Disposition of Proceeds from the Sale of Government Buildings Acquired with Social Security Trust Funds

Disposition of Proceeds from the Sale of Government
Buildings Acquired with Social Security Trust Funds
The General Services Administration is authorized, under section 412 of the Consolidated
Appropriations Act of 2005, to convey Social Security Administration buildings that
were acquired with money derived from the Social Security Trust Funds and to retain
the net proceeds in the Federal Buildings Fund.

December 17, 2010

MEMORANDUM OPINION FOR THE ACTING GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION

You have asked us to resolve a disagreement about the retention of pro-
ceeds from the sale of certain government office buildings. 1 At issue is
whether the Social Security Administration (“SSA”) or the General Ser-
vices Administration (“GSA”) is entitled to the proceeds from the sale of
buildings currently occupied by SSA and originally acquired with money
from the Federal Old-Age and Survivors Insurance Trust Fund and the
Disability Insurance Trust Fund (“Social Security Trust Funds” or “Trust
Funds”). 2 Relying on the Federal Property and Administrative Services
Act of 1949, Pub. L. No. 81-152, 63 Stat. 377 (codified as amended at 40
U.S.C. § 101 et seq. (2006 & Supp. III 2009)) (“Property Act”), SSA
argues that any proceeds from the sale of the buildings should be credited
to the Social Security Trust Funds. GSA contends that it is entitled to the
funds, citing both section 574 of the Property Act and a separate authority
to convey property and to keep any resulting income—section 412 of
division H of the Consolidated Appropriations Act of 2005, Pub. L. No.
108-447, div. H, § 412, 118 Stat. 2809, 3199, 3259 (2004) (“section

1 See Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney Gen-

eral, Office of Legal Counsel, from David Black, General Counsel, Social Security
Administration (Oct. 1, 2008) (“SSA Memo”).
2 More precisely, your question pertains to “the sale of real property purchased, con-

structed, or otherwise acquired with money” from the Social Security Trust Funds. SSA
Memo at 1. In this opinion, we use the term “acquired” as a shorthand for the various
means by which Trust Fund money may have been used to obtain real property. Further-
more, we have used interchangeably the terms “building” and “real property”; nothing in
our opinion turns on the distinction.

263
 34 Op. O.L.C. 263 (2010)

412”). 3 We conclude that section 412 authorizes GSA to convey the SSA-
occupied buildings acquired with Trust Fund monies and to retain the net
proceeds from those transactions. 4 We thus have no occasion to address
the application of section 574 of the Property Act to the contemplated sale
of the SSA buildings here.

I.

Ordinarily, when federal property is sold under the Property Act, 5 the
proceeds of the sale, excluding certain expenses incurred by GSA in
disposing of the property, are deposited in the Land and Water Conserva-
tion Fund in the Treasury. See generally 40 U.S.C. § 572(a); see also 16
U.S.C. § 460l-5 (2006). 6 Section 574 of the Property Act establishes an

3 GSA’s initial submission to our Office contained only a brief description of section

412. Memorandum for Steven G. Bradbury, Principal Deputy Assistant Attorney General,
Office of Legal Counsel, from Leslie A. Nicholson, General Counsel, General Services
Administration (Jan. 13, 2009) (“GSA Memo”). We then solicited the supplemental views
of both agencies about the applicability of section 412 to the conveyance of real property
acquired with Trust Fund monies. See Memorandum for Daniel L. Koffsky, Deputy
Assistant Attorney General, Office of Legal Counsel, from Kris E. Durmer, General
Counsel, General Services Administration (Jan. 15, 2010) (“GSA Supp. Memo”); Memo-
randum for Daniel L. Koffsky, Deputy Assistant Attorney General, Office of Legal
Counsel, from David F. Black, General Counsel, Social Security Administration (Jan. 19,
2010) (“SSA Supp. Memo”).
4 GSA’s own regulations pertaining to the conveyance of federal real property provide

that “[e]xcept for disposals specifically authorized by special legislation, disposals of real
property must be made only under the authority of Chapter 5 of Subtitle I of Title 40 of
the United States Code [i.e., the Property Act].” 41 C.F.R. § 102-75.290 (2010) (emphasis
added). GSA’s Associate General Counsel has informed us of GSA’s determination that
section 412 falls under the exception for “special legislation,” so that this regulation
would not restrict its authority under section 412 to dispose of property and retain the net
proceeds. (GSA has made similar determinations with respect to other statutory disposal
authorities, e.g., 42 U.S.C. § 2201(g) (2006) (authorizing Atomic Energy Commission to
dispose of its real and personal property).) We have not been asked to address section
102-75.290, and we intimate no view on GSA’s interpretation of the regulation as it
pertains to section 412.
5 Not all federal property is subject to the Property Act. See 40 U.S.C. § 113(e) (listing

numerous exceptions to the application of the Act).
6 In pertinent part, section 460l-5 of title 16 provides:

During the period ending September 30, 2015, there shall be covered into the land
and water conservation fund in the Treasury of the United States, . . . the following

264
 Disposition of Proceeds from the Sale of Government Buildings

exception to this general rule. If “property [has been] acquired with
amounts . . . not appropriated from the general fund of the Treasury,”
[t]he net proceeds of a disposition or transfer of [such] property . . .
shall be . . . [1] [either] credited to the applicable reimbursable fund
or appropriation; or . . . [2] paid to the federal agency that deter-
mined the property to be excess.
40 U.S.C. § 574(a). 7 SSA contends that section 574 applies to sales of
SSA-occupied office buildings that were originally acquired with money
from the Social Security Trust Funds and that the provision enables it to
keep the proceeds from such sales.
GSA disagrees with SSA’s interpretation of section 574, but, more im-
portant for resolving the question before us, GSA contends that its claim
to any proceeds from the sale of SSA-occupied buildings rests on an
independent statutory authority: section 412. See GSA Memo at 10-11;
see also GSA Supp. Memo at 1-2. 8 Because we agree with GSA that

revenues and collections: . . . All proceeds [with certain exceptions] hereafter re-
ceived from any disposal of surplus real property and related personal property un-
der the Federal Property and Administrative Services Act of 1949, as amended,
notwithstanding any provision of law that such proceeds shall be credited to miscel-
laneous receipts of the Treasury.
16 U.S.C. §§ 460l-5 & 460l-5(a). Thus, although the Property Act provides that the
“excess amounts [from the sale of federal real property] beyond [the] current operating
needs [of GSA] shall be transferred . . . to miscellaneous receipts,” 40 U.S.C. § 572(a)(3),
section 460l-5 of title 16 instead directs those amounts to the Land and Conservation
Fund.
7 “Excess” property is a term of art in the Property Act and means property that an

agency determines it no longer requires in order to meet that “agency’s needs or responsi-
bilities.” 40 U.S.C. § 102(3); see also id. § 524(a)(2) (requiring each executive agency
subject to the Act to “continuously survey property under its control to identify excess
property”).
8 Noting that “SSA has provided no evidence that monies of the Trust Funds were used

to directly acquire the[] properties” at issue, GSA argues that it, and not SSA, is the
“landholding agency that would declare any of the SSA-occupied [b]uildings excess to the
Government’s needs.” GSA Memo at 3. Furthermore, GSA contends that it, and not SSA,
“acquired” some of the properties at issue using money from GSA’s Federal Buildings
Fund—a fund that is created by the Property Act and contains revenue collected by GSA,
including rent from federal agencies, see 40 U.S.C. § 592 (establishing the Federal
Buildings Fund). GSA Memo at 6. In light of our conclusion—that section 412 vests GSA
with discretion to convey SSA property and to retain the net proceeds, notwithstanding

265
 34 Op. O.L.C. 263 (2010)

section 412 would permit GSA to retain the net proceeds of sales of SSA-
occupied buildings, we have no occasion to address the applicability of
section 574.

II.

A.

Section 412 authorizes GSA to convey property and retain any resulting
net proceeds in the Federal Buildings Fund. Section 412 provides:
Notwithstanding any other provision of law, the Administrator of
General Services may convey, by sale, lease, exchange or otherwise,
including through leaseback arrangements, real and related personal
property, or interests therein, and retain the net proceeds of such dis-
positions in an account within the Federal Buildings Fund to be used
for the General Services Administration’s real property capital
needs: Provided, That all net proceeds realized under this section
shall only be expended as authorized in annual appropriations Acts:
Provided further, That for the purposes of this section, the term “net
proceeds” means the rental and other sums received less the costs of
the disposition, and the term “real property capital need” means any
expenses necessary and incident to the agency’s real property capital
acquisitions, improvements, and dispositions.
118 Stat. at 3259. Invoking section 412, GSA has retained approximate-
ly $140 million in proceeds from the sale of real property since Con-
gress enacted the provision in 2004. See E-mail for Pankaj Venugopal,
Attorney-Adviser, Office of Legal Counsel, from Richard R. Butter-

section 574—we need not resolve the agencies’ dispute about the application of section
574.
SSA’s request for our opinion is not limited to any specific building SSA intends to
vacate, and we thus have no need to consider whether a particular SSA building was in
fact acquired with money from the Trust Funds. We understand that, at the least, SSA
occupies some buildings acquired with those funds. Cf. Memorandum for Stanley Ebner,
General Counsel, Office of Management and Budget, from Robert G. Dixon, Jr., Assistant
Attorney General, Office of Legal Counsel at 8 (Dec. 20, 1973) (noting that SSA’s facility
in Woodlawn, Maryland “was funded by appropriations from the Federal Old Age and
Survivors Insurance Trust Fund”).

266
 Disposition of Proceeds from the Sale of Government Buildings

worth, Jr., Senior Assistant General Counsel, General Services Admin-
istration (Dec. 6, 2010).
Section 412 supports GSA’s claim to proceeds from a sale of SSA
buildings, including those acquired with money from the Social Security
Trust Funds. The provision authorizes the GSA Administrator to “con-
vey” “by sale” “real and related personal property,” and GSA may retain
the “net proceeds of such dispositions” for its Federal Buildings Fund. On
its face, section 412 makes no exception for the type of Social Security
buildings at issue here.
Section 574 of the Property Act, however, might be read to entitle SSA
to the proceeds of the sale of SSA buildings. Assuming that section 412
and section 574 lead to divergent outcomes, we have a “duty . . . to regard
each as effective” if the two statutes are “capable of co-existence.” Mor-
ton v. Mancari, 417 U.S. 535, 551 (1974); see also SSA Supp. Memo at 2
(urging the application of the presumption against implied repeal). Under
a “‘long-standing maxim of statutory construction . . . statutes are enacted
in accord with the legislative policy embodied in prior statutes, and . . .
therefore statutes dealing with the same subject should be construed
together.’” Relationship Between Illegal Immigration Reform and Immi-
grant Responsibility Act of 1996 and Statutory Requirement for Confiden-
tiality of Census Information, __ Op. O.L.C. Supp. __, at *5 (May 18,
1999) (“IIRIRA Opinion”) (quoting Memorandum for Glen E. Pommeren-
ing, Assistant Attorney General for Administration, from Antonin Scalia,
Assistant Attorney General, Office of Legal Counsel, Re: Establishing a
Maximum Entry Age Limit for Law Enforcement Officer Positions in the
Department of Justice at 3 (Apr. 3, 1975), https://www.justice.gov/olc/
page/file/936041/download). We believe that the apparent conflict be-
tween the two statutes is properly resolved by reading section 412 to give
GSA the discretion to convey SSA buildings, see 118 Stat. at 3259 (“the
Administrator of General Services may convey” (emphasis added)), and
retain the proceeds of the sales, with section 574 potentially applying if
GSA chooses not to exercise this discretion.
Even if we assume that section 574 of the Property Act would other-
wise entitle SSA to the net proceeds of a building sale, section 412 would
apply “[n]otwithstanding any other provision of law,” a category that
necessarily includes section 574. As a general rule, “the use of such a
‘notwithstanding’ clause clearly signals the drafter’s intention that the

267
 34 Op. O.L.C. 263 (2010)

provisions of the ‘notwithstanding’ section override conflicting provisions
of any other section.” Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18
(1993); see also, e.g., Applicability of Tax Levies to Thrift Savings Plan
Accounts, 34 Op. O.L.C. 157, 161–62 (2010) (“Tax Levies Opinion”);
IIRIRA Opinion at *7 (observing that a prefatory “notwithstanding”
clause “does reflect a congressional intention to displace inconsistent
law”). Some courts have observed that “‘a clearer statement’” of congres-
sional intent “‘to supersede all other laws . . . is difficult to imagine,’”
Cisneros, 508 U.S. at 18 (quoting Liberty Maritime Corp. v. United
States, 928 F.2d 413, 416 (D.C. Cir. 1991) (internal quotation marks
omitted) (collecting cases)); see also Miccosukee Tribe of Indians of Fla.
v. Army Corps of Eng’rs, 619 F.3d 1289, 1298 (11th Cir. 2010) (noting
that a “‘notwithstanding’ clause’” was “‘Congress’s indication that the
statute containing that language is intended to take precedence over any
preexisting or subsequently-enacted legislation [on the same subject]’”
(alteration in original)); United States v. Novak, 476 F.3d 1041, 1046 (9th
Cir. 2007) (en banc) (“[T]he ‘[n]otwithstanding any other provision of
law’ clause demonstrates that Congress intended to supersede any previ-
ously enacted conflicting provisions”) (alterations in original, internal
quotation marks omitted). In our view, section 412’s “notwithstanding”
clause indicates Congress’s intent to override potentially applicable and
inconsistent statutes, including section 574 of the Property Act. 9
We do not read section 412’s “notwithstanding” clause as making an
implicit exception for section 574. Indeed, other sections of the same law
in which section 412 appears authorize the sale of certain federal real
property under a more narrowly tailored “notwithstanding” clause. See
Consolidated Appropriations Act §§ 407, 638, 118 Stat. at 2922, 3258
(“[n]otwithstanding 40 U.S.C. 524, 571, and 572”). Congress thus knew
how to restrict the scope of a “notwithstanding” clause to certain provi-

9 A “notwithstanding” clause is “‘best read simply to qualify the substantive require-
ment that follows.’” Tax Levies Opinion, 34 Op. O.L.C. at 162 n.4 (quoting Prioritizing
Programs to Exempt Small Businesses from Competition in Federal Contracts, 33 Op.
O.L.C. 284, 296 (2009)). Thus, such a clause does not itself “‘support a broad construc-
tion of the substantive provision that would give rise . . . to inconsistencies’ with other
statutes.” Id. (quoting IIRIRA Opinion at *7). Here, we conclude only that the substantive
clauses of section 412 authorize GSA to retain the net proceeds of the sales of real
property, while section 574 of the Property Act, when applicable, might direct such
proceeds to SSA.

268
 Disposition of Proceeds from the Sale of Government Buildings

sions of the Property Act, but chose instead to make section 412 broadly
applicable “notwithstanding any other provision of law.” Furthermore, on
several occasions when Congress has intended section 574 to apply, it has
made that intention plain. When the same Congress that enacted section
412 authorized the Secretary of Defense to convey a certain parcel of
land, it expressly stated that “[s]ection 574(a) of title 40, United States
Code, shall apply to the consideration received.” Pub. L. No. 108-136,
§ 2861(c), 117 Stat. 1392, 1736 (2003). Similarly, when Congress di-
rected proceeds from the sale of surplus real property and related personal
property to the Land and Water Conservation Fund (“LWCF”), it exclud-
ed proceeds governed by section 574. 16 U.S.C. § 460l-5(a) (providing
that the LWCF receives “[a]ll proceeds (except so much thereof as may be
otherwise obligated, credited, or paid under authority of those provisions
of law set forth in section . . . 574(a)–(c) of title 40”) hereafter received
from any disposal of surplus real property and related personal property
under the [Property Act], as amended, notwithstanding any provision of
law that such proceeds shall be credited to miscellaneous receipts of the
Treasury”). In light of these other provisions, the absence in section 412
of any reference to section 574 bolsters the conclusion that section 412
overrides “any other federal law,” including section 574.
We accordingly believe that section 412 vests the Administrator of
GSA with discretion to sell SSA-occupied buildings that have been ac-
quired with money from the Social Security Trust Funds and to retain the
net proceeds of those sales in the Federal Buildings Fund.

B.

Contending that section 412 would not displace the application of sec-
tion 574 of the Property Act to the buildings at issue, SSA relies upon the
canon of statutory interpretation that a general statute will not be con-
strued to repeal a specific statute by implication, unless Congress express-
es a clear intention to effect the repeal. SSA Supp. Memo at 2–3; see
generally Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985) (noting the “strong presumption against repeals by implication,
especially an implied repeal of a specific statute by a general one” (inter-
nal citation omitted)). SSA contends that section 412 “does not amend,
expressly or implicitly, the more specific legislation that addresses a
particular subset of real property proceeds [i.e., section 574].” SSA Supp.

269
 34 Op. O.L.C. 263 (2010)

Memo at 2–3. It further argues that the rule against implied repeal has
special force with respect to provisions, such as section 412, that were
enacted in appropriations laws. Alternatively, SSA contends that section
412 was a temporary measure that expired at the end of the 2005 fiscal
year. Id. at 3.
We first consider the argument that “repeals by implication are espe-
cially disfavored in the appropriations context.” Robertson v. Seattle
Audubon Soc., 503 U.S. 429, 440 (1992). Although section 412 was
enacted as part of an appropriations statute, we do not believe that this
admonition applies here, because section 412 is substantive legislation.
A special rule for implied repeals by appropriations statutes is necessary
because without it, “every appropriations measure would be pregnant
with prospects of altering substantive legislation, repealing by implica-
tion any prior statute which might prohibit the expenditure.” Tenn. Valley
Auth. v. Hill, 437 U.S. 153, 190 (1978) (“TVA”). For this reason, the
canon against implied repeal by appropriations bills is codified in the
rules of both houses of Congress, including House Rule XXI(2)(b), H.R.
Doc. No. 107-284, at 814 (2003) (“A provision changing existing law
may not be reported in a general appropriation bill”); see also Senate
Rule 16.4, S. Doc. No. 107-1, at 15 (2002). Citing House Rule XXI, the
TVA Court observed that the absence of a presumption against implied
repeal by appropriations statutes would “lead to the absurd result of
requiring Members to review exhaustively the background of every
authorization before voting on an appropriation, [and] it would flout the
very rules the Congress carefully adopted to avoid this need.” TVA, 437
U.S. at 190; see also United States v. Will, 449 U.S. 200, 222 (1980)
(“[T]he rules of both Houses limit the ability to change substantive law
through appropriations measures.”); Andrus v. Sierra Club, 442 U.S. 347,
359–60 (1979) (noting that the “rules of both Houses prohibit [substan-
tive] legislation from being added to an appropriation bill” (internal
quotation marks omitted)).
Here, the House rule cited by the TVA Court was invoked against the
language in section 412 when it was being considered by the House
acting as the Committee of the Whole. The provision that was enacted
ultimately as section 412 first appeared in one of the several appropria-
tions bills later incorporated into the 2005 Consolidated Appropriations
Act—specifically, the identically worded section 409 of the Transporta-

270
 Disposition of Proceeds from the Sale of Government Buildings

tion, Treasury, and Independent Agencies Appropriations Act, H.R.
5025, 108th Cong. (as reported by H. Comm. on Appropriations, Sept. 8,
2004). During the debate over H.R. 5025, a member raised a point of
order that section 409 violated House Rule XXI. 150 Cong. Rec. 18,426
(2004) (statement of Rep. Shays). The Chair sustained the objection and,
as a result, section 409 was struck from H.R. 5025 before its passage by
the House. Id. (“The Chair finds that this section [409] explicitly super-
sedes existing law. The section therefore constitutes legislation in viola-
tion of clause 2 of rule XXI.”). When H.R. 5025, along with several other
appropriations bills, was referred to the conference committee, however,
section 409’s authority for GSA to convey property and retain its pro-
ceeds was reinserted as section 412 of the Consolidated Appropriations
Bill. See H.R. Rep. No. 108-792, at 665 (2004) (Conf. Rep.) (noting that
the “conference agreement” included the “Transportation, Treasury, and
Independent Agencies Appropriations Act, 2005 [H.R. 5025]”). 10 In light
of the determination under the House Rules that the language of section
412, as contained in section 409 of H.R. 5025, “supersede[d] existing
law,” 150 Cong. Rec. at 18,426, we believe that the special rule against
“implied repeals” by appropriations measures does not apply to section
412.
More broadly, SSA contends that “[w]here there is no clear intention
otherwise, a specific statute will not be controlled or nullified by a general
one.” SSA Supp. Memo at 2–3 (quoting Morton, 417 U.S. at 550–51). We
believe that section 412 reveals a sufficiently “clear intention” to super-
sede conflicting law, including provisions concerning specific types of
federal property, such as section 574. 11 Congress made section 412 appli-

10 Although section 412 is identical to section 409 of H.R. 5025, no objection ap-

pears to have been raised in the House against the inclusion of section 412 in the
Consolidated Appropriations Act. But because the House chose to waive all points of
order in the consideration of the omnibus appropriations bill, see H.R. Res. 866, 108th
Cong. (2004), 150 Cong. Rec. at 25,051, we do not believe that this silence undercuts
the House’s earlier determination that the same language—contained in section 409 of
H.R. 5025—“explicitly supersede[d] existing law.”
11 The conference report accompanying the passage of section 412 notes only that sec-

tion 412 “allow[s] GSA to convey property and retain the proceeds in the Federal Build-
ings Fund.” H.R. Rep. No. 108-792, at 1455 (2004). An earlier House Report sets out an
identical description of the provision that became section 412. H.R. Rep. No. 108-671, at
147 (2004).

271
 34 Op. O.L.C. 263 (2010)

cable “notwithstanding any other provision of law,” and although it ex-
pressly referred to section 574 in similar statutes about disposition of
property or retention of proceeds, it omitted any such reference in section
412. See United States v. DeCay, 620 F.3d 534, 540 (5th Cir. 2010) (re-
jecting application of canon of specific trumps the general, noting that
“‘notwithstanding any other Federal law’ clause signals a clear Congres-
sional intent to override conflicting federal law”); see also Novak, 476
F.3d at 1055-56 (holding similar “notwithstanding” phrase constitutes,
inter alia, “clear intention” for general statute to supersede arguably more
specific statute). The intention to override provisions such as section 574
appears plain enough.
This conclusion is buttressed by the text of the Property Act, as amend-
ed in 2002, when Congress revised and recodified the provisions of the
1949 Act. See Pub. L. No. 107-217, 116 Stat. 1062. In section 5(b)(3) of
the 2002 Act, Congress provided that “[t]his Act restates certain laws
enacted before April 1, 2002. Any law enacted after March 31, 2002, that
is inconsistent with this Act . . . supersedes this Act to the extent of the
inconsistency.” 116 Stat. at 1303 (codified as note preceding 40 U.S.C.
§ 101). This provision shows congressional intent to “suspend[ ]the Prop-
erty Act’s applicability” in the face of a subsequent, inconsistent statute.
Shawnee Tribe v. United States, 423 F.3d 1204, 1215–16 (10th Cir. 2005)
(noting that although section 5(b)(3) is “not an operative part of the stat-
ute itself,” “th[e] statement was legislatively enacted as part of the public
law and is a good indication of Congressional intent”). 12 Thus, even if the

12 In Shawnee Tribe, the Tenth Circuit held that a 2005 provision under which the
Secretary of the Army could convey a former military installation on an Indian reserva-
tion overrode section 523 of the Property Act, which would have directed GSA to
transfer that property to a tribe. 423 F.3d at 1215–16; see also 40 U.S.C. § 523(a) (“The
Administrator of General Services shall prescribe procedures necessary to transfer to the
Secretary of the Interior, without compensation, excess real property located within the
reservation of any group, band, or tribe of Indians that is recognized as eligible for
services by the Bureau of Indian Affairs.”).
Moreover, the Tenth Circuit held that section 113 of the Property Act did not compel a
different conclusion. Section 113 provides that (save for certain exceptions applicable
neither here nor in the Shawnee Tribe case), the “authority conferred by this subtitle
[including, as pertinent here, sections 523 and 574] is in addition to any other authority
conferred by law and is not subject to any inconsistent provision of law.” 40 U.S.C.
§ 113(a) (emphasis added). But in light of section 5(b)(3) of the 2002 Act, the court held
that section 113 “stand[s] for the relatively unremarkable proposition that the Property

272
 Disposition of Proceeds from the Sale of Government Buildings

application of section 412 to Trust Fund buildings would be inconsistent
with section 574 of the Property Act, section 412 would “supersede[]”
section 574 “to the extent of the inconsistency,” in accordance with sec-
tion 5(b)(3) of the 2002 Act.
SSA alternatively contends that “even if Section 412 repealed or super-
seded 40 U.S.C. § 574, that effect expired at the close of Fiscal Year (FY)
2005 when the annual appropriations act expired.” SSA Supp. Memo at 3.
GSA argues that section 412 operates as “permanent” legislation that
remained in effect beyond the end of the 2005 fiscal year (“FY 2005”).
Indeed, GSA has collected approximately $136 million in net proceeds
under its section 412 authority since the end of FY 2005.
To determine whether a provision in an appropriations measure oper-
ates as permanent law, we follow these “basic governing principles”:
While appropriation acts are “Acts of Congress” which can substan-
tively change existing law, there is a very strong presumption that
they do not, and that when they do, the change is only intended for
one fiscal year. In fact, a federal appropriations act applies only for
the fiscal year in which it is passed, unless it expressly provides oth-
erwise. Accordingly, a provision contained in an appropriations bill
operates only in the applicable fiscal year, unless its language clearly
indicates that it is intended to be permanent.
Severability and Duration of Appropriations Rider Concerning Frozen
Poultry Regulations, 20 Op. O.L.C. 232, 240 (1996) (quoting Bldg. &
Constr. Trades Dep’t, AFL-CIO v. Martin, 961 F.2d 269, 273–74 (D.C.
Cir. 1992)). The “whole question” of permanence “depends on the inten-
tion of Congress as expressed in the statutes.” Id. at 239 (internal quota-
tion marks omitted). On balance, we believe that the text of section 412
shows that the provision remains in effect.
The text of section 412 accords with the conclusion that it is permanent
legislation. As we have explained, Congress’s intent to enact permanent
legislation is “principally established though ‘words of futurity or perma-
nence,’ such as the phrase ‘to apply in all years hereafter.’” Id. at 240; see

Act trumps any pre-existing laws not specifically excluded by [section] 113 when it was
re-enacted in 2002, but that the Congress . . . is free to change the Property Act’s cover-
age in the future by any act enacted after March 31, 2002.” Shawnee Tribe, 423 F.3d at
1216.

273
 34 Op. O.L.C. 263 (2010)

also, e.g., Whatley v. Dist. of Columbia, 447 F.3d 814, 819 (D.C. Cir.
2006) (noting that phrase “[n]one of the funds appropriated under this
Act, or in appropriations Acts for subsequent fiscal years” “clearly indi-
cate[d] that it is intended to be permanent”). Section 412 provides that
“all net proceeds realized under this section shall only be expended as
authorized in annual appropriations Acts.” 13 The reference to spending net
proceeds pursuant to future spending legislation shows that, at a mini-
mum, the authority to retain the net proceeds from property sales made
under section 412 is permanent. If GSA’s authority to retain the net pro-
ceeds of its dispositions under section 412 in the Federal Buildings Fund
had been effective only for FY 2005, any such proceeds would presuma-
bly have been transferred from GSA’s Federal Buildings Fund to the
Treasury at the end of that fiscal year. Yet if GSA no longer retained any
such net proceeds, it would have made little sense for Congress to have
permitted GSA’s “expend[itures]” of that money only “as authorized in
annual appropriations Acts.” Thus, the reference to future “annual appro-
priations Acts” presumes that GSA is able to retain the net proceeds
collected under section 412 beyond FY 2005. 14
It might be argued that while the authority to retain proceeds in the
Federal Buildings Fund is permanent for proceeds of conveyances made
in FY 2005, the authority to make those conveyances is limited to FY

13 “[T]he words ‘notwithstanding any other provision of law’ are not words of futurity
and, standing alone, offer no indication as to the duration of the provision.” 1 Government
Accountability Office, Principles of Federal Appropriations Law 2-36 (3d ed. 2004).
14 The term “annual appropriations Acts” appears in a proviso, Consolidated Appropri-

ations Act, div. D, § 412, 118 Stat. at 3259 (“Provided, That all net proceeds realized
under this section shall only be expended as authorized in annual appropriations Acts”),
and we recognize that words of futurity that “appear[] only in an exception clause” may
apply only to that clause and not to the entire statute. See Principles of Federal Appropri-
ations Law at 2-35. If the words of futurity were read as limited only to the proviso, the
restriction on GSA’s spending of net proceeds from conveyances in FY 2005 would be
permanent, while the authorities contained in section 412’s operative clause—both the
authority to convey property and the authority to retain the net proceeds in the Federal
Building Fund—would have expired at the end of FY 2005. We do not believe that
section 412’s words of futurity should be understood in this manner. Because the refer-
ence to future spending legislation presupposes the permanence of GSA’s authority to
retain the proceeds of its conveyances, section 412’s words of futurity are applicable not
only to the proviso in which those words are contained, but also to the statute’s operative
clause.

274
 Disposition of Proceeds from the Sale of Government Buildings

2005. There is no indication that Congress intended to divide section
412’s operative provision—both the agency’s authority to convey proper-
ty and its authority to retain the net proceeds in the Federal Buildings
Fund—into temporary and permanent parts. To the contrary, the closely
connected nature of section 412’s authorities to convey property and
retain proceeds strongly indicates that both of these authorities were
intended to be permanent. Unlike the Property Act, where GSA’s disposal
function (contained in subchapter III of chapter 5 of title 40 of the United
States Code) is separate from its authority to retain proceeds (contained in
subchapter IV), section 412 ties those two authorities in the same opening
clause: “[GSA] may convey [property by various means] . . . and retain
the proceeds of such dispositions in an account within the Federal Build-
ings Fund.” 118 Stat. at 3259 (emphasis added). Accordingly, that GSA’s
authority to retain proceeds is permanent strongly suggests that the au-
thority to convey property is likewise permanent.
Finally, we note that, although the views of the Comptroller General
are not legally binding on the Executive Branch, see Submission of Avia-
tion Insurance Program Claims to Binding Arbitration, 20 Op. O.L.C.
341, 343 n.3 (1996), the Government Accountability Office has also
concluded that section 412 is permanent legislation. See Government
Accountability Office, GAO-07-349, Federal Real Property: Progress
Made Toward Addressing Problems, but Underlying Obstacles Continue
to Hamper Reform at 19 n.24 (2007).

III.

For these reasons, we conclude that GSA has the authority to invoke
the discretion afforded by section 412 in order to convey SSA property
acquired with money derived from the Social Security Trust Funds and to
retain any net proceeds in the Federal Buildings Fund.

DANIEL L. KOFFSKY
Deputy Assistant Attorney General
Office of Legal Counsel

275