January 15, 1979


79-2      MEMORANDUM OPINION FOR THE
          COMMISSIONER, IMMIGRATION AND
          NATURALIZATION SERVICE

          Immigration and Naturalization Service—Special
          Litigation Unit—Alleged Nazi War Criminals—
          Funds Available for the Operation of the Unit—
          Appropriation Act—Authorization Act


    This responds to your request for the opinion of the Office of Legal
Counsel concerning the availability of funds for the Immigration and Na­
turalization Service’s (INS) Special Litigation Unit. This unit handles
cases involving alleged Nazi war criminals. The Department of Justice
 Authorization Act, Pub. L. No. 95-624 § 2(9), 92 Stat. 3459, 3460,
 authorizes funding for INS of “ $320,722,000, of which $2,052,000 shall
be made available for the investigation and prosecution of denaturaliza­
 tion and deportation cases involving alleged Nazi war criminals.” The
earlier Department of Justice Appropriation Act of 1979, Pub. L. No.
95-431, 92 Stat. 1021, appropriates $299,350,000 for “ salaries and ex­
 penses” of INS and does not specify any portion thereof for the Special
 Litigation Unit. As you point out, Congress passed the Authorization Act
after the Appropriation Act with knowledge of the $21 million difference.
    Your request raises three issues: first, whether the absence of a specific
item for the Special Litigation Unit in the Appropriation Act and INS
budget estimate restricts the availability of funds for the Unit; second,
whether the Authorization Act permits or requires INS to devote
$2,052,000 o f available funds for the Unit; third, if INS is required or per­
mitted to commit appropriated funds to the Unit, the roles, if any, of the
Office of Management and Budget and the Department’s Office of
Management and Finance in the process. We conclude that INS is required
to make $2,052,000 of the total funds already appropriated for INS avail­
able to the Unit. We have requested the views of the Assistant Attorney
General for Administration before responding to the third question, since
it involves a technical problem within the competence of his office.
    The Appropriation Act authorizes a general, lump sum appropriation
for INS with no restrictions or subdivisions. A long-standing rule of the
Comptroller General is that an agency may use appropriated funds for the
accomplishment of its mission unless another specific fund is created or
the particular expenditure is prohibited. See, e.g., 42 Comp. Gen. 708, 712
(1963); 29 Comp. Gen. 419, 421 (1950). The enforcement of the denaturali­
zation and deportation laws against alleged Nazi war criminals is clearly

                                      9
within the scope of INS’s mission, and the Appropriation Act places no
restriction on using funds for this purpose.' In the absence of other legisla­
tion, INS may therefore use appropriated funds to support its Special
 Litigation Unit.
   The second question concerns the effect the subsequently passed
Authorization Act has on INS’s funding of the Unit. Section 2(9) of the
Act expressly earmarks $2,052,000 of the authorized $320,722,000 for the
Special Litigation Unit. The legislative history of the Act shows that Con­
gress intended to require INS to allocate that amount out of whatever
funds were appropriated. Before the House Judiciary Committee, you
testified that INS intended to reprogram $1.6 million from its other ac­
tivities to support a Special Litigation Unit of a given size.2 The com­
mittee’s report expressed dissatisfaction with the reprogramming method
because it would necessitate the Unit “ to compete for already scarce
resources with other programs within INS.” 3 Therefore, the report con­
tinued, the Authorization Act would earmark $2,052,000 for the Special
Litigation Unit “ to assure financing and maximum operational efforts”
with a larger staff.4 This report expressed a clear legislative intent to re­
serve $2,052,000 for the functions of the Special Litigation Unit out of
whatever resources were available to INS.
   Although the Authorization Act was passed after the Appropriation Act
and although it authorized $21 million more for INS than originally ap­
propriated, this alone does not indicate a contrary intent. As your
memorandum points out, the conference report on the Authorization Act
noted the difference between the amount authorized and that already ap­
propriated, and it invited the Administration to request a supplemental
appropriation to cover the difference.5 The report attributed the increase
to the need “ to improve INS efforts to control the illegal alien problem, as
well as to reduce the adjudication and naturalization backlogs in the vari­
ous INS offices around the country.” 6 The three areas in which the House
had authorized additional positions than INS had requested or the Senate


    1 We note that the Comptroller General has long held that “ subdivisions o f an appropria­
tion contained in an agency’s budget request or in committee reports are not legally binding
on the department or agency concerned unless they are specified in the appropriation act
itself.” 55 Comp. Gen. 812, 819-20 (1976); see also 55 Comp. Gen. 307, 319-21 (1975); 17
Comp. Gen. 147, 150 (1937). Therefore, the lack of a specific item for the Special Litigation
Unit in INS’s budget request or the Appropriations Committee reports does not prevent it
from expending funds for the Unit.
   2 INS intended to staff the unit with eight attorneys, three investigators, three paralegals,
and three secretaries. Hearings Before the Committee on the Judiciary of the House of
Representatives on Department o f Justice Appropriation Authorizations, 95th Cong., 2d
sess., at 71-72, 372.
   ’ H. Rept. 95-1148, 95th Cong., 2d sess., at 13.
   4 H. Rept. 95-1148, 95th Cong., 2d sess., at 13. The report states that the increase will per­
mit the Unit to have 10 attorneys, 8 investigators, 4 paralegals, and the necessary number of
clericals. Id.
   ' H. Rept. 95-1777, 95th Cong., 2d sess., at 12.
   ‘ H. Rept. 95-1777, 95th Cong., 2d sess., at 12.

                                               10
had authorized are antismuggling investigators, adjudication personnel,
and naturalization processing personnel.7 Unlike the Special Litigation
Unit, funds for these positions were not earmarked specifically in the
Authorization Act, and the House report points to the provision of addi­
tional resources in these areas rather than allocation of existing funds.
Therefore the “ additional positions” for which the conference report
stated a supplemental appropriation would be necessary are not related to
the Special Litigation Unit.
   In summary, funds appropriated to INS in the Department o f Justice
Appropriation Act are available for the Special Litigation Unit. The intent
of Congress in subsequently enacting § 2(9) of the Department of Justice
Appropriation Authorization Act was to commit the use of $2,052,000 of
the appropriated funds to that purpose.

                                             L e o n U lm a n
                                Deputy Assistant Attorney General
                                                    Office o f Legal Counsel




 ’ See H. Rept. 95-1148, 95th Cong., 2d sess., at 7-12.

                                           11