Reimbursement for Detail of Judge Advocate General
Corps Personnel to a United States Attorney’s Office
The Economy Act requires the Department of Defense to be reimbursed for the detail of
Judge Advocate General Corps attorneys to a United States Attorney’s Office.
The authonty of the Director of National Drug Control Policy temporarily to reassign fed
eral personnel under the Anti-Drug Abuse Act of 1988 does not displace the requirements
of the Economy Act.
June 27, 1989
M e m o r a n d u m O p in io n fo r t h e A c t in g A s s o c ia t e A t t o r n e y G e n e r a l
You have asked for our opinion whether the United States Attorney’s
Office for the District of Columbia ( “DCUSA”) must reimburse the
Department o f Defense (“DOD”) for costs associated with the detail o f
ten lawyers from the Judge Advocate General Corps ( “JAGC”) to the
DCUSA for one year pursuant to an official request by the Director o f
National Drug Control Policy William Bennett ( “Director”), under sec
tions 1003(d)(2) or 1005(c)(1)(A) o f the Anti-Drug Abuse Act o f 1988
( “the 1988 Act”), Pub. L. No. 100-690, 102 Stat. 4181 (codified at 21 U.S.C.
§§ 1502(d)(2), 1504(c)(1)(A).1 DOD contends that DCUSA must reim
burse the various departments from which JAGC personnel would be
detailed for salaries and expenses, at an estimated cost o f $300,000.
For the reasons stated below, we conclude that the Economy Act, 31
U.S.C. § 1301,* requires reimbursement for the detailed JAGC personnel,
and that the Director’s authority temporarily to reassign federal person
nel under the 1988 Act does not displace the requirements o f the
Economy Act. However, the 1988 Act provides for the Director to report
to the Congress regarding the need for any transfer o f appropriated funds
for National Drug Control Program activities. 21 U.S.C. § 1502(c)(6). To
the extent this situation may be deemed to present a need for such a
1 Memorandum fo r William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Joe D.
Whitley, Acting Associate Attorney General (May 12, 1989) See Letter for Joe D Whitley, Acting
Associate Attorney General, from Jay B Stephens, United States Attorney fo r the District o f Columbia
(M ay 9, 1989).
* Editor’s Note: This opinion incorrectly refers to 31 U S.C § 1301 as the Economy Act, when that A ct
is actually codified at 31 U.S.C. § 1535. This mistake in term inology does not affect the conclusions or
essential analysis o f the opinion
188
transfer, the Director’s report is the appropriate vehicle for seeking such
a transfer o f funds.
Analysis
1. The Economy Act
Under the Economy Act, a federal agency must spend its funds on the
objects for which they were appropriated. 31 U.S.C. § 1301(a). A corollary
to this statutory rule is that an agency may not augment its appropria
tions from outside sources without specific statutory authority. See gen
erally United States General Accounting Office, Office o f General
Counsel, Principles of Federal Appropriations Law 5-62 to 5-63 (1st ed.
1982) (explaining the non-augmentation theory). In combination, these
rules require an agency to spend its appropriated funds — and only its
appropriated funds — as directed by its relevant appropriation legisla
tion. These dual requirements consistently have been interpreted as gen
erally prohibiting the detail o f employees from one federal agency to
another on a nonreimbursable basis. As the Comptroller General has
held, “[t]o the extent that agencies detail employees on a nonreim
bursable basis ... they may be avoiding congressional limitations on the
amount o f moneys appropriated to the receiving agency for particular
programs.” 64 Comp. Gen. 370, 380 (1985).2
Three exceptions to the general rule against nonreimbursable details
have been recognized. First, Congress may, o f course, specifically autho
rize nonreimbursable details by statute. See, e.g., 5 U.S.C. § 3343 (autho
rizing nonreimbursable details to international organizations). Second, a
loaning agency may authorize nonreimbursable details involving “a mat
ter [that is] similar or related to matters ordinarily handled by the loaning
agency and will aid the loaning agency in accomplishing a purpose for
which its appropriations are provided.” 64 Comp. Gen. 370, 380 (1985)
(concluding that nonreimbursable detail o f employees to other agencies
or to different programs within the same agency is unlawful; opinion
given prospective application only); see also 65 Comp. Gen. 635, 637
2 The Comptroller General is an officer o f the legislative branch, see Bowsher v Synar , 478 U S 714,
727-32 (1986), and historically, the executive branch has not considered itself bound by the Com ptroller
General’s legal opinions if they conflict with the legal opinions o f the Attorney Genera] and the O ffice o f
Legal Counsel. Under som e circumstances the opjruons supply vaJuable guidance, however, and this
Office generally has found these opinions persuasive on the application o f the Economy A ct to the ques
tion o f nonreimbursable details See Memorandum for Arthur B. Culvahouse, Jr., Counsel to the
President, from Douglas W Kmiec, Assistant Attorney General, Office o f Legal Counsel, Re Executive
Agency Assistance to the Presidential Transition at 3 (Jan 3, 1989) ( “Kmiec M em o”); Reimbursement
o f the Internal Revenue Seivicc f o r Investigative Sei'viccs Provided to the Independent Counsel, 12 Op
O .L C 233 (1988); Assignment o f Army lawyers to the Department o f Justice, 10 Op. O L.C 115, 118
(1986) With one exception desenbed in footnote 3 below, the Com ptroller General’s construction o f
appropriations law is consistent with our interpretation here
189
(1986) (detail o f administrative law judges from National Labor Relations
Board to Department of Labor to hear black lung cases is not directly
related to the objects of NLRB’s appropriations and therefore must be
reimbursed). Third, the Comptroller General would recognize a de min
imis exception for details that have a negligible effect on the loaning
agency’s appropriations. Cf. 65 Comp. Gen. 635, 637 (1985) ($674,250 for
costs o f detail o f 15-20 NLRB employees to Department o f Labor not de
minimis).3
Neither o f the latter two exceptions applies here. Even assuming that
the de minimis exception is lawful, we would not regard this detail, which
would cost DOD approximately $300,000, as having a negligible effect on
DOD’s appropriations. The exception for details involving matters relat
ed to the loaning agency’s appropriations also does not appear applicable
here. JAGC lawyers ordinarily do not engage in civilian litigation.4 A case
can be made that nonreimbursable details should be allowed when the
loaning agency is the “client” on whose behalf litigation is undertaken,
such as if the JAGC attorneys were to be used for military matters or mil
itary prosecutions. In such cases, the detailed personnel would provide
specialized knowledge or assistance related to the objects o f their
agency’s appropriations. The reassignment o f JAGC attorneys to DCUSA
pursuant to the 1988 Act does not meet these criteria, however. Rather,
the apparent purpose of the reassignment is to provide additional per
sonnel for prosecution of civilians for narcotics and narcotics-related
offenses committed in the District o f Columbia.
In U.S. Attorney Jay B. Stephens’ letter o f May 9, 1989, to Acting
Associate Attorney General Joe D. Whitley, reference is made to the
DCUSA’s “ lon g history o f maintaining a nonreimbursable Specials
Program which involves the assignment o f attorney personnel from vari
ous federal agencies to this Office for a period o f four to six months.”
However, we understand those short-term details to have had a different
purpose — the training of inexperienced trial attorneys. Details for such
purposes might well fall within the exception for details involving mat
ters related to the loaning agency’s appropriation, in that intensive train
ing in litigation skills may assist the loaning agency by improving the abil
ities and performance of its attorney personnel.5 While the DCUSA
doubtless also receives a benefit from the detail o f attorneys under the
Specials Program, the primary purpose o f the program appears to be for
the training o f the detailed attorneys.
3 P n o r opinions o f this O ffice have regarded the “de mjrumis exception” with some caution. See Kmiec
M em o at 7 n 8 The Com ptroller General’s opinions acknowledge that the de minimis exception actually
violates 31 U S C § 1301(a). See 65 Comp Gen. at 638; 64 Comp. Gen at 381.
4 We have reached this conclusion in a p n o r memorandum. See 10 Op O L.C. at 118 & n.4 (discussing
circumstances under which JAGC attorneys may be detailed to Department o f Justice to assist in litiga
tion).
5 We do not here address the validity o f the Specials Program at the DCUSA
190
In contrast, the reassignment o f JAGC attorneys pursuant to the 1988
Act does not appear to be for the purpose o f training. Rather, we under
stand the proposed detail to involve the reassignment o f relatively expe
rienced attorneys to supplement the DCUSA’s resources for combatting
narcotics offenses. Moreover, the training o f JAGC attorneys for special
ized civilian narcotics prosecutions in civilian courts would not appear to
be directly related to more than a small fraction o f the work customarily
done by JAGC attorneys for their military departments.6
In sum, we conclude that the Economy Act does not permit the pro
posed detail on a nonreimbursable basis, unless the 1988 Act specifically
authorizes nonreimbursable details.
2. The 1988 Act
The 1988 Act gives the Director o f National Drug Control Policy broad
powers to reassign federal personnel to further the National Drug Control
Program. Section 1502(d)(2) empowers the Director to
direct, with the concurrence o f the Secretary o f a depart
ment or head o f an agency, the temporary reassignment
within the Federal Government o f personnel employed by
such department or agency, in order to implement United
States drug control policy.
21 U.S.C. § 1502(d)(2). In addition, section 1504(c)(1) permits the tempo
rary assignment o f personnel to provide assistance where the Director has
designated a specific locale as a “high intensity drug trafficking area.”7
Neither o f these provisions addresses directly whether the temporary
reassignment o f personnel should be on a reimbursable basis. In addi
tion, nothing in the legislative history o f the 1988 Act suggests that
Congress intended for details made pursuant to the Director’s reassign
ment authority to be on a nonreimbursable basis. There are no commit
tee reports on the 1988 Act, and statements o f individual legislators
speak only in general terms o f the need for a “drug czar” who would have
°In addition, a substantial question would be presented concerning the Director’s authonty to order
reassignment fo r "training" purposes The 1988 Act authorizes the Director to direct, with agency con
currence, temporary reassignment o f personnel “in order to implement United States drug control poli
c y ” 21 U.SC § 1502(d)(3). See also id. § 1504(c)(1)(A). It is unclear whether the ordering o f training
details falls within the Director’s powers to reassign personnel in order to implement drug control poli
cy It could be argued that details specifically fo r training in narcotics prosecutions would be within the
Director’s statutory authority; however, the more narrow the focus o f the training, the weaker the argu
ment that the detail would further the objects o f the loaning agency’s appropnations, so as to be permit
ted on a nonreimbursable basis.
7 We are informed by Chuck WexJer, Special Assistant to the Director, that as o f this date the Director
has not designated the Distnct o f Columbia as a “high intensity drug trafficking area,” though he may do
so in the future
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broad powers to coordinate action within the federal government relat
ed to the drug problem.8
The only reference to the issue o f reimbursement occurs in section
1502(d)(3), which authorizes the Director to use services, equipment, or
personnel o f other agencies for administrative purposes on a reim
bursable basis. It could be argued by negative inference from this provi
sion that Congress intended the Director’s reassignment authority under
section 1502(d)(2) to be exercised on a nonreimbursable basis because
Congress failed to provide specifically for reimbursement, as in section
1502(d)(3). This construction fails, however, for two reasons.
First, the structure o f the 1988 Act cuts against the negative inference
o f nonreimbursable details. To read the 1988 Act as authorizing nonre
imbursable details would create a tension between section 1502(d)(2)
and section 1502(c)(6), which requires the Director “to report to the
Congress on a quarterly basis regarding the need for any reprogramming
or transfer o f appropriated funds for National Drug Control Program
activities.” Section 1502(c)(6) suggests that Congress intended to
reserve for itself the decision whether National Drug Control Program
policies require changes in appropriations, including any transfer o f
appropriated funds necessary to accomplish temporary personnel reas
signments.9 Reserving this pow er would be consistent with the Economy
Act and Congressional retention o f control over its constitutional power
o f the purse.
y A recent Com ptroller General decision held that the Econom y A ct prohibits nonreimbursable details
under circumstances in which there w ere far stronger indications o f legislative intent to permit such
details. 65 Comp. Gen 635 (1986) There, the National Labor Relations Board planned to detail 15-20
administrative law judges to the Department o f Labor to handle a backlog o f 20,000 black lung cases. The
legislative history o f both a 1985 Supplemental Appropriations A ct and the fiscal year 1986 Department
o f Labor Appropriations A ct reflected
congressional concern about the backlog and provide[dJ suggestions about how to resolve it
The Senate report accompanying the 1985 Supplemental directed the Department (o f Labor],
to the extent practical, to increase its efforts to temporarily borrow ALJs from other agen
cies with less pressing workloads F o r fiscal year 1986, aside from recommending an addi
tional $4 4 m illion for 15 new AU s, and a substantial number o f attorneys and support posi
tions, the Senate again directed the Department to actively pursue borrowing ALJs from
other agencies Both congressional debate and hearings accompanying the 1986 appropria
tions act contain similar comments
65 Comp. Gen. at 636 (citations and footn ote om itted) Despite this legislative history, the Comptroller
General concluded that, because the statute itself did not specifically authorize nonreimbursable details,
the concerns expressed m the legislative history remained merely generalized concerns that w ere left
unaddressed in the actual legislation. Id. at 639 ( “[I]t is well settled that suggestions or expressions o f
congressional intent in comm ittee reports, flo o r debates and hearings are not legally binding unless they
are incorporated either expressly or by reference in an appropriations act itself or in some other
statute.”). Accord Train v City of New York, 420 U.S 35, 45 (1975) (involving issue o f Executive com
pliance with appropriations laws and noting that “ legislative intention, without more, is not legislation”)
9 This inference is also supported by changes made from earlier versions o f the legislation S 2852,
100th Cong., 2d Sess. (1988) (the “Omnibus Anti-Substance Abuse A ct o f 1988”) at one point provided m
sections 1006(d)(2) and (3).
(2 ) The D irector may reprogram funds within National Drug Control Programs
Continued
192
Moreover, title X, chapter I o f the 1988 Act provides specific supple
mental appropriations for United States Attorney’s Offices for salaries
and expenses for increased narcotics prosecution efforts. It reasonably
can be inferred that further enhancements o f funding, such as by detail
ing additional personnel pursuant to the Director’s temporary reassign
ment authority, were not intended. See 31 U.S.C. § 1301(d) (rule of con
struction against implied appropriations) (discussed below). Cf. United
States General Accounting Office, Office o f General Counsel, Principles
of Federal Appropriations Law, supra, at 5-62 to 5-63 (non-augmentation
theory);
Second, reading the 1988 Act as authorizing nonreimbursable details
requires the conclusion that Congress made an “implied appropriation”
through the Director’s reassignment authority. The Economy Act pro
vides, however, that “[a] law may be construed to make an appropriation
out o f the Treasury or to authorize making a contract for the payment o f
money in excess o f an appropriation only if the law specifically states
that an appropriation is made or that such a contract may be made.” 31
U.S.C. § 1301(d). Thus, reading the 1988 Act to require nonreimbursable
details would be inconsistent with the Economy Act. Statutes ordinarily
are to be read as consistent with one another, where possible. See
Ruckelshaus v. Monsanto, 467 U.S. 986, 1017, 1018 (1984) (repeals by
implication are disfavored).
Under these circumstances, the 1988 Act should not be read to autho
rize nonreimbursable details. If nonreimbursable details are necessary to
accomplish the Director’s goals o f implementing national drug control
policy, he can report to Congress under section 1502(c)(6) on the need
for a transfer o f appropriated funds to accomplish the detail o f the JAGC
attorneys.
9( continued)
(3 ) The Director may transfer, after providing notification to the Committees on Appro
priations o f the Senate and the House o f Representatives, an amount not to exceed 5 per cen
tum of the funds appropriated fo r one such program to another such program within the
same National Drug Control Program agency.
134 Cong Rec 27,467 (1988) (emphasis added). This provision was deleted In its place, the 1988 Act, as
enacted into law, provides
The Director shall report to the Congress on a quarterly basis regarding the need f o r any
reprogramming or tmnsfer o f appropriated funds for National Drug Control Program activ
ities.
21 U.S C. § 1502(c)(6) (emphasis added).
The same, early version o f S 2852 provided in section 1010(a), with respect to the D irector’s pow ers
to designate “High Intensity Drug Areas,” that:
Upon making such a designation and in order to provide Federal assistance to such area, the
Director may —
(2 ) transfer, after providing notification to the Committees on Appropriations o f the Senate
and the House o f Representatives, an amount not to exceed 5 per centum o f the funds appro
priated for one such program to another such program, ..
134 Cong Rec. 27,468 (1988). See also id. at 27,414, 27,416 (statement o f Sen Nunn, including section-
by-section analysis o f bill) As passed, the 1988 A ct contains no such provision
193
Conclusion
We believe that the Economy Act prevents the detail o f JAGC attorneys
to the DCUSA on a nonreimbursable basis, absent clear language in the
1988 Act that provides for such details. We conclude that no such clear
intent is expressed in sections 1502(d)(2) and 1504(c)(1)(A) o f the 1988
Act. If the Director determines that the inability to direct the detail of
JAGC attorneys to the DCUSA on a nonreimbursable basis impedes his
ability to further national drug control policy, section 1502(d)(6) o f the
1988 Act provides an appropriate mechanism for seeking a remedy from
Congress.
WILLIAM P. BARR
Assistant Attorney General
Office o f Legal Counsel
194