04/04/04: 

B-301837: 
Government Printing Office – Recruitment and Relocation Payments and 
Retention Allowances: 
04/28/04: 

B-302760: 
Transfer from Library of Congress to Architect of the Capitol: 
05/17/04: 

B-302710: 
Department of Health and Human Services, Centers for Medicare and 
Medicaid Services – Video News Releases: 
05/19/04: 

B-302996: 
District of Columbia – Claim for Additional Severance Pay: 
05/21/04: 

B-301561: 
Interagency Agreement with the Department of Energy for Online Research 
and Education Information Service: 
06/14/04: 

B-302993: 
Use of Appropriated Funds to Purchase Kitchen Appliances: 
06/25/04: 

B-302366: 
Department of Energy – Disposition of Interest Earned on State Tax 
Refund Obtained by Contractor: 
07/12/04: 

B-302811: 
General Services Administration and Real Estate Brokers’ Commissions: 
07/12/04: 

B-302745: 
Kid’s Fishing Day: 
07/19/04: 

B-303180: 
Reclamation Fund and Western Area Power Administration: 
07/26/04: 

B-302548: 
Scope of Professional Credentials Statute: 
08/20/04: 

B-302911: 
Department of Health and Human Services – Chief Actuary’s 
Communications with Congress: 
09/07/04: 

B-302992: 
Forest Service – Sierra Nevada Brochure and Video Materials: 
09/10/04: 

B-302582: 
Special Counsel and Permanent Indefinite Appropriation: 
09/30/04: 

B-302728: 
State Department – Rest and Recuperation Travel: 
10/01/04: 

B-302973: 
Department of Veterans Affairs – Appropriations for CARES Cost 
Comparison Studies: 
10/06/04: 

B-303177: 
Forest Service – Request for Relief of Liability of Juanita Jimenez: 
10/20/04: 

B-303413: 
Federal Communications Commission Order 800 MHx Band Communications: 
11/08/04: 

B-303671: 
Navy Disbursing Officer – Physical Loss: 
12/03/04: 

B-303961: 
Architect of the Capitol – Payment of Fringe Benefits to Temporary 
Employees: 
12/06/04: 

B-303906: 
National Parks Service Contract – Payment to Subcontractors: 
12/07/04: 

B-302825: 
Office of Federal Housing Enterprise Oversight – Disposition of 
Collections from Third Party Litigants: 
12/22/04: 

B-302358: 
Bureau of Customs and Border Protection – Automated Commercial 
Environment Contract: 
12/27/04: 

[End of section] 

Digests of Appropriations Law Decisions and Opinions: 
(October 2003 to December 2004) 

Matter of: National Weather Service – Georgia 9-1-1 Charge: 
File: B-301126: 
Date: October 22, 2003: 

The federal government is constitutionally immune from paying the
Georgia 9-1-1 charge because it is a vendee tax, the legal burden of 
which falls directly on the federal government as a user of telephone 
services. In addition, Georgia statutes bar the assessment of this 
charge against federal entities. The National Weather Service should 
not pay assessments of this fee by its telephone service provider. 

[End of digest] 

Matter of: Department of the Air Force – Purchase of Decals for 
Installation on Public Utility Water Tower: 
File: B-301367: 
Date: October 23, 2003: 

The Air Force Reserve Operation and Maintenance appropriation is 
available for affixing decals of the major units assigned to Grissom 
Air Reserve Base onto a nearby utility company water tower to inform 
the public of the military’s activities in the area. 

Affixing decals of units assigned to Grissom Air Reserve Base to a 
utility company water tower would not violate the rule against using 
appropriated funds for improvements to nonfederal property because the 
decals would not enhance the water tower’s value. 

[End of digest] 

Matter of: Reconsideration: District of Columbia’s 9-1-1 Emergency 
Telephone System Surcharge and Effect of New Amendments; 
File: B-302230: 
Date: December 30, 2003: 

The District of Columbia’s 9-1-1 emergency telephone system surcharge, 
as originally enacted in 2000, constituted a “vendee tax” on all users 
of telephone services within the District, and had no legal effect 
against the federal government because the District lacked explicit 
statutory authority from Congress to tax the federal government. Under 
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and other cases, 
in the absence of an express statutory consent by the federal 
government, the Supremacy Clause of the United States Constitution 
precludes “subordinate governments,” including the District, from 
taxing the federal government or its instrumentalities. The Home Rule 
Act, Pub. L. No. 93-198, 87 Stat. 774 (Dec. 24, 1973), which empowers 
the District of Columbia, also evinces a congressional desire to 
preclude the District from taxing or otherwise interfering with the 
federal government. 

However, the District’s 2003 amendments to the 9-1-1 surcharge converted
it to a “vendor tax” on the providers of telephone services. Federal 
agencies may pay bills that itemize an appropriate portion of the 
amended surcharge because this tax is, for the telephone companies, a 
cost of doing business in the District of Columbia. 

[End of digest] 

Matter of: Small Business Administration Imposition of Oversight Review 
Fees on Preferred Lender Program Lenders: 
File: B-300248: 
Date: January 15, 2004: 

The Small Business Administration (SBA) directed private lenders subject
to its regulation under the preferred lender program to pay service 
fees to an SBA contractor in order to reimburse the contractor for the 
value of services the contractor performed on SBA’s behalf. This 
arrangement was unlawful because it amounted to the constructive 
imposition of additional fees that were prohibited by SBA’s organic 
legislation, and because SBA’s constructive retention and use of the 
receipts from that fee were required by the Miscellaneous Receipts Act, 
31 U.S.C. § 3302(b), to be deposited into the general fund of the 
Treasury because SBA had no statutory authority to use those fees or 
deposit them into another account. 

[End of digest] 

Matter of: U.S. Army Corps of Engineers, North Atlantic Division – Food 
for a Cultural Awareness Program: 
File: B-301184: 
Date: January 15, 2004: 

The U.S. Army Corps of Engineers’ appropriation is not available to pay 
for the costs of food offered at the Corps’ North Atlantic Division’s 
February 2003 Black History Month program. The record here indicates 
that a meal was offered at the program, not a sampling of food. While 
the program flier referred to a “food sampling,” all other evidence in 
the record, including the time of the program, the food items served, 
and the amounts available, indicate that a meal, not a sampling, was 
offered. 

[End of digest] 

Matter of: Rescission by the Department of Commerce of Unobligated 
Emergency Steel Loan Guarantee Program Appropriation: 
File:B-302335: 
Date: January 15, 2004: 

The Emergency Steel Loan Guarantee Act of 1999 provided for the cost of
guaranteeing loans to qualified steel companies through the Emergency
Steel Loan Guarantee Program, stating that “there is appropriated
$140,000,000 to remain available until expended.” In fiscal year 2004,
Congress mandated a rescission of $100 million from unobligated balances
“available to the Department of Commerce” from prior year 
appropriations, and Commerce sought to partially satisfy this 
rescission through rescinding some unobligated Program funds 
appropriated in 1999. Faced with the question of whether the Program’s 
$140 million appropriation was available to the Loan Guarantee Board 
established in the 1999 Act or to Commerce, the Comptroller General 
used the canon of statutory construction that words should be 
considered in the context of the entire statute. Applied here, that 
resulted in a holding that the funds appropriated in the 1999 Act were 
available to the Board and not to Commerce, which thus had to find 
other unobligated balances to satisfy the $100 million rescission. 

[End of digest] 

Matter of: Fish and Wildlife Service – Reimbursement for Individual 
Financial Planning for Retirement: 
File: B-301721: 
Date: January 16, 2004: 

We have no objection to the Fish and Wildlife Service’s (Service) 
proposal to use appropriated funds to reimburse its employees for the 
costs of individual financial planning as part of the agency’s 
retirement education program. Employee retirement education and 
retirement counseling are legitimate functions of administering an 
agency’s personnel benefits system, and therefore legitimate agency 
expenses. As the Service implements the proposed program, it should 
develop internal controls to ensure that the service for which 
reimbursement is sought meets the agency’s definition of “advice and 
consultation services on investments, retirement issues and benefit 
programs from a financial planner.” 

[End of digest] 

Matter of: Assignment of Losses Incurred by the Library of Congress 
FEDLINK Revolving Fund: 
File: B-301714: 
Date: January 30, 2004: 

The Library of Congress has incurred losses as a result of advance
payments made for the acquisition of subscriptions by the Federal 
Library and Information Network (FEDLINK) revolving fund to a 
contractor who subsequently defaulted and declared bankruptcy. The 
Library should use the administrative fees that it has collected from 
all of FEDLINK’s customers to cover this loss, rather than assign the 
loss to the specific agencies whose orders were placed with the 
contractor. 

[End of digest] 

Matter of: Office of National Drug Control Policy Advice to State 
Prosecutors: 
File:B-301022: 
Date: March 10, 2004: 

The Office of National Drug Control Policy (ONDCP) did not violate 
antilobbying and propaganda prohibitions by distributing a letter to 
state level prosecutors urging action pertaining to state and local 
drug laws. The applicable anti-lobbying provisions prohibit ONDCP from 
distributing literature pertaining to legislation pending before 
Congress. The letter in question dealt with state and local law, not 
federal law before Congress. Therefore, ONDCP did not violate the anti-
lobbying law. In addition, by urging state officials to strengthen drug 
controls, ONDCP was carrying out its statutory mandate to oppose 
legalization of controlled substances, and was not carrying out 
forbidden lobbying activities. 

[End of digest] 

Matter of: Medicare Prescription Drug, Improvement, and Modernization 
Act of 2003 – Use of Appropriated Funds for Advertisements: 
File: B-302504: 
Date: March 10, 2004: 

The Department of Health and Human Services (HHS) did not violate the 
publicity and propaganda prohibition when it used appropriated funds to 
produce and distribute a flyer and print and television advertisements 
concerning the Medicare Prescription Drug, Improvement, and 
Modernization Act of 2003 (MMA). 

HHS has explicit authority to inform Medicare beneficiaries about 
changes to Medicare resulting from MMA and thus its justification for 
the materials is afforded considerable deference. While the materials 
have notable omissions and other weaknesses, they are not so purely 
partisan as to be unlawful. 

[End of digest] 

Matter of: U.S. Agency for International Development – Availability of 
Funds Under 31 U.S.C. § 3721: 
File: B-300829: 
Date: April 4, 2004: 

GAO does not have jurisdiction to question another agency’s settlement 
of a claim under the Military Personnel and Civil Employees’ Claims Act,
31 U.S.C. § 3721, so long as the settlement was made in accordance with
“the statutory criteria and applicable regulations.” In its decision to 
pay for flood-caused damage to an employee’s vehicle while the vehicle 
was parked on an overseas embassy lot, the U.S. Agency for International
Development relied on section 3721 and specific provisions of the State
Department’s Foreign Affairs Manual. Accordingly, GAO has no basis to
object to the settlement. 

[End of digest] 

Matter of: Government Printing Office – Recruitment and Relocation 
Payments and Retention Allowances: 
File: B-301837: 
Date: April 28, 2004: 

In view of the broad authority under the Kiess Act, 44 U.S.C. § 305, to 
set the pay of Government Printing Office (GPO) employees, GPO may use
appropriated funds to pay recruitment and relocation bonuses and
retention allowances. Because of the close relationship between GPO and
the Joint Committee on Printing (JCP), we suggest that GPO consult with
JCP on its decision to make such payments. 

[End of digest] 

Matter of: Transfer from Library of Congress to Architect of the 
Capitol: 
File: B-302760: 
Date: May 17, 2004: 

A transfer of funds from the Library of Congress to the Architect of the
Capitol for renovations, under the Library’s transfer authority, 2 
U.S.C. § 141(c), did not extend the obligational availability of the 
Library’s fiscal year 2003 appropriations, which were only available 
for the bona fide needs of that fiscal year. The Library had a bona 
fide need to renovate the loading dock in September 2003 when it 
entered into an interagency agreement with the Architect. In signing 
that interagency agreement with the Architect, the Library incurred an 
obligation for $500,000. Accordingly, that amount is available to 
liquidate the obligation in future fiscal years to cover costs incurred 
by the Architect in accordance with the terms of the interagency 
agreement. 

[End of digest] 

Matter of: Department of Health and Human Services, Centers for 
Medicare and Medicaid Services – Video News Releases: 
File: B-302710: 
Date: May 19, 2004: 

The Centers for Medicare and Medicaid Services’ (CMS) use of 
appropriated funds to pay for the production and distribution of story 
packages that were not attributed to CMS violated the restriction on 
using appropriated funds for publicity or propaganda purposes in the 
Consolidated Appropriations Resolution of 2003, Pub. L. No. 108-7, div. 
J, title VI, § 626, 117 Stat. 11, 470 (Feb. 20, 2003). 

CMS, in using appropriations in violation of the publicity or propaganda
prohibition, incurred obligations in excess of appropriations available 
for that purpose. See B-300325, Dec. 13, 2002. Accordingly, CMS 
violated the Antideficiency Act, 31 U.S.C. § 1341, and must report the 
violation to Congress and the President in accordance with 31 U.S.C. § 
1351 and Office of Management and Budget Circular No. A-11. 

[End of digest] 

Matter of: District of Columbia – Claim for Additional Severance Pay: 
File: B-302996: 
Date: May 21, 2004: 

GAO does not have jurisdiction to consider a District of Columbia
employee’s claim for additional severance pay following the termination 
of his employment. From 1921 through 1996, GAO did consider, among other
things, federal employee claims for additional severance pay under its
authority to settle and adjust federal employee claims. See, e.g., 31 
U.S.C. § 3702 (1994); B-260092, Feb. 15, 1995. However, in 1996, 
Congress amended the law to transfer that general claims settlement 
authority elsewhere in the government. Pub. L. No. 104-53, § 211, 109 
Stat. 514, 535 (Nov. 19, 1995). Consequently, GAO no longer has 
authority to consider and decide a claim for additional severance pay. 

[End of digest] 

Matter of: Interagency Agreement with the Department of Energy for 
Online Research and Education Information Service: 
File: B-301561: 
Date: June 14, 2004: 

Submission from the Air Force Office of Scientific Research (AFOSR) and
subsequent informal contacts with AFOSR and the Department of Energy
(DOE) did not provide the information needed to definitively address
whether AFOSR could use fiscal year 1999 funds to pay a voucher for
amounts owed under an agreement with DOE to implement a governmentwide 
online research, education, and information service. The GAO letter 
responding to AFOSR discusses the various funding options depending on 
different scenarios that would require using fiscal year 1998 or 1999 
funds, or both. Under account closing laws, fiscal year 1998 funds
are now closed, so, to the extent payments should have been charged to
fiscal year 1998, AFOSR would need to use current funds to pay the
voucher. Fiscal year 1999 funds are expired but will not be closed until
September 30, 2004, so under 31 U.S.C. § 1553(a) the appropriation 
account is still available to pay that part of the vouchered amount 
attributable to fiscal year 1999 funds. 

[End of digest] 

Matter of: Use of Appropriated Funds to Purchase Kitchen Appliances: 
File: B-302993: 
Date: June 25, 2004: 

The U.S. Pacific Command (USPACOM) may use appropriated funds to 
purchase refrigerators, microwaves, and commercial coffee makers for 
central kitchen areas in its new headquarters building. Appropriations 
are available to pay for items ordinarily considered to be personal in 
nature, such as kitchen appliances, when the primary benefit of their 
use accrues to the agency, notwithstanding a collateral benefit to the 
individual. USPACOM has demonstrated that equipping the workplace in 
this manner is reasonably related to the efficient performance of 
agency activities and provides other benefits to the agency, including 
assurance of a safe workplace. Earlier GAO decisions reflecting similar 
proposed uses of appropriations, such as B-276601, June 26, 1997, B-
210433, Apr. 15, 1983, and 47 Comp. Gen. 657 (1968), are modified 
accordingly. 

In applying this decision, agencies should develop an agency policy to
ensure uniformity in the use of appropriations to acquire this equipment
and determine the usefulness of appliances such as these in light of
operational benefits, such as employee health and productivity, and the
responsibility to provide a safe work environment. 

[End of digest] 

Matter of: Department of Energy – Disposition of Interest Earned on 
State Tax Refund Obtained by Contractor: 
File: B-302366: 
Date: July 12, 2004: 

The federal government is legally entitled to a refund of state taxes 
plus interest that the state of Washington gave to Fluor Hanford, Inc. 
(FHI) for taxes that FHI paid under a contract with the Department of 
Energy. Because the department previously reimbursed FHI for those 
taxes, the department is entitled to retain and to credit to its 
appropriations the principal portion of the state tax refund. However, 
the department may not retain or credit to its appropriations interest 
amounts paid by the state along with the refunded taxes. The interest 
amounts must be credited to the general fund of the Treasury as 
miscellaneous receipts, pursuant to 31 U.S.C. § 3302(b). 

[End of digest] 

Matter of: General Services Administration and Real Estate Brokers’ 
Commissions: 
File:B-302811: 
Date: July 12, 2004: 

The General Services Administration’s (GSA) proposed National Brokers
Contract is a “no-cost” contract which adopts a common practice of the
real estate industry and allows real estate brokers to accept commission
payments from landlords whose property the government leases. The 
National Brokers Contract specifies that the brokers agree to provide
services at no cost to GSA and will have no expectation of payment from
GSA—even if landlords fail to pay commissions the landlords owe to the
brokers. Although the landlords will pay the brokers’ commissions for
services rendered to both GSA and the broker, this does not constitute a
constructive augmentation of GSA’s appropriations because the services
that GSA will acquire under the National Brokers Contract are services 
that brokers commonly offer in commercial leasing transactions and are
typically expected to be covered by landlords’ commissions to brokers. 

[End of digest] 

Matter of: Kid’s Fishing Day: 
File: B-302745: 
Date: July 19, 2004: 

The Forest Service may not use appropriated funds to purchase 
refreshments for the public as part of a Kid’s Fishing Day program. 
Kid’s Fishing Day is not a cultural awareness program because it does 
not serve to advance federal Equal Employment Opportunity objectives. 

[End of digest] 

Matter of: Reclamation Fund and Western Area Power Administration: 
File: B-303180: 
Date: July 26, 2004: 

While the relationship between the Bureau of Reclamation (BOR) and the
Western Area Power Administration (WAPA) is not a creditor-debtor
relationship, WAPA is required to set rates to recover from its power
customers amounts appropriated over the years from BOR’s Reclamation
Fund to finance construction, operation, and maintenance of federal 
power facilities, and to deposit power revenues into the Reclamation 
Fund. The statutory power marketing scheme was designed to ensure that 
power customers reimburse the federal government for the benefit they 
receive from the federal government. The statutory scheme requires WAPA 
to enforce reimbursement by WAPA’s customers and to repay to the
Reclamation Fund the amount it collects. 

[End of digest] 

Matter of: Scope of Professional Credentials Statute: 
File: B-302548: 
Date: August 20, 2004: 

Pursuant to 5 U.S.C. § 5757(a), federal agencies are authorized to use
appropriated funds to pay an employee’s expenses to obtain professional
credentials. However, an agency may pay only the expenses required to
obtain the license or official certification needed to practice a 
particular profession, including licensing fees and examinations to 
obtain credentials. Accordingly, section 5757(a) does not authorize the 
agency to pay for an employee’s membership in a professional 
association unless membership is a prerequisite to obtaining the 
professional license or certification. Under 5 U.S.C. § 5946 payment 
for voluntary memberships in organizations of already-credentialed 
professionals is prohibited, and section 5757(a) does not provide any 
authority to pay such fees. 

[End of digest] 

Matter of: Department of Health and Human Services – Chief Actuary’s 
Communications with Congress: 
File: B-302911: 
Date: September 7, 2004: 

Pursuant to section 618 of the Consolidated Appropriations Act of 2004, 
the Department of Health and Human Services’ appropriation was not 
available to pay the salary of a Department official who prohibited a 
subordinate from communicating with Congress. The legislative history 
of the act indicates that federal employees must remain free to 
communicate with Congress in order to provide Congress with 
programmatic information from frontline employees. In this case, that 
stricture was violated. Consequently, under section 618 the 
appropriated funds are unavailable to pay the official’s salary. 

Section 618 is not unconstitutional as a violation of the separation of
powers. While certain applications of section 618 could raise 
constitutional concerns, such as a request for privileged, classified, 
or deliberative information or legislative recommendations from federal 
employees, the prohibition was applicable to this case, given the 
narrow scope of information requested and Congress’s need for such 
information in carrying out its legislative duties, as well as the fact 
that no court has held section 618 unconstitutional. 

[End of digest] 

Matter of: Forest Service – Sierra Nevada Brochure and Video Materials: 
File: B-302992: 
Date: September 10, 2004: 

The Forest Service’s use of appropriated funds to produce and 
distribute a brochure and video materials on the land management and 
resource plan for the Sierra Nevada National Forest did not violate the 
publicity or propaganda prohibition of the Consolidated Appropriations 
Act of 2004. Under its information dissemination authority, the Forest 
Service may distribute these materials to explain and defend its forest 
management policies to the general public. 

The Forest Service’s use of appropriated funds to pay a private public
relations firm to assist with the production and dissemination of the
brochure and video materials also did not violate the prohibition of 
using appropriated funds to pay for a publicity expert under 5 U.S.C. § 
3107. The Forest Service contracted with the firm to assist with a 
legitimate information dissemination activity and did not hire the firm 
as a “publicity expert” as envisioned by section 3107. 

[End of digest] 

Matter of: Special Counsel and Permanent Indefinite Appropriation: 
File: B-302582: 
Date: September 30, 2004: 

The Department of Justice properly used the permanent indefinite 
appropriation to fund the expenses of a Special Counsel who was not 
appointed from outside the government. Although the authority to 
appoint counsels under 28 U.S.C. §§ 591 et seq. expired in 1999, the 
permanent indefinite appropriation remains available to pay the 
expenses of an independent counsel appointed under other law. The 
Justice Department appointed the Special Counsel in this case under 28 
U.S.C. §§ 509, 510, and 515, which constitute “other law” for purposes 
of the permanent indefinite appropriation. Although the term 
“independent counsel” is not defined in the permanent indefinite 
appropriation, the Special Counsel in this case filled the same 
investigative role as independent counsels under the expired law; 
furthermore, the Special Counsel in this case had sufficient indicia of 
independence from the Department of Justice that, taken with the nature 
of his investigative role, conferred the functional status of an 
independent counsel, despite the fact that he was not appointed from 
outside government. Because the Special Counsel was in fact an 
independent counsel and was appointed under “other law”, the Department 
of Justice properly used the permanent indefinite appropriation to fund 
his activities. 

The Department of Justice may waive 28 C.F.R. Part 600, because it does
not act as a substantive limitation on the Attorney General’s authority 
to delegate departmental functions to an appointed Special Counsel. The
regulations themselves state that they do not create any rights 
enforceable at law or equity. In addition, the effective date of Part 
600 when issued was not delayed thirty days because it was not a 
substantive rule. Because it is not a substantive rule but an internal 
administrative procedure, Part 600 may properly be waived by the 
Department of Justice. 

[End of digest] 

Matter of: State Department – Rest and Recuperation Travel: 
File: B-302728: 
Date: October 1, 2004: 

A State Department certifying officer located in the United States 
Embassy, Kiev, Ukraine, may certify payment of a Foreign Service 
employee’s travel expenses to attend the funeral of a close family 
member, based on the department’s authority to grant “rest and 
recuperation” travel under the Foreign Service Act of 1980, Pub. L. No. 
96-465, codified in 22 U.S.C. ch. 52. 

[End of digest] 

Matter of: Department of Veterans Affairs – Appropriations for CARES 
Cost Comparison Studies: 
File: B-302973: 
Date: October 6, 2004: 

The prohibition in 38 U.S.C. § 8110(a)(5) on using appropriations for
“medical care, medical and prosthetic research, and medical 
administration and miscellaneous operating expenses” for the Veterans 
Health Administration (VHA) to conduct studies comparing the cost of the
provision of commercial services and products by the Department of
Veterans Affairs (VA) with that by private contractors applies to cost
comparison studies conducted as part of VA’s Capital Asset Realignment 
for Enhanced Services (CARES) process. It also prohibits the use of VHA
employees to conduct such studies. The section 8110(a)(5) prohibition
applies unless Congress includes an affirmative statement that it is 
appropriating VHA funds for that specific purpose. This conclusion is
supported both by applying the plain meaning rule to section 8110(a)(5)
and reviewing the provision’s legislative history. If VA has used 
restricted VHA appropriations in fiscal year 2004 to conduct such 
studies in the absence of an express appropriation, then VA has violated
section 8110(a)(5). It would also constitute a violation of the purpose
statute, 31 U.S.C. § 1301(a). If VA, after adjusting its accounts, were 
to have insufficient budget authority to cover all obligations 
incurred, then VA would have to report an Antideficiency Act violation. 

Matter of: Forest Service – Request for Relief of Liability of Juanita 
Jimenez: 
File:B-303177: 
Date: October 20, 2004: 

[End of digest] 

We deny relief for a Forest Service certifying officer who certified 
duplicate payments in the amount of $5,631.85 to a vendor for emergency 
fire equipment during a fire emergency in Gifford Pinchot National 
Forest. We find that the certifying officer failed to act with the 
requisite amount of care and due diligence when she certified payments 
based upon carbon copies of original invoices that she had previously 
certified for payment. 

[End of digest] 

Matter of: Federal Communications Commission Order 800 MHz Band 
Communications: 
File:B-303413: 
Date: November 8, 2004: 

The Federal Communications Commission’s (FCC) Report and Order on 
improving public safety communications in the 800 MHz band, which would 
provide Nextel with spectrum in exchange for Nextel relinquishing other 
spectrum and paying costs associated with 800 MHz band reconfiguration, 
does not violate 31 U.S.C. § 1341(a)(1)(B), a provision of the 
Antideficiency Act, because the Report and Order does not involve FCC 
obligations or expenditures. 

FCC Report and Order on improving public safety communications in the 
800 MHz band would provide Nextel with spectrum through a license 
modification in exchange for Nextel relinquishing other spectrum and 
paying costs associated with 800 MHz band reconfiguration. The license 
modification results in no money owed the government. The miscellaneous 
receipts statute, 31 U.S.C. § 3302(b), requires that money received for 
the United States be deposited in the Treasury and an agency cannot 
avoid the statute by changing the form of its transaction to avoid 
receiving money that would otherwise be owed to it unless so authorized 
by law. Because GAO defers to the FCC’s interpretation of its authority 
under the Communications Act of 1934 to provide Nextel with spectrum 
through a license modification, GAO believes that the FCC Report and 
Order does not violate the miscellaneous receipts statute. 

GAO defers to the FCC’s interpretation of its authority under the
Communications Act of 1934 consistent with the standard guiding the
consideration of the FCC’s regulatory actions established in Chevron and
other court cases. 

[End of digest] 

Matter of: Navy Disbursing Officer – Physical Loss: 
File: B-303671: 
Date: December 3, 2004: 

GAO does not review military disbursing officer physical loss relief
requests on a case-by-case basis. GAO, Policy and Procedures Manual for
Guidance of Federal Agencies, title 7, § 8.10 (May 1993). Where the
Secretary of Defense, or the official to whom the Secretary has 
delegated relief authority, makes certain determinations required by 31 
U.S.C. § 3527(b), relief is automatic; if the Secretary is unable to 
make these determinations, relief is not available. GAO will not review 
requests for relief of liability from military disbursing officers 
where the determinations and the subsequent decision to grant or deny 
relief appear to be properly considered. 

[End of digest] 

Matter of: Architect of the Capitol – Payment of Fringe Benefits to 
Temporary Employees: 
File: B-303961: 
Date: December 6, 2004: 

Participation by the Architect of the Capitol (AOC) in a multiemployer
defined benefit plan would constitute a violation of the Antideficiency 
Act because of the possibility of indeterminate withdrawal liability 
under the Employee Retirement Income Security Act. Language instructing 
AOC to take all steps which may be required to pay fringe benefits to 
its temporary employees “notwithstanding any other provision of law” 
does not suffice to waive the Antideficiency Act. Nothing in the 
statute or its legislative history suggests that Congress intended a 
waiver of the Antideficiency Act, and AOC can give effect to both this 
language and the Antideficiency Act. 

[End of digest] 

Matter of: National Parks Service Contract – Payments to 
Subcontractors: 
File: B-303906: 
Date: December 7, 2004: 

GAO no longer has claims settlement authority under 31 U.S.C. § 3702.
Authority to settle claims now lies with the executive branch agency 
out of whose activity the claims arose. Consequently, the Department of 
the Interior, not GAO, must decide whether to pay the claims of 
subcontractors under an equitable theory of quantum meruit. In that 
regard, Interior may find our past claims settlement decisions helpful. 

[End of digest] 

Matter of: Office of Federal Housing Enterprise Oversight – Disposition 
of Collections from Third Party Litigants: 
File: B-302825: 
Date: December 22, 2004: 

The Office of Federal Housing Enterprise Oversight (OFHEO) may not
deposit into the Federal Housing Enterprises Oversight Fund amounts that
it collects from third parties to its administrative proceedings in 
payment of document discovery costs. Under the miscellaneous receipts 
statute, 31 U.S.C. § 3302(b), OFHEO must deposit such collections into 
the general fund of the Treasury. 

[End of digest] 

Matter of: Bureau of Customs and Border Protection – Automated 
Commercial Environment Contract: 
File: B-302358: 
Date: December 27, 2004: 

Customs’ Automated Commercial Environment (ACE) contract was an 
indefinite delivery, indefinite quantity (IDIQ) contract and therefore 
was not subject to the multiyear contracting requirements of 41 U.S.C. 
§ 254c, including the termination provisions in that section. 

Upon award of the ACE contract, Customs should have obligated the
contract minimum of $25 million in accordance with 31 U.S.C. § 1501(a),
the recording statute, to ensure the integrity of Customs’ obligational
accounting records. 

[End of digest] 

[End of section]