                                                            June 18, 1979


79-44    MEMORANDUM OPINION FOR THE
         GENERAL COUNSEL, ACTION

         Budget Authority—Statutory Construction—
         Antideficiency Act (31 U.S.C. § 665)—
         Applicability to the Directors of the Peace Corps
         and ACTION


   This memorandum responds to your inquiry of June 1 1979, whether
the Peace Corps is an “ agency,” and the Director of the Peace Corps the
“ head of an agency,” within the meaning of the Antideficiency Act (Act),
31 U.S.C. § 665. We understand you are concerned that the term
“ agency” in the Act may refer only to agencies that are independent
»ctohi;shments as defined by 5 U.S.C. § 104. If that were so, the Director
of ACTION, which is an independent establishment as so defined, 42
U.S.C. § 5041, might arguably retain responsibilities under the Act even
though budgetary authority over the Peace Corps, which is not such an in­
dependent establishment, (Executive Order No. 12137, § 1-101, 44 F.R.
29, 023 (1979)), has been transferred to the Director of the Peace Corps.
   ACTION was created by Congress as an independent establishment
within the meaning of 5 U.S.C. § 104, namely:
     * * * an establishment in the Executive branch * * * which is
     not an Executive department, military department, Government,
     corporation, or part thereof, or part of an independent establish­
     ment.
The Peace Corps, however, is not a legislatively structured unit. In the
Peace Corps Act of 1961, 22 U.S.C. § 2501 et seq., Congress vested ad­
ministrative authority over Peace Corps functions in the President. The
Peace Corps Act authorizes him to carry out programs in furtherance of
that Act “ on such terms and conditions as [the President] may
determine,” 22 U.S.C. § 2502(a), and to exercise any functions vested in
him by that Act “ through such agency or officer of the United States
Government as he shall direct.” 22 U.S.C. § 2503(b). In § 1-101 of Ex­
ecutive Order No. 12137, the President provided that the Peace Corps

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“ shall be an agency within ACTION * *         thus making it a party of an
“ independent establishment,” as that term is defined by 5 U.S.C. § 104. It
follows that the Peace Corps is, within the meaning of 5 U.S.C. § 104 itself
not an independent establishment.
   The uncertainty whether the Peace Corps can be deemed an agency
under the Antideficiency Act stems from a reference to the term
“ independent establishment” in the Act’s definition of agency. Under
that Act:
     * * * the term “ agency” means any executive department,
     agency, commission, authority, administration, board, or other
     independent establishment in the executive branch of the
     Government, including any corporation wholly or partly owned
     by the United States which is an instrumentality of the United
     States. [31 U.S.C. § 665(d)(2) (emphasis added).]
The reference to “ any * * * other independent establishment” logically
implies, as the definition is written, that the preceding terms that are not
necessarily excluded from the general class of independent establishments,
refer to specific categories of the general class of “ independent establish­
ments.” 1 “ Independent establishment” is itself nowhere defined in the
Antideficiency Act. However, if its definition is coextensive with the
definition in 5 U.S.C. § 104, then the Peace Corps, although an agency,
cannot be an “ agency” within the meaning of the Antideficiency Act,
because it is not an “ agency” that is an “ independent establishment”
within the meaning o f 5 U.S.C. § 104.
   We conclude, however, based on the clear intent of the Antideficiency
Act, that the term “ independent establishment” is not intended to be co­
extensive with the term as defined in title 5. The intent of the Act is to vest
certain budgetary responsibilities in the heads of all units of the executive
branch to which appropriations are made available for definite periods of
time, and which have responsibility for presenting to the Office of Man­
agement and Budget their own recommended budgets and administering
the relevant appropriations independently. The House report on the bill
that added the definition of “ agency” to the Act, General Appropriations
Act for 1951, Title XII, § 1211, 64 Stat. 765 (1950), strongly indicates that
the amendments to the Act were intended to diffuse responsibility for
governmental economy as broadly as possible through the executive
branch. The report states:
     The administrative officials responsible for administration of an
     activity for which appropriation is made bear the final burden
     for rendering all necessary service with the smallest amount pos­
     sible within the ceiling figure fixed by Congress. Every official


   ' The only term preceding “ any * * * o ther independent establishm ent” which cannot be
a category o f “ independent establishm ent,” as defined by 5 U .S.C . § 104, as “ any executive
departm ent,” 5 U .S.C . § 101.

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     of the Government who has responsibility for the administration
     of a program must assume a portion of the burden for the deficit
     in the Federal Treasury * * *. [I]t is his responsibility to so con­
     trol and administer the activities under his jurisdiction as to ex­
     pend as little as possible out of the funds appropriated. [H. Rept.
     1797, 81st Cong., 2d sess. 9 (1950).]
The breadth of the legislative purpose underlying the Antideficiency Act is
inconsistent with a definition of agency that excludes from the operation
of the Act any unit of the executive branch that has independent budgetary
powers.
   W e therefore con clu d e that “ independent estab lish m en t,” as that term
is used in the A ntid eficien cy A ct, refers to any integral unit o f the ex ecu ­
tive branch to which appropriations are m ade available and which has in­
dependent budgetary authority. N o elaboration o f the d efinition o f
“ agency” or o f “ independent establishm ent” appears in either the H o u se,
Senate, or C onference reports on the G eneral A ppropriations A ct for
1951, cited ab ove, which added the d efinition o f “ agency” to the A ct, or
in a section-by-section analysis o f the am endm ent introduced into the
C o n g r e s s i o n a l R e c o r d by o n e o f its sponsors. 96 C o n g r e s s i o n a l
R e c o r d 6835 (1950) (remarks o f R epresentative N orell). H ow ever, any
definition o f “ agency” narrower than the class o f executive branch units
that have independent budgetary authority w ould, for no ob v io u s pur­
p ose, contradict the statu te’s plain in ten t .2
   Under our analysis, it is plain that the Peace Corps is an agency that is
an “ independent establishment,” and therefore an “ agency” within the
meaning of the Antideficiency Act. Executive Order No. 12137 delegates
all but a limited number of functions reserved to the President concerning
Peace Corps administration to the Director of the Peace Corps, § 1-102,
and provides that all funds appropriated or otherwise made available to
the President for carrying out the provisions of the Peace Corps Act shall
be “ deemed to be allocated without any further action of the President”
to the Director of the Peace Corps or his delegate, § 1-106. As explained in
the White House memorandum accompanying Executive Order No.
12137, it is intended that:
     [T]he Director of the Peace Corps shall have budgetary authority
     for the Peace Corps, to include responsibility for establishing
     and controlling a separate Peace Corps budget, subject only to
     ACTION policy guidance regarding coordination with domestic
     programs.


    1 T hat Congress, in adding the definition o f “ agency” to the Antideficiency Act, con­
tem plated the same meaning o f “ independent establishm ent” as was incorporated into title
5, also appears unlikely because o f the timing o f the two enactm ents. The am endm ent to the
Antideficiency Act that added the definition o f “ agency” was enacted in 1950. A definition
o f “ independent establishm ent” was added to title 5 in 1966, and applies expressly only to
title 5. 5 U.S.C. § 104.

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As explained by your Office, it is envisioned that the implementation of
the Executive order will leave the Director of ACTION with no authority
over the Peace Corps budget, which is to be prepared and controlled under
the authority of the Director of the Peace Corps. Under this scheme, the
agency to which the Peace Corps appropriation is to be made available
would clearly appear to be the Peace Corps, under the authority of the
Director of the Peace Corps, who is to control the budget.3
   Finally, we note that, if the Director of the Peace Corps is not to be
deemed the head of an agency within the meaning of the Antideficiency
Act, it must follow that the budgetary responsibilities conferred by that
Act must fall to a person with no control over the Peace Corps budget,
i.e., the Director of ACTION, or to no one. Either result would be absurd
in view of the purpose of the Antideficiency Act.
   In sum, we conclude that “ any * * * agency” within the meaning of
31 U.S.C. § 665 refers only to agencies that are “ independent establish­
ments” within the meaning of that section. However, “ independent
establishment,” under this Act, refers to any agency that has independent
control over the establishment and administration of its budget. As
described above, the Peace Corps is an agency that is such an independent
establishment, and, for purposes of the Antideficiency Act, the Director
of the Peace Corps is the head o f an agency.

                                              L eon U    lm an

                                 Deputy Assistant Attorney General
                                                     Office o f Legal Counsel




   3 U nder Exec. O rder N o. 11603, 22 U .S.C . note following § 2501 (1976), superseded by
Exec. O rder No. 12137, the Peace Corps was designated a “ com ponent” o f A CTIO N , and it
was provided that all funds appropriated to the President to carry out the Peace Corps Act
were to be deemed allocated w ithout further Presidential action to the Director o f A CTION .
Congress recognized the President’s delegation by subsequently appropriating funds for the
Peace Corps to A CTIO N directly. See, e.g.. Foreign Assistance A ppropriations Act o f 1978,
Title III, 92 Stat. 1597. Presum ably, Congress will similarly recognize the President’s
redelegation o f his Peace C orps authority and appropriate funds for the Peace Corps to the
Director o f the Peace Corps.

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