B-193282 December 21, 1978

B-193282 December 21, 1978

The Honorable Peter W. Rodino, Jr. Chairman, Committee on the Judiciary House of Representatives

Dear Mr. Chairman:

This is in response to your request for the opinion of this Office Concerning the expenditure of funds by the Immigration and Naturalization Service (INS) of the Department of Justice.

As your letter states, the Department of State, Justice, and Commerce, the Judiciary, and Related Agencies Appropriation Act, Fiscal Year 1979 (Pub. L. No. 95-431) provides a lump-sum appropriation of $299,350, 000 for INS. The committee report accompanying H. R. 12934, the appropriation bill which was the derivative source of that Act, includes in chart form the House Appropriation Committee's recommendation for the allocation of additional positions within INS. (H. Rept. No. 95-1253, 95th Cong., 2d Sess. 18-19 (1978)).

The Department of Justice Appropriation Authorization Act, Fiscal Year 1979 (S. 3151) was passed by both the House and the Senate and presented to the President for signature on October 30. The President signed the measure on November 9, and it is now Pub. L. No. 95-624. Pub L. No. 95-624 authorizes to be appropriated $320, 722, 000 for INS, with the provision that $2,052,000 of such appropriation be made available for the investigation and prosecution of denaturalization and deportation cases involving alleged Nazi war criminals.

The committee report accompanying H. R. 12005, the House version of the authorization measure (H. Rept. No. 25-1148, 95th Cong., ad Sess. 8-15 (1978)), includes the House Judiciary Committee's recommendations for the allocation of additional positions within INS. These recommendations are not detailed in the conference report accompanying S. 3151, the final version of the bill, but the House-recommended authorization of $320, 722, was accepted. The report states:

"The conferees are hopeful that the Administration will submit a request for a supplemental appropriation to The conferees are provide the additional positions that are authorized herein. " H. Rept. No. 95-1777, October 12, 1978, p. 12.

Both the job titles and the numbers of new positions recommended in the Committee on the Judiciary Report, supra, vary from the Appropriation Committee's recommendations, as presented in H. Rept. No. 95-1253, supra. You have asked which set of committee recommendations legally bound to follow in allocating new positions with FY 79 funds. In our view, INS is not legally bound to follow either committee's recommendations for the allocation of new positions. It is important to note that neither committee included its respective recommendations for position allocations in the reported legislation itself.

When the Congress merely authorizes for appropriation or 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, Where lump-sums are involved, indicia in committee reports and other legislative history as to how the funds should or are expected to be spent will not normally be sufficient to establish any legal requirements on Federal agencies. Compare LTV Aerospace Corporation, 55 Comp. Gen. 307, 319 (1975).

Thus, in the instant case where there are no statutory provisions specifying position allocations, INS is not bound to follow the recommendations of either committee. However, as a practical matter, agencies rarely ignore clear expressions of congressional intent on such matters, expressed in committee reports and other legislative history, even though they may not be legally bound by such directives or restrictions, However, in this case, the INS may have difficulty in ascertaining which committee report represents congressional intent as a whole, since both committees dealt with the same subject matter but in a conflicting manner.

You also ask whether "the provision in the authorization bill concerning Nazi war criminals would require that $2 million be made available to, and expended by, the Special Litigation Unit which has been established within INS for this purpose * * *. " Section goof the ) authorization act provides that there are authorized to be appropriated the following amounts:

"(9) For the Immigration and Naturalization Service, for payment of expenses not otherwise provided for, necessary for the administration of the laws relating to immigration, naturalization, and alien registration, * * * $320, 722, 000, of which $2, 052, 000 shall be made available for the investigation and prosecution of denaturalization and deportation cases involving alleged Nazi war criminals. " (Emphasis supplied.)

In our view the provisions of the authorization act should be read in concert with those of the appropriation act, unless they are clearly inconsistent. 'Tennessee Valley Authority v. Hill, _U. S. _, 57 L. Ed. 2d 117, 98 S. Ct. 2279 (decided June 15, 1978). There is nothing inconsistent about a lump-sum appropriation for salaries and expenses for a number of INS responsibilities, including "administration and enforcement of the laws relating to immigration, naturalization and alien registration * * *" (appropriation act) and a provision in the authorization statute which sets aside a certain amount of the total appropriation for one of the purposes covered in the appropriation act. The purpose and effect of the authorization provision, insofar as the approximately $2 million is concerned, is to limit the use of $2 million of the appropriation in question to cases involving alleged Nazi war criminals. We hope this information is fully responsive to your request,

Sincerely yours,

R. F. KEETER Comptroller General of the United States