TITLE: B-309301, Recess Appointment of Sam Fox, June 8, 2007
BNUMBER: B-309301
DATE: June 8, 2007
*****************************************************
B-309301, Recess Appointment of Sam Fox, June 8, 2007

   B-309301

   June 8, 2007

   The Honorable Christopher J. Dodd
   The Honorable John F. Kerry
   The Honorable Robert P. Casey, Jr.
   United States Senate

   Subject: Recess Appointment of Sam Fox

   This responds to your request of April 5, 2007, for our legal opinion on
   the recess appointment of Sam Fox to serve as Ambassador to Belgium.
   Specifically, you asked us to address the application of section 5503 of
   title 5, United States Code, as well as the voluntary services prohibition
   of the Antideficiency Act, to Mr. Fox's appointment.

   Our practice when rendering legal opinions is to obtain the views of the
   relevant federal agency to establish a factual record and to elicit the
   agency's legal position in the matter.[1] In this case, we wrote to the
   Legal Adviser of the Department of State to solicit the Department's
   views.[2] The State Department responded to our letter and confirmed that,
   pursuant to section 5503, Mr. Fox would not be paid.[3] The Department
   also asserted that such an arrangement does not violate the voluntary
   services prohibition because Mr. Fox is not "volunteering" his services;
   rather a statutory prohibition restricts him from receiving a salary.

   As we explain below, we agree with the Department that, under section
   5503, Mr. Fox cannot receive a salary for his recess appointment.
   Likewise, we do not interpret the voluntary services prohibition to apply
   to this situation because the statutory bar of section 5503 eliminates the
   possibility of a coercive deficiency or a subsequent claim against the
   government, which was the original justification behind the prohibition.
   Furthermore, an alternative interpretation that would preclude Mr. Fox
   from serving in a recess appointment would raise serious constitutional
   questions.

   BACKGROUND

   On January 9, 2007, the President nominated Sam Fox to serve as Ambassador
   of the United States to Belgium. On February 27, 2007, the Senate Foreign
   Relations Committee held a hearing on Mr. Fox's nomination. 153 Cong. Rec.
   D220 (daily ed. Feb. 27, 2007). The Committee scheduled a vote on Mr.
   Fox's nomination for March 28, 2007. However, before the hearing began,
   the President announced the withdrawal of Mr. Fox's nomination. 153 Cong.
   Rec. S4079 (daily ed. Mar. 28, 2007). On March 29, 2007, the House and
   Senate adjourned for an intrasession recess. 153 Cong. Rec. S4223 (daily
   ed. Mar. 29, 2007). On April 4, 2007, the President gave Mr. Fox a recess
   appointment to serve as Ambassador to Belgium. Bellinger Letter, at 1.

   DISCUSSION

   The Constitution grants the President the power to "fill up all vacancies
   that may happen during the recess of the Senate, by granting commissions
   which shall expire at the end of their next session." U.S. Const. art. II,
   sect. 2. The federal courts have interpreted this authority broadly and
   have read the clause as applying to "vacancies that may happen to exist
   during the recess of the Senate." Evans v. Stephens, 387 F.3d 1220, 1225
   (11^th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1013 (9^th
   Cir. 1985);  United States v. Allocco, 305 F.2d 704, 710-12 (2^nd Cir.
   1962).

   However, section 5503 of title 5, United States Code, prohibits payment
   for services "to an individual appointed during a recess of the Senate to
   fill a vacancy in an existing office, if the vacancy existed while the
   Senate was in session and was by law required to be filled by and with the
   advice and consent of the Senate, until the appointee has been confirmed
   by the Senate." Long-standing decisions of both the Comptroller General
   (and his predecessor, the Comptroller of the Treasury) and the Attorney
   General have interpreted the operation of section 5503 and agreed that
   Congress has the right under its appropriation power[4] to prohibit salary
   payments to certain recess appointees. See, e.g., 26 Comp. Dec. 1072
   (1920); 28 Comp. Gen. 30 (1948); 16 Op. Att'y Gen. 522 (1880); 17 Op.
   Att'y Gen. 521 (1883); 32 Op. Att'y Gen. 271 (1920); 3 Op. Off. Legal
   Counsel 314 (1979).

   The vacancy in the position of Ambassador to Belgium existed prior to the
   March 29 recess. Ambassador positions are required by the Constitution to
   be appointed by the President by and with the advice and consent of the
   Senate. U.S. Const. art. II, sect. 2. Therefore, the prohibition of
   section 5503 would apply to Mr. Fox.

   While there are three exceptions to the prohibition in section 5503, none
   of them apply to Mr. Fox. The bar on salary payments of section 5503 is
   not applicable: (1) if the vacancy arose within 30 days before the end of
   the session of the Senate; (2) if, at the end of the session, a nomination
   for the office, other than the nomination of an individual appointed
   during the preceding recess of the Senate, was pending before the Senate
   for its advice and consent; and (3) if a nomination for the office was
   rejected by the Senate within 30 days before the end of the session and an
   individual, other than the one whose nomination was rejected, receives a
   recess appointment.[5] 5 U.S.C. sect. 5503(a). These exceptions do not
   apply to Mr. Fox because the vacancy arose prior to 30 days from the March
   recess, his nomination was not pending when the recess began because the
   President had already withdrawn his nomination, and the Senate had not
   rejected a nomination for the office. Thus, under the clear language of
   section 5503, the State Department's appropriation, which would otherwise
   be available to pay Mr. Fox's salary, is not available to pay his salary.
   In its response to our development letter, the State Department agreed
   with this conclusion and stated that Mr. Fox "intends to serve without
   pay." Bellinger Letter, at 2.

   The State Department's appropriation remains unavailable for paying Mr.
   Fox's salary until he is confirmed by the Senate. 5 U.S.C. sect. 5503(a).
   The President has not decided whether to renominate Mr. Fox. Bellinger
   Letter, at 2. Even if he were to be renominated, his salary could not be
   paid until he was confirmed by the Senate because his recess appointment
   does not fall within any of the exceptions in section 5503.[6]

   The fact that Mr. Fox cannot be paid raises the question of whether the
   State Department can accept his uncompensated services. Section 1342 of
   title 31, United States Code, prohibits an officer or employee of the
   government from accepting voluntary services, except in cases of
   "emergencies involving the safety of human life or the protection of
   property." This prohibition is part of the Antideficiency Act and a
   violation of the prohibition could subject the officer or employee who
   accepts such services to administrative discipline or criminal penalties.
   31 U.S.C. sections 1349, 1350.

   The voluntary services prohibition dates back to a provision in an
   appropriations law in 1884. Act of May 1, 1884, ch. 37. 23 Stat. 17.
   Congress enacted this provision after it was faced with claims "presented
   for extra services performed here and elsewhere by [employees] of the
   Government who had been engaged after hours." 15 Cong. Rec. 3411 (1884)
   (statement of Rep. Randall). In 1905, Congress reenacted a version of the
   Antideficiency Act that included the voluntary services prohibition. Act
   of March 3, 1905, ch. 1484, sect. 4, 33 Stat. 1257. In enacting this
   statute, members of Congress emphasized that "[w]e give to Departments
   what we think is ample, but they come back with a deficiency. Under the
   law they can [not] make these deficiencies and Congress can refuse to
   allow them; but after they are made it is very hard to refuse to allow
   them . . . we seek by this amendment to in some respect, at least, cure
   that abuse." 39 Cong. Rec. 3687 (1905) (statement of Rep. Hemenway).

   In other words, Congress enacted the voluntary services prohibition
   because agencies would coerce their employees to "volunteer" their
   services in order to stay within their annual appropriation. However,
   these employees would later come to Congress and seek additional
   appropriations to pay their salaries for the "volunteered" time, and
   Congress would often feel a moral obligation to pass an appropriation. The
   voluntary services prohibition, as well as the other provisions in the
   Antideficiency Act, was enacted to prevent these "coercive deficiencies."
   See GAO, Principles of Federal Appropriations Law, vol. 2, 3^rd ed.,
   GAO-06-382SP (Washington, D.C.: Feb. 2006), at 6-34-38.

   With this rationale in mind, early opinions of the Attorney General, the
   Comptroller of the Treasury, and the Comptroller General distinguished
   voluntary services from "gratuitous services," in which the government
   receives the uncompensated services of an individual through an advance
   agreement or contract in which the individual agrees to serve without
   compensation. 30 Op. Att'y Gen. 51 (1913); 27 Comp. Dec. 131 (1920); 7
   Comp. Gen. 810 (1928). These decisions agreed that "an appointment to
   serve without compensation which is accepted and properly recorded, is not
   a violation of the statutory prohibition against the acceptance of
   voluntary service." 27 Comp. Dec. at 133. Such an arrangement was not "the
   evil at which Congress was aiming," because Congress would feel no moral
   obligation to pass an appropriation to pay an individual who knowingly
   waived his salary in advance. 30 Op. Att'y Gen. at 55. Gratuitous services
   are unlikely to form the basis of future claims against the government.
   B-204326, July 26, 1982. Agencies, therefore, can accept the uncompensated
   services of an individual who has validly waived his compensation in
   advance.

   However, the Supreme Court has stated that employees whose salary is
   specified in statute cannot waive their compensation. Glavey v. United
   States, 182 U.S. 595, 609 (1901) (stating that "it was not competent for
   the Secretary of the Treasury, having the power of appointment, to defeat
   that purpose by what was, in effect, a bargain or agreement between him
   and his appointee that the latter should not demand the compensation fixed
   by statute"). See also Goldsborough v. United States, 10 Fed. Cas. 560,
   562 (C.C.D. Md. 1840) (stating that "where an act of [C]ongress declares
   that an officer of the government or public agent shall receive a certain
   compensation for his services, which is specified in the law, undoubtedly,
   that compensation can neither be enlarged nor diminished ... unless the
   power to do so is given by act of [C]ongress"). Indeed, the courts have
   allowed claims for compensation to proceed even when it appeared that an
   employee had waived a salary specified in statute. See, e.g., United
   States v. Jones, 100 F.2d 65, 68 (8^th Cir. 1938) (holding that "the pay
   of this officer was fixed by statute; his compensation rested not upon
   contract, but upon an act of Congress, and his acceptance of less than the
   full statutory compensation did not estop him nor his beneficiary from
   claiming the entire amount due from the government").

   Because employees whose salary is specified in statute could bring a
   future claim against the government, even if they waived their salary in
   advance, both the Comptroller General and the Department of Justice have
   refused to allow such arrangements and have applied the voluntary services
   prohibition to such cases. 26 Comp. Gen. 956 (1947); 19 Op. Off. Legal
   Counsel 235 (1995); 6 Op. Off. Legal Counsel 160 (1982). These opinions
   have held that "in the absence of statutory authority . . . there are no
   circumstances under which an original appointee to a position in the
   Federal service properly may legally waive his ordinary right to the
   compensation fixed by or pursuant to law for the position. . . ." 26 Comp.
   Gen. at 961.

   Later decisions applied this principle and allowed a waiver of
   compensation only in instances in which the statute did not specify a rate
   of pay or in which the statute specified only a maximum rate of pay. 58
   Comp. Gen. 383 (1979); 27 Comp. Gen. 194 (1947). For example, the statute
   setting the pay of members of the United States Metric Board stated that
   they were "entitled to receive compensation at a rate not to exceed the
   daily rate currently being paid grade 18 of the General Schedule;" members
   thus could waive their salary in advance because only a maximum rate was
   specified. 58 Comp. Gen. at 384.

   The salary of an ambassador to a nation is set by statute. Each ambassador
   who is chief of mission "shall receive a salary, as determined by the
   President, at one of the annual rates payable for levels II through V of
   the Executive Schedule under sections 5313 through 5316 of title 5, United
   States Code." 22 U.S.C. sect. 3961(a). The Executive Schedule is a
   five-tier annual salary schedule for most of the federal government's
   highest officials, and the rates are adjusted on an annual basis. In 2007,
   the annual rate of pay for Executive Level II is $168,000, and the annual
   rate of pay for Executive Level V is $136,200. Exec. Order No. 13420,
   Adjustments of Certain Rates of Pay, 71 Fed. Reg. 77571 (Dec. 26, 2006).
   Thus, by statute, the minimum rate of pay for the Ambassador to Belgium is
   currently $136,200. Under normal circumstances, the voluntary services
   prohibition would forbid the State Department from accepting the
   uncompensated services of the Ambassador to Belgium, because of the
   statutory minimum salary. 58 Comp. Gen. at 383.

   As noted above, the voluntary services prohibition was enacted to prevent
   coercive deficiencies and future equitable claims against the government.
   Thus, Mr. Fox could not volunteer his services as Ambassador to Belgium.
   However, as the State Department notes, Mr. Fox is not "volunteering" his
   services; rather, there is a statutory prohibition that bars him from
   being paid. Bellinger Letter, at 2. This is not a situation in which a
   coercive deficiency might occur. Like an employee who signs a gratuitous
   waiver of salary, Mr. Fox took the position of Ambassador knowing that he
   would not receive compensation for his services. Id. Similarly, Mr. Fox
   could not file a claim against the government for compensation, because
   there is a statutory prohibition on his receipt of compensation. 5 U.S.C.
   sect. 5503.

   A similar situation arises in the application of the dual compensation
   prohibition. Under this prohibition, "an individual is not entitled to
   receive basic pay from more than one position for more than an aggregate
   of 40 hours of work in one calendar week." 5 U.S.C. sect. 5533(a).
   Nonetheless, circumstances have arisen in which individuals have sought to
   serve in two positions, each with a statutory salary. In these cases, the
   Department of Justice has opined that the individual may serve in both
   positions, but may only receive the salary for one position. See, e.g., 2
   Op. Off. Legal Counel 368 (1977); Memorandum for Honorable Larry Eugene
   Temple, Special Counsel to the President, from Frank M. Wozencraft,
   Assistant Attorney General, Office of Legal Counsel, Dual Service as Head
   of an Executive Department and Director of the Office of Economic
   Opportunity, OLC Opinion, Feb. 16, 1968 (Wozencraft Memo). The voluntary
   services prohibition will not block the employee from serving in the
   second position because the dual compensation statute "inferentially
   recognizes the legality of dual office-holding." 2 Op. Off. Legal Counsel
   at 368. Furthermore, the employee is not waiving the second salary or
   volunteering in the second position which would be barred by the voluntary
   services prohibition. Rather, his uncompensated service is "compelled by a
   provision of law." Wozencraft Memo, at n.4.

   Likewise, section 5503 implicitly recognizes that the President has the
   constitutional authority to make a recess appointment, but restricts
   certain appointees from receiving a salary.[7] As one of the supporters of
   the original version of section 5503 stated, "It may not be in
   [Congress's] power to prevent the appointment, but it is in our power to
   prevent the payment." Cong. Globe, 37^th Cong, 3^rd Sess. 565 (1862)
   (statement of Rep. Fessenden). Therefore, we agree with the State
   Department that the voluntary services prohibition does not restrict the
   Department from allowing Mr. Fox to serve as Ambassador without
   compensation. The original justification for the prohibition was the
   possibility of a coercive deficiency or a future claim against the
   government. However, the statutory prohibition of section 5503 precludes
   such possibilities in Mr. Fox's case.

   We are also led to this interpretation by the fact that serious
   constitutional issues would arise if section 5503, in conjunction with the
   voluntary services prohibition, were read to directly restrict the
   President from making a recess appointment. Like the courts, we will
   interpret a statute to avoid constitutional issues. B-302911, Sept. 7,
   2004. See also Crowell v. Benson, 285 U.S. 22, 62 (1932).

   In interpreting statutory holdover provisions, in which a member of a
   federal board or commission is authorized to continue to serve until his
   successor is appointed, the federal courts have construed these provisions
   to avoid restricting the President's authority to make a recess
   appointment after a member's term has expired. Swan v. Clinton, 100 F.3d
   973, 988 (D.C. Cir. 1996); Staebler v. Carter, 464 F. Supp. 585, 591
   (D.D.C. 1979); Nippon Steel Corp. v. International Trade Commission, 26
   C.I.T. 1025, 1037 (2002). In the Staebler case, which involved the
   holdover provision for members of the Federal Election Commission, the
   court stated that "to construe the statute to prohibit all recess
   appointments ... would be unreasonably broad and probably
   unconstitutional." Staebler, 464 F. Supp. at 591. The court therefore
   narrowly interpreted the statute to avoid this constitutional question.
   Id. See also B-201035, Dec. 4, 1980.

   Like the President's recess appointment authority, another exclusive
   enumerated power of the President is the authority to grant pardons. U.S.
   Const. art. II, sect. 2. With regard to the pardon power, the Supreme
   Court has held that Congress may not use its appropriations power to
   restrict the President's authority to grant pardons. United States v.
   Klein, 80 U.S. 128, 147 (1872). Reasoning by analogy from Klein, serious
   constitutional issues would arise if Congress attempted to use the power
   of the purse to directly restrict the President from making a recess
   appointment, just as the courts have prevented Congress from restricting
   the President's pardon authority.[8]

   Accordingly, we will not interpret the voluntary services prohibition to
   bar Mr. Fox from serving as Ambassador to Belgium, even though he may not
   receive a salary under section 5503 until he is confirmed by the Senate.
   In fact, we have reached the same result, albeit without reference to the
   voluntary services prohibition, in several of our prior decisions
   interpreting section 5503. For example, in a decision involving the recess
   appointment of a member of the former Interstate Commerce Commission,
   whose salary was specified in statute, we stated that "he may continue to
   function as a member of the Commission but without pay until he is
   nominated by the President to the full term and that nomination is
   confirmed by the Senate . . ." 52 Comp. Gen. 556 (1973). See also 28 Comp.
   Gen. 121 (1948) (involving the recess appointment of a federal district
   judge with a statutorily specified salary); 7 Comp. Gen. 10 (1927)
   (involving the recess appointment of an ambassador with a statutorily
   specified salary).

   CONCLUSION

   Under 5 U.S.C. sect. 5503, Mr. Fox is prohibited from receiving
   compensation for his recess appointment as Ambassador to Belgium until his
   nomination is approved by the Senate. The Department of State may allow
   him to serve without compensation, despite the voluntary services
   prohibition of the Antideficiency Act, because Mr. Fox's service would not
   result in a coercive deficiency or a subsequent claim against the
   government, which was the original justification behind the prohibition.
   Mr. Fox could not make such a claim because of the statutory bar of
   section 5503. Similar to the situation in which an employee gratuitously
   waives his compensation in advance, which is an exception to the voluntary
   services prohibition, Mr. Fox accepted the ambassadorial appointment with
   full knowledge that he would not be entitled to compensation. Furthermore,
   an alternative interpretation that would directly curtail the President's
   power to make a recess appointment to Mr. Fox would raise serious
   constitutional concerns.

   Sincerely yours,

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] GAO, Procedures and Practices for Legal Decisions and Opinions,
   GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at
   www.gao.gov/congress.html.

   [2] Letter from Gary L. Kepplinger, General Counsel, GAO, to John
   Bellinger, III, Legal Adviser, Department of State, April 19, 2007.

   [3] Letter from John B. Bellinger, III, Legal Adviser, Department of
   State, to Gary L. Kepplinger, General Counsel, GAO, May 9, 2007 (Bellinger
   Letter).

   [4] The Constitution mandates that "No money shall be drawn from the
   treasury, but in consequence of appropriations made by law..." U.S. Const.
   art. I, sect. 9.

   [5] Under these exceptions, the President is required to submit a
   nomination for the office within 40 days of the beginning of the next
   session of the Senate in order for the appointee to continue to receive a
   salary. 5 U.S.C. sect. 5503(b).

   [6] If the President did renominate Mr. Fox and the full Senate rejected
   his nomination, the prohibition of section 5503, as well as a separate
   prohibition on the payment of salary to any appointee whose nomination has
   been rejected by the Senate, would apply; this latter prohibition is
   annually included in an appropriations bill. See, e.g., Pub. L. No.
   109-115, sect. 809, 119 Stat. 2396, 2497  (Nov. 30, 2005) (incorporated
   into Pub. L. No. 110-5, sect. 104, 121 Stat. 8, 9  (Feb. 15, 2007)).

   [7] An early opinion of the Attorney General recognized this implication:
   "In postponing the payment of salary of the appointee until the Senate has
   given its assent to the appointment, [the statute] concedes the right of
   the President to appoint, although it undoubtedly embarrasses the exercise
   of that right by subjecting the appointee to conditions which are somewhat
   onerous." 16 Op. Att'y Gen. at 531.

   [8] Likewise, the Department of Justice has opined that the Antideficiency
   Act must be narrowly interpreted to avoid a construction that would "with
   respect to certain of the President's [constitutionally enumerated]
   functions ... raise grave constitutional questions." 5 Op. Off. Legal
   Counsel 1, 6 (1981).