B-208985 L/M, OCT 5, 1982

B-208985 L/M, OCT 5, 1982

DIGEST: 1. BECAUSE OF PRESIDENT'S VETO OF SUPPLEMENTAL APPROPRIATIONS BILL, MILITARY PAY ACCOUNTS WERE INSUFFICIENT TO MEET PAYROLL AND ALSO PAY FEDERAL INCOME AND FICA TAXES DUE TO TREASURY ON AUGUST 31, 1982. OBLIGATIONS INCURRED FOR PAY AND ALLOWANCES OF MILITARY PERSONNEL NEEDED FOR EMERGENCY DUTY WERE WITHIN EXCEPTION FOR "PROTECTING LIFE AND PROPERTY" OF THE ANTIDEFICIENCY ACT, 31 U.S.C. SEC. 665(B). THEREFORE, THERE WAS STATUTORY AUTHORITY TO INCUR OBLIGATIONS FOR SERVICES ABSENT SUFFICIENT AVAILABLE FUNDS. 2. BECAUSE OF PRESIDENT'S VETO OF SUPPLEMENTAL APPROPRIATIONS BILL, MILITARY PAY ACCOUNTS WERE INSUFFICIENT TO MEET PAYROLL AND ALSO PAY FEDERAL INCOME AND FICA TAXES DUE TO TREASURY ON AUGUST 31, 1982. BECAUSE TREASURY DELAYED TAX DUE DATE, DOD WAS ABLE TO USE FULL AMOUNT OF ITS REMAINING APPROPRIATIONS TO PAY MILITARY MEMBERS. THE TRANSFER OF TAXES TO TREASURY REMAINS AN OBLIGATION BUT ONE WHICH NEED NOT BE PAID UNTIL THE NEW DUE DATE, SEPTEMBER 30. CHANGE OF TREASURY REGULATIONS TO PERMIT LATER PAYMENT DATE APPEARS EFFECTIVE SINCE IT OCCURRED BEFORE AUGUST 31, AND AGENCY COMPLIED WITH EXCEPTION TO USUAL NOTICE REQUIREMENT UNDER 5 U.S.C. SEC. 533(B)(3) CALLING FOR PUBLICATION IN THE FEDERAL REGISTER.

WILLIAM D. FORD, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER OF SEPTEMBER 2, 1982, IN WHICH YOU ASKED A NUMBER OF QUESTIONS ABOUT THE DOD RESPONSE TO ITS RECENT FUNDING CRISIS AND THE RESPONSE OF OTHER AGENCIES IN THE SAME PREDICAMENT. HERE ADDRESS THE LEGAL IMPLICATIONS OF YOUR QUESTIONS AND WILL SUPPLY THE FACTUAL INFORMATION YOU ASKED FOR SEPARATELY.

AS YOU POINT OUT, AS A RESULT OF THE PRESIDENT'S VETO OF THE SUPPLEMENTAL APPROPRIATIONS BILL, THERE WERE INSUFFICIENT FUNDS REMAINING IN MILITARY PAY APPROPRIATION ACCOUNTS TO MEET THE AUGUST 31, 1982, NET PAYROLL AND ALSO TO TRANSFER TO THE TREASURY THE AMOUNTS NECESSARY FOR FEDERAL INCOME AND FEDERAL INSURANCE CONTRIBUTIONS ACT (FICA) TAX WITHHOLDINGS. THE SECRETARY OF THE TREASURY CHANGED THE DUE DATE FOR PAYMENT OF THE TAXES FROM AUGUST 31 TO SEPTEMBER 30, 1982, THUS FREEING SUFFICIENT FUNDS TO MEET THE NET MILITARY PAYROLL ON AUGUST 31. THE ACTING ATTORNEY GENERAL CONCLUDED THAT THERE WAS NO LEGAL BARRIER TO KEEPING THE MILITARY PERSONNEL ON THE JOB AND TO PAYING THEM THEIR FULL SALARY WITH FUNDS WHICH, BUT FOR THE POSTPONEMENT OF THE DUE DATE, WOULD OTHERWISE HAVE BEEN PAYABLE TO THE INTERNAL REVENUE SERVICE.

YOU QUESTIONED THE VALIDITY OF THE ACTING ATTORNEY GENERAL'S CONCLUSIONS. YOU ASKED:

"1. DO YOU AGREE THAT THE PROCEDURES APPROVED BY THE ACTING ATTORNEY GENERAL FOR MEETING THE MILITARY PAYROLL ARE LEGAL AND OTHERWISE PROPER?

"2. IS THE ACTING ATTORNEY GENERAL'S OPINION IN THIS CASE CONSISTENT WITH THE ATTORNEY GENERAL'S OPINION OF JANUARY 16, 1981, REGARDING THE APPLICABILITY OF THE ANTI-DEFICIENCY ACT (31 U.S.C. SEC. 665(A))?"

FOR THE REASONS EXPLAINED BELOW, WE AGREE THAT OBLIGATIONS MAY BE INCURRED FOR THE SALARIES OF AT LEAST SOME MILITARY PERSONNEL RETAINED ON THE JOB, NOTWITHSTANDING THE FUNDING SHORTFALL, ON THE BASIS OF THE EXPLICIT EXCEPTION TO THE ANTI-DEFICIENCY ACT PROHIBITION FOUND IN 31 U.S.C. SEC. 665(B). WE ALSO AGREE THAT THOSE OBLIGATIONS MAY BE PAID TO THE EXTENT FUNDS REMAIN AVAILABLE IN THE APPROPRIATION, AND THAT IT IS PERMISSIBLE TO PAY THE TAKEHOME SALARIES OF PERSONNEL FIRST, WHILE POSTPONING TRANSFER OF FUNDS TO PAY WITHHOLDING OBLIGATIONS.

WITH REGARD TO YOUR SECOND QUESTION, THE RECENT ACTING ATTORNEY GENERAL'S OPINION IS GENERALLY CONSISTENT WITH FORMER ATTORNEY GENERAL BENJAMIN R. CIVILETTI'S OPINION OF JANUARY 16, 1981, ALTHOUGH THERE WAS A MINOR ERROR IN HIS CHARACTERIZATION OF THE SECRETARY OF DEFENSE'S CERTIFICATION.

YOUR LETTER ALSO ASKS WHETHER OTHER FEDERAL AGENCIES HAVE BEEN GRANTED SIMILAR AUTHORITY TO DELAY PAYMENTS OR TRANSFER FUNDS. INFORMATION ABOUT SUCH SPECIFIC ACTIONS WILL BE INCLUDED IN OUR SUBSEQUENT REPORT. FOR PURPOSES OF THIS LETTER, AND IN THE CONTEXT OF YOUR OVERALL CONCERN ABOUT THE RESPONSE OF FEDERAL AGENCIES TO THE FUNDING SHORTFALL CREATED BY THE PRESIDENT'S VETO, IT IS OUR OPINION THAT, WITH CERTAIN EXCEPTIONS DISCUSSED BELOW, THESE ADMINISTRATIVE STRATAGEMS TO STRETCH AVAILABLE FUNDS TO DEFER PAYMENT FOR SOME OBLIGATIONS WHICH MAKE IT POSSIBLE TO PAY OTHERS, DO NOT THEMSELVES SERVE TO MAKE CONTINUED OPERATION OF THE AGENCY LEGALLY PERMISSIBLE.

DISCUSSION

ON EVERY DAY AN AGENCY REMAINS OPEN FOR BUSINESS, NUMEROUS OBLIGATIONS ARE INCURRED; THERE ARE OBLIGATIONS TO PAY ITS EMPLOYEES, TO MAKE RELATED CONTRIBUTIONS FOR RETIREMENT AND HEALTH BENEFITS, TO TRANSFER WITHHELD INCOME TAXES, TO PAY UTILITY BILLS, TO TRANSFER THE STANDARD LEVEL USER CHARGE (SLUC) PAYMENT TO THE GENERAL SERVICES ADMINISTRATION FOR DEPOSIT IN THE PUBLIC BUILDING WORKS FUND, AND SO FORTH. IN THE ABSENCE OF A STATUTORY EXCEPTION, THERE MUST BE SUFFICIENT FUNDS TO COVER ALL OF THESE OBLIGATIONS AT THE TIME THEY ARE INCURRED, REGARDLESS OF THE DATES ON WHICH ANY PARTICULAR OBLIGATION MUST BE PAID. THIS RULE IS SET FORTH IN SECTION 665(A), TITLE 31, U.S.C. WHICH PROVIDES:

"NO OFFICER OR EMPLOYEE OF THE UNITED STATES SHALL MAKE OR AUTHORIZE AN EXPENDITURE FROM OR CREATE OR AUTHORIZE AN OBLIGATION UNDER ANY APPROPRIATION OR FUND IN EXCESS OF THE AMOUNT AVAILABLE THEREIN; NOR SHALL ANY SUCH OFFICER OR EMPLOYEE INVOLVE THE GOVERNMENT IN ANY CONTRACT OR OTHER OBLIGATION, FOR THE PAYMENT OF MONEY FOR ANY PURPOSE, UNLESS SUCH CONTRACT OR OBLIGATION IS AUTHORIZED BY LAW."

IN B-197841, MARCH 3, 1980, THE COMPTROLLER GENERAL RESPONDED TO A REQUEST FROM THE HONORABLE GLADYS NOON SPELLMAN, CHAIR, SUBCOMMITTEE ON COMPENSATION AND EMPLOYEE BENEFITS, HOUSE COMMITTEE ON POST OFFICE AND CIVIL SERVICE, FOR AN INTERPRETATION OF SECTION 665(A). SHE ASKED WHETHER UNDER THIS ACT, AN AGENCY CAN LEGALLY PERMIT ITS EMPLOYEES TO COME TO WORK AFTER THE EXPIRATION OF THE AGENCY'S APPROPRIATION FOR 1 FISCAL YEAR AND PRIOR TO THE ENACTMENT OF EITHER A REGULAR APPROPRIATION OR A CONTINUING RESOLUTION APPROPRIATING FUNDS FOR THE SUBSEQUENT FISCAL YEAR. IN REPLY, THE COMPTROLLER GENERAL STATED THAT:

"***IN PERMITTING EMPLOYEES TO WORK DURING A PERIOD OF EXPIRED APPROPRIATIONS, A SUPERVISORY OFFICER OR EMPLOYEE INCURS AN OBLIGATION ON BEHALF OF THE GOVERNMENT TO PAY THE SALARIES OF THE EMPLOYEES FOR THE PERIOD OF TIME WORKED. SINCE THERE ARE NO FUNDS AVAILABLE AT THE TIME THE OBLIGATION WAS INCURRED,

HE HAS VIOLATED THE ANTI-DEFICIENCY ACT SECTION 665(A)." WE THEN ADDED, HOWEVER, THAT "WE DO NOT BELIEVE THAT THE CONGRESS INTENDS THAT FEDERAL AGENCIES BE CLOSED DURING PERIODS OF EXPIRED APPROPRIATIONS," CITING THE PAST CONGRESSIONAL PRACTICE OF ENACTING A CONTINUING RESOLUTION AFTER THE START OF A FISCAL YEAR, WHICH RATIFIES OBLIGATIONS INCURRED PRIOR TO THE RESOLUTION'S ENACTMENT. THESE VIEWS HAD EARLIER BEEN EXPRESSED IN AN INTERNAL MEMORANDUM TO GAO EMPLOYEES FROM GAO'S DIRECTOR OF GENERAL SERVICES AND CONTROLLER, WHICH WAS CITED WITH APPROVAL BY THE THEN CHAIRMAN OF THE SENATE COMMITTEE ON APPROPRIATIONS AND PRINTED IN THE CONGRESSIONAL RECORD AS A GUIDE TO OTHER AGENCIES.

ON APRIL 25, 1980, ATTORNEY GENERAL CIVILETTI, IN AN OPINION TO THE PRESIDENT, DISAGREED WITH THE VIEW STATED IN THE LETTER TO MRS. SPELLMAN THAT CONTINUED OPERATIONS OF FEDERAL AGENCIES WAS PERMISSIBLE. HE SAID THAT THE LEGISLATIVE HISTORY OF THE ANTI DEFICIENCY ACT DID NOT SUGGEST ANY IMPLICIT EXCEPTIONS TO ITS TERMS AND THAT IN APPROPRIATE FUTURE CASES, THE DEPARTMENT OF JUSTICE WOULD ACT TO ENFORCE THE CRIMINAL PROVISIONS OF THE ACT. HOWEVER, HE STATED THAT:

"*** BECAUSE STATUTES THAT IMPOSE DUTIES ON GOVERNMENT OFFICERS IMPLICITLY AUTHORIZE THOSE STEPS NECESSARY AND PROPER FOR THE PERFORMANCE OF THOSE DUTIES, AUTHORITY MAY BE INFERRED FROM THE ANTI-DEFICIENCY ACT ITSELF FOR FEDERAL OFFICERS TO INCUR THOSE MINIMAL OBLIGATIONS NECESSARY TO CLOSING THEIR AGENCIES. ***"

THIS OPINION CAUSED GREAT UNCERTAINTY AMONG THE MANY AGENCIES AFFECTED BY THE FUNDING GAP, WHO RECEIVED LITTLE GUIDANCE FROM EITHER THE DEPARTMENT OF JUSTICE OR THE OFFICE OF MANAGEMENT AND BUDGET ON WHICH ACTIVITIES COULD BE CONTINUED IN THE EVENT THAT APPROPRIATIONS EXPIRED. (SEE "FUNDING GAPS JEOPARDIZE FEDERAL GOVERNMENT OPERATIONS," PAD-81-31, MARCH 3, 1981.) THE JANUARY 16, 1981 ATTORNEY GENERAL'S OPINION WAS A RESPONSE TO THE NEED FOR MORE DEFINITIVE GUIDANCE AS TO WHICH ACTIVITIES COULD BE CONTINUED DURING A TEMPORARY LAPSE OF APPROPRIATIONS. ACCORDING TO MR. CIVILETTI,

"STATUTORY AUTHORITY TO INCUR OBLIGATIONS IN ADVANCE OF APPROPRIATIONS MAY BE IMPLIED AS WELL AS EXPRESS, BUT MAY NOT ORDINARILY BE INFERRED, IN THE ABSENCE OF APPROPRIATIONS, FROM THE KIND OF BROAD, CATEGORICAL AUTHORITY, STANDING ALONE, THAT OFTEN APPEARS, FOR EXAMPLE, IN THE ORGANIC STATUTES OF GOVERNMENT AGENCIES. THE AUTHORITY MUST BE NECESSARILY INFERRABLE FROM THE SPECIFIC TERMS OF THOSE DUTIES THAT HAVE BEEN IMPOSED UPON, OR THOSE AUTHORITIES THAT HAVE BEEN INVESTED IN, THE OFFICERS OR EMPLOYEES PURPORTING TO OBLIGATE FUNDS ON BEHALF OF THE UNITED STATES. ***"

MR. CIVILETTI WENT ON TO LIST THOSE INSTANCES ENCOMPASSED IN THE "AUTHORIZED BY LAW" EXCEPTION:

"(1) FUNDED BY MONEYS, THE OBLIGATIONAL AUTHORITY FOR WHICH IS NOT LIMITED TO ONE YEAR, E.G., MULTI-YEAR APPROPRIATIONS; (2) AUTHORIZED BY STATUTES THAT EXPRESSLY PERMIT OBLIGATIONS IN ADVANCE OF APPROPRIATIONS; OR (3) AUTHORIZED BY NECESSARY IMPLICATION FROM SPECIFIC TERMS OF DUTIES THAT HAVE BEEN IMPOSED ON, OR OF AUTHORITIES THAT HAVE BEEN INVESTED IN, THE AGENCY. ***"

MR. CIVILETTI ALSO CONSIDERED THE FUNCTIONS OF THE PRESIDENT WHICH ARE AUTHORIZED BY THE CONSTITUTION, IN ADDITION TO FUNCTIONS AUTHORIZED BY STATUTE. HE SUMMARIZED HIS VIEWS AS FOLLOWS:

"IN SUM, I CONSTRUE THE 'AUTHORIZED BY LAW' EXCEPTION CONTAINED WITHIN 31 U.S.C. SEC. 665(A) AS EXEMPTING FROM THE PROHIBITION ENACTED BY THE SECOND CLAUSE OF THAT SECTION NOT ONLY THOSE OBLIGATIONS IN ADVANCE OF APPROPRIATIONS FOR WHICH EXPRESS OR IMPLIED AUTHORITY MAY BE FOUND IN THE ENACTMENTS OF CONGRESS, BUT ALSO THOSE OBLIGATIONS NECESSARILY INCIDENT TO PRESIDENTIAL INITIATIVES UNDERTAKEN WITHIN HIS CONSTITUTIONAL POWERS."

IT IS THIS PART OF THE JANUARY 16 OPINION BY HIS PREDECESSOR WHICH APPARENTLY LED THE ACTING ATTORNEY GENERAL TO CONCLUDE THAT THERE WAS NO VIOLATION OF THE ANTI-DEFICIENCY ACT, 31 U.S.C. SEC. 665(A), IN INCURRING OBLIGATIONS FOR THE MILITARY PAYROLL ON AUGUST 31, 1982. HE MADE A BRIEF REFERENCE IN A FOOTNOTE TO A LETTER FROM THE SECRETARY OF DEFENSE TO THE DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET ON AUGUST 24, 1982, WHICH HE CHARACTERIZED AS FOLLOWS:

"*** YOU CERTIFIED *** THAT MAINTAINING ALL UNIFORMED MILITARY PERSONNEL ON THE PAYROLL DURING THIS PERIOD IN WHICH INSUFFICIENT APPROPRIATIONS WILL EXIST TO PAY THEIR SALARIES AND TAXES THEREON IS CONSISTENT WITH THE OPINION OF THE ATTORNEY GENERAL OF JANUARY 16, 1981 REGARDING THE APPLICABILITY OF THE ANTI-DEFICIENCY ACT, 31 U.S.C. SEC. 665(A) TO THE EMPLOYMENT OF PERSONAL SERVICES IN EXCESS OF THAT AUTHORIZED BY LAW DURING THIS PERIOD."

BUT THE SECRETARY OF DEFENSE HAD NOT RELIED ON THE JANUARY 16, 1981 OPINION BY MR. CIVILETTI WHICH PROVIDED AN EXCEPTION TO SUBSECTION (A) OF THE ANTI-DEFICIENCY ACT. INSTEAD MR. WEINBERGER (A) OF THE ANTI DEFICIENCY ACT. INSTEAD MR. WEINBERGER DETERMINED THAT:

"ALL MILITARY PERSONNEL ARE ON DUTY SO THAT THEY CAN CONTINUE TO PERFORM THEIR FUNCTIONS OF PROTECTING LIFE AND PROPERTY WITHIN THE MEANING OF THAT OPINION. THEREFORE, WE WILL CONTINUE TO INCUR OBLIGATIONS FOR THE SERVICES OF OUR MILITARY PERSONNEL."

THIS AMOUNTS TO A REFERENCE TO SUBSECTION (B) OF THE ANTI-DEFICIENCY ACT WHICH PROVIDES AN EXCEPTION TO A PROHIBITION AGAINST ACCEPTING VOLUNTARY (I.E., UNPAID) SERVICES FOR THE UNITED STATES IN THE ABSENCE OF AN ADEQUATE APPROPRIATION TO PAY FOR THEM IN "CASES OF EMERGENCY INVOLVING THE SAFETY OF HUMAN LIFE OR THE PROTECTION OF PROPERTY." MR. CIVILETTI ALSO DISCUSSED THIS EXCEPTION IN HIS JANUARY 16 OPINION.

WE AGREE THAT SUBSECTION (B) OF THE ACT PROVIDES THE NECESSARY STATUTORY AUTHORITY TO INCUR OBLIGATIONS FOR SERVICES OF EMPLOYEES EVEN WHEN THERE ARE INSUFFICIENT FUNDS AVAILABLE TO PAY FOR THESE SERVICES AT THE TIME THEY ARE PERFORMED. HOWEVER, THE SERVICES MUST FIT WITHIN THE STATUTORY EXCEPTION; THAT IS, EACH EMPLOYEE COVERED MUST ACTUALLY BE ASSIGNED TO EMERGENCY DUTY "INVOLVING THE SAFETY OF HUMAN LIFE OR THE PROTECTION OF PROPERTY," OR DUTIES REASONABLY NECESSARY TO SUPPORT THOSE SO ENGAGED. THIS WHOLE ISSUE IS NOT REALLY ADDRESSED BY THE ACTING ATTORNEY GENERAL. AS MENTIONED EARLIER, HE NOTES WITHOUT COMMENT IN A FOOTNOTE THAT THE SECRETARY OF DEFENSE HAS CERTIFIED THAT ALL UNIFORMED PERSONNEL MEET THE CRITERIA FOR THE ANTI-DEFICIENCY ACT EXCEPTION AND THEN GOES ON TO DISCUSS THE MATTER OF THE TAX WITHHOLDING PAYMENTS. WE ARE NOT CONVINCED THAT EVERY MAN AND WOMAN IN UNIFORM IS NECESSARILY PERFORMING EMERGENCY PROTECTION DUTY. WE RECOGNIZE THE ADMINISTRATIVE DIFFICULTIES OF MAKING FINE DISTINCTIONS BETWEEN ONE MEMBER'S DUTIES AND ANOTHER'S, PARTICULARLY WHEN BOTH SERVE OVERSEAS AND ARE ASSIGNED TO A COMBAT UNIT. WE QUESTION ONLY THE BLANKET ASSUMPTION THAT ALL MILITARY PERSONNEL FIT WITHIN THE EXCEPTION.

THE PROTECTION OF LIFE AND PROPERTY EXCEPTION IS, OF COURSE, AVAILABLE TO EMPLOYEES THROUGHOUT THE GOVERNMENT WHO ARE NEEDED, ON AN EMERGENCY BASIS, TO PERFORM THESE FUNCTIONS. DURING A RECENT PERIOD OF LAPSED APPROPRIATIONS, WE WERE ASKED INFORMALLY BY THE UNITED STATES PARK SERVICE WHETHER ALL ITS PARK RANGERS COULD REMAIN ON DUTY. WE SUGGESTED THAT IT RETAIN PERSONNEL NEEDED FOR EMERGENCY FUNCTIONS SUCH AS FIGHTING FIRES IN THE NATIONAL PARKS, BUT THAT IT CLOSE SUCH PARKS TO THE PUBLIC FOR THE DURATION OF THE FUNDING CRISIS SO THAT ROUTINE SURVEILLANCE OR ASSISTANCE TO TOURISTS WOULD NOT BE NECESSARY. RETURNING TO THE MILITARY PERSONNEL SITUATION, IT IS DIFFICULT TO FIND THAT ALL SERVICE MEMBERS ARE ACTUALLY EMPLOYED IN THE PROTECTION OF LIFE OR PROPERTY ON AN EMERGENCY BASIS AND ARE THEREFORE COVERED BY THE EXCEPTION IN SUBSECTION (B). TO THE EXTENT THAT THE SERVICE MEMBERS FIT WITHIN THE EXCEPTION, THEIR SALARIES CAN BE LEGALLY OBLIGATED EVEN IN THE ABSENCE OF SUFFICIENT FUNDS TO PAY THEM.

THIS BRINGS US TO YOUR QUESTION ABOUT THE LEGALITY OF DELAYING PAYMENT OF WITHHOLDINGS FOR INCOME TAX, FICA, UNEMPLOYMENT AND RETIREMENT CONTRIBUTIONS IN ORDER TO HAVE SUFFICIENT FUNDS TO COVER EACH EMPLOYEE'S TAKE-HOME PAY. AUTHORITY TO OBLIGATE IN THE ABSENCE OF APPROPRIATIONS DOES NOT AUTOMATICALLY MEAN THAT THERE IS AUTHORITY TO PAY THOSE OBLIGATIONS. ARTICLE I, SECTION 9, CLAUSE 7 OF THE CONSTITUTION, PROHIBITS THE DRAWING OF MONEY FROM THE TREASURY IN THE ABSENCE OF AN APPROPRIATION. EVEN WHEN IT IS NOT NECESSARY TO DRAW MONEY FROM THE TREASURY, AS IS THE CASE WHEN FUNDS ARE TRANSFERRED ADMINISTRATIVELY FROM DOD SALARIES ACCOUNT IN THE TREASURY TO THE INTERNAL REVENUE SERVICE TAX COLLECTIONS ACCOUNT IN THE TREASURY, THE TRANSFER MUST STILL BE REGARDED AS A "PAYMENT." SECTION 665(A) OF THE ANTI-DEFICIENCY ACT EXPLICITLY PROHIBITS PAYMENTS IN ADVANCE OF OR IN EXCESS OF AVAILABLE APPROPRIATIONS, AND THERE WERE NOT ENOUGH FUNDS TO PAY BOTH THE TAKE-HOME PAY AND THE WITHHELD PORTIONS OF THE GROSS PAY DUE ON AUGUST 31.

EFFECTIVE AUGUST 28, 1982, THE SECRETARY OF THE TREASURY AMENDED THE REGULATIONS TO EXTEND THE TIME FOR THE DEPARTMENT OF DEFENSE TO MAKE DEPOSITS OF WITHHELD INCOME TAXES, FICA TAXES, RAILROAD RETIREMENT TAXES, AND FEDERAL UNEMPLOYMENT TAX ACT (FUTA) TAXES TO SEPTEMBER 30, 1982, WHICH, WITHOUT THE AMENDMENT, WOULD HAVE BEEN REQUIRED TO BE DEPOSITED BEFORE THAT DATE. IT WAS STATED THAT THIS WAS DONE TO AVOID THE POTENTIAL FOR DISRUPTION OF VITAL DEFENSE AND NATIONAL SECURITY FUNCTIONS OF DOD. THIS WAS THE REASON FOR NOT ISSUING THE AMENDMENT IN ACCORD WITH NOTICE AND PUBLIC PROCEDURES UNDER 5 U.S.C. SEC. 533(B). THE USUAL NOTICE REQUIREMENT FOR REGULATIONS OR AMENDMENTS UNDER 5 U.S.C. SEC. 533(B)(3), INCLUDING PUBLICATION IN THE FEDERAL REGISTER, DOES NOT APPLY:

"(B) WHEN THE AGENCY FOR GOOD CAUSE FINDS (AND INCORPORATES THE FINDING AND A BRIEF STATEMENT OF REASONS THEREFOR IN THE RULES ISSUED) THAT NOTICE AND PUBLIC PROCEDURE THEREON ARE IMPRACTICABLE, UNNECESSARY, OR CONTRARY TO THE PUBLIC INTEREST."

SINCE THE CHANGE OF REGULATIONS OCCURRED BEFORE AUGUST 31, 1982, AND APPEARED TO BE IN ACCORDANCE WITH APPLICABLE STATUTES, THE CHANGE OF TREASURY REGULATIONS APPEARS EFFECTIVE TO DELAY THE REQUIRED DATE OF DEPOSIT INTO THE TREASURY UNTIL SEPTEMBER 30, 1982. HAD THE DATE OF DEPOSIT NOT BEEN POSTPONED, AS THE ACTING ATTORNEY GENERAL HIMSELF RECOGNIZED, THE MILITARY PAYROLL COULD NOT HAVE BEEN FULLY MET. WHATEVER LIMITED FUNDS REMAINED IN THE APPROPRIATION WOULD HAVE TO BE APPLIED TO PARTIAL PAYMENT OF THE MEMBERS' TAKE-HOME PAY AND EQUIVALENT CONTRIBUTIONS FOR TAXES, RETIREMENT, ETC.

IN SUMMARY, ONCE IT IS DETERMINED THAT THERE IS AUTHORITY TO INCUR OBLIGATIONS FOR AN EMPLOYEE'S GROSS SALARY, WE SEE NO OBJECTION TO PAYMENT OF SOME BUT NOT ALL OF THE OBLIGATIONS, AS LONG AS THE PAYMENT DOES NOT EXCEED THE AMOUNT REMAINING IN THE APPROPRIATION. HOWEVER, A POSTPONEMENT OF THE DUE DATE OF PAYMENT DOES NOT ELIMINATE THE OBLIGATION ITSELF. STATED EARLIER, NO ADMINISTRATIVE JUGGLING OF FUNDS OR PAYMENT DUE DATES CAN MAKE AN OTHERWISE UNAUTHORIZED OBLIGATION PERMISSIBLE. UNDER THE INTERPRETATION OF THE ANTI DEFICIENCY ACT SET FORTH IN THE APRIL 25, 1980 OPINION OF THE FORMER ATTORNEY GENERAL, AS FURTHER IMPLEMENTED ON JANUARY 16, 1981, NO AGENCY WHOSE APPROPRIATIONS ARE EXHAUSTED OR INSUFFICIENT, MAY CONTINUE TO INCUR OBLIGATIONS BY DOING BUSINESS AS USUAL UNLESS EITHER OTHERWISE AUTHORIZED BY LAW, OR THE AGENCY IS OPERATING ON A VERY LIMITED BASIS FOR THE SOLE PURPOSE OF EFFECTING AN ORDERLY SHUTDOWN OF ITS OPERATIONS.