TITLE: B-316533, Department of Homeland Security--Transfer of Support Function for Principal Federal Officials, July 31, 2008
BNUMBER: B-316533
DATE: July 31, 2008
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B-316533, Department of Homeland Security--Transfer of Support Function for Principal Federal Officials, July 31, 2008
B-316533
July 31, 2008
The Honorable Robert C. Byrd
United States Senate
The Honorable Thad Cochran
United States Senate
Subject: Department of Homeland Security--Transfer of Support Function for
Principal Federal Officials
In a letter dated May 22, 2008, you requested our opinion on whether a
provision contained in the 2007 supplemental appropriations act
prohibiting the Department of Homeland Security (DHS) from using
appropriated funds for reorganizing the department was in effect and
applicable to actions taken by DHS at the beginning of fiscal year 2008.
Additionally, you asked whether, if the prohibition was in effect, DHS
improperly used appropriated funds to carry out a transfer of the
Principal Federal Officials (PFO) Support Program from the National
Protection and Programs Directorate (NPPD) to the Office of Operations
Coordination's (OPS) Management and Administration Program.
After analyzing the applicable statutes and considering DHS's views, we
conclude that the prohibition was indeed in effect on October 1, 2007, the
date of the transfer. We also conclude that the transfer of the program
support function constituted a transfer covered by the prohibition. The
support function was previously performed by NPPD. Effective October 1,
2007, the Director of Operations Coordination was tasked with providing
staff support to the PFOs, and NPPD then ceased to have a staff support
role regarding PFOs.
Our practice when issuing opinions is to obtain the views of the relevant
agency to establish a factual record and to establish the agency's legal
position on the subject matter of the request. GAO, Procedures and
Practices for Legal Decisions and Opinions, GAO-06-1064SP (Washington,
D.C.: Sept. 2006), available at www.gao.gov/legal/resources.html. In this
regard, the department provided its legal views and relevant factual
material. Letter from Michael D. Russell, Acting Associate General
Counsel, DHS, to Susan A. Poling, Managing Associate General Counsel, GAO,
July 17, 2008 (Russell Letter). DHS provided 16 attachments to its letter,
including copies of letters previously sent to congressional committees
under section 872 notifying them of reorganizations or transfers. Russell
Letter, at Tabs 6-16.
BACKGROUND
DHS was established by the Homeland Security Act of 2002. Pub. L.
No. 107-296, 116 Stat. 2135 (Nov. 25, 2002). The Homeland Security Act
defined the department's missions to include preventing terrorist attacks
within the United States, reducing the vulnerability of the United States
to terrorism, and minimizing the damage and assisting in the recovery from
attacks that occur within the United States. Id. at sect. 101(b). DHS
began operations in March 2003. See GAO, Department of Homeland Security:
Progress Made in Implementation of Management Functions, but More Work
Remains, GAO-08-646T (Washington, D.C.: Apr. 9, 2008). Its establishment
represented a fusion of 22 federal agencies to coordinate and centralize
the leadership of many homeland security activities under a single
department. Id.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the
Stafford Act) primarily establishes the programs and processes for the
federal government to provide major disaster and emergency assistance to
state, local, and tribal governments, individuals, and qualified private
nonprofit organizations. 42 U.S.C. sections 5121-5206. The President has
assigned to the Secretary of DHS principal responsibility to coordinate
management of the federal response to major incidents. Letter from Michael
Chertoff, Secretary of DHS, to David Price, Chairman, Subcommittee on
Homeland Security, House Committee on Appropriations, July 27, 2007
(Chertoff Letter), contained in Russell Letter, at Tab 3. The Federal
Emergency Management Agency (FEMA), within DHS, has responsibility for
administering the Stafford Act, and under the act, a federal coordinating
officer (FCO) is appointed to lead the federal response to a national
emergency. DHS states that while major incidents may involve the Stafford
Act and be centered on emergency management, others may not involve the
Stafford Act and may involve largely law enforcement responses with little
role for FEMA. Id. For such non-Stafford Act incidents, a PFO is deployed
to lead the array of federal personnel. Id.
There are currently approximately 75 pre-appointed PFOs. DHS, Responses to
Questions for the Record, Hearing before the Subcommittee on Homeland
Security, Senate Appropriations Committee, 18-19 (Mar. 4, 2008). The PFO
is a collateral duty position, and all PFOs have other full-time
responsibilities with their agencies. Id., at 19. Some PFOs are designated
for certain events, while approximately 38 nondesignated PFOs must be
trained to step into the role of any of the PFOs if their normal
responsibilities preclude them from carrying out their duties as a PFO.
Id. The PFO support function or program management responsibilities
consist primarily of training the PFOs, but also include coordinating PFO
assignments with each PFO's parent agency. Id. It is the transfer of the
PFO support function that is at issue here.
In his letter to the Chairman of the Appropriations Subcommittee on
Homeland Security, House of Representatives, the Secretary described the
transfer as follows:
"I am pleased to report that, effective Fiscal Year 2008, the DHS
Director of Operations Coordination will provide staff support to the
PFOs. NPPD will then cease to have a staff support role regarding PFOs.
This organizational transition will complete the alignment of
pre-incident PFO and FCO support functions with other pre-incident
strategic management planning and coordination within the Department."
Chertoff Letter, at 2.
When it was enacted in 2002, section 872 of the Homeland Security Act
provided the Secretary with authority to reorganize the department, but
required that the Secretary provide notice to Congress prior to any
reorganization. Specifically, section 872 of the Homeland Security Act
states that "[t]he Secretary may allocate or reallocate functions among
the officers of the Department, and may establish, consolidate, alter, or
discontinue organizational units within the Department . . ." Pub. L. No.
107-296, sect. 872. The Secretary must provide notice 60 days in advance
of taking any such action, and the notice is required to include the
rationale for the action.[1] Id.
In 2007, however, Congress prohibited the Secretary from using
appropriated funds to carry out section 872. In May 2007, after receiving
its annual appropriation for fiscal year 2007,[2] DHS received a
supplemental appropriation. U.S. Troop Readiness, Veterans' Care, Katrina
Recovery, and Iraq Accountability Appropriations Act, 2007, Pub. L. No.
110-28, 121 Stat. 112 (May 25, 2007) (Supplemental Appropriation). Section
3501 of the Supplemental Appropriation provides that "[n]one of the funds
provided in this Act, or [the DHS Appropriations Act], shall be available
to carry out section 872 of Public Law 107-296 [the Homeland Security Act
of 2002]." Pub. L. No. 110-28, sect. 3501.
For the beginning of fiscal year 2008, Congress enacted a continuing
resolution to fund DHS. See Joint Resolution, Pub. L. No. 110-92, 121
Stat. 989 (Sept. 29, 2007) (Continuing Resolution). The Continuing
Resolution appropriated for fiscal year 2008:
"Such amounts as may be necessary, at a rate for operations as provided
in the applicable appropriations Acts for fiscal year 2007 and under the
authority and conditions provided in such Acts for continuing projects
or activities . . . for which appropriations, funds, or other authority
were made available in [listed appropriations acts] . . ."
Pub. L. No. 110-92, sect. 101. The listed appropriations acts included the
2007 DHS Appropriations Act.
Section 104 of the Continuing Resolution provided that no funds provided
under the Continuing Resolution "shall be used to initiate or resume any
project or activity for which appropriations, funds, or other authority
were not available during fiscal year 2007." Id. sect. 104.
You state in your letter to us that you believe the prohibition against
transfers under section 872 of Public Law 107-296 was "in effect during
the pendency of the [fiscal year] 2008 continuing resolutions" which began
on October 1, 2007. In addition to asking for our view on this question,
you ask whether the transfer of the PFO support function would be subject
to the prohibition.
ANALYSIS
The question of whether the prohibition contained in section 3501 of the
Supplemental Appropriation was in effect on October 1, 2007, can be
resolved by looking to the terms of the various statutes involved. As
stated above, the prohibition at issue first appeared in the Supplemental
Appropriation enacted in May 2007. By its terms, this provision prohibited
any funds provided in that Act as well as any funds provided by the 2007
DHS Appropriations Act from being used to carry out transfers under
section 872 of Public Law 107-296. Pub. L. No. 110-28, sect. 3501. Thus,
the prohibition against such transfers became a condition on the use of
funds provided by the 2007 DHS Appropriations Act.
In the Continuing Resolution, Congress specifically identifies the 2007
DHS Appropriations Act as the reference bill for determining the rate for
operations during fiscal year 2008 and states that the funds are provided
under the "authority and conditions" provided in the fiscal year 2007 DHS
Appropriations Act. Pub. L. No. 110-92. Moreover, section 104 of the
Continuing Resolution prohibited funds from being used for any project or
activity for which funds were not available in 2007. Because the section
3501 prohibition is a condition imposed on the department's fiscal year
2007 appropriation and a reorganization under section 872 could not have
been made in 2007, we conclude that the prohibition was in effect during
the pendency of the Continuing Resolution, including on October 1, 2007,
the date of the transfer.
The next question, then, is whether the transfer of the PFO support
function was a transfer covered by the prohibition. As stated, section
3501 prohibited the Department from using appropriated funds to "carry out
section 872."
Section 872 addresses the authority of the Secretary to "allocate or
reallocate functions" among the officers of the department or "to
establish, consolidate, alter, or discontinue organizational units." The
Homeland Security Act defines the term "functions" as including
"authorities, powers, rights, privileges, immunities, programs, projects,
activities, duties, and responsibilities." Pub. L. No. 107-96, sect. 2(8).
In interpreting statutes, the federal courts have developed a number of
well-recognized conventions or canons of statutory construction. The most
important canon is the "plain meaning rule." The Supreme Court described
this rule as follows: "Our first step in interpreting a statute is to
determine whether the language at issue has a plain and unambiguous
meaning with regard to the particular dispute . . . Our inquiry must cease
if the statutory language is unambiguous and the statutory scheme is
coherent and consistent." Robinson v. Shell Oil Co., 519 U.S. 337, 340
(1997). In other words, when the language of a law is clear and
unambiguous on its face, it is the plain meaning of that language that
controls. B-307720, Sept. 27, 2007.
When we examine the terms contained in section 872 and apply them to the
facts before us, we see that the term "function" is broadly defined and
that other key terms such as "reallocate," "alter," and "organizational
unit" are clear and unambiguous when viewed in the context of DHS's
organizational structure. The two organizational units involved in the
transfer, NPPD and OPS, are significant components of DHS. NPPD is a
Directorate and is led by an Under Secretary of the department. OPS,
headed by the Director of Operations Coordination, works to deter, detect,
and prevent terrorist acts by coordinating the work of federal, state,
territorial, tribal, local, and private sector partners, and by collecting
and fusing information from a variety of sources. The Director has a
leadership position within the department on a par with other key
department officials and reports directly to the Secretary. DHS
Organizational Chart, contained in Russell Letter, at Tab 5. By
transferring the PFO support function, the Secretary is reallocating this
significant responsibility to the Director of Operations and, in the
Secretary's own words, completing an "organizational transition." Chertoff
Letter. Moreover, DHS is modifying both NPPD and OPS organizations. As a
result of the transfer, NPPD will "cease to have a staff support role" and
OPS will be responsible for, among other things, training a cadre of 75
PFOs. Id. We therefore conclude that the Secretary is "reallocat[ing]
functions" and "alter[ing]" two "organizational units" under section 872
in violation of the prohibition.
DHS argues that the Homeland Security Act vests the Secretary with the
authority to make changes to allow the department to function more
efficiently and that the transfer was authorized under this authority. See
Pub. L. No. 107-296, sect. 102(a)(2), (a)(3). DHS also points to the
Secretary's broad statutory authority to delegate functions of the
department and asserts that the transfer is essentially a redelegation in
which the Secretary is effectively ending his delegation to NPPD and
redelegating the PFO function to OPS. See id. at sect. 102(b)(1).
DHS's arguments in this regard are unpersuasive since they fail to
recognize the well-established canon of statutory construction that each
part or section of a statute should be construed in connection with every
other part or section so as to produce a harmonious whole. See B-302335,
Jan. 15, 2004, quoting 2A Sutherland, Statutes and Statutory Construction
sect. 46:05, at 154 (6^th ed. 2000). In ascertaining the plain meaning of
a statute, we necessarily look to the particular statutory language at
issue, as well as the language and design of the statute as a whole.
The Homeland Security Act provides that the Secretary shall have
"direction, authority, and control over" the department and vests "all
functions of all officers, employees, and organizational units" in the
Secretary. Pub. L. No. 107-296, sections 102(a)(2), (a)(3). DHS argues
that the Secretary, thus, has the authority, independent of section 872,
to reorganize the department. However, reading the Homeland Security Act
as a whole, we construe section 872, which was enacted as part of the same
Act establishing the department, as a limitation on any general or
inherent authority of the Secretary to reorganize the department which may
otherwise be inferred from sections 102(a)(2) and (a)(3).
With respect to DHS's argument that the transfer of function here was
essentially a redelegation, we point out, initially, that nothing in the
record suggests that the Secretary viewed this organizational transfer as
a delegation (or redelegation). Second, the Secretary is authorized to
delegate "except as otherwise provided by this Act." Pub. L. No. 107-296,
sect. 102(b)(1). To the extent that a delegation results in a
reorganization as described in section 872, section 872 would apply.
Reading the delegation authority as suggested by the department would
effectively remove the section 872 limitation, since such a reading would
permit the Secretary to reallocate any function among the officers,
employees, and organizational units of the department in disregard of
section 872. Because of the clause in section 102(b)(1), "except as
otherwise provided by this Act," it is clear that Congress intended the
Secretary's delegation authority to yield to the section 872
reorganization provision.
Next, DHS asserts that 5 U.S.C. sect. 301 provides additional authority to
make "minor modifications." Russell Letter, at 7. This statute, commonly
referred to as the "housekeeping statute," is a general grant of authority
to agencies to manage their own affairs by issuing internal regulations
governing performance of the agency's business. See Chrysler Corp. v.
Brown, 441 U.S. 281, 309 (1979). The statute, which dates back to George
Washington's administration, cannot reasonably be understood to supersede
a specific limitation, established in the department's organic
legislation, on the Secretary's authority to reorganize the department.
Rather, to the extent that this statute is relevant, it is limited by
section 872, the later, specific enactment addressing the scope of the
department's authority to organize the department. See B-308715, Apr. 20,
2007 (stating that "it is well established that a later enacted, specific
statute will typically supersede a conflicting previously enacted, general
statute to the extent of the inconsistency").
Finally, DHS argues that the department has consistently determined that
in order for a reorganization to fall under section 872, it must involve a
program established by the Homeland Security Act or another statute or
involve a program with another significant variable, such as "previous,
demonstrated Congressional interest." Russell Letter, at 8. We see no
basis for reading section 872 in this way. The language of the statute is
quite broad and does not include limiting language. The definition in the
statute of "functions" includes "programs" and is not limited by number of
employees affected, amount of money involved, or whether or not the
function is established by statute.[3] See Pub. L. No. 107-296, sect.
2(8).
Regardless, the transfer of the PFO support function would appear to meet
the criterion of "previous, demonstrated Congressional interest." The role
of the PFO has been a matter of congressional interest for several years.
For example, following the federal response to Hurricane Katrina, the
House Bipartisan Committee on Katrina issued a report in February 2006
finding, among other things, that "there was confusion over the role and
authority of the PFO." A Failure of Initiative, Final Report of the Select
Bipartisan Committee to Investigate the Preparation for and Response to
Hurricane Katrina, H.R. Rep. No. 109-377, at 135 (2006). The report also
emphasized the importance of PFO-designates completing a training program.
Id. Moreover, GAO has been asked to testify about the roles,
responsibilities, and lines of authority with respect to the DHS Secretary
and the FEMA Administrator. GAO has identified persistent confusion about
the key leadership roles, including the roles of the PFO and FCO, and, as
recently as June 2008, GAO was asked by the Committee on Homeland
Security, House of Representatives, for its assessment of whether the
roles of the PFO and FCO have been sufficiently clarified. GAO, Hurricane
Katrina: GAO's Preliminary Observations Regarding Preparedness, Response,
and Recovery, GAO-06-442T (Washington, D.C.: Mar. 8, 2006); Emergency
Management: GAO Responses to Post-hearing Questions for the Record,
GAO-08-1003R (Washington, D.C.: July 15, 2008).
We also believe that reading the section 872 authority as applicable to
the transfer of the PFO support program would be consistent with DHS's
prior use of the section 872 authority.[4] For example, in 2003, the
Department provided notice under section 872 that it was transferring the
Federal Air Marshall Program and Explosives Unit from the Transportation
Security Administration to the then-Bureau of Immigration and Customs
Enforcement. Russell Letter, at 5. DHS states further that "[m]oving this
program [from] one agency to another is precisely [the] type of
reorganization that requires section 872 notice to Congress." Id.
Similarly, in 2004, DHS informed Congress of its intent to move the Air
and Marine Operations from U.S. Immigration and Customs Enforcement to
U.S. Customs and Border Protection in order to realign and streamline
resources. Id. More recently, DHS states that it used its section 872
authority to transfer the US-VISIT program into NPPD. Russell Letter, Tab
16, at 7. In its notification letter, DHS explained that the "US-VISIT
mission includes routine and extensive coordination across multiple DHS
components, with foreign governments, and with other Federal agencies . .
. . We are relocating the program to the NPPD to support coordination for
the program's protection mission and to strengthen DHS management
oversight." Russell Letter, Tab 15, at 8. Turning to the transfer of the
PFO support function at issue here, we see no reason to believe, based on
past practices of the department, that section 872 was not applicable.
Indeed, the Secretary himself characterized the transfer of the PFO
support function as an "organizational transition." Chertoff Letter, at 2.
CONCLUSION
The prohibition against using the authority provided under section 872 of
the Homeland Security Act to transfer functions within the Department was
in effect during the pendency of the Continuing Resolution, including on
October 1, 2007, the date of the transfer. The "organizational transition"
of moving staff support for PFOs from one organizational unit to another
was a transfer under the plain meaning of section 872 and was similar to
prior transfers for which DHS provided notice under that authority. We
conclude that DHS's transfer of the PFO support program, effective October
1, 2007, was within the scope of section 872 and therefore was prohibited
under the Continuing Resolution.
Sincerely yours,
Gary L. Kepplinger
General Counsel
------------------------
[1] Alternatively, the Secretary may undertake a reorganization pursuant
to a Reorganization Plan submitted by the President to the appropriate
congressional committees. Pub. L. No. 107-296, sect. 1502.
[2] Department of Homeland Security Appropriations Act, Pub. L. No.
109-295, 120 Stat. 1355 (Oct. 4, 2006) (2007 DHS Appropriations Act).
[3] DHS also asserts that the transfer is not covered by section 872
because the PFO function is a collateral duty. The function transferred,
however, was the PFO support function, not the PFO function itself. In any
event, the definition of "functions" includes "duties" and is not limited
to full-time or primary duties. See Pub. L. No. 107-296, sect. 2(8).
[4] DHS states that it has provided written notice to Congress under
section 872 of the Homeland Security Act nine times, but that in five of
these cases, section 872 notice was not required. Russell Letter, at 4-6.
While we do not express an opinion on whether notice was in fact required,
we note that with one exception, each of the letters to Congress advised
that the notification was being provided "in accordance with Section 872
of the Homeland Security Act." See Russell Letter, Tabs 6-16. Regarding
the notification letter that did not contain an explicit reference to
section 872, DHS advises that the transfer at issue in that letter was in
fact conducted pursuant to section 872. See Russell Letter, at 5 and Tab
11.