B-204858.OM, JUN 7, 1982

B-204858.OM, JUN 7, 1982

SUBJECT: ALIMONY AND CHILD SUPPORT ALLOTMENTS - B-204858-O.M.

CHIEF, FINANCIAL MANAGEMENT BRANCH, OFFICE OF FINANCIAL MANAGEMENT - STUART KLEIN:

ON SEPTEMBER 15, 1981, YOU ASKED WHETHER IT WAS MANDATORY FOR THE GENERAL ACCOUNTING OFFICE (GAO) TO HONOR EMPLOYEE REQUESTS FOR ALIMONY AND CHILD SUPPORT ALLOTMENTS. FOR THE REASON GIVEN BELOW, THE GAO NEED NOT HONOR AN EMPLOYEE'S REQUEST FOR A VOLUNTARY ALLOTMENT FOR ALIMONY AND CHILD SUPPORT, ALTHOUGH EXECUTIVE AGENCIES MUST DO SO.

THE REGULATIONS ATTACHED TO YOUR MEMORANDUM ARE REVISIONS TO THE PUBLISHED REGULATIONS ON ALLOTMENTS PROMULGATED BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM). THESE REVISIONS ARE FOUND IN VOLUME 46 OF THE FEDERAL REGISTER (46 FED.REG.) ON PAGES 2323-2326 (1981) AND AMEND 5 CODE OF FEDERAL REGULATIONS (5 C.F.R.) SECTIONS 550.301-550.381. INCLUDED IN THE REVISIONS IS THE REQUIREMENT AT SUBSECTION 550.311(A)(7) THAT EXECUTIVE AGENCIES HONOR VOLUNTARY ALLOTMENTS FOR ALIMONY AND CHILD SUPPORT.

THE STATUTORY AUTHORITY FOR AGENCIES TO HONOR AN EMPLOYEE'S REQUEST FOR ALLOTMENTS IS FOUND IN SUBCHAPTER III OF CHAPTER 55, TITLE 5, UNITED STATES CODE. THIS STATUTORY AUTHORITY IS GENERAL IN NATURE AND DOES NOT INDICATE FOR WHAT PURPOSES AN EMPLOYEE MAY SPECIFY AN ALLOTMENT. IT IS LEFT FOR THE HEAD OF EACH AGENCY TO FILL IN THE DETAILS AND SPECIFY FOR WHAT PURPOSES EMPLOYEES MAY MAKE ALLOTMENTS. 5 U.S.C. SEC. 5525. CONCERNS EXECUTIVE AGENCIES, 5 U.S.C. SEC. 5527 GIVES THE PRESIDENT AUTHORITY TO PROMULGATE REGULATIONS SO AS TO ENSURE UNIFORMITY IN PROCEDURAL AND SUBSTANTIVE MATTERS REGARDING ALLOTMENTS. THE PRESIDENT HAS DELEGATED HIS AUTHORITY TO OPM (FORMERLY CIVIL SERVICE COMMISSION). SEE EXECUTIVE ORDER NO. 10982, 27 FED.REG. 3 (1961), AS AMENDED BY EXECUTIVE ORDER NO. 12107, 44 FED.REG. 1055 (1978). SUBSECTION 5527(B), HOWEVER, DRAWS A DISTINCTION BETWEEN EXECUTIVE AGENCIES AND "AGENCIES OUTSIDE THE EXECUTIVE BRANCH." AS TO THE LATTER, IT GIVES INDEPENDENT AUTHORITY TO THE HEAD OF THE AGENCY CONCERNED TO ISSUE REGULATIONS GOVERNING ALLOTMENTS AND ASSIGNMENTS OF PAY.

SINCE THE REGULATIONS HERE IN QUESTION ARE ISSUED BY OPM PURSUANT TO A DELEGATION OF AUTHORITY FROM THE PRESIDENT UNDER 5 U.S.C. SEC. 5527, THE QUESTION OF THEIR APPLICABILITY TO GAO TURNS UPON WHETHER GAO IS AN "EXECUTIVE AGENCY" OR WHETHER IT IS AN "AGENCY OUTSIDE THE EXECUTIVE BRANCH" WITHIN THE MEANING OF THAT SECTION.

THE TERMS USED IN SUBCHAPTER III OF CHAPTER 55 ARE DEFINED AT 5 U.S.C. SEC. 5521. THAT SECTION DOES NOT SPECIFICALLY EXCLUDE GAO FROM THE DEFINITION OF AN EXECUTIVE AGENCY, AND REFERENCE TO 5 U.S.C. SECS. 104-105 MIGHT SUGGEST THAT GAO IS AN EXECUTIVE AGENCY FOR THE PURPOSES OF 5 U.S.C. SEC. 5527. HOWEVER, THE STATUTE FROM WHICH THE SUBCHAPTER IS DERIVED ESTABLISHES THAT GAO IS IN FACT AN AGENCY OUTSIDE THE EXECUTIVE BRANCH.

AS ORIGINALLY ENACTED BY PUB.L. 87-304, 75 STAT. 662, THE ALLOTMENT AND ASSIGNMENT OF PAY PROVISIONS DID NOT APPLY TO AGENCIES, BUT TO "DEPARTMENTS." THE TERM "DEPARTMENT" WAS DEFINED TO MEAN:

"(A)EACH EXECUTIVE DEPARTMENT OF THE GOVERNMENT OF THE UNITED STATES OF AMERICA;

"(B) EACH AGENCY OR INDEPENDENT ESTABLISHMENT IN THE EXECUTIVE BRANCH OF SUCH GOVERNMENT;

"(C) EACH CORPORATION WHOLLY OWNED OR CONTROLLED BY SUCH GOVERNMENT;

"(D) THE JUDICIAL BRANCH OF SUCH GOVERNMENT;

"(E) THE GENERAL ACCOUNTING OFFICE;

"(F) THE LIBRARY OF CONGRESS; AND

"(G) THE MUNICIPAL GOVERNMENT OF THE DISTRICT OF COLUMBIA."

THE LANGUAGE CURRENTLY SET FORTH AT 5 U.S.C. SEC. 5527 IS DERIVED FROM THE FOLLOWING PROVISION AT SUBCHAPTER 6(B) OF PUB.L. 87-304:

"(B) THE PRESIDENT, WITH RESPECT TO THE EXECUTIVE BRANCH, AND THE HEAD OF THE DEPARTMENT CONCERNED, WITH RESPECT TO THE APPROPRIATE DEPARTMENT OUTSIDE THE EXECUTIVE BRANCH, SHALL PRESCRIBE AND ISSUE, OR PROVIDE FOR THE FORMULATION AND ISSUANCE OF, SUCH REGULATIONS AS ARE NECESSARY AND APPROPRIATE TO CARRY OUT THE PROVISIONS, ACCOMPLISH THE PURPOSES, AND GOVERN THE ADMINISTRATION, OF THIS ACT. ***"

BY THE TERMS OF THIS SUBSECTION, THE COMPTROLLER GENERAL WAS GIVEN INDEPENDENT AUTHORITY TO PRESCRIBE REGULATIONS GOVERNING ALLOTMENTS AND ASSIGNMENTS OF PAY. THE LANGUAGE THAT CURRENTLY APPEARS AT SECTIONS 5521 AND 5527 OF TITLE 5, U.S.C. IS THE RESULT OF CHANGES INTRODUCED BY PUB.L. 89-554, 80 STAT. 631, WHICH ENACTED TITLE 5 INTO POSITIVE LAW. THIS LANGUAGE DOES NOT MAKE IT ENTIRELY CLEAR WHETHER THE GAO WAS INTENDED TO BE COVERED BY THE REGULATIONS APPLICABLE TO THE EXECUTIVE BRANCH. HOWEVER, SINCE THE CODIFICATION OF TITLE 5 WAS NOT INTENDED TO BRING ABOUT ANY CHANGES IN SUBSTANTIVE LAWS THEN EXISTING, THE GAO'S STATUS AS AN AGENCY OUTSIDE THE PRESIDENT'S REGULATORY AUTHORITY IN 5727(B) IS PRESERVED.

ALTHOUGH SUBCHAPTER III OF CHAPTER 55 DOES NOT MAKE GAO SUBJECT TO OPM'S REGULATIONS ON ALLOTMENTS AND ASSIGNMENTS OF PAY, THE OFFICE WAS AT ONE TIME UNDER AN OBLIGATION TO FOLLOW THOSE REGULATIONS. BY VIRTUE OF SECTION 13 OF THE FEDERAL EMPLOYEES PAY ACT OF 1946, 60 STAT. 219, FORMERLY CODIFIED AT 31 U.S.C. SEC. 46A, GAO WAS OBLIGATED TO GIVE ITS EMPLOYEES THE SAME COMPENSATION, EMOLUMENTS, AND STATUS AS EMPLOYEES OF THE EXECUTIVE BRANCH. SEE B-132133, DECEMBER 4, 1961.

WITH THE PASSAGE OF THE GENERAL ACCOUNTING OFFICE PERSONNEL ACT OF 1980 (GAO ACT), SECTION 46A OF 31 U.S.C. WAS REPEALED. PUBLIC LAW 96-191, SEC. 8(F), 94 STAT. 33 (1980). SECTION 46A WAS REPLACED BY A NEW PROVISION WITHIN THE GAO ACT THAT AUTHORIZES THE COMPTROLLER GENERAL TO "APPOINT, PAY, ASSIGN, AND DIRECT SUCH PERSONNEL AS THE COMPTROLLER GENERAL DETERMINES NECESSARY TO DISCHARGE THE DUTIES AND FUNCTIONS OF THE GENERAL ACCOUNTING OFFICE." PUBLIC LAW 96-191, SEC. 2, 94 STAT. 27, TO BE CODIFIED AT 31 U.S.C. SEC. 52-1. IN VIEW OF THE REPEAL OF 31 U.S.C. SEC. 46A AND THE ENACTMENT OF 31 U.S.C. SEC. 52-1, GAO IS NO LONGER REQUIRED TO FOLLOW THE OPM REGULATIONS.

IN THE EXPLANATORY MATERIAL AT 46 FED.REG. 2323 THAT ACCOMPANIES OPM'S CURRENT REGULATIONS ON ALLOTMENTS, OPM REFERS TO THE SOCIAL SERVICES AMENDMENTS OF 1974 AND THE CHILD SUPPORT ENFORCEMENT PROGRAM, AS THE AUTHORITY FOR THE NEW REGULATION REGARDING ALLOTMENT FOR ALIMONY AND CHILD SUPPORT. OPM THEN GOES ON TO STATE:

"IN VIEW OF THE ABOVE TWO LEGISLATIVE ACTIONS, WE BELIEVE THAT THERE IS SUFFICIENT LEGAL AUTHORITY TO WARRANT THAT ALIMONY AND CHILD SUPPORT ALLOTMENTS BE MANDATORY, RATHER THAN DISCRETIONARY, ON THE PART OF THE AGENCY, WHERE AN EMPLOYEE VOLUNTARILY REQUESTS AN ALLOTMENT TO BE MADE. ***" 46 FED.REG. 2323 (1981).

THUS, IT IS OPM'S BELIEF THAT THOSE TWO ACTS, CODIFIED IN 42 U.S.C. SECS. 651-662 AND SECS. 1397-1397E, ARE SUFFICIENT AUTHORITY TO WARRANT ITS ISSUANCE OF A MANDATORY REGULATION. THERE IS NOTHING IN THOSE LAWS THAT REQUIRES OPM TO HAVE PROMULGATED THE NEW REGULATION. THE NEW REGULATION IS THE RESULT OF OPM'S EXERCISE OF ITS DISCRETIONARY AUTHORITY TO MAKE REGULATIONS FOR THE EXECUTIVE AGENCIES. IT WOULD BE FOR GAO, THROUGH THE COMPTROLLER GENERAL, TO EXERCISE ITS DISCRETION AND PROMULGATE SUCH A REGULATION, IF ONE IS DEEMED ADVISABLE.

IT IS NOTED HOWEVER THAT THE REASONS WHY OPM MADE THIS CHANGE IN THEIR REGULATIONS ARE PERSUASIVE. IT IS THE POLICY OF THE UNITED STATES TO FACILITATE THE COLLECTION OF ALIMONY AND CHILD SUPPORT FROM ITS EMPLOYEES. THUS, IF A CONTRARY POLICY IS TO BE ADOPTED BY GAO, THE REASON FOR SUCH ACTION SHOULD BE SPECIFICALLY IDENTIFIED AND SHOULD BE SUFFICIENT TO JUSTIFY THE GAO'S POSITION.