Fiscal Implications of Court and Administrative Orders, Settlement Agreements, and Civil Consent Decrees
By Lieutenant Colonel (Retired) Michael J. Davidson, SJD
Article published on:January 1, 2024 in the Army Lawyer issue 2 2024 Edition
Read Time: < 29 mins
(Credit: Vitalii Vodolazskyi-stock.adobe.com)
Constitutionally, Congress possesses the power of the purse.1 Congress provides budget authority to agencies to incur obligations and
make expenditures through appropriations acts,2 which the President signs into law.3 These acts dictate the permissible purpose,
period of availability, and amount of appropriations available to agencies to obligate and expend.4 Although not directly involved in
the appropriations process, the judiciary and various administrative bodies exercise authority that directly
impacts purpose, time, and amount restrictions on appropriations. Further, various fiscal constraints limit the
executive branch’s ability to settle litigation before these same bodies. This article will review some of
the fiscal implications of court and administrative orders as well as restrictions on entering into settlement
agreements and consent decrees.
Time
As a general rule, a court order or administrative award serves as a new obligational event for the purpose of
determining the fiscal year from which to pay the judgment or award.5 The legal rationale for this rule is that
“the court or administrative award ‘creates a new right’ in the successful claimant, giving
rise to new Government liability.”6 Accordingly, an agency must use appropriations available for the fiscal
year in which a claim becomes a legal liability, including when a settlement agreement establishes that
liability.7
This rule applies when an agency must reimburse the Judgment Fund. Codified at 31 U.S.C. § 1304,8 the Judgment Fund is a permanent,
indefinite appropriation available to pay most monetary court judgments against the United States, including
compromise settlements.9 Agencies
must reimburse the Judgment Fund for payments they make that are subject to the Contract Disputes Act (CDA)10 and for discrimination-related
payments in accordance with the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002
(No FEAR Act).11 The CDA requires
the agency to reimburse the Fund “out of available funds or by obtaining additional appropriations for
such purposes.”12 The timing
of the judgment determines availability.13 The No FEAR Act requires reimbursement “out of any appropriation,
fund, or other account . . . available for operating expenses of the Federal agency to which the discriminatory
conduct involved is attributable.”14 Based on the general rule, availability should be determined as of the
time of judgment for No FEAR Act litigation.
Agencies must reimburse the Judgment Fund promptly, typically within forty-five days of receiving notice that the
Judgment Fund has made a payment on the agency’s behalf.15 Alternatively, the agency may establish a reimbursement or payment plan
with the Fiscal Service.16 Even
when an agency defers reimbursement to the Judgment Fund, the appropriate source of reimbursement continues to
be funds available at the time of judgment rather than when the agency actually reimburses the Judgment
Fund.17
In an unpublished 1987 memorandum opinion, the Government Accountability Office (GAO) determined that any agency
enjoys discretion regarding when it reimburses the Judgment Fund.18 Reasoning that Congress did not require an
“agency to disrupt ongoing programs or activities in order to find the money,” the GAO posited that
an agency would not violate the CDA if it did not reimburse the fund in the same fiscal year in which the award
was paid, or even if reimbursement were delayed into the subsequent fiscal year.19 As part of its analysis, the GAO did not disturb
its earlier holding in Bureau of Land Management–Reimbursement of Contract Disputes Act Payments
“that CDA reimbursements are chargeable to appropriations current as of the date of award,”20 merely noting that the holding
did not preclude deferred reimbursement.21
Although court orders and most administrative awards serve as obligational events for determining the
availability of funds, some administrative awards are chargeable to an earlier appropriation.22 For example, the GAO has opined
that administrative back pay awards and related interest “should be charged to, and paid from, the agency
appropriation covering the fiscal year or years to which the award relates.”23 The GAO has determined that, as a general
matter, administrative payment of claims for compensation and associated allowances are charged to the fiscal
year in which the employee performed the work.24
A board of contract appeals decision serves as an obligational event, but a contracting officer’s purely
administrative resolution of a contract claim does not. Contracting officer resolutions of in-scope contracting
disputes that are enforceable under the original contract are chargeable to the fiscal year in which the agency
entered into the contract because the agency’s liability arises when it enters into the contract.25 The agency pays claims for
out-of-scope modifications or work not involving an enforceable antecedent liability from funds available in the
fiscal year in which the contracting officer grants relief.26
Purpose
Court orders may clarify the permissible purposes for which an agency may obligate funds, particularly when
determining the appropriate source of funds to remedy violations of the law. Bureau of Engraving and
Printing (BEP)—Currency Reader Program recounts how a Federal court determined that BEP, which
designs and produces Federal Reserve notes, violated Section 504 of the Rehabilitation Act of 197327 “by failing to provide
meaningful access to [U.S.] currency for blind and visually impaired persons.”28 The court ordered the Department of the Treasury
to “take such steps as may be required to provide meaningful access to [U.S.] currency for blind and
visually impaired persons.”29 Seeking to comply with the court’s order, BEP requested an advance
decision from the GAO as to whether BEP appropriations were available to give away currency readers to the blind
and visually impaired.30 The GAO
posited that the distribution of the readers was “in furtherance of BEP’s statutory mission as
clarified by the court.”31 Notwithstanding the “personal nature” of the readers, the
GAO determined that they constituted a reasonable expense in support of BEP’s now-clarified statutory
mission.32
In addition, the GAO has indicated that the appropriation responsible for a violation of the law is an
appropriate source of funding for subsequent remedial efforts. In United States v. Garney White –
Funding of Judgment, the Farmers Home Association (FmHA) issued a rural housing loan to Mrs. and Mr.
White to purchase a home under construction.33 The house was defectively built, so the Whites refused to make payment,
resulting in the United States purchasing the home at a foreclosure sale and seeking to evict the Whites.34 Eventually, the court set aside
the sale and ordered the FmHA to repair the house.35 The GAO determined that the “funds appropriated to meet
administrative expenses of the program may be used to comply with the court order because the necessity for
expending these funds arose as a result of the Secretary’s conduct of the rural home loan
program.”36
Unless otherwise authorized by statute, the general principle that the appropriation responsible for a violation
of the law is an appropriate source of funding for any subsequent remedial effort may be limited to funding
injunctive relief.37 The GAO has
repeatedly articulated a “long-standing rule” that, generally, “an agency’s operating
appropriations are not available to pay judgments unless provided by statute.”38
Amount
Avoiding Antideficiency Act Violations
The Antideficiency Act (ADA) prohibits “an officer or employee of the [U.S.] Government” from making
or authorizing an obligation exceeding, or in advance of, an appropriation “unless authorized by
law.”39 However, the GAO has
appeared to adopt a blanket rule that when exceeding an appropriation is the result of a judicial award, no ADA
violation occurs.40 Further, in
Bureau of Land Management—Reimbursement of Contract Disputes Act Payments, the GAO extended this
rule to a “quasi-judicial judgment or award,” such as judgments issued by agency boards of contract
appeals.41 The rationale for this
exception to the ADA is that the agency lacks options to avoid the over-obligations and the actions of a court
are beyond the agency’s control.42
A Lapse in Appropriations
In addition, court orders may provide an exception to ADA violations by unfunded agencies during a lapse in
appropriations, such as when a court denies the Government’s motion to stay and orders the case to
continue. Generally, during a lapse, an agency may not incur obligations, including the salaries of its
employees.43 In the event of a
lapse, the Department of Justice’s (DOJ) contingency plan envisions that all civil litigation “will
be curtailed or postponed to the extent that this can be done without compromising to a significant degree the
safety of human life or the protection of property.”44 Attorneys at the DOJ are instructed to request that the courts postpone
most active cases until the DOJ receives an appropriation.45 However, “[i]f a court denies such a request and orders a case to
continue, the Government will comply with the court’s order, which would constitute express legal
authorization for the activity to continue.”46
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It is unclear why the judiciary enjoys such unbridled authority to require the executive branch agencies to incur
obligations during a lapse in appropriations in the absence of a clear and narrowly tailored exception to the
ADA. If an agency lacks budget authority during a lapse, the ADA prohibits an agency from incurring obligations
unless one of several narrow exceptions apply.47 This obligational prohibition has constitutional implications.48 Further, whenever an executive
branch agency incurs civil-litigation-related obligations pursuant to a court order, such obligations become
legal liabilities of the Government that “Congress must cover by enacting appropriations.”49
At least one appellate judge has raised concerns about the courts’ rationale for authorizing Government
attorneys to continue to litigate civil cases during a lapse in appropriations.50 In Kornitzky Group v. Elwell,
the Federal Aviation Administration unsuccessfully moved to stay oral arguments because of a lapse in
appropriations.51 Denying the
motion as being consistent with how the court handled motions to stay during similar lapses, a panel of the U.S.
Court of Appeals for the District of Columbia Circuit reviewed the ADA’s prohibition on voluntary services
contained in 31 U.S.C. § 1342, the DOJ’s lapse contingency plan, and then pointed to the DOJ’s
practice of acquiescing to the court during an earlier lapse.52 Two concurring panel judges noted that “when [Federal]
appropriations lapsed in 2013, resulting in a ‘shutdown’ from [1 to 17 October] 2013, the court
received Government motions to stay oral argument in at least sixteen cases. Every one of these motions was
denied; and every time, the Government then participated in oral argument.”53
Grounding his opinion in the Appropriations Clause and § 1342 of the ADA, the dissenting judge questioned
the court’s rationale for denying the motion.54 First, the dissent noted that the ADA “emergency” exception
was inapplicable because oral argument in a case during a lapse in appropriations did not implicate an imminent
threat to human life or property.55 Judge Randolph noted further that the ADA’s constitutionality was
“beyond doubt,” and the court, therefore, is not “free to disregard the restrictions of §
1342.”56 Denying the
“authorized by law” exception that the majority applied in this case, the dissent opined that the
court could not circumvent the ADA’s statutory restrictions simply by authorizing Federal employees to
appear in court, and it characterized the majority’s use of such a rationale as “blatant
bootstrapping.”57 The
dissent reasoned that § 1342’s “authorized by law” language does “not confer a
license on the [judiciary]” but rather “requires legal authority for the obligation of public funds,
either from appropriations or other relevant statutes, or—in the case of [executive] authority—from
the Constitution itself.”58
During past lapses, the DOJ’s motions for stays in litigation have been met with uneven responses; some
judges grant them, some do not.59
Some courts analyze lapse-related motions to stay like routine motions,60 while in others, there appears to be no uniform
standard.61
Despite the lack of uniformity in how courts address agencies incurring obligations during a lapse in
appropriations, Office of Legal Counsel (OLC) opinions provide reasoning that may serve as a standard for
permissible court-authorized activity in civil cases during these lapses. Authored by Attorney General Benjamin
R. Civiletti, Authority for the Continuance of Government Functions During a Temporary Lapse in
Appropriations, serves as the cornerstone of executive branch lapse law.62 This opinion reasoned that the “authorized
by law” exception to the ADA included not only the use of multi- or no-year funding, statutes specifically
permitting the obligation of funds in the absence of an appropriation, and obligations necessarily incident to
the exercise of the President’s constitutional authorities, but also activities that were
“authorized by necessary implication from the specific terms of duties that have been imposed on, or of
authorities that have been invested in, an agency.”63 In August 1995, the OLC authored Government Operations in The Event
of a Lapse in Appropriations,64 which discussed various exceptions to the ADA’s prohibition on
incurring obligations during a lapse in appropriations. The discussion covered the necessarily implied exception
to the ADA, noting that the act “contemplates that a limited number of [Government] functions funded
through annual appropriations must otherwise continue despite a lapse in their appropriations because the lawful
continuation of other activities necessarily implies that these functions will continue as well.”65
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In December 1995, the OLC issued Effect of Appropriations for Other Agencies and Branches on the Authority to
Continue Department of Justice Functions During the Lapse in the Department’s Appropriations.66 Again citing its 1981
Civiletti opinion, the OLC posited that certain agency functions and activities could continue during a lapse
“when authorization for their continuation was a valid inference from other funding decisions of the
Congress,” such as “functions that are ‘authorized by necessary implication from the specific
terms of duties that have been imposed on, or authorities that have been invested in’ an
agency.”67 These functions
include “unfunded functions that enable other funded functions to be executed.”68
The opinion continued to articulate what may be an appropriate standard for an unfunded agency’s
participation in civil court proceedings of a funded judiciary or in the administrative proceedings of a funded
agency. The OLC stated:
To the extent that any of the department’s functions are necessary to the effective
execution of functions by an agency that has current fiscal year appropriations, such that a suspension of the
department’s functions during the period of anticipated funding lapse would prevent or significantly
damage the execution of those funded functions, the department’s functions and activities may
continue.69
However, the same necessarily implied justification would not apply to orders issued by an unfunded judiciary or
administrative entity.70 In
Continuation of Federal Prisoner Detention Efforts During United States Marshals Service Appropriation
Deficiency, the U.S. Marshal Service (USMS) sought guidance on how it could continue to perform its
mission in the event of a funding deficiency, that is, “after having expended all appropriated
funds.”71 Cognizant of its
“relevant” lapse appropriations opinions and the statutory mission of the USMS, which included a
mandate “to obey, execute, and enforce all orders of the [U.S. district courts], the [U.S. courts of
appeals], and the Court of International Trade,” the OLC nevertheless opined that it was doubtful that the
“authorized by law” exception to the ADA would permit the USMS to continue operating during a
deficiency in appropriations.72
The OLC opined that, “[i]n our view, the ‘authorized by law’ exception must refer to
congressional, as opposed to judicial, authorization to expend funds. The [ADA] was intended to reaffirm
congressional control of the purse.”73 In other words, the necessarily implied exception assumes that Congress
intended that an unfunded agency be able to incur obligations critical to the continued functioning of a funded
agency. If Congress has failed to fund both agencies, no such implication can be found.
When the judiciary itself was unfunded, the Administrative Office of the U.S. Courts (AOUSC) previously indicated
that once its fee balances were depleted, the judiciary would comply with the ADA.74 This would mean limiting itself to
“essential work,” including exercising its Article III constitutional powers; the scope of these
powers extends to “activities to support the exercise of the courts’ [Article III constitutional
powers], specifically the resolution of cases and related services.”75 Each court possesses the discretion to determine
which functions are essential.76
In view of the ADA’s prohibitions, AOUSC’s 2013 guidance provided that “‘essential
work’ in this context is interpreted very narrowly,” and the only permissible judicial activities
were the following:
- activities necessary to support the exercise of Article III judicial power, i.e., the
resolution of cases in which there is a constitutional or statutory grant of jurisdiction;
- emergency activities necessary for the safety of human life and the protection of
property; and
- activities otherwise authorized by law, either expressly or by necessary
implication.”77
The guidance noted that with few exceptions, “no distinctions or priorities should be drawn between
criminal and civil cases,” but that judges should be “sympathetic” to executive branch
requests for continuances.78
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The GAO does not appear to have weighed in on whether the judiciary possesses the blanket authority to order
agencies to incur obligations during a lapse, nor has it articulated a standard by which the judiciary may order
unfunded agencies to do so. However, it has taken a narrow view of lapse-related exceptions to the ADA
generally, and it has acknowledged, without endorsing, a singular application of the necessarily implied
exception to the ADA.79 In
U.S. Department of the Treasury—Tax Return Activities during the Fiscal Year 2019 Lapse in
Appropriations,80
the GAO pointed out that the Civiletti opinion applied the “authorized by law” exception
“to only one situation: the administration of Social Security payments.”81 The GAO accepted the attorney general’s
application of the exception, which “has become entrenched in practice for almost [forty] years,”
with congressional awareness, and it opined that “[t]o revisit that position now would be
tumultuous.”82 However, the
GAO has consistently declined to extend the Civiletti opinion’s rationale to other factual situations and
has elected not to follow the August 1995 OLC opinion that relies on it.83
Other Fiscal Limitations
The Appropriations Clause and Sovereign Immunity
A court’s authority to order an agency to incur obligations and make expenditures is not without
limitation, including the Appropriations Clause.84 As the GAO has noted: “The Appropriations Clause of the [U.S.]
Constitution . . . applies with equal force to payments directed by a court.”85 To illustrate, in Source of Funds for
Payment of Awards under 26 U.S.C. § 7430, the GAO determined that neither the Judgment Fund nor
IRS appropriations were available to satisfy litigation awards by the U.S. Tax Court because Congress had failed
to appropriate any funds for that purpose.86
Additionally, the doctrine of sovereign immunity is rooted in the Appropriations Clause87 and broadly “bars any action against the
United States if ‘the judgment sought would expend itself on the public treasury or domain, or interfere
with the public administration, of if the effect of the judgment would be to restrain the Government from
acting, or to compel it to act.’”88 The constraints of “sovereign immunity principles ‘apply
with equal force to agency adjudications’” and may be waived only by Congress.89
The doctrine of sovereign immunity applies to the orders of courts and administrative bodies.90 To illustrate, in Foreman v. Dep’t of
the Army, the U.S. Court of Appeals for the Federal Circuit held that the doctrine of sovereign
immunity precluded the Merit System Protection Board from awarding money damages against the Army for its
alleged breach of a settlement agreement.91 Similarly, in Equal Employment Opportunity Commission Authority to
Order a Federal Agency to Pay for Breach of a Settlement Agreement, the OLC posited that the doctrine
of sovereign immunity precluded the Equal Employment Opportunity Commission from ordering an agency to pay a
monetary award for breach of a settlement agreement governing its future conduct.92
Settlement Agreements and Civil Consent Decrees
The executive branch enjoys wide latitude when settling a case or administrative complaint, and the decision to
compromise often reflects judgment calls concerning litigation risk and what is in the best interests of the
United States or the agency.93
Flowing from the statutory authority to supervise litigation, the attorney general’s settlement authority
is broad.94 Although the attorney
general’s discretion is broader than the agencies that the DOJ represents in litigation, the terms of any
DOJ settlement must be traceable “to a discernable source of statutory authority,” which may include
“the governing statutes of the agency involved in the litigation.”95 Generally, an agency may agree to terms that a
court or administrative body could independently order the agency to comply with, absent the settlement
agreement.96 In addition, the Supreme
Court has opined that a consent decree97 may provide relief beyond that which a court could have awarded absent
the agreement of the parties, so long as the resolved dispute falls within the court’s subject matter
jurisdiction, the agreement is within the scope of the complaint as evidenced by the pleadings, the agreement
furthers the purposes of the underlying law, and the terms of the consent decree do not otherwise violate the
law.98
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However, there are several constitutional and statutory constraints on the executive branch’s ability to
settle a matter in litigation, including fiscal constraints. When agreeing to the terms of a settlement
agreement or a consent decree, members of the executive branch may not disregard legal constraints on
permissible relief.99 Further, the
executive branch may not agree to a legally infirm consent decree merely because the court acquiesces to the
terms of the agreement. In this vein, the OLC has posited that neither the executive nor judicial branches may
waive “without statutory authorization . . . the conditions upon which Congress consents to suits against
the Government,” including any applicable statute of limitations.100 Further, DOJ and agency settlement agreements
are subject to other fiscal constraints, such as the Purpose Statute, 31 U.S.C. § 1301(a).101
The GAO has issued opinions highlighting fiscal constraints on settlement agreements. For example, in John W.
Rensbarger, the GAO determined that an agency Title VII-related settlement agreement, which included a
provision for the nonreimbursable detail of a Government Printing Office employee to the Library of Congress,
violated both the Purpose Statute and the ADA.102 The GAO’s analysis included a reminder that an agency may
“only provide benefits in a settlement agreement which it otherwise has the authority to
provide.”103
Miscellaneous Receipts Statute and “Donations”
The Miscellaneous Receipts Statute (MRS)104 provides that “an official or agent of the Government receiving
money for the Government from any source shall deposit the money in the Treasury as soon as practicable without
deduction for any charge or claim.”105 In Commodity Futures Trading Commission – Donations under
Settlement Agreements, the GAO found the Commission’s proposed policy permitting a charged party
to donate funds directly to a nonvictim educational institution as part of a settlement agreement
problematic.106 Concerning the
MRS, the GAO noted that the donation resulted from the commission’s enforcement activities and was made in
lieu of other sanctions or penalties, and the GAO admonished that the commission “may not circumvent the
receipt of a penalty to accomplish a separate objective.”107
Similarly, in Nuclear Regulatory Commission’s Authority to Mitigate Civil Penalties, the GAO
evaluated a proposal to allow licensees who had violated Nuclear Regulatory Commission regulations to pay
nonvictim universities or nonprofit institutions to engage in various nuclear-related safety research projects
in lieu of a penalty, and it found that the proposal violated the MRS.108 Subsequently, in The Honorable John D.
Dingell, the GAO emphasized the importance of the MRS in the settlement context when it reiterated the
following:
[A]llowing alleged violators to make payments to an institution other than the [Federal
Government] for purposes of engaging in supplemental projects, in lieu of penalties paid to the Treasury,
circumvents 31 U.S.C. § 3302, which requires monies received for the Government by Government officers to
be deposited into the Treasury.109
Accordingly, the GAO considers it an MRS violation when, in the settlement context, an agency, after assessing
some form of fine or penalty, permits the violator to direct the payment to some third party other than the
Government without statutory authority.110
The OLC has discussed the MRS in the settlement context as well. In Effect of 31 U.S.C. § 484 on the
Settlement Authority of the Attorney General, the OLC determined that a settlement permitting a company
that had caused an oil spill to donate to a waterfowl preservation organization in lieu of paying a penalty
would violate an earlier version of the MRS.111 Rejecting the proposed settlement, the OLC noted, “[T]he fact
that no cash actually touches the palm of a Federal official is irrelevant for purposes of § 484, if a
Federal agency could have accepted possession and retains discretion to direct the use of the money.”112 “[M]oney available to
the United States and directed to another is constructively ‘received’ for purposes of [the
MRS].”113 However, because
the Commonwealth of Virginia—the co-plaintiff in the case—had an independent claim to damages, and
because the United States had not incurred any expense or loss associated with the oil spill, the OLC had no
objection to a settlement agreement in which Virginia was solely entitled to damages and could direct the
donation to a waterfowl preservation organization.114
Subsequently, in Application of the Government Corporation Control Act and the Miscellaneous Receipts Act to
the Canadian Softwood Lumber Company Settlement Agreement,115 the OLC again acknowledged that the MRS
constrains the terms of settlement agreements but determined that the Government could avoid
“constructively” receiving money for MRS purposes if two criteria were met:
(1) the settlement be executed before an admission or finding of liability in favor of the
United States; and (2) the United States not retain post-settlement control over the disposition or management
of the funds or any projects carried out under the settlement, except for ensuring that the parties comply with
the settlement.116
The OLC briefly addressed and distinguished earlier GAO opinions by pointing out that, in the instant case, the
United States had the authority to mitigate civil penalties, and under these specific facts, the OLC did not
believe the settlement violated the MRS.117
In 2016, Members of Congress concerned about the DOJ’s settlement practices proposed legislation in the
House and Senate entitled the “Stop Settlement Slush Funds Act of 2016.”118 Although not enacted, the legislation would
have prohibited any officer or agent of the United States from entering into or enforcing a settlement agreement
that required a donation to any person by any party to the agreement other than the United States.119 An accompanying House report
noted that the DOJ was responsible for third-party groups receiving approximately $880 million in the prior two
years through the donation settlements, which was accomplished “entirely outside of the congressional
appropriations and grant oversight process.”120 Regardless of the worthiness of the charitable institutions receiving
donation settlements, once actual victims were compensated, the law requires that Congress—not the
DOJ— determine how to use any other funds obtained from defendants.121 In addition, the report accused the DOJ of
using its broad settlement authority to circumvent the MRS.122 Also, criticism of the DOJ’s settlement practices appeared in
the press.123
The following year, the attorney general issued a memorandum prohibiting the DOJ from continuing the practice of
entering into settlement agreements that included, as a condition of settlement, payments to non-governmental,
third-party organizations that were neither victims nor parties to the lawsuit.124 The memorandum contained three exceptions to
the prohibition: (1) victim restitution or payments directly remedying redressable harm, (2) “payments for
legal or other professional services rendered in connection with the case,” and (3) payments otherwise
expressly authorized by statute, “including restitution and forfeiture.”125
However, in 2022, the attorney general rescinded the 2017 memorandum articulating the DOJ’s present
settlement position. In Guidelines And Limitations for Settlement Agreements Involving Payments to
Non-Government Third Parties, the attorney general determined that the earlier memorandum was overly
restrictive and noted that settlement agreements could be structured such that payments to non-governmental
third parties would not violate the MRS.126 In addition to the conditions articulated in the Canadian Softwood
Lumber Settlement Agreement opinion, the following conditions apply: settlement agreements providing
relief to nonparties must define with specificity defendant-funded projects that must also have a strong
connection to the underlying law being enforced, the DOJ and client agencies may not recommend any particular
third party to receive project-related payments, and the settlement agreement may not augment executive branch
appropriations, meet a statutory obligation of those agencies, or be too general in application.127
Conclusion
The fiscal principles of time, purpose, and amount are all implicated by court and administrative orders and
litigation settlements in those fora. Much of the law in this area is well-settled, but issues still linger and
merit further discussion.
As discussed above, during a lapse in appropriations, the executive branch acquiesces to court orders to incur
litigation-related obligations. However, the courts have neither articulated a uniform standard nor exhibited a
common practice when deciding whether to grant or deny a lapse-related motion to stay civil litigation.128 Under existing OLC opinions,
an unfunded executive branch agency should be able to incur obligations in support of a funded judiciary under a
necessarily implied-by-law rationale when the failure to do so would “prevent or significantly damage the
execution of those funded functions.”129 When the judiciary is unfunded, the executive branch should be able to
incur those obligations necessary to the courts’ exercise of their core constitutional authority.130 Given the obvious tension
between incurring such obligations during a lapse in appropriations and Congress’s constitutional power of
the purse, any such exception to the prohibition on incurring an obligation during a lapse in appropriations
should be exercised narrowly.
Notes
1. See U.S. Const. art. 1, § 9, cl. 7.
2. See, e.g., Consolidated Appropriations Act,
2023, Pub. L. No. 117-328, 136 Stat. 4459.
3. See U.S. Const. art. 1, § 7, cl. 2; Erica
L. Green, Biden Signs Stopgap Spending Bill, Averting Partial Shutdown, N.Y. Times (Jan. 19, 2024),
https://www.nytimes.com/2024/01/19/us/politics/biden-spending-bill.html.
4. See, e.g., Consolidated Appropriations Act,
2023, div. C, 136 Stat. at 4566 (providing $49,628,305,000 for military personnel and Army expenses in
fiscal year 2023).
5. See Bureau of Land Mgmt.–Reimbursement
of Cont. Disputes Act Payments, 63 Comp. Gen. 308, 310 (1984) [hereinafter BLM].
6. Id.
7. See Nat’l Endowment of the Arts –
Dep’t of Just. – Appropriations Availability – Payment of Settlement, B-255772, 1995 WL
500331, at *1 (Comp. Gen. Aug. 22, 1995) (requiring the use of “appropriations current at the time of
the settlement agreement”); Fiscal Year Chargeable for Compensatory Damages Under Section 102 of the
C.R. Act, B-272984, 1996 WL 576967, at *1 (Comp. Gen. Sept. 26, 1996) (discussing a “compromise
settlement of an employee discrimination claim”).
8. 31 U.S.C. § 1304.
9. 31 C.F.R. § 256.1(a) (2024); U.S. Dep’t of
Def., 7000.14-R, DoD Financial Management Regulation vol. 3, ch. 8, para. 4.1 [hereinafter DoD FMR]
(explaining that “[t]he Judgment Fund is available for court judgments and Justice Department
compromise settlements of actual or imminent litigation against the government”).
10. 41 U.S.C. § 7108(c); 31 C.F.R. §
256.40 (2024); DoD FMR, supra note 9, vol. 3, ch. 8, para. 4.2 (Reimbursement of Contract Dispute
Act Judgments). Congress originally passed the law in 1978. See Contract Disputes Act of 1978, Pub.
L. No. 95-563, 95 Stat. 2383 (codified as amended at 41 U.S.C. §§ 7101–7109).
11. 5 U.S.C. § 2301 note; 31 C.F.R. § 256.40
(2023); DoD FMR, supra note 9, vol. 3, ch. 8, para. 4.3 (Reimbursement of No FEAR Act Judgments).
Congress, somewhat unusually, codified the whole of the No Fear Act of 2002 as a note to 5 U.S.C. §
2301. See Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002, Pub. L.
No. 107-174, 116 Stat. 566.
12. 41 U.S.C. § 7108(c).
13. “The Judgment Fund must be reimbursed with funds
available for the same purpose that was current at the time of judgment provided by 41 U.S.C. §
7108.” DoD FMR, supra note 9, vol. 3, ch. 8, para. 4.2.2.; BLM, supra note 5, at 311
(“[R]eimbursements under [the CDA] should be treated as new obligations.”).
14. Notification and Federal Employee Antidiscrimination
and Retaliation Act of 2002, Pub. L. No. 107-174, 116 Stat. 566, 568–69; see also DoD FMR,
supra note 9, vol. 3, ch. 8, para. 4.3.2 (“using the appropriation, fund, or other account
available for operating expenses of the DoD Component to which the No Fear Act judgment or discriminatory
matter stemmed”).
15. 5 C.F.R. § 724.104(b) (2024); 31 C.F.R. §
256.41 (2024).
16. “If the agency is unable to timely reimburse
Fiscal Service, the agency must contact Fiscal Service to establish a reimbursement plan.” 31 C.F.R.
§ 256.41. Cf. DoD FMR, supra note 9, vol. 3, ch. 8, para. 4.3.3 (noting that a DoD
Component may “establish a payment plan with BFS”).
17. See notes 19–22 infra and
accompanying text.
18. Reimbursements to the Permanent Judgment Appropriation
under Cont. Disp. Act, B-217990.25-O.M. (Comp. Gen. Oct. 30, 1987) [hereinafter Reimbursements], https://www.gao.gov/assets/b-217990.25-o.m.pdf.
19. Id. at 3–4.
20. Id. at 3 (citing BLM, supra note 5,
at 312).
21. Reimbursements, supra note 18, at 3.
22. See, e.g., Veterans
Admin.—Appropriation Chargeable for Back Pay Claims, 69 Comp. Gen. 40 (1989) [hereinafter VA].
23. Id. at 41; see also Payment of
Interest Under the Back Pay Act, B-242277, 1991 WL 211359, at *2 (Comp. Gen. Sept. 12, 1991).
24. VA, supra note 22, at 42; 3 U.S.
Gov’t Accountability off., GAO-08-978SP, Principles of Federal Appropriations Law ch. 14, sec. C(2)(c)
(3d ed. 2008) [hereinafter GAO Red Book]. As of early 2024, the Government Accountability Office (GAO) is
completing a major revision of its Red Book, whereby they publish completed chapters in the new fourth
edition as they become available. See The Red Book, U.S. Gov’t Accountability Off., https://www.gao.gov/legal/appropriations-law/red-book (last visited Mar. 19, 2024).
This means that portions of the fourth and third editions are simultaneously the most recent edition of the
Red Book, depending on the particular chapter. See id.
25. See BLM, supra note 5, at 311
(“[W]e do not disturb this concept as it relates to agency settlements at the contracting officer
level. . . .”); Dep’t of the Army, Fort Carson—Application of Bona Fide Needs Rule to
Cont. Modification, B-332430, 2021 WL 4439454, at *4 (Comp. Gen. Sept. 28, 2021) (“Because this
liability arises under the original contract, it is also known as an ‘antecedent
liability.’”) (citing Recording Obligations Under EPA Cost-Plus Fixed-Fee Cont., 59 Comp. Gen.
518, 522 (1980)).
26. Proper Fiscal Year Appropriation to Charge for Cont.
and Cont. Increase, 65 Comp. Gen. 741, 744 (1986).
27. 29 U.S.C. § 794(a).
28. Bureau of Engraving and Printing (BEP)—Currency
Reader Program, B-324588, 2013 WL 2468740, at *1 (Comp. Gen. June 7, 2013).
29. Id. (quoting Am. Council of the Blind v.
Paulson, 581 F. Supp. 2d 1 (D.D.C. 2008)).
30. Bureau of Engraving and Printing, 2013 WL
2468740 at *3–4 (discussing whether transferring currency readers to the blind and visually impaired
would violate the necessary expense rule). Currency readers “are portable electronic devices capable
of speaking the denomination of a bill out loud.” Id. at *2.
31. Id. at *3 (emphasis added).
32. Id. at *4.
33. United States v. Garney White—Funding of
Judgment, B-193323, 1980 WL 17186, at *1 (Comp. Gen. Jan. 31, 1980).
34. Id.
35. Id. at *2.
36. Id. at *4.
37. See Source of Funds for Payment of Awards
under 26 U.S.C. 7430, 63 Comp. Gen. 470, 472 (1984).
38. Id. (emphasis added); see also VA,
supra note 22, at 42 (“Appropriations provided for regular governmental operations or
activities, even though these operations or activities give rise to a cause of action, are not available to
pay court judgments in the absence of specific authority.”).
39. Antideficiency Act, 31 U.S.C. § 1341(a)(1)
(enumerating the exceptions to the Antideficiency Act (ADA)).
40. Availability of Funds for Payment of Intervenor
Att’y Fees—Nuclear Regul. Comm’n, 62 Comp. Gen. 692, 700 (1983). (“A
judicial award would not be viewed as violating . . . the [ADA].”); Major Paul D. Hancq,
Violations of the Antideficiency Act: Is The Army Too Quick to Find Them?, Army Law., July 1995, at
30, 37 (“Judicial awards, even if they exceed available appropriations, do not violate the
[ADA].”) (citing 62 Comp. Gen. at 700).
41. BLM, supra note 5, at 312.
42. GAO Red Book, supra note 24, ch. 6, sec.
C(2)(f).
43. Authority for the Continuance of Government Functions
During a Temporary Lapse in Appropriations, 43 Op. Att’y Gen. 293, 301 (1981) [hereinafter
Continuance].
44. U.S. Dep’t of Just., FY 2024 Contingency Plan 3
(2023), https://www.justice.gov/jmd/page/file/1015676/download.
45. Id.
46. Id. During a lapse in appropriations, many
courts grant motions to stay in civil litigation. See Ida Brudrick et al., Cong. Rsch. Serv.,
RL34680, Shutdown of the Federal Government: Causes, Processes, and Effects 32 (2018) (“Some civil
cases were postponed, in part due to continuance requests from the Department of Justice.”). See,
e.g., Lee v. United States, 361 F. Supp. 3d 1306, 1308 n.1 (S.D. Ga. 2019) (“[T]he Court
entered an [o]rder staying the case due to the lapse in appropriations for the [DOJ].”).
47. Testimony Before the Subcomm. on Interior,
Env’t, and Related Agencies, Comm. on Appropriations, House of Representatives—Application of
the Antideficiency Act to a Lapse in Appropriations, B-330720, 2019 WL 459186, at *3–4 (Comp.
Gen. Feb. 6, 2019) (including “emergencies involving the safety of human life or the protection of
property,” performing “core constitutional powers,” and conducting “an orderly
shutdown of agency activity,” among others).
48. U.S. Dep’t of the Treasury—Tax Return
Activities During the Fiscal Year 2019 Lapse in Appropriations, B-331093, 2019 WL 5390179, at *7 (Comp. Gen.
Oct. 22, 2019), (“Because the [ADA] is central to Congress’ constitutional power of the purse,
we interpret exceptions narrowly and in the manner to protect congressional prerogative.”); see
also Continuation of Fed. Prisoner Det. Efforts During U.S. Marshals Serv. Appropriation
Deficiency, 24 Op. O.L.C. 47, 48 (2000) [hereinafter Marshals] (“[T]he [ADA] reinforces the
prohibition in Article 1, Section 9 of the Constitution . . . .”).
49. U.S. Dep’t of the Treasury, 2019 WL
5390179, at *7 (referring to agencies that incur obligations by validly asserting an ADA exception).
50. Kornitzky Grp. v. Elwell, 912 F.3d 637, 639–41
(D.C. Cir. 2019) (Randolph, J., dissenting).
51. Id. at 638.
52. Id. at 638–39.
53. Id. The dissent criticized the court’s
opinion as lacking legal analysis and relying on other orders denying motions to stay that also lacked any
legal analysis. Id. at 640–41.
54. Id. at 640.
55. Id.
56. Id. at 639–40.
57. Id. at 640.
58. Id. (citing Continuance, supra note
43, at 295–301).
59. See, e.g., Judiciary to Continue Funded
Operations Until January 25, U.S. Courts (Jan. 16, 2019), https://www.uscourts.gov/news/2019/01/16/judiciary-continue-funded-operations-until-jan-25
(“[S]ome Federal courts have issued orders suspending or postponing civil cases in which the
Government is a party, and others have declined to do so.”).
60. See, e.g., Klamath-Siskiyou Wildlands Ctr. v.
Grantham, No. 2:18-cv-02785-TLN-DMC, 2019 WL 7374626, at *1 (E.D. Cal. Jan. 4, 2019) (denying a motion for a
stay without engaging in analysis related to a lapse in appropriations).
61. See Airplane Transp. Assoc. of America v.
FAA, 912 F.3d 642, 643 (D.C. Cir. 2019) (Randolph, J., dissenting) (“It is obvious that our circuit
has not settled upon any principled way of deciding these stay motions.”).
62. Authority for the Continuance of Government Functions
During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1 (1981) [hereinafter 1981 Opinion].
63. Id. at 5.
64. Government Operations in The Event of a Lapse in
Appropriations, 1995 OLC LEXIS 57 (Aug. 16, 1995), https://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/10/1995-08-16-lapse-in-appropriations.htm.
65. Id. at *8–9 (citing 1981 Opinion,
supra note 62). Examples included disbursing social security benefits and “contracting for
the materials essential to the performance of the emergency services,” and shutdown activities.
Id.
66. Effect of Appropriations for Other Agencies and
Branches on the Authority to Continue Department of Justice Functions During the Lapse in the
Department’s Appropriations, 19 Op. O.L.C. 337 (1995).
67. Id. at 337 (quoting 1981 Opinion, supra
note 62, at 5).
68. Id.
69. Id. at 338.
70. In the event the judiciary were unfunded, the courts
could continue to operate for a limited time by relying on fees and no-year appropriations. Brudrick et al.,
supra note 46, at 20 (explaining that the judiciary could continue to operate
approximately ten business days to three weeks).
71. Marshals, supra note 48, at 47.
72. Id. at 49.
73. Id. at 50.
74. Judiciary Operating on Limited Funds During
Shutdown, U.S. Courts (Jan. 7, 2019) [hereinafter U.S. Courts], https://www.uscourts.gov/news/2019/01/07/judiciary-operating-limited-funds-during-shutdown.
75. Id.; see also Memorandum
from Judge John D. Bates, Admin. Off. of U.S. Courts, to All United States Judges et al., subject: Status of
Judiciary Funding and Guidance for Judiciary Operations During a Lapse in Appropriations (IMPORTANT
INFORMATION) 3 (Sept. 24, 2013) [hereinafter 2013 Bates Memo]; Brudirck et al., supra note 46, at
20.
76. U.S. Courts, supra note 74; 2013 Bates Memo,
supra note 75, at 3.
77. 2013 Bates Memo, supra note 75, attach. 1, at
1–2.
78. Id. attach. 1, at 3.
79. See infra note 80 and accompanying text.
80. B-331093, 2019 WL 5390179, at *9 (Comp. Gen. Oct. 22,
2019).
81. Id. at *10. The Civiletti opinion determined
“that Social Security payments could continue even though the appropriation for salaries of those who
made the payments had lapsed.” Id.
82. Id.
83. See, e.g., U.S. Dep’t of
Agriculture–Operations of the Farm Serv. Agency During the Fiscal Year 2019 Lapse in
Appropriations, B-331092, 2020 WL3501349, at *11–13 (Comp. Gen. June 29, 2020) (noting that
the GAO had declined to extend the logic of the 1981 Civiletti opinion to cases of other agencies involved
in 2019 appropriations lapse and declining to do so in the case of the Farm Services Agency).
84. See supra notes 1–3 and accompanying
text.
85. GAO Red Book, supra note 24, ch. 14, sec.
C(2)(b); see also Gov’t Emp. Ret. Sys. of the Virgin Islands v. Gov’t of the Virgin
Islands, 995 F.3d 66, 119 (3d Cir. 2021) (Matey, J., concurring in part and dissenting in part).
86. Source of Funds for Payment of Awards Under 26 U.S.C.
§ 7430, 63 Comp. Gen. 470, 473 (1984) (“An appropriation of funds from the Treasury cannot be
inferred. It must be explicitly stated.”). The GAO recommended that the IRS seek a specific
appropriation to pay all prior litigation awards. Id. at 474.
87. Waiver of Statute of Limitations in Connection with
Claims Against the Dep’t of Agric., 22 Op. O.L.C. 127, 129 (1998).
88. Payment of Back Wages to Alien Physicians Hired Under
H-1B Visa Program, 32 Op. O.L.C. 47, 48 (2008) (quoting Dugan v. Rank, 372 U.S. 609, 620 (1963)).
89. 32 Op. O.L.C. at 49 (quoting Auth. of the Equal Emp.
Opportunity Comm’n (EEOC) to Impose Monetary Sanctions Against Fed. Agencies for Failure to Comply
with Orders Issued by EEOC Admin. Judges, 27 Op. O.L.C. 24, 27 (2003)).
90. See Statute of Limitations and Settlement of
Equal Credit Opportunity Act Discrimination Claims Against the Dep’t of Agric., 22 Op. O.L.C.
11, 16 (1998) (“A court can award damages against the United States only where there has been a waiver
of sovereign immunity.”).
91. Foreman v. Dep’t of the Army, 241 F.3d 1349,
1352 (Fed. Cir. 2001).
92. Equal Employment Opportunity Commission Authority to
Order a Federal Agency to Pay for Breach of Settlement Agreement, 38 Op. O.L.C. 22, 38 (2014).
93. See 22 Op. O.L.C. at 140; see also
Authority of the United States to Enter Settlements Limiting the Future Exercise of Exec. Branch
Discretion, 23 Op. O.L.C. 126, 138 (1999) (“[C]onsiderations, such as litigation risk, are
inherent in a settlement power itself . . . .”).
94. 23 Op. O.L.C. at 135.
95. Id. at 137–38.
96. See 38 Op. O.L.C. at 34 (“As long as
the intended relief does not exceed the scope of remedies available in court, the Government’s consent
to be sued for violations of Title VII ordinarily permits voluntary settlement of a complaint alleging such
violations.”); Proposed Settlement of Diamond v. Dep’t of Health & Hum. Servs., 22 Op.
O.L.C. 257, 261 (1998) (“[A]n agency settlement may include any relief that a court could award . . .
.”).
97. The principal distinction between consent decrees and
settlement agreements is that consent decrees are agreements that are entered as court orders enforceable
through contempt, whereas settlement agreements are contracts between the parties that are judicially
enforceable if breached. 23 Op. O.L.C. at 133. Cf. United States v. Bd. of Cnty. Comm’rs, 937
F.3d 679, 688 (6th Cir. 2019) (“[A] consent decree is a settlement agreement subject to continual
judicial policing.”) (quoting Vanguards of Cleveland v. City of Cleveland, 23 F. 3d 1013, 1017 (6th
Cir. 1994)); Fed. Trade Comm’n v. Enforma Nat. Prods., 362 F.3d 1204, 1218 9th Cir. 2004) (“A
consent decree is ‘no more than a settlement that contains an injunction.’”) (quoting
In re Masters Mates & Pilots Pension Plan, 957 F. 2d 1020, 1025 (9th Cir. 1992)).
98. 23 Op. O.L.C. at 149 (citing Local 93, Int’l
Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 525–26 (1986)).
99. See Waiver of Statutes of Limitations in
Connection with Claims Against the Dep’t of Agric., 22 Op. O.L.C. 127, 140 (1998) (The Attorney
General’s “settlement authority does not allow her to discard a statutory requirement and
determine that, on the basis of her own view of the equities, a claim should be paid, notwithstanding its
legal invalidity”); see also 23 Op. O.L.C. at 135 (“[T]he Attorney General must still
exercise her discretion in conformity with her obligation to enforce the Acts of Congress”) (internal
quotations omitted).
100. 22 Op. O.L.C. at 129 (citing Finn v. United States,
123 U.S. 227, 229 (1887)).
101. Auth. of U.S. Dep’t of Agric. to Award
Monetary Relief for Discrimination, 18 Op. O.L.C. 52, 53 & n.4 (1994) (noting that the comptroller
general had applied the principle in a number of opinions). Cf. U.S. Dep’t of Just., Justice
Manual § 3-8.130 (“[E]nsure that the terms of the consent decree DO NOT obligate the Government
to expend funds beyond the purpose, time, or amount of the office’s available resources.”).
102. John W. Rensbarger, B-247348, 1992 W.L. 152986, at
*1 (Comp. Gen. June 22, 1992). The detail also violated 44 U.S.C. § 316, which provided that Government
Printing Office “employees may not be detailed to duties not pertaining to the work of public printing
and binding.” Id. at *2.
103. Id. at *5. In addition, the OLC has
recognized the ADA as a limitation on settlement authority. See 23 Op. O.L.C. at 156 (“[T]he
express terms of the [ADA] . . . mean[] that there must be an identifiable source of statutory authority to
incur an obligation in advance of an appropriation before a settlement may be entered that would incur
one.”).
104. While the session law establishing this provision
does not refer to it as the “Miscellaneous Receipts Statute,” that is how practitioners commonly
refer to it. See Cont. & Fiscal L. Dep’t, The Judge Advoc. Gen.’s Legal Ctr. &
Sch., U.S. Army, Fiscal Law Deskbook para. X(a)(2)(c) (2023).
105. 31 U.S.C. § 3302(b).
106. Commodity Futures Trading Commission –
Donations Under Settlement Agreements, B-210210, 1983 WL 197623, at *2–3 (Comp. Gen. Sept. 14, 1983).
107. Id. at *2.
108. Nuclear Regul. Comm’n’s Auth. to
Mitigate Civ. Penalties, 70 Comp. Gen. 17, 19 (1990).
109. The Honorable John D. Dingell, B-247155.2, 1993 WL
798227, at *2 (Comp. Gen. Mar. 1, 1993). The opinion addressed the Environmental Protection Agency’s
authority to allow violators to settle cases by funding public awareness projects in lieu of paying
administrative penalties. Id. at *1.
110. Whether the Fed. Commc’n Comm’n’s
Ord. on Improving Pub. Safety Commc’ns in the 800 MHz Band Violates the Antideficiency Act or the
Miscellaneous Receipts Statute, B-303413, 2004 WL 2515818, at *10 (Comp. Gen. Nov 8, 2004), at 14 (citing
the GAO’s earlier Nuclear Regulatory Commission and Commodity Futures Trading Commission opinions
approvingly).
111. Effect of 31 U.S.C. § 484 on the Settlement
Auth. of the Att’y Gen., 4B Op. O.L.C. 684, 687–88 (1980).
112. Id. at 688.
113. Id.
114. Id. at 688–89.
115. Application of the Gov’t Corp. Control Act
and the Miscellaneous Receipts Act to the Canadian Softwood Lumber Co. Settlement Agreement, 30 Op. O.L.C.
111 (2006). This case involved a proposed settlement that would authorize the United States to distribute
duties in its possession to a private foundation, which would then fund various “meritorious
initiatives.” Id. at 113.
116. Under circumstances where a settlement satisfies
the two conditions above, “the governmental control over settlement funds is so attenuated that the
Government cannot be said to be receiving money for the Government.” Id. at 119.
117. Id. at 121.
118. S. 3050, 114th Cong. (2016); H.R. 5063, 114th Cong.
(2016). The legislation passed the House. H.R.5063—Stop Settlement Slush Fund Act of 2016,
Congress.gov, https://www.congress.gov/bill/114th-congress/house-bill/5063/actions (last visited
Mar. 22, 2024).
119. S. 3050, 114th Cong. § 2(a) (2016); H.R. 5063,
114th Cong. § 2(a) (2016); see also H.R. Rep. No. 114-694, at 2 (2016) (“[The Act]
prohibits terms in Department of Justice (DOJ) settlements that direct or provide payments to non-victim
third-parties.”).
120. H.R. Rep. No. 114-694, at 2. The report noted that
in some cases, the donations restored funding previously cut by Congress. Id. at 2, 8–9.
121. Id. at 9.
122. Id. at 4; see also id. at 5
(criticizing the OLC’s opinion in Application of the Gov’t Corp. Control Act and the
Miscellaneous Receipts Act to the Canadian Softwood Lumber Settlement Agreement, 30 Op. O.L.C. 111 (2006)).
123. See, e.g., George F. Will,
‘Slush Fund’ by Any Other Name, Wash. Post, Sept. 1, 2016, at A15.
124. Memorandum from the Att’y Gen., to All
Component Heads and U.S. Att’ys, subject: Prohibition on Settlement Payments to Third Parties (June 5,
2017), https://www.justice.gov/opa/press-release/file/971826/download.
125. Id. at 1.
126. Memorandum from the Att’y Gen. to All
Component Heads and U.S. Att’ys, subject: Guidelines and Limitations for Settlement Agreements
Involving Payments to Non-Governmental Third Parties 1–2 (May 5, 2022), http://www.justice.gov/ag/page/file/1499241/download.
127. Id. at 3.
128. See supra section titled “A Lapse in
Appropriations.”
129. Effect of Appropriations for Other Agencies and
Branches on the Auth. to Continue Dep’t of Just. Functions During the Lapse in the Dep’t’s
Appropriations, 19 Op. O.L.C. 337, 338 (1995).
130. See supra notes 74–78 and
accompanying text.
Author
LTC (Ret.) Davidson is a retired Army Judge Advocate, former attorney with the Department of Treasury, and
current Deputy Associate General Counsel, Acquisition and Procurement Law, General Law Division in the
Office of General Counsel at the U.S. Department of Homeland Security in Washington, D.C. The opinions in
this article are those of the author and do not reflect the position of Department of Homeland Security or
any other Federal entity.