U.S. Government Accountability Office—Unavailability of Appropriated Funds to Subsidize Employees' Long-Distance Home-to-Work Travel

B-330935

Federal Appropriations Law Practitioners

May 20, 2019

Subject:  U.S. Government Accountability Office—Unavailability of Appropriated Funds to Subsidize Employees’ Long-Distance Home-to-Work Travel

Enclosed are three U.S. Government Accountability Office (GAO) appropriations law decisions addressing the availability of appropriated funds to subsidize federal employees’ long‑distance home‑to‑work travel costs.  GAO has concluded that, without specific statutory authority providing otherwise, appropriations are not available for this personal expense.

It is Congress’s prerogative to determine the availability of appropriations for employees’ long‑distance home‑to‑work travel.  Unless or until Congress enacts legislation establishing, as a matter of public policy, that agencies may use the public’s money for this personal expense of a federal employee, appropriations are not available for this purpose.

GAO issued the enclosed decisions to certain GAO officials pursuant to the Comptroller General’s authority under 31 U.S.C. § 3529.  Having become aware of possible confusion and uncertainty regarding the proper use of appropriations for this purpose, we deemed it important to make our decisions more widely available.  In addition to the material below, I will be discussing these decisions at the GAO Appropriations Law Forum on June 6, 2019.

GAO’s Role in Serving Congress’s Constitutional Power of the Purse

The Constitution specifically vests Congress with the power of the purse and the power to make all laws “necessary and proper” to implement Congress’s constitutional authorities.  U.S. Const., art. I, § 8, cl. 18 (Necessary and Proper clause); id. § 9, cl. 7 (“No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law”).  The Constitution further provides that the President “shall take Care that the Laws be faithfully executed.”  U.S. Const., art. II, § 3.  These provisions provide the framework through which Congress enacts laws to establish, authorize action by, and provide funding for federal agencies.  See also U.S. Const., art. I, § 7, cl. 2, 3 (bicameral and presentment clauses).  Consequently, an agency has authority to act only to the extent authorized by Congress.  See, e.g., Louisiana Public Service Commission v. Federal Communications Commission, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . . . unless and until Congress confers power upon it.”); Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001) (a federal agency is “a creature of statute” and “has no constitutional or common law existence or authority, but only those authorities conferred upon it by Congress”).

In that regard, Congress conferred certain authorities upon the Comptroller General when it established GAO in 1921.  Budget and Accounting Act, 1921, Pub. L. No. 67‑13, ch. 18, title III, 42 Stat. 20, 23 (June 10, 1921).  As relevant here, Congress vested in the Comptroller General the authority to settle the accounts of the United States and to issue decisions and opinions concerning the use and obligation of appropriated funds.  See 31 U.S.C. § 712(1) (investigating the use of public money); id. § 717(b) (evaluating programs and activities of the United States government); id. § 3526 (settlement of accounts); id. § 3527 (general authority to relieve accountable officials and agents from liability); id. § 3528 (responsibilities and relief from liability of certifying officials); id. § 3529 (requests for decisions of the Comptroller General).  Pursuant to these statutory duties, GAO’s General Counsel has issued thousands of decisions and opinions regarding the use of appropriated funds.[1]  Questions regarding the legal availability of appropriations for particular purposes, including purposes that might constitute unauthorized personal expenses, have constituted a primary component of almost 100 years of Comptroller General decisions and opinions.[2]  B‑327146, Aug. 6, 2015, at 4.  GAO’s statutory responsibilities in this field are widely respected throughout the federal government, with the legislative, executive, and judicial branches consistently relying on GAO’s appropriations law decisions and opinions.

Congress often requests legal opinions from GAO and, in some cases, responds to such opinions through legislation or report language.  For example, in 2015 GAO concluded that the Environmental Protection Agency (EPA) violated two statutory restrictions and the Antideficiency Act.  B-326944, Dec. 14, 2015.  The explanatory statement accompanying the Consolidated Appropriations Act, 2016, referenced GAO’s decision and directed EPA to coordinate with OMB to ensure that GAO’s conclusions were “disseminated to communications offices throughout the government.”  161 Cong. Rec. H10221 (Dec. 17, 2015).  See also H. Rep. No. 115‑238, at 61─62 (July 21, 2017) (noting that GAO “concluded that EPA violated prohibitions against publicity or propaganda and grassroots lobbying contained in appropriations Acts” and that the “Committee reminds EPA that funding may not be used in a manner contrary” to the pertinent legal provisions). 

As another example, in 2014 GAO concluded that the Department of Defense (DOD) violated a statutory notification requirement and the Antideficiency Act.  B‑326013, Aug. 21, 2014.  The House of Representatives subsequently voted 249─163 to condemn and disapprove of DOD’s actions.  H. Res. 644, 113th Cong. (2014); 160 Cong. Rec. H7335 (daily ed. Sept. 9, 2014).  During a debate on the resolution, Members of Congress emphasized GAO’s status as a nonpartisan agency and cited GAO’s opinion concluding that the Department of Defense had violated such statutes.  See 160 Cong. Rec. H7326, H7327, H7331, H7334 (daily ed. Sept. 9, 2014) (statements of Reps. McKeon, Rigell, Lamborn, DeSantis, Thornberry, Wilson, and Thompson). 

Congress has also responded to our opinions as part of the regular appropriations process.  In 2011, GAO concluded that the Office of Science and Technology Policy (OSTP) violated the Antideficiency Act when it violated a statutory prohibition by using its appropriations for bilateral engagements with China.  B‑321982, Oct. 11, 2011.  Congress subsequently reduced OSTP’s appropriations by over 30 percent, which required OSTP to strictly limit its personnel, travel, wireless and communications requirements, supplies and materials, equipment, and other contractual services in FY 2012.  Executive Office of the President, Fiscal Year 2013 Congressional Budget Submission, pt. III, OSTP‑7 to OSTP‑8, available at https://obamawhitehouse.archives.gov/sites/default/files/docs/2013-eop-budget1.pdf (last accessed May 17, 2019).  Compare Consolidated and Further Continuing Appropriations Act, 2012, Pub. L. No. 112-55, div. B., title III, 125 Stat. 552, 622 (Nov. 18, 2011) (appropriating $4.5 million to OSTP for FY 2012), with Department of Defense and Full-Year Continuing Appropriations Act, 2011, Pub. L. No. 112-10, div. B, title III, § 1316, 125 Stat. 38, 120 (Apr. 15, 2011) (appropriating $6.66 million to OSTP for FY 2011).

Further, agencies themselves routinely request appropriations law decisions pursuant to the Comptroller General’s authority under 31 U.S.C. § 3529.  See, e.g., B‑327146, Aug. 6, 2015, at 4.  See also B-329316, Nov. 29, 2017; B‑328615, May 9, 2017; B‑326941, Dec. 10, 2015; B‑318588, Sept. 29, 2009; B‑300826, Mar. 3, 2005; B‑302548, Aug. 20, 2004; B‑288266, Jan. 27, 2003; B‑255672, Apr. 6, 1994.  When the Comptroller General issues a decision at the request of an agency head or agency official pursuant to 31 U.S.C. § 3529, that decision is binding on the Comptroller General when settling the account containing the payment, and the balance certified by the Comptroller General is conclusive on the executive branch.  31 U.S.C. § 3526(b).  In 2017, the Air Force Reserve Command requested a decision under 31 U.S.C. § 3529 regarding whether an agency may use appropriated funds to purchase disposable plates and utensils for personnel who work in a facility where the agency provides potable water via bottled water.  B‑329316, Nov. 29, 2017.  We concluded that, absent specific statutory authority, appropriated funds were not available for that personal expense.  Id.

Agencies’ inspectors general also refer questions to GAO regarding the use and obligation of appropriated funds.  See B-329368, Dec. 13, 2017; B‑324214, Jan. 27, 2014; B-318229, Dec. 22, 2009; B-316372, Oct. 21, 2008; B‑308969, May 31, 2007; B-245541, May 21, 1992.  For example, as part of his review of communications from DOT officials, the Department of Transportation (DOT) Inspector General identified a potential appropriations law issue related to DOT’s use of social media.  Letter from Inspector General, Department of Transportation, to Representative Peter A. DeFazio, Then‑Ranking Member, Committee on Transportation and Infrastructure, Representative Nita M. Lowey, Then‑Ranking Member, Committee on Appropriations, and Representative David E. Price, Then‑Ranking Member, Subcommittee on Transportation, Housing and Urban Development, and Related Agencies, Committee on Appropriations, at 7 (Aug. 30, 2017).  After consulting informally with GAO on the matter, the Inspector General requested that GAO issue an appropriations law decision regarding DOT’s actions.  Id., at 2, 5, 7, 8.  See B‑329368, Dec. 13, 2017.

In addition to GAO’s critical role in issuing opinions to Congress and decisions to agencies and inspectors general, courts regularly cite to and rely on GAO’s Principles of Federal Appropriations Law treatise (Red Book) and published GAO appropriations law decisions and opinions.  See Salazar v. Ramah Navajo Chapter, 567 U.S. 182, 190─191, 193─194, 197, 199, 199 n.10 (2012); Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631, 643 (2005); Lincoln v. Vigil, 508 U.S. 182, 192 (1993); Republic National Bank of Miami v. United States, 506 U.S. 80, 90, 92 (1992); Tin Cup, LLC v. United States Army Corps of Engineers, 904 F.3d 1068, 1073 (9th Cir. 2018); County of Westchester v. United States Department of Housing and Urban Development, 778 F.3d 412, 417 n.8 (2nd  Cir. 2015); Navy v. Federal Labor Relations Authority, 665 F.3d 1339, 1348─1350 (D.C. Cir. 2012); Star-Glo Associates, LP v. United States, 414 F.3d 1349, 1354 (Fed. Cir. 2005); Thompson v. Cherokee Nation of Oklahoma, 334 F.3d 1075, 1084─1086 (Fed. Cir. 2003).

GAO’s appropriations law decisions and opinions serve to support Congress’s constitutional prerogative to prescribe how, when, and for what purposes federal agencies may obligate and expend public funds, thereby promoting accountability and integrity in government and protecting the public fisc.  GAO ensures this same accountability and careful stewardship of appropriated funds in its own operations. 

Like all federal agencies, GAO is a creature of law and can carry out its functions only to the extent authorized by law.  See, e.g., Louisiana Public Service Commission, 476 U.S. at 374; Michigan, 268 F.3d at 1081.  As such, GAO operates within the confines of its authorizing legislation, congressionally established funding levels, and any other governmentwide or agency-specific laws Congress enacts that apply to GAO.  Where a question arises as to GAO’s use of its own appropriations and an authorized official requests a decision, the Comptroller General, under the law, will issue a decision to that requesting official just as the Comptroller General will issue a decision to an authorized official at another federal agency.  31 U.S.C. § 3529.  See, e.g., B‑301152, May 28, 2003.  Cf. B‑320868, Sept. 29, 2010 (GAO’s use of its appropriations to pay a stormwater fee); B‑320795, Sept. 29, 2010 (GAO’s use of its appropriations to pay a stormwater fee assessment); B‑319556, Sept. 29, 2010 (GAO’s use of its appropriations to pay a D.C. Water Impervious Surface Area Fee).

Transit Subsidies Decisions

Between September 2016 and August 2017, GAO responded to three requests related to GAO’s authority to use appropriated funds to subsidize an employee’s long‑distance home‑to‑work travel.  Pursuant to GAO’s statutory responsibility under 31 U.S.C. § 3529, we issued three separate decisions in response to each distinct set of facts.  GAO, Transit Benefits and Long‑Distance Travel (Aug. 28, 2017) (August 2017 Decision); GAO, Transit Benefits for Employees Residing at Long‑Distance Locations (July 25, 2017) (July 2017 Decision); GAO, Appropriations for Transit Benefits for Field Office Employees (Sept. 19, 2016) (September 2016 Decision).

In the first decision, issued in September 2016, we addressed whether GAO’s appropriations were legally available to provide a transit subsidy to an employee who used bus or rail to travel long-distance from his or her residence to his or her official duty station at a GAO field office.  September 2016 Decision, at 1.  In the second decision, issued in July 2017, we addressed whether GAO’s appropriations were legally available to provide a transit subsidy to an employee who used bus or rail to travel long-distance from his or her residence to his or her official duty station at GAO headquarters.  July 2017 Decision, at 1.  In the third decision, issued in August 2017, we addressed how to administer the GAO Transit Benefits Program in a manner that ensures that GAO’s appropriations are used to provide transit subsidies only to the extent authorized by law.[3]  August 2017 Decision, at 1.  Even though GAO issued each decision in response to a unique set of facts, the underlying conclusion in all three decisions is the same:  an agency may not use appropriated funds to subsidize an employee’s long‑distance home‑to‑work travel.  Rather, appropriated funds are available to provide a transit subsidy only for commuting expenses an employee incurs within the local travel area defined by the agency.

In February 2019, the GAO Employees Organization, IFPTE Local 1921 (Union) “indicated that it was unable to locate a single federal transit benefits program that conditions receipt of benefits on falling within a mileage limitation.”  In re GAO Employees Organization, IFPTE Local 1921, GAO Personnel Appeals Board, Docket No. LMR 2018‑03, at 9 (Mar. 7, 2019) (citing Union’s Feb. 21, 2019 Filing, at 1─2).  We have no firsthand knowledge of other agencies’ practices in this regard.  We note, however, that the agency implementing documents the Union identified, standing alone, do not conclusively show the full manner in which the relevant agencies implement their transit subsidies programs.[4] 

Our general practice is to publicly release decisions concerning GAO’s own appropriations where there is evidence that the question is of general interest and appears likely to recur.  Cf.GAO, Principles of Federal Appropriations Law, 4th ed., 2016 rev., ch. 1, § B.2.a, GAO-16-463SP (Washington, D.C.: Mar. 2016), available at www.gao.gov/legal/appropriations-law-decisions/red-book; GAO, Procedures and Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at www.gao.gov/products/GAO-06-1064SP.  For these reasons, we are publicly releasing our decisions on this matter.

5 U.S.C. § 7905: Transit Subsidies

As discussed above, the issue in the transit subsidies decisions was whether GAO may use its appropriations to provide transit subsidies for employees’ long‑distance home‑to‑work travel, that is, costs an employee incurs outside of the local travel area when the employee is traveling between his or her residence and his or her official duty station.  We concluded that GAO’s appropriations are not available for this purpose.

A fundamental principle of appropriations law is that appropriated funds are available only for the purpose or purposes for which Congress has provided.  31 U.S.C. § 1301(a); United States v. MacCollom, 426 U.S. 317, 321 (1976) (“The established rule is that the expenditure of public funds is proper only when authorized by Congress, not that public funds may be expended unless prohibited by Congress.”).  In general, absent affirmative statutory authority from Congress, appropriated funds are not available for the personal expenses of an employee.  B‑322337, Aug. 3, 2012.  Stewardship of public money, and accountability to Congress for the proper use of public money appropriated to agencies, demands an exceptionally high bar to overcome this overarching principle.  B‑326021, Dec. 23, 2014, at 3; Navy, 665 F.3d at 1350 (providing that an expense that “would serve no purpose other than accommodating employees’ personal tastes . . . generally cannot justify the expenditure of appropriated funds”).  In accordance with this exacting standard, the settled rule is that an employee must bear the cost of commuting to and from his or her residence and his or her official duty station.  B‑318229, Dec. 22, 2009; B‑305864, Jan. 5, 2006; B‑261729, Apr. 1, 1996; B‑202370, Apr. 2, 1984; B‑202044, Aug. 6, 1981; B‑189061, Mar. 15, 1978.  An employee chooses where to live and, in doing so, accepts the distance between the employee’s home and official duty station.  B‑318229, Dec. 22, 2009, at 4.

Congress, of course, may enact a statute authorizing an agency to use public funds for what would otherwise be a personal expense.  B‑326021, Dec. 23, 2014, at 3.  To overcome the prohibition against using appropriated funds for the personal expenses of an employee, a statute must include language explicitly permitting an agency to use public funds for that purpose.  As relevant here, Congress enacted legislation authorizing agencies to provide transit subsidies for employee commutes.  Federal Employees Clean Air Incentives Act, Pub. L. No. 103‑172,107 Stat. 1995, 1995 (Dec. 2, 1993), codified at 5 U.S.C. § 7905.  See Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. No. 109‑59, title III, § 3049, 119 Stat. 1144, 1711–12 (Aug. 10, 2005) (requiring that agencies in the National Capital Region implement a transit benefits program as described in section 2 of Executive Order No. 13150); Exec. Order No. 13150, Federal Workforce Transportation, 65 Fed. Reg. 24613 (Apr. 21, 2000).  Specifically, section 7905(b)(1) provides that “[t]he head of each agency may establish a program to encourage employees of such agency to use means other than single‑occupancy motor vehicles to commute to or from work.”[5]  5 U.S.C. § 7905(b)(1).  In addition, section 7905(b)(2) provides a nonexhaustive list of options that an agency may offer to its employees as part of its program, including transit passes.

Consistent with the demanding bar for overcoming the personal expense prohibition, we have concluded in prior cases that section 7905 does not give agencies unbridled authority to subsidize any and all costs an employee may incur during his or her home‑to‑work travel.  See  B‑318325, Aug. 12, 2009 (an agency may provide a cash reimbursement under section 7905 to employees who commute by bicycle, but should implement internal controls to eliminate opportunities for fraud, waste, and abuse); B‑291208, Apr. 9, 2003 (section 7905 does not provide an agency with authority to pay parking fees for employees with disabilities).  But see B‑320116, Sept. 15, 2010 (concluding that an agency may not rely on section 7905 to use appropriated funds to install and operate battery recharging stations for privately owned hybrid or electric vehicles, and noting that “[i]t is for Congress to set the statutory direction for . . . federal agencies as they address these or similar issues in the future”); Pub. L. No. 114‑94, div. A, title I, subtitle D, § 1413(c), 129 Stat. 1312, 1418 (Dec. 4, 2015), classified at 42 U.S.C. § 6364 (providing specific statutory authority for agencies to install and operate battery recharging stations on a reimbursable basis).  Rather, an agency’s authority to provide transit subsidies for its employees under section 7905 is limited to the text of the statute.  See Jimenez v. Quarterman, 555 U.S. 113, 118 (2009).

Because section 7905 authorizes agencies to establish programs that encourage “commuting” by means other than single‑occupancy vehicles, the meaning of the term “commute” is paramount to determining the scope of the authority granted.  Section 7905 does not define “commute,” but the common meaning of this term is “to travel back and forth regularly (as between a suburb and a city).”  Merriam‑Webster Dictionary Online, Definition of commute, available at www.merriam-webster.com/dictionary/commute (last accessed May 17, 2019).  In turn, a “suburb” is “an outlying part of a city or town” or “a smaller community adjacent to or within commuting distance of a city.” Merriam‑Webster, Definition of suburb, available at www.merriam-webster.com/dictionary/suburb(last accessed May 17, 2019).  Thus, geographic limits inhere in the term commute.  As such, an employee’s commute includes regular, local home‑to‑work travel, but does not include allhome‑to‑work travel regardless of where the employee resides.

Congress enacted a separate statute, 5 U.S.C. § 5702, to address employees’ nonlocal, long‑distance travel.  5 U.S.C. § 5702 (authorizing allowances for expenses an employee incurs “when traveling on official business away from the employee’s designated post of duty”).  It is title 5, chapter 57 of the United States Code that affirmatively authorizes agencies, pursuant to regulations the General Services Administration (GSA) Administrator prescribes under 5 U.S.C. § 5707, to use appropriated funds to reimburse employees for certain expenses an employee incurs when traveling for official business.  See, e.g., id. § 5702 (authorizing allowances “[u]nder regulations prescribed pursuant to 5 U.S.C. § 5707”); id. § 5707 (charging the GSA Administrator with prescribing travel regulations).  The regulations the Administrator prescribes pursuant to section 5707, also known as the Federal Travel Regulation (FTR), address transportation, per diem, lodging, and miscellaneous expenses.  See 5 U.S.C. § 5702; Federal Travel Regulation, 41 C.F.R. pt. 301‑10 (transportation); id. pt. 301‑11 (lodging and per diem); id. pt. 301‑12 (miscellaneous expenses).  In accordance with the FTR, in general an agency may reimburse an employee for such expenses only if the employee is performing official travel, that is, travel pursuant to an official travel authorization.  5 U.S.C. §§ 5702, 5707; 41 C.F.R. § 300‑3.1 (defining official travel as “[t]ravel under an official travel authorization from an employee’s official station . . . to a temporary duty location”); id. § 301-2.1 (providing that an employee generally must have written or electronic authorization prior to incurring any travel expense).  It is the official travel authorization, issued in accordance with the implementing regulations for section 5702, that provides authority to use appropriated funds to reimburse the costs an employee incurs while traveling outside of the local travel area defined by the agency.  As such, absent other affirmative authority, section 5702 provides the only authority to use appropriations for an employee’s long‑distance travel costs.

It is our duty to construe statutes harmoniously.  See Posadas v. National City Bank of New York, 296 U.S. 497, 503 (1936); 2B Sutherland, Statutes & Statutory Construction, § 53:1 at 375 (7th ed. 2012) (“Harmony and consistency are positive values in a legal system because they promote impartiality and minimize arbitrariness. Construing statutes by reference to other statutes advances those values.  And courts do indeed have a duty to construe statutes harmoniously where reasonable.”) (footnotes omitted).  In reading sections 5702 and 7905 harmoniously, we note that only section 5702 provides affirmative authority to reimburse costs an employee incurs outside of an agency’s local travel area.  Section 7905 provides no such affirmative authority and is limited by the express language of the statute.  Because section 5702 provides the only affirmative authority to use appropriated funds to reimburse costs an employee incurs while traveling outside of the local travel area, it is the bounds of the agency’s local travel area that define the scope of section 7905. 

Though each agency’s definition of the local travel area may differ, the general rules that govern reimbursement within or outside of the local travel area remain the same.  An agency may use appropriated funds to reimburse an employee for costs the employee incurs for travel outside the local travel areawhen the employee is traveling pursuant to an official travel authorization.  An agency may not use appropriated funds to provide transit subsidies for home‑to‑work travel costs an employee incurs beyond the local travel area.  An agency may use appropriated funds, however, to provide transit subsidies for home‑to‑work travel costs an employee incurs once he or she enters the local travel area, because those costs are within the scope of section 7905.

Enclosed you will find GAO’s transit subsidies decisions of September 2016, July 2017, and August 2017.  In these decisions, we describe the facts and circumstances of each decision in greater detail.  If you have any questions, please contact Shirley Jones, Managing Associate General Counsel, at (202) 512-8156, or Omari Norman, Assistant General Counsel for Appropriations Law, at (202) 512‑8272.

Thomas H. Armstrong
General Counsel

Enclosures