Principles of Federal Appropriations Law - US Government ...

Chapter 2
The Legal Framework
504–06 (1959); Ex Parte Endo, 323 U.S. 283, 303 n.24 (1944); Brooks v.
Dewar, 313 U.S. 354, 360–61 (1941).
Having said this, however, we must also emphasize that “ratification by
appropriation is not favored and will not be accepted where prior
knowledge of the specific disputed action cannot be demonstrated clearly.”
District of Columbia Federation of Civic Ass’ns v. Airis, 391 F.2d 478, 482
(D.C. Cir. 1968); Associated Electric Cooperative, Inc. v. Morton, 507 F.2d
1167, 1174 (D.C. Cir. 1974), cert. denied, 423 U.S. 830 (1975); American
Legion v. Derwinski, 827 F. Supp. 805, 809 (D.D.C. 1993), aff’d, 54 F.3d 789
(D.C. Cir. 1995), cert. denied, 516 U.S. 1041 (1996).
Thus, a simple lump-sum appropriation, without more, will generally not
afford sufficient basis to find a ratification by appropriation. Endo, 323 U.S.
at 303 n.24; Airis, 391 F.2d at 481–82; Wade v. Lewis, 561 F. Supp. 913, 944
(N.D. Ill. 1983); B-213771, July 10, 1984. The appropriation “must plainly
show a purpose to bestow the precise authority which is claimed.” Endo,
323 U.S. at 303 n.24. Accord: Schism v. United States, 316 F.3d 1259, 1289–
1290 (Fed. Cir. 2002), cert. denied, ___ U.S. ___, 123 S. Ct. 2246 (2003)
(“ratification ordinarily cannot occur in the appropriations context unless
the appropriations bill itself expressly allocates funds for a specific agency
or activity”); A-1 Cigarette Vending, Inc. v. United States, 49 Fed. Cl. 345,
354 (2001), aff’d sub nom. 304 F.3d 1349 (Fed. Cir. 2002), cert. denied sub
nom. ___ U.S. ___, 123 S. Ct. 1570 (2003) (“[S]imply because the lack of an
appropriation demonstrates a lack of authority does not mean that an
appropriation by itself will create such authority… . [A] general
appropriation of funds for an overall program is not sufficient to bestow
authority upon a particular aspect of an agency’s program.”).
Some courts have used language which, when taken out of context, implies
that appropriations cannot serve to ratify prior agency action. E.g.,
Concerned Residents of Buck Hill Falls v. Grant, 537 F.2d 29, 35 n.12
(3 rd Cir. 1976); University of the District of Columbia Faculty Ass’n v.
Board of Trustees of the University of the District of Columbia, 994 F.
Supp. 1, 10 (D.D.C. 1998). Nevertheless, while the doctrine may not be
favored, it does exist. The courts demonstrate their reluctance to apply this
doctrine by giving extra scrutiny to alleged ratifications by appropriation.
Their reluctance to find such ratifications probably stems from a more
general judicial aversion to interpreting appropriation acts as changing
substantive law. Thus, the court observed in Thomas v. Network Solutions,
Inc., 2 F. Supp. 2d 22, 32 at n.12 (D.D.C. 1998), aff’d, 176 F.3d 500 (D.C. Cir.
1999), cert. denied, 528 U.S. 1115 (2000) (citations omitted):
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