B-308476, Federal Motor Carrier Safety Administration--Retention of Court-Ordered Restitution, December 20, 2006
Decision
Matter of: Federal Motor Carrier Safety Administration—Retention of Court-Ordered Restitution
DIGEST
The Federal Motor Carrier Safety Administration (FMCSA) has no authority to retain the amounts of an award of criminal restitution that a federal district court ordered to be paid to FMCSA. The miscellaneous receipts statute, 31 U.S.C. sect. 3302(b), requires that absent specific authority, federal agencies must deposit money received for the government into the Treasury as miscellaneous receipts. Although GAO recognizes a limited exception for certain amounts that constitute repayments, the restitution awarded here may not be characterized as such. Therefore, FMCSA must deposit money constituting the restitution award into the general fund of the Treasury.
DECISION
The Chief Counsel of the Federal Motor Carrier Safety Administration (FMCSA) requests an advance decision,[1] asking whether FMCSA may retain a restitution award ordered by a federal court. Letter from Suzanne M. Te Beau, Chief Counsel, Federal Motor Carrier Safety Administration, to Gary L. Kepplinger, General Counsel, GAO, Sept. 28, 2006 (FMCSA Request). The miscellaneous receipts statute, 31 U.S.C. sect. 3302(b), requires federal agencies to deposit into the federal Treasury any moneys received for the government. Although there are statutory and nonstatutory exceptions to the general rule, those exceptions do not apply to the restitution awarded to FMCSA. The agency lacks statutory authority to retain the restitution, and the award does not qualify as a repayment. Bound by the provisions of section 3302(b), FMCSA must deposit the restitution award in the general fund of the Treasury as soon as practicable.
BACKGROUND
FMCSA, an administration within the Department of
Transportation, is responsible for improving the safety of commercial vehicle
operations. See 49 U.S.C. sect. 113(b). As
such, FMCSA’s “primary mission is to reduce crashes, injuries, and fatalities
involving large trucks and buses.”
Federal Motor Carrier Safety Administration, About FMCSA, available at
www.fmcsa.dot.gov/about/aboutus.htm (last visited
A trucking company’s officers recently pleaded guilty to
violating Department of Transportation regulations regarding maintenance of
false logs, as well as a criminal statute concerning conspiracy to commit false
statement offenses. FMCSA Request. Accepting the plea, the United States
District Court for the District of Nebraska ordered, among other penalties, the
defendants to pay restitution to FMCSA in the amount of $20,000.
DISCUSSION
The question before us is whether FMCSA’s retention of
court-imposed restitution would violate the miscellaneous receipts statute, 31
U.S.C. sect. 3302(b), which requires federal agencies that receive any money in
addition to appropriated funds to deposit those amounts into the general fund
of the United States Treasury. See 47 Comp. Gen. 70, 72 (1967). Specifically, the statute requires those
receiving “money for the Government from any source [to] deposit the money in
the Treasury as soon as practicable without deduction for any charge or
claim.” 31 U.S.C. sect. 3302(b). Retention of such funds without authority
would constitute an improper augmentation of the agency’s appropriation. Agencies are generally prohibited from
augmenting their appropriations with other funds without statutory authority to
do so. Congressional appropriations “establish[]
a maximum authorized program level, meaning that an agency cannot, absent
statutory authorization, operate beyond the level that can be paid for by its
appropriations.” B-300248,
In circumstances similar to those here, we held that the
miscellaneous receipts statute prohibits the National Labor Relations Board
(NLRB) from retaining court costs awarded in civil litigation. 47 Comp. Gen. 70. In that case, the United States Court of
Appeals for the First Circuit ordered a company to pay the costs NLRB incurred
in printing material related to the agency’s appeal.
FMCSA has not identified any relevant statutory provision permitting the agency to retain the court-imposed restitution at issue to supplement its appropriation, nor are we aware of any such authority.
FMCSA explains that the district court awarded restitution
in order to compensate the agency for investigative costs. Te Beau Letter. GAO recognizes an exception to the general
rule when receipts are properly classified as repayments. B-305402,
Repayments are classified as either a reimbursement or a
refund. “Reimbursements are amounts
collected from outside sources for commodities or services furnished, which by
law may be credited directly to the appropriations.” B-305402,
Refunds are directly related to previous agency
expenditures. Specifically, they
constitute “amounts collected from outside sources for payments made in error,
overpayments, or adjustments for previous amounts disbursed.” 65 Comp. Gen. 600, 602 (1986), citing Treasury Department-GAO Joint
Regulation No. 1, reprinted as appendix
II to title 7 of GAO’s Policy and
Procedures Manual for Guidance of Federal Agencies.[4] The refund exception “simply restores to the
appropriation amounts that should not have been paid from the
appropriation.” B-302366,
We have applied the refund exception to permit federal
agencies to retain portions of damage awards or settlements obtained pursuant
to actions brought under the False Claims Act.
B-281064,
The restitution award at issue is not properly classified as
a refund. The restitution ordered was
meant to “compensate the agency for the costs of the investigation [, including]
time spent by FMCSA investigators and attorneys developing the
case . . . and support for the prosecution as needed.” Te Beau Letter. FMCSA makes no claim that the restitution
compensates the agency for a payment made in error or an overpayment. Nor does FMCSA claim that the restitution
constitutes an adjustment for a previous amount disbursed. Importantly, crediting the agency’s
appropriation with the restitution award would not “restore[] to the
appropriation amounts that should not have been paid.” B-302366,
FMCSA receives an appropriation each year to pay for costs
of investigations such as the one conducted here. See,
e.g., Transportation, Treasury, Housing and Urban Development, the
Judiciary, the District of Columbia, and Independent Agencies Appropriations
Act, 2006, Pub. L. No. 109-115, 119 Stat. 2396, 2409 (
FMCSA asks whether our recent decision involving a
settlement agreement between the Office of Federal Housing Enterprise Oversight
(OFHEO) and Freddie Mac, B-306860,
CONCLUSION
FMCSA lacks authority to credit to its appropriation an award of criminal restitution ordered by a federal court. The miscellaneous receipts statute, 31 U.S.C. sect. 3302(b), requires federal agencies, absent specific authority, to deposit money received for the government into the Treasury as miscellaneous receipts. Although GAO recognizes a limited exception for certain amounts that constitute repayments, the restitution awarded here may not be characterized as such. Consequently, amounts associated with the restitution award must be deposited into the general fund of the Treasury as soon as practicable.
Gary L. Kepplinger
General Counsel
[1]
Our practice when rendering decisions is to obtain the views of the relevant
federal agency to establish a factual record and to elicit the agency’s legal
position on the subject matter of the request.
GAO, Procedures and Practices for
Legal Decisions and Opinions, GAO-06-1064SP (
[2]
See generally B-300248,
[3]
Cf. 65 Comp. Gen. 666 (1986)
(statutory authority permitted the Department of the Interior’s Job Corps
Civilian Conservation Centers to retain for program purposes proceeds from the
sales of meals, tool kits, and clothing, etc.).
[4]
Available at www.gao.gov/special.pubs/ppm.html
(last visited