B-207697 L/M, OCT 4, 1982

B-207697 L/M, OCT 4, 1982

PRECIS-UNAVAILABLE

RICHARD L. OTTINGER, HOUSE OF REPRESENTATIVES:

THE PURPOSE OF THIS LETTER IS TO PROVIDE OUR VIEWS ON SEVERAL QUESTIONS CONCERNING THE DEPARTMENT OF ENERGY'S (DOE) CONSERVATION PROGRAMS. AFTER DISCUSSIONS WITH YOUR SUBCOMMITTEE STAFF ON PRECISELY WHAT LEGAL ISSUES YOUR LETTER OF APRIL 6 EXPECTED US TO ADDRESS, THE FOLLOWING QUESTIONS WERE IDENTIFIED:

1. DOES LANGUAGE IN A CONGRESSIONAL COMMITTEE REPORT THAT DIRECTS DOE NOT TO SPEND FUNDS FROM A LUMP-SUM APPROPRIATION FOR A PARTICULAR PROGRAM SERVE AS A LEGAL BASIS FOR DOE NOT TO SPEND THE FUNDS?

2. IF AN ANNUAL APPROPRIATION STATUTE PROVIDES THAT NO FUNDS AND NO PERSONNEL SHALL BE USED BY DOE TO ADMINISTER OR ENFORCE THE STATUTORY OR REGULATORY REQUIREMENTS OF A PARTICULAR PROGRAM, DO SUCH REQUIREMENTS CONTINUE IN EFFECT, AND THUS, BIND OR AFFECT THE PARTIES REGULATED?

SINCE THESE QUESTIONS ARE OF A GENERAL NATURE AND DO NOT REFER TO A PARTICULAR STATUTE OR SET OF FACTS, OUR DISCUSSION OF THESE MATTERS LIKEWISE MUST BE GENERAL.

WITH RESPECT TO QUESTION 1, DOE CANNOT RELY ON A STATEMENT IN A COMMITTEE REPORT AS A LEGAL BASIS FOR NOT SPENDING APPROPRIATED FUNDS FOR A PARTICULAR PROGRAM IN THE FACE OF A STATUTORY MANDATE TO SPEND THE FUNDS. WHERE THERE IS NO SUCH MANDATE, DOE COULD COMPLY WITH A COMMITTEE DIRECTIVE NOT TO SPEND, SUBJECT TO THE REQUIREMENTS OF THE IMPOUNDMENT CONTROL ACT, 31 U.S.C. 1400 ET. SEQ.

CONCERNING QUESTION 2, THE EFFECT OF SUCH A STATUTORY PROVISION WOULD BE TO PRECLUDE DOE FROM ADMINISTERING OR ENFORCING THE PROGRAM DURING THE FISCAL YEAR. HOWEVER, WE BELIEVE THAT THE REQUIREMENTS OF THE PROGRAM WOULD CONTINUE IN EFFECT AND COULD BE ENFORCED TO THE EXTENT THAT MEANS OF ENFORCEMENT EXISTED OUTSIDE OF DOE. A MORE DETAILED ANALYSIS FOLLOWS.

QUESTION 1: DOES LANGUAGE IN A CONGRESSIONAL COMMITTEE REPORT THAT DIRECTS DOE NOT TO SPEND FUNDS FROM A LUMP-SUM APPROPRIATION FOR A PARTICULAR PROGRAM SERVE AS A LEGAL BASIS FOR DOE NOT TO SPEND THE FUNDS?

A LUMP-SUM APPROPRIATION PROVIDES FUNDS FOR SEVERAL PROGRAMS OR ACTIVITIES, WITHOUT SPECIFYING HOW MUCH OF IT IS TO BE SPENT FOR EACH ONE. IT GIVES A DEPARTMENT OR AGENCY DISCRETION IN ALLOCATING APPROPRIATED FUNDS. THUS, WHEN CONGRESS ENACTS A LUMP-SUM APPROPRIATION ACCOMPANIED BY COMMITTEE REPORTS DETAILING HOW IT WANTS FUNDS TO BE ALLOCATED, THE AGENCY HAS NO LEGAL OBLIGATION TO FOLLOW SUCH REPORT STATEMENTS, EVEN IF EXPRESSED AS "DIRECTIVES," UNLESS THEY CAN BE RELATED TO THE STATUTORY LANGUAGE ITSELF. LTV AEROSPACE CORPORATION, 55 COMP.GEN. 307 (1975); SEE ALSO, 59 COMP.GEN. 228 (1980); 58 COMP.GEN. 358 (1978); AND 55 COMP.GEN. 812 (1975).

WE EXPLAINED THIS PRINCIPLE AS FOLLOWS IN OUR LTV AEROSPACE CORPORATION OPINION:

"WHEN CONGRESS MERELY APPROPRIATES LUMP-SUM AMOUNTS WITHOUT STATUTORILY RESTRICTING WHAT CAN BE DONE WITH THOSE FUNDS, A CLEAR INFERENCE ARISES THAT IT DOES NOT INTEND TO IMPOSE LEGALLY BINDING RESTRICTIONS, AND INDICIA IN COMMITTEE REPORTS AND OTHER LEGISLATIVE HISTORY AS TO HOW THE FUNDS SHOULD OR ARE EXPECTED TO BE SPENT DO NOT ESTABLISH ANY LEGAL REQUIREMENTS ON FEDERAL AGENCIES.

"AS A GENERAL PROPOSITION, THERE IS A DISTINCTION TO BE MADE BETWEEN UTILIZING LEGISLATIVE HISTORY FOR THE PURPOSE OF ILLUMINATING THE INTENT UNDERLYING LANGUAGE USED IN THE STATUTE AND RESORTING TO THAT HISTORY FOR THE PURPOSE OF WRITING INTO THE LAW THAT WHICH IS NOT THERE.

"THIS DOES NOT MEAN AGENCIES ARE FREE TO IGNORE CLEARLY EXPRESSED LEGISLATIVE HISTORY APPLICABLE TO THE USE OF APPROPRIATED FUNDS. THEY IGNORE SUCH EXPRESSIONS OF INTENT AT THE PERIL OF STRAINED RELATIONS WITH THE CONGRESS. THE EXECUTIVE BRANCH *** HAS A PRACTICAL DUTY TO ABIDE BY SUCH EXPRESSIONS. THIS DUTY, HOWEVER, MUST BE UNDERSTOOD TO FALL SHORT OF A STATUTORY REQUIREMENT GIVING RISE TO A LEGAL INFRACTION WHERE THERE IS A FAILURE TO CARRY OUT THAT DUTY." 55 COMP.GEN. AT 319, 325.

GIVEN THE ABOVE, A DIRECTION IN A COMMITTEE REPORT NOT TO SPEND LUMP SUM APPROPRIATION AMOUNTS FOR A PARTICULAR PROGRAM, IF UNRELATED TO THE APPROPRIATION LANGUAGE, WOULD NEITHER LIMIT NOR ENLARGE ANY LEGAL DISCRETION DOE OTHERWISE HAD TO WITHHOLD FUNDS FROM THE PROGRAM. THE COMMITTEE DIRECTION WOULD NOT ITSELF SUPPLY A LEGAL BASIS FOR DOE NOT TO SPEND. THUS, ASSUMING THAT THE DOE WAS WILLING TO COMPLY WITH THE DIRECTION, THE QUESTION WOULD BECOME WHETHER IT HAS THE LEGAL DISCRETION TO DO SO.

IT IS POSSIBLE THAT A LUMP-SUM APPROPRIATION MIGHT FUND A PROGRAM THAT IS SUBJECT TO A STATUTORY MANDATE TO SPEND. FOR EXAMPLE, THE PROGRAM'S AUTHORIZATION STATUTE MIGHT CONFER ENTITLEMENTS UPON DESIGNATED BENEFICIARIES OR OTHERWISE REQUIRE AS A MATTER OF LAW THE OBLIGATION OR EXPENDITURE OF BUDGET AUTHORITY. IN THESE CIRCUMSTANCES, DOE WOULD BE PRECLUDED FROM COMPLYING WITH A COMMITTEE DIRECTIVE NOT TO SPEND SINCE IT WOULD NOT HAVE THE REQUISITE DISCRETION TO DO SO.

ABSENT A STATUTORY MANDATE TO SPEND FUNDS FOR A PARTICULAR PROGRAM, DOE WOULD HAVE DISCRETION TO HONOR A COMMITTEE DIRECTIVE NOT TO SPEND FUNDS IN THE PRESCRIBED MANNER. HOWEVER, IF THE FUNDS WERE NOT EXPENDED ON ANOTHER ELIGIBLE PROGRAM, BUT INSTEAD WERE WITHHELD FROM OBLIGATION, SUCH A WITHHOLDING PRESUMABLY WOULD CONSTITUTE AN IMPOUNDMENT (EITHER A DEFERRAL OR PROPOSED RESCISSION OF BUDGET AUTHORITY DEPENDING ON THE CIRCUMSTANCES) WHICH WOULD HAVE TO BE REPORTED TO THE CONGRESS IN ACCORDANCE WITH THE IMPOUNDMENT CONTROL ACT, 31 U.S.C. 1400 ET SEQ.

QUESTION 2: IF AN ANNUAL APPROPRIATION STATUTE PROVIDES THAT NO FUNDS AND NO PERSONNEL SHALL BE USED BY DOE TO ADMINISTER OR ENFORCE THE STATUTORY OR REGULATORY REQUIREMENTS OF A PARTICULAR PROGRAM, DO SUCH REQUIREMENTS CONTINUE IN EFFECT AND THUS BIND OR AFFECT THE PARTIES REGULATED?

BASED ON OUR REVIEW OF THE LIMITED NUMBER OF CASES AND MATERIALS WE COULD FIND ON THIS SUBJECT, WE BELIEVE THAT A STATUTE PHRASED IN LANGUAGE ALONG THE LINES DESCRIBED IN QUESTION 2 WOULD PROBABLY NOT BE CONSIDERED AN IMPLIED REPEAL OR SUSPENSION OF A PREVIOUS STATUTE ESTABLISHING DOE PROGRAM REQUIREMENTS, UNLESS CONGRESS CLEARLY INDICATED ELSEWHERE IN SUCH A STATUTE THAT IT WAS TO HAVE THIS EFFECT. FN1 THUS THE PROGRAM REQUIREMENTS WOULD CONTINUE TO BIND OR AFFECT THE PARTIES REGULATED TO THE EXTENT THAT ENFORCEMENT COULD BE ACCOMPLISHED WITHOUT THE USE OF DOE FUNDS OR PERSONNEL.

ULTIMATELY, THE ANSWER TO QUESTION 2 DEPENDS ON THE INTENT OF CONGRESS AS EXPRESSED IN THE LATER STATUTE. "AS A GENERAL RULE, 'REPEALS BY IMPLICATION ARE NOT FAVORED'," UNITED STATES V. WILL, 101 S.CT. 471 (1980), (CITING POSADAS V. NATIONAL CITY BANK, 296 U.S. 497, 503 (1936)), AND MAY BE DIFFICULT TO ESTABLISH BECAUSE OF THE STRONG PRESUMPTION AGAINST THEM. UNITED STATES V. LANGSTON, 118 U.S. 389 (1886). THE RULE AGAINST IMPLIED REPEALS IS STRONGER WHEN THE REPEALING PROVISION IS CONTAINED IN AN APPROPRIATIONS BILL, WILL, SUPRA, 484 AND TVA V. HILL, 437 U.S. 153 (1978). ALTHOUGH THE RULES OF BOTH HOUSES OF CONGRESS ALLOW POINTS OF ORDER AGAINST SUBSTANTIVE PROVISIONS INCLUDED IN APPROPRIATIONS ACTS, SUCH AS AN EXPLICIT REPEALER PROVISION, THERE IS NO DOUBT THAT IF SUCH PROVISIONS ARE INCLUDED IN APPROPRIATION ACTS THEY ARE LEGALLY EFFECTIVE. UNITED STATES V. DICKERSON, 310 U.S. 554, 555 (1940).

AS DISCUSSED ABOVE, COURTS HAVE ADOPTED SEVERAL RULES OF INTERPRETATION DISFAVORING IMPLIED REPEALS. ONLY IN A CLEAR CASE, WHERE IT CAN DEMONSTRATE THAT THE TWO STATUTES ARE IRRECONCILABLE WILL A COURT HOLD THAT THE EARLIER STATUTE IS REPEALED IN WHOLE OR IN PART. THEREFORE, WITHOUT ADDITIONAL DIRECTION IN AN APPROPRIATION ACT, LANGUAGE SIMILAR TO THAT IN QUESTION 2 PROBABLY WOULD NOT OPERATE BY ITSELF TO REPEAL (OR SUSPEND) THE REQUIREMENTS OF A PARTICULAR DOE PROGRAM.

WHILE SUCH LANGUAGE WOULD BE EFFECTIVE TO PRECLUDE ENFORCEMENT BY DOE DURING THE FISCAL YEAR, WE BELIEVE THAT IT WOULD NOT AFFECT ANY MEANS OF ENFORCING THE PROGRAM THAT WERE NOT DEPENDENT ON THE USE OF DOE FUNDS. FOR EXAMPLE, IT WOULD NOT RESTRICT THE ACTIVITIES OF THE DEPARTMENT OF JUSTICE WHICH MIGHT BE ASSIGNED BY THE STATUTE RESPONSIBILITY TO COLLECT CIVIL PENALTIES. NOR WOULD THE STATUTE BAR A PRIVATE CITIZEN WITH APPROPRIATE STANDING FROM SEEKING JUDICIAL RELIEF FOR A VIOLATION OF A PROGRAM'S REQUIREMENTS.

FN1 AN IMPLIED REPEAL MAY RESULT WHEN A LATER STATUTE SERIOUSLY CONFLICTS OR CONTRADICTS AN EARLIER ONE. AN IMPLIED SUSPENSION MAY OCCUR WHEN THE SUBSEQUENT STATUTE ESTABLISHES THAT THE ACTIVITY OR PROGRAM AUTHORIZED BY THE EARLIER STATUTE IS TO BE TEMPORARILY INTERRUPTED.