Reimbursement of Expenses Under 5 U.S.C. § 5503(a)

Reimbursement of Expenses Under 5 U.S.C. § 5503(a)

5 U.S.C. § 5503(a) does not prohibit individuals reappointed to the Board o f D irectors o f the Civil
L iberties Public Education Fund dun n g a congressional recess from receiving reim bursem ent for
travel, subsistence, and other necessary expenses associated with perform ing their functions.

February 2, 1998

M e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s id e n t

This memorandum confirms oral advice conveyed to your office that individuals
appointed for a second time during a congressional recess to the Board of Direc­
tors of the Civil Liberties Public Education Fund may be reimbursed for expenses
associated with performing their functions.
The nine-member Board of Directors of the Civil Liberties Public Education
Fund makes disbursements from the Fund for research and educational activities
concerning the relocation and internment of individuals of Japanese ancestry
during World War II. 50 U.S.C. app. § 1989b-5(b) (1994). The Board’s members
are appointed by the President, with the advice and consent of the Senate, to
three-year terms. Id. app. § 1989b-5(c)(2). In January 1995, the President sub­
mitted to the Senate the nominations of eight individuals for vacant Board posi­
tions, but the Senate Governmental Affairs Committee never acted upon those
nominations. During an adjournment of the Senate in January 1996, the President
exercised his power under the Recess Appointments Clause to fill the vacancies,
placing the eight previously nominated individuals on the Board. See U.S. Const,
art. II, §2, cl. 3 (“ The President shall have Power to fill up all Vacancies that
may happen during the Recess o f the Senate, by granting Commissions which
shall expire at the End of their next Session.” ). The President subsequently
renominated the eight individuals in January 1997, and the Senate Governmental
Affairs Committee again did not act upon those nominations. The commissions
of the eight recess-appointed individuals expired upon the adjournment sine die
of the first session of the 105th Congress. See id.; 143 Cong. Rec. S12,713 (daily
ed. Nov. 13, 1997); id. at H10,952.
Board members serve “ without pay,” but are reimbursed for “ travel, subsist­
ence, and other necessary expenses incurred by them in carrying out the functions
of the Board.” 50 U.S.C. app. § 1989b-5(c)(3). You asked whether 5 U.S.C.
§ 5503(a) (1994) would bar reimbursement for these expenses in the event that
the President reappointed, during another congressional recess, the eight individ­
uals whose commissions expired at the end of the first session of the 105th Con­
gress.
In pertinent part, § 5503(a) provides: ‘‘Payment for services may not be made
from the Treasury of the United States to an individual appointed during a recess
of the Senate to fill a vacancy in an existing office, if the vacancy existed while

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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.” This prohibition does not apply “ if, at the end of the session, a nomina­
tion 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.” Id. § 5503(a)(2). Section 5503(a) has been interpreted as prohibiting
“ [pjayment for services” to individuals receiving successive recess appointments.
See Memorandum for John P. Schmitz, Deputy Counsel to the President, from
Timothy E. Flanigan, Acting Assistant Attorney General, Office of Legal Counsel,
Re: R ecess Appointm ent o f Directors o f the Federal Housing Finance Board (Dec.
13, 1991); Recess Appointments Issues, 6 Op. O.L.C. 585, 586 (1982); Recess
Appointments, 41 Op. A tt’y Gen. 463, 472, 474, 480 (1960) (interpreting prede­
cessor statute).
The fact that Board members commissioned for a second time under the Recess
Appointments Clause cannot receive “ [p]ayment for services” does not, however,
resolve our inquiry. We must ask whether reimbursement for travel, subsistence,
and other necessary expenses constitutes “ [pjayment for services” within the
meaning of § 5503(a). We conclude that it does not.
The phrase “ [pjayment for services” is not defined in § 5503(a) or other provi­
sions of title 5 governing pay administration. See 5 U.S.C. §§5501-5597 (1994
& Supp. II 1996). Nothing in § 5503(a) itself reveals which of two possible
interpretations of the phrase is correct: a narrow interpretation, covering those
forms of payment typically associated with the performance of personal services,
such as fees, wages, salary, or commissions; or a broad interpretation, covering
any form of payment that an individual would receive after having performed
his or her government services, including a payment to offset expenses. The legis­
lative history of § 5503(a), however, makes clear that the statute cannot be inter­
preted to cover reimbursement of travel, subsistence, and other expenses. Section
5503(a) was enacted as part of a 1966 codification of statutes relating to govern­
ment employees and the organization and powers of federal agencies. See Act
of Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 475. The Report of the Senate
Committee on the Judiciary accompanying the proposed bill, H.R. 10104, 89th
Cong. (1965), emphasizes that the bill’s purpose was “ to restate in comprehensive
form, without substantive change, the statutes in effect before July 1, 1965.” S.
Rep. No. 89-1380, at 18 (1966) (emphasis added); see id. at 20 ( “ [TJhere are
no substantive changes made by this bill enacting title 5 into law.” ). Section
5503(a)’s predecessor, 5 U.S.C. §56 (1964), stated: “ No money shall be paid
from the treasury, as salary, to any person appointed during the recess of the
Senate, to fill a vacancy in any 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 o f the Senate, until such appointee has been confirmed by the
Senate.” (Emphasis added.) Even if there were ambiguity as to the scope of the

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 Reimbursement o f Expenses Under 5 U S.C. § 5503(a)

phrase “ payment for services” in the current version, there is no ambiguity as
to the scope of the phrase “ paid . . . as salary” in the prior version. The term
“ salary” describes a fixed, periodic payment made in exchange for services. See,
e.g., W ebster’s Second New International Dictionary 2203 (1935) (defining salary
as “ [t]he recompense or consideration paid, or stipulated to be paid, to a person
at regular intervals for services” ); Benedict v. United States, 176 U.S. 357, 360
(1900) (“ The word ‘salary’ may be defined generally as a fixed annual or peri­
odical payment for services, depending upon the time and not upon the amount
of services rendered” ). The term would not encompass reimbursement of
expenses. If we were to interpret the substitution of the phrase “ payment for serv­
ices” for the phrase “ paid . . . as salary” as broadening the scope of §56 to
cover expenses, then we would be disregarding clear direction that Congress
intended no substantive changes to existing law. Indeed, the Report specifically
describes the changes reflected in § 5503(a) as “ [sjtandard changes . . . made
to conform with the definitions applicable and the style of this title.” S. Rep.
No. 89-1380, at 105. The substitution of “ payment for services” for “ paid . . .
as salary” thus merely clarifies that the statute reaches forms of payment that,
like salary, compensate for the performance of personal services. Cf. id. at 20
(“ The word ‘pay’ includes all terms heretofore in use representing salary, wages,
pay, compensation, emoluments, and remuneration for services.” ). It provides no
basis for concluding that § 5503(a) extends beyond payments that compensate for
the performance of personal services, to reach other payments that, like reimburse­
ment for expenses, are merely incidental to the performance of personal services.
It may be possible to argue that the purposes underlying the enactment of
§ 5503(a)’s predecessors support a broad interpretation of the current phrase “ pay­
ment for services.” As originally enacted in 1863, the statute provided that if
a vacancy existed while the Senate was in session, a person receiving a recess
appointment to fill that vacancy could not be paid from the Treasury until he
or she had been confirmed by the Senate. Act of Feb. 9, 1863, ch. 25, §2, 12
Stat. 642, 646. This original restriction, which forced recess appointees to serve
without salary, was intended to protect the prerogatives of the Senate by making
recess appointments more difficult. See 61 Cong. Globe, 37th Cong., 3rd Sess.
565 (1863). In 1940, Congress amended the statute “ to render the existing prohibi­
tion on the payment of salaries more flexible,” H.R. Rep. No. 76-2646, at 1
(1940), and to alleviate what was perceived to be the “ serious injustice” caused
by the law as it then stood, S. Rep. No. 76-1079, at 2 (1939). See Act of July
11, 1940, ch. 580, 54 Stat. 751; see also 41 Op. Att’y Gen. at 474. Thus, as
amended, 5 U.S.C. § 56 permitted the immediate payment of salary to certain
recess appointees, including those not appointed during a previous congressional
recess. Because Congress sought, even through this less stringent 1940 version
of the statute, to prevent the payment of salary to individuals who had received
a previous recess appointment, it could be argued that § 56 was designed in par­

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ticular to prevent such successive recess appointments. That goal would be served
by a prohibition on the reimbursement of expenses, just as it would be served
by a prohibition on the payment o f salary.
The Congress that enacted § 56, however, elected to prohibit salary payments,
not salary payments and reimbursement of expenses. In light of Congress’s clear
intent to effect no substantive changes in the 1966 codification of title 5,
§ 5503(a)’s prohibition cannot be interpreted to sweep in something clearly outside
the scope of § 5 6 ’s prohibition— a recess appointee’s receipt of reimbursement
for expenses.
In sum, we conclude that 5 U.S.C. § 5503(a) does not prohibit individuals re­
appointed to the Board of Directors of the Civil Liberties Public Education Fund
during a congressional recess from receiving reimbursement for travel, subsist­
ence, and other necessary expenses associated with performing their functions.

DAWN JOHNSEN
Acting Assistant Attorney General
Office o f Legal Counsel

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