B-118638, NOV 4, 1974

B-118638, NOV 4, 1974

FUNDS APPROPRIATED TO D.C. PUBLIC DEFENDER SERVICE AND TRANSFERRED TO ADMINISTRATIVE OFFICE OF UNITED STATES COURTS AND PLACED IN SO-CALLED "JUDICIARY TRUST FUND" UNTIL ULTIMATELY DISBURSED, DO NOT BECOME OBLIGATED UPON SUCH TRANSFER NOR DO THEY OTHERWISE LOSE CHARACTER OF FISCAL YEAR FUNDS.

DISPOSITION OF UNOBLIGATED BALANCES APPROPRIATED FOR THE D.C. PUBLIC DEFENDER SERVICE:

THE SPECIAL ASSISTANT TO THE MAYOR-COMMISSIONER FOR THE DISTRICT OF COLUMBIA HAS REQUESTED OUR DECISION CONCERNING THE PROPER DISPOSITION OF PRIOR YEAR FUNDS APPROPRIATED FOR THE OPERATION OF THE DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE. SPECIFICALLY, WE HAVE BEEN ASKED WHETHER A CHECK PRESENTLY IN THE POSSESSION OF THE DISTRICT GOVERNMENT FOR THE SUM OF $59,141.92 WHICH REPRESENTS THE UNOBLIGATED BALANCE OF FUNDS APPROPRIATED TO THE DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE FOR FISCAL YEARS 1970 THROUGH 1973, "SHOULD BE RETURNED TO THE ADMINISTRATIVE OFFICE (OF THE UNITED STATES COURTS) AND MADE AVAILABLE TO THE DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE OR WHETHER THESE FUNDS SHOULD REVERT TO THE DISTRICT GOVERNMENT."

THE DISTRICT OF COLUMBIA PUBLIC DEFENDER SERVICE (SERVICE), IS FUNDED FROM MONEYS APPROPRIATED ANNUALLY BY CONGRESS OUT OF THE GENERAL FUND FOR THE DISTRICT OF COLUMBIA UNDER THE HEADING "PUBLIC SAFETY." THESE FUNDS ARE THEN MADE AVAILABLE TO AND DISBURSED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS (ADMINISTRATIVE OFFICE) TO CARRY ON THE BUSINESS OF THE SERVICE IN ACCORDANCE WITH THE PROVISIONS OF 2 D.C. CODE SEC. 2227(A) WHICH PROVIDES AS FOLLOWS:

"FOR THE PURPOSE OF CARRYING OUT THE PROVISIONS OF THIS CHAPTER, THERE ARE AUTHORIZED TO BE APPROPRIATED FOR EACH FISCAL YEAR, OUT OF ANY MONEYS IN THE TREASURY TO THE CREDIT OF THE DISTRICT OF COLUMBIA, SUCH SUMS AS MAY BE NECESSARY TO IMPLEMENT THE PURPOSES OF THIS CHAPTER. SUCH SUMS SHALL BE APPROPRIATED FOR THE JUDICIARY TO BE DISBURSED BY THE ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS TO CARRY ON THE BUSINESS OF THE SERVICE. THE ADMINISTRATIVE OFFICE, IN DISBURSING AND ACCOUNTING FOR SUCH SUMS, SHALL FOLLOW, SO FAR AS POSSIBLE, ITS STANDARD FISCAL PRACTICES. THE BUDGET ESTIMATES FOR THE SERVICE SHALL BE PREPARED IN CONSULTATION WITH THE COMMISSIONER OF THE DISTRICT OF COLUMBIA."

THE ADMINISTRATIVE OFFICE, ALTHOUGH NOT REQUIRED BY LAW TO TREAT THESE FUNDS IN ANY PARTICULAR MANNER, HAS APPARENTLY ADOPTED THE PRACTICE OF DEPOSITING SERVICE FUNDS IN A SPECIAL ACCOUNT KNOWN AS THE "JUDICIARY TRUST FUND." WE HAVE INFORMALLY BEEN ADVISED THAT THIS HAS BEEN DONE BECAUSE OF THE ADMINISTRATIVE OFFICE'S VIEW THAT IT HAS NO INDEPENDENT INTEREST, AS SUCH, IN THESE FUNDS, BUT IS MERELY A DISBURSING FACILITY HOLDING THESE FUNDS "IN TRUST," AS IT WERE, FOR OBLIGATION BY THE SERVICE. THUS, AS A PRACTICAL MATTER, THE ADMINISTRATIVE OFFICE HAS HANDLED THESE FUNDS IN A MANNER SIMILAR TO THAT OF AN APPROPRIATED FUND ACCOUNT.

THE OFFICE OF MANAGEMENT AND BUDGET (OMB) IS REPORTED TO BE OF THE VIEW THAT THE UNOBLIGATED BALANCES IN QUESTION HAVING BEEN HELD IN THE SO- CALLED JUDICIARY TRUST FUND HAVE ACQUIRED A "PERMANENT INDEFINITE" CHARACTER AND THEREFORE ARE AVAILABLE TO THE SERVICE FOR FURTHER OBLIGATION IN THE CURRENT OR SUBSEQUENT FISCAL YEARS. THE SERVICE BASICALLY CONCURS WITH THIS VIEW AND HAS CONCLUDED THAT SERVICE MONIES ARE OBLIGATED AT THE TIME OF THEIR TRANSFER TO THE ADMINISTRATIVE OFFICE AND CONSEQUENTLY SHOULD BE RETURNED TO THE ADMINISTRATIVE OFFICE FOR CONTINUED USE BY THE SERVICE.

AS STATED PREVIOUSLY, FUNDS FOR THE SERVICE DURING THE PERIOD IN QUESTION, FISCAL YEARS 1970 THROUGH 1973, WERE APPROPRIATED BY CONGRESS ON AN ANNUAL BASIS OUT OF THE GENERAL FUND OF THE DISTRICT OF COLUMBIA. EACH OF THE ANNUAL APPROPRIATIONS ACTS FOR THESE YEARS HAS CONTAINED AN IDENTICAL PROVISION LIMITING THE AVAILABILITY OF SUCH FUNDS IN THE FOLLOWING MANNER:

"NO PART OF AN APPROPRIATION CONTAINED IN THIS ACT SHALL REMAIN AVAILABLE FOR OBLIGATION BEYOND THE CURRENT FISCAL YEAR UNLESS EXPRESSLY SO PROVIDED HEREIN."

SEE, FOR EXAMPLE SECTION 13 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, 1973, JULY 10, 1972, PUB. L. NO. 92-344, 86 STAT. 455. IN THIS REGARD IT SHOULD BE NOTED THAT NONE OF THE APPROPRIATION ACTS IN QUESTION HAVE PROVIDED, EXPRESSLY OR OTHERWISE, THAT THE FUNDS APPROPRIATED FOR THE SERVICE DURING THIS PERIOD WERE TO REMAIN AVAILABLE FOR OBLIGATION BEYOND THE FISCAL YEAR FOR WHICH SUCH APPROPRIATION WAS MADE.

IN APPLYING THIS RESTRICTIVE PROVISION WHICH IS COMMONLY INCLUDED IN SIMILAR IF NOT IDENTICAL FORM IN A NUMBER OF ANNUAL APPROPRIATION ACTS FOR FEDERAL AGENCIES, OUR OFFICE HAS ADHERED TO A LITERAL INTERPRETATION OF THE LANGUAGE USED THEREIN AND HAS NOT EXTENDED THE AVAILABILITY OF APPROPRIATIONS BEYOND THE FISCAL YEAR FOR WHICH APPROPRIATED WITHOUT A CLEAR INDICATION IN THE APPROPRIATION ACT ITSELF OF SUCH A CONGRESSIONAL INTENT. SEE 50 COMP. GEN. 857 (1971). CONSEQUENTLY, IT IS CLEAR THAT THESE FUNDS ARE FISCAL YEAR FUNDS AND ARE AVAILABLE ONLY AS PROVIDED IN SECTION 1 OF THE ACT OF JULY 6, 1949, CH. 299, 63 STAT. 407, 31 U.S.C. 712(A), WHICH READS AS FOLLOWS:

"EXCEPT AS OTHERWISE PROVIDED BY LAW ALL BALANCES OF APPROPRIATIONS CONTAINED IN THE ANNUAL APPROPRIATION BILLS AND MADE SPECIFICALLY FOR THE SERVICE OF ANY FISCAL YEAR SHALL ONLY BE APPLIED TO THE PAYMENT OF EXPENSES PROPERLY INCURRED DURING THAT YEAR OR TO THE FULFILLMENT OF CONTRACTS PROPERLY MADE WITHIN THAT YEAR."

IN VIEW OF SUCH PROVISION OF LAW IT IS APPARENT THAT THESE FUNDS ARE NO LONGER AVAILABLE FOR SERVICE NEEDS UNLESS, AS URGED BY THE SERVICE, SUCH FUNDS CAN BE CONSIDERED TO HAVE BECOME OBLIGATED AT THE TIME OF TRANSFER TO THE ADMINISTRATIVE OFFICE.

WE SEE NO BASIS FOR HOLDING THAT THE MERE TRANSFER OF THE FUNDS TO THE ADMINISTRATIVE OFFICE CONSTITUTES AN OBLIGATION OF THE FUNDS, NOR DOES THE SERVICE STATE ANY BASIS FOR SUCH VIEW. ACCORDINGLY, IT IS OUR VIEW THAT THE FUNDS HERE INVOLVED WERE NOT OBLIGATED DURING THE PERIOD OF AVAILABILITY AND HENCE ARE FOR DEPOSIT INTO THE TREASURY TO THE CREDIT OF THE GENERAL FUND OF THE DISTRICT OF COLUMBIA AS PROVIDED BY SECTION 18 OF THE DISTRICT OF COLUMBIA APPROPRIATION ACT, JUNE 28, 1944, CH. 300, 58 STAT. 533, 47 D.C. CODE SEC. 130A.