Authority to Employ White House Officials
Exempt from Annual and Sick Leave Act
During Appropriations Lapse
White House officials who are exempt from the Annual and Sick Leave Act pursuant to
5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in the appropria-
tions for their salaries.
April 8, 2011
MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT
You have asked whether White House Office officials who are exempt
from the provisions of the Annual and Sick Leave Act under 5 U.S.C.
§ 6301(2)(x) and (xi) may continue to work during a lapse in appropria-
tions. For the reasons set forth below, we conclude that they may.
I.
In September 1995, this Office issued an opinion regarding “the author-
ity available to the White House [O]ffice to employ the services of White
House employees during a lapse in appropriations.” Authority to Employ
the Services of White House Office Employees During an Appropriations
Lapse, 19 Op. O.L.C. 235 (1995) (“White House Employees”). As we
explained there, two provisions of the Antideficiency Act impose the
principal statutory constraints on this authority. Section 1341 of title 31
provides that “[a]n officer or employee of the United States Government
. . . may not . . . involve [the] government in a contract or obligation for
the payment of money before an appropriation is made unless authorized
by law.” 31 U.S.C. § 1341(a)(1)(B). And section 1342 of the same title
provides that “[a]n officer or employee of the United States Government
. . . may not accept voluntary services for [the] government or employ
personal services exceeding that authorized by law except for emergen-
cies involving the safety of human life or the protection of property.”
Applying these provisions to the White House Office, we identified
three categories of employees who could continue to work during an
appropriations lapse: “personnel who perform functions that are excepted
from the Antideficiency Act’s general prohibition” set forth in 31 U.S.C.
§ 1341; personnel who hold nonsalaried positions and whose employment
40
Authority to Employ White House Officials During Appropriations Lapse
therefore does not “incur an obligation on behalf of the federal govern-
ment”; and personnel who hold positions in which compensation is not
fixed by law and who have lawfully waived their salaries. White House
Employees, 19 Op. O.L.C. at 235–37. We explained that the “excepted
functions” in the first category included “functions relating to emergen-
cies involving an imminent threat to the safety of human life or protection
of property”—an exception set forth in the Antideficiency Act itself, see
31 U.S.C. § 1342—and functions “authoriz[ed] . . . by other law,” includ-
ing “those functions as to which express statutory authority to incur
obligations in advance of appropriations has been granted; those functions
for which such authority arises by necessary implication; and certain
functions necessary to the discharge of the President’s constitutional
duties and powers.” White House Employees, 19 Op. O.L.C. at 235. 1
Later that same year, we issued an opinion concerning the participation
of Department of Justice officials in congressional hearings held during
an appropriations lapse. That opinion contained further analysis potential-
ly relevant to White House Office operations during such a time. We
noted that “those officers who are appointed by the President with the
advice and consent of the Senate”—so-called “PAS officers”—are “enti-
tled to their salaries by virtue of the office that they hold and without
regard to whether they perform any services during the period of appro-
priations lapse.” Participation in Congressional Hearings During an
Appropriations Lapse, 19 Op. O.L.C. 301, 301– 02 (1995) (“Congression-
al Hearings”) (citing United States v. Grant, 237 F.2d 511 (7th Cir.
1956)). We thus concluded that the Antideficiency Act was “not implicat-
ed at all” by such officers’ activities, because “no federal officer or em-
ployee incurs an obligation in advance of appropriations when these
officers perform services; instead, this obligation arises by virtue of their
status and cannot be obviated by placing them on furlough status.” Id.
You have asked whether, in light of these opinions, White House offi-
cials who are exempt from the Annual and Sick Leave Act pursuant to
1 We also emphasized that even if salary funds could sometimes be obligated, “no sala-
ries c[ould] be paid to any government employee, including those in the White House
[O]ffice, without an appropriation,” and thus that “no White House employee could
receive salary or other compensation payments during such a lapse.” White House Em-
ployees, 19 Op. O.L.C. at 235; see also U.S. Const. art. I, § 9, cl. 7 (“No Money shall be
drawn from the Treasury, but in Consequence of Appropriations made by Law.”).
41
35 Op. O.L.C. 40 (2011)
5 U.S.C. § 6301(2)(x) and (xi) may continue to work during a lapse in the
appropriations for their salaries. Although such officials are not specifi-
cally mentioned in the White House Employees opinion and are not ap-
pointed with the advice and consent of the Senate, you explain that, in
your view, such persons are (like PAS officers) “entitled to compensation
based on their status.” E-mail for Caroline D. Krass, Principal Deputy
Assistant Attorney General, Office of Legal Counsel, from Donald B.
Verrilli, Deputy Counsel to the President (Mar. 12, 2011) (citing 5 U.S.C.
§ 5508 and Grant, 237 F.2d 511). As a result, you conclude, “the govern-
ment is ‘authorized by law’ within the meaning of 31 U.S.C. 1341” to
“continue to . . . emplo[y]” such persons “in the absence of appropria-
tions.” Id. We agree: In our view, such officials are entitled to compensa-
tion based on their status rather than the hours they work, and the gov-
ernment is authorized by law to allow them to continue to work during a
lapse in appropriations.
II.
The Annual and Sick Leave Act of 1951, codified as amended at
5 U.S.C. §§ 6301–6391 (2006 & Supp. III 2009) (the “Leave Act”), sets
forth the terms under which federal government employees earn annual
and sick leave. Section 6301 defines “employee” for purposes of the
Leave Act, and specifically excludes from its coverage certain catego-
ries of persons. As relevant here, section 6301(2)(x) excludes from the
Leave Act “officer[s] in the executive branch . . . who [are] appointed by
the President and whose rate of basic pay exceeds the highest rate pay-
able under [the GS schedule],” and section 6301(2)(xi) excludes from
the Act “officer[s] in the executive branch . . . who [are] designated by
the President, except a postmaster, United States attorney, or United
States marshal.” 5 U.S.C. § 6301(2)(x), (xi). White House officials who
fall within either of these paragraphs are not covered by the Leave Act. 2
Section 5508 of title 5, which works in harmony with section 6301,
provides that “officer[s] in the executive branch . . . to whom [the Leave
2 We assume for the purposes of this opinion that there are White House officials who
are in fact covered by these paragraphs. We have not independently analyzed whether
particular officials are so covered and express no view about the scope of 5 U.S.C.
§ 6301(2)(x) and (xi).
42
Authority to Employ White House Officials During Appropriations Lapse
Act] applies are not entitled to the pay of their offices solely because of
their status as officers.” This provision does not expressly address the
entitlements of officials to whom the Leave Act does not apply. But by
providing that officers who are covered by the Act do not earn pay by
virtue of their status, it suggests by negative implication that officers who
are exempt from the Act—including those exempt under 5 U.S.C.
§ 6301(2)(x) or (xi)—do earn their salaries by virtue of their status. See
61 Comp. Gen. 586, 587 (1982) (“The importance of that section for our
purposes is that . . . the converse, that officers who are not so covered are
entitled to compensation solely because of their status as officers, is also
true.”); cf. Espinoza v. Farah Mfg. Co., 414 U.S. 86, 95 (1973) (support-
ing the conclusion that Title VII “was clearly intended to apply with
respect to the employment of aliens inside any State” with “a negative
inference from the exemption in § 702, which provides that Tit[le] VII
‘shall not apply to an employer with respect to the employment of aliens
outside any State’” (quoting 42 U.S.C. § 2000e-1)). This implication
gains force from the fact that, as far as we are aware, no other provision
in the Leave Act or title 5 addresses in terms the categories of officials
who are entitled to salaries based on their status. Instead, section 5508
appears to be the only provision that discusses this subject.
Furthermore, the statutory text now found in section 5508 and section
6301(2)(x) and (xi) was enacted against a well-established “background
of common-law principles,” Samantar v. Yousuf, 130 S. Ct. 2278, 2290
n.13 (2010) (internal quotation marks omitted), governing officer pay.
Prior to 1953, when these provisions were first enacted, it had long been
the rule that “the right to the compensation attached to a public office is
an incident to the title to the office and not to the exercise of the functions
of the office.” 24 Comp. Gen. 45, 46 (1944); see also Grant, 237 F.2d at
515 (“Congress in 1953 . . . recognized that prior thereto various officers,
including United States marshals, were entitled to receive their salaries as
incident to their respective offices.”); Pack v. United States, 41 Ct. Cl.
414, 429 (1906) (“[T]he compensation annexed to a public office is inci-
dent to the title to the office and not to the exercise of the functions of
such office.”); Sleigh v. United States, 9 Ct. Cl. 369, 375 (1873) (“The
incumbent of an office is prima facie entitled to the lawful compensation
thereof so long as he holds the office, though he may be disabled by
disease or bodily injury from performing its duties.”); 46 C.J., Officers
43
35 Op. O.L.C. 40 (2011)
§ 233, at 1015–16 & nn.29–31 (1928) (collecting cases). A federal officer
received his salary for as long as he held title to his office, and “the fail-
ure of an officer to perform the duties of his office d[id] not per se de-
prive him of the right to compensation, provided his conduct d[id] not
amount to an abandonment of the office.” 24 Comp. Gen. at 46; see also
23 Comp. Treas. 383, 385 (1917). This rule operated even where these
officers were covered by a federal leave system, and even where the leave
laws enabled them to receive a lump-sum payment covering accumulated
leave. See 25 Comp. Gen. 212, 220 (1945) (advising that “Presidential
Officers” whose “salaries can not [sic] be reduced if they are absent from
duty” may receive “lump-sum payment for accumulated and accrued
annual leave”) (citing 24 Comp. Gen. 804 (1945)); S. Rep. No. 83-294,
at 2 (1953) (noting the “double advantage of these officers to statutory
leave benefits and freedom to absent themselves from duty as they see
fit”).
In 1953, Congress amended the Leave Act in two significant respects.
First, through the provisions subsequently codified at section 6301(2)(x)
and (xi), it removed from the coverage of the Act certain “officers in the
executive branch of the Government,” including presidential appointees
paid above the highest GS level and “such other officers (except postmas-
ters, United States attorneys, and United States marshals) as may be
designated by the President.” Pub. L. No. 83-102, § 1, 67 Stat. 136
(1953). Second, in the provision codified at section 5508, it directed that
“[n]o officer in the executive branch of the Government . . . to whom
[the Leave Act] applies shall be deemed to be entitled to the compensa-
tion attached to his office solely by virtue of his status as an officer.”
Id. Through these amendments, Congress “intended to and did effect a
change in the law” governing officers’ entitlement to compensation,
Grant, 237 F.2d at 515, but this deviation from the background common-
law rule was limited to those officers still covered by the Leave Act.
Because section 5508 does not purport to alter the law for officers exempt
from the Leave Act, we “interpret the statute with the presumption that
Congress intended to retain the substance of the common law,” which in
this case provided that officers are entitled to compensation by virtue of
holding office. Samantar, 130 S. Ct. at 2290 n.13; see also Isbrandtsen
Co. v. Johnson, 343 U.S. 779, 783 (1952) (“Statutes which invade the
common law . . . are to be read with a presumption favoring the retention
44
Authority to Employ White House Officials During Appropriations Lapse
of long-established and familiar principles, except when a statutory pur-
pose to the contrary is evident.”).
This interpretation of sections 5508 and 6301 is supported by their leg-
islative history. The committee reports explain that the addition of section
6301(2)(x) and (xi) was intended to eliminate the covered officers’ “ad-
vantage . . . in being eligible to receive the benefits of a statutory leave
system and, at the same time, being exempted, in effect, from the obliga-
tions of such leave system to the extent that by the nature of their offices
and positions they have freedom to absent themselves from duty from
time to time.” H.R. Rep. No. 83-629, at 7 (1953) (Conf. Rep.); S. Rep.
No. 83-294, at 1–2. Significantly, Congress achieved this end not by
abrogating the common-law rule entitling such officers to pay by virtue of
their status, but rather by withdrawing those officers’ entitlement to
benefits under the statutory leave system, leaving the background rule
intact. And while the addition of section 5508 expressly addressed only
those officers who do not earn salary based solely on their status (i.e.,
those still covered by the Leave Act under section 6301), the reports
explain that this provision was also intended to “settl[e] the basic question
of which officers shall be entitled in the future to the compensation at-
tached to their office by virtue of their status as an officer.” S. Rep. No.
83-294, at 1–2. Thereafter, “[o]fficers removed from . . . Leave Act cov-
erage would be regarded as being entitled to the compensation of their
offices by virtue of their officer status.” Id. at 3; H.R. Rep. No. 83-629,
at 7 (“[O]fficers exempted from the Annual and Sick Leave Act of 1951
will retain their freedom to absent themselves from duty on their own
volition[.]”). We accordingly conclude that Executive Branch officials
(including those in the White House) exempt from the Leave Act under
section 6301(2)(x) and (xi) earn their salaries by virtue of holding office.
III.
We further conclude that officials who are exempt from the Leave Act
and therefore earn salaries by virtue of holding office are “authorized by
law” to continue to work during a lapse in the appropriations for their
salaries. 31 U.S.C. § 1341(a)(1)(B). 3 As noted above, our 1995 White
3 We assume that such officials receive no other form of compensation whose continu-
ation during an appropriations lapse would incur any additional government obligation.
45
35 Op. O.L.C. 40 (2011)
House Employees opinion concluded that the functions “authorized by
law” to proceed during an appropriations lapse include “those functions as
to which express statutory authority to incur obligations in advance of
appropriations has been granted,” and “those functions for which such
authority arises by necessary implication.” 19 Op. O.L.C. at 235. In
discussing the same categories of functions in an earlier opinion, Attorney
General Civiletti explained that when “an agency’s regular one-year
appropriations lapse, the ‘authorized by law’ exception to the Antidefi-
ciency Act would permit the agency to continue the obligation of funds to
the extent that such obligations are,” among other things, “[1] authorized
by statutes that expressly permit obligations in advance of appropriations;
or [2] authorized by necessary implication from the specific terms of
duties that have been imposed on, or of authorities that have been invested
in, the agency.” Authority for the Continuance of Government Functions
During a Temporary Lapse in Appropriations, 5 Op. O.L.C. 1, 5 (1981)
(“Continuance of Government Functions”).
We are not aware of any law that “expressly permit[s] obligations in
advance of appropriations” for salaries paid to White House Office offi-
cials who are not subject to the Leave Act. Id. However, we believe the
authority to continue the obligation for these officials’ salaries during a
lapse in appropriations arises “by necessary implication from the specific
terms of” the President’s authority to appoint or designate officials who
earn pay by virtue of their status. Id. We understand that “most White
House [O]ffice employees are appointed under [section 105 of title 3] or a
similarly formulated authority.” White House Employees, 19 Op. O.L.C.
at 236. That provision grants the President authority to “appoint and fix
the pay of employees in the White House Office without regard to any
other provision of law regulating the employment or compensation of
persons in the Government service,” subject to salary caps that are higher
than the top of the GS scale. 3 U.S.C. § 105(a). 4 On its face, this provision
4 We do not believe this authorization is sufficiently clear to constitute the kind of “ex-
press[] permi[ssion]” to obligate in advance of appropriations we identified in our 1981
opinion. Continuance of Government Functions, 5 Op. O.L.C. at 3–4 & n.3. Unlike
section 105, other statutes we have previously included in that category expressly refer-
ence the authority to incur obligations in advance of appropriations. See, e.g., 25 U.S.C.
§ 99 (authorizing the Commissioner of Indian Affairs to “enter into contracts . . . for
goods and supplies . . . notwithstanding the fact that the appropriations for such fiscal
46
Authority to Employ White House Officials During Appropriations Lapse
confers on the President authority to “appoint” persons to work in the
White House Office and to fix their “rate of basic pay” at a rate that
“exceeds the highest rate payable” under the GS scale. See Memorandum
for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,
Acting Assistant Attorney General, Office of Legal Counsel, Presidential
Authority under 3 U.S.C. § 105(a) to Grant Retroactive Pay Increases to
Staff Members of the White House Office at 2 (July 30, 1993) (“We be-
lieve that, in view of this sweeping language, section 105(a)(1) allows the
President complete discretion to adjust the pay for White House Office
employees’ work in any manner that he chooses, as long as he complies
with the salary limits of section 105(a)(2).”). Officers so appointed fall
within section 6301(2)(x) of the Leave Act and (as a result) earn salary by
virtue of their status under section 5508. 5 Section 6301(2)(xi) likewise
recognizes the President’s authority to “designate” other Executive
Branch officers (except postmasters, U.S. attorneys, or U.S. marshals) as
exempt from the Leave Act, again ensuring that they earn salary based on
their status.
We think the “specific terms” of these presidential authorities “neces-
sar[ily] impl[y]” the further authority to continue to incur obligations for
year have not been made”); see also 42 U.S.C. § 2210(j) (authorizing the Atomic Energy
Commission to “make contracts in advance of appropriations and incur obligations
without regard to sections 1341 [and] 1342 . . . of title 31”). Furthermore, we do not read
the permission in section 105 to make appointments “without regard to any other provi-
sion of law regulating the employment or compensation of [federal employees]” to mean
that such actions are outside the purview of the Antideficiency Act altogether. Cf. Am.
Hosp. Ass’n v. Bowen, 834 F.2d 1037, 1054 (D.C. Cir. 1987) (“We believe the plain
meaning of the exemption codified in 42 U.S.C. § 1320c-2(e) [authorizing the Secretary
to contract ‘without regard to any provision of law relating to the making, performance,
amendment, or modification of contracts’] is to exempt HHS from those laws ‘relating to
the making, performance, amendment or modification of contracts’—that is, the vast
corpus of laws establishing rules regarding the procurement of contracts from the gov-
ernment. To include among this rather self-contained corpus the general restraints of the
Administrative Procedure Act is a step we decline to make without more specific evi-
dence that Congress intended to exempt HHS from the requirements of the APA.” (cita-
tion omitted)).
5 You have not asked us to consider whether section 105 gives the President authority
to exempt White House personnel from the Leave Act even if they do not fall within any
of the exemptions listed in section 6301, and we express no view about that question, or
about the question whether any such personnel would be “authorized by law” to perform
service during a lapse in appropriations.
47
35 Op. O.L.C. 40 (2011)
the salaries of such exempted officers in the absence of appropriations.
Continuance of Government Functions, 5 Op. O.L.C. at 5. As discussed
above, officials who fall within section 6301(2)(x) or (xi) are, by virtue of
section 5508, “entitled to the pay of their offices solely because of their
status as officers.” 5 U.S.C. § 5508. Such an entitlement to salary, and the
corresponding government obligation to fulfill it, is unaffected by the
official’s absence from the duties of his office. Grant, 237 F.2d at 515
(holding that the salary of an officer so entitled “belonged to him as an
incident to his office and was in no way impaired by his alleged absence
therefrom or neglect to perform his official duties”); see also 24 Comp.
Gen. 45, 46 (1944). As we noted in our Congressional Hearings opinion,
this means that the government cannot avoid this obligation during a lapse
in appropriations simply by placing the official on furlough status. 19 Op.
O.L.C. at 302.
Given the President’s clear statutory authority to appoint and designate
officials with these kinds of broad salary entitlements, see 3 U.S.C.
§ 105(a)(1); 5 U.S.C. §§ 5508, 6301, and given the Antideficiency Act’s
express exceptions for obligations exceeding appropriations where “au-
thorized by law,” see 31 U.S.C. §§ 1341, 1342, we think the best way to
reconcile the two statutory schemes is to interpret sections 5508 and 6301
of the Leave Act and section 105 of title 3 as implicitly “authoriz[ing]”
the President “by law” to incur such salary obligations in advance of
appropriations. Cf. Continuance of Government Functions, 5 Op. O.L.C.
at 4 (“[W]hen Congress specifically authorizes contracts to be entered
into for the accomplishment of a particular purpose, the delegated officer
may negotiate such contracts even before Congress appropriates all the
funds necessary for their fulfillment.”). 6 If the President’s statutory au-
thority to appoint and designate officials who earn salaries by virtue of
their status did not implicitly include the authority to obligate funds for
those salaries in advance of appropriations, compliance with the Antidefi-
ciency Act would arguably require him to appoint such officials to terms
limited to the fiscal year (so as to avoid incurring an indefinite obligation
6 As we understand it, your question concerns only officials who currently work in the
White House Office. You have not asked us to consider, and we express no opinion about,
whether the President could, during an appropriations lapse, appoint or designate new
officials who are exempt from the Leave Act and therefore entitled to earn salary by
virtue of their status.
48
Authority to Employ White House Officials During Appropriations Lapse
that potentially exceeded the current year’s appropriations), to remove
such officials during any lapse in appropriations or require them to resign,
or otherwise to find a way to avoid involving the government in an obli-
gation that exceeded available appropriations. See 31 U.S.C. §§ 1341,
1342. 7 But there is no indication in sections 5508 or 6301 of the Leave
Act or section 105 of title 3 that, in authorizing the President to create
broad salary obligations for officers who earn pay by virtue of their status,
Congress simultaneously intended to limit the President’s appointment
authority in any of the ways described above. Nor are we aware of any
evidence that the Executive has imposed such restrictions as a matter of
practice.
This conclusion is consistent with that reached by the Comptroller
General in an opinion concerning whether Commissioners of the Copy-
right Royalty Tribunal could be paid for work performed during a lapse in
the Tribunal’s appropriations. 61 Comp. Gen. 586 (1982). In that opinion,
the Comptroller General reasoned that the Commissioners were exempt
from the Leave Act under section 6301(2)(xiii)—a provision similar to
section 6301(2)(x) and (xi) but directed at presidentially appointed
“officer[s] in the legislative or judicial branch”—and were therefore
“entitled to compensation based on their status as officers rather than for
the performance of a function based on the amount of hours they spend
engaged at their jobs.” Id. at 587. The Comptroller General then conclud-
ed that, in light of this entitlement, “the incurring of obligations for the
Commissioners’ pay in the absence of sufficient available appropriations
to liquidate them is authorized by law within the meaning of the [Contin-
uance of Government Functions opinion].” Id.
Given that the President is “authorized by law” to continue the obliga-
tion for the salaries of officials exempt from the Leave Act under section
6301(2)(x) or (xi) during a lapse in appropriations, the final question
whether such officials can continue to work during a lapse is straightfor-
ward. As we noted in our Congressional Hearings opinion with respect to
PAS officers, because such officials “are entitled to their salaries by virtue
7 Incurring an obligation to pay any particular official’s salary, of course, might be
justified for particular periods based on other exceptions to the Antideficiency Act. See
Memorandum for Alice Rivlin, Director, Office of Management and Budget, from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Government Opera-
tions in the Event of a Lapse in Appropriations at 3–4 (Aug. 16, 1995).
49
35 Op. O.L.C. 40 (2011)
of the office[s] that they hold and without regard to whether they perform
any services,” no further obligation in advance or in excess of appropria-
tions is incurred when they “perform services.” 19 Op. O.L.C. at 301–02;
see 31 U.S.C. §§ 1341, 1342. The funds for these officials’ salaries having
already been lawfully obligated, “the [Antideficiency] Act is not implicat-
ed at all” when they choose or are directed to continue to work during a
lapse in appropriations. Congressional Hearings, 19 Op. O.L.C. at 301.
IV.
To summarize, we concluded in our White House Employees opinion
that, during a lapse in appropriations, the Antideficiency Act permits the
White House to employ personnel who “perform functions that are ex-
cepted from the Antideficiency Act’s general prohibition” because the
obligation for their salaries during a lapse is “authorized by law.” 19 Op.
O.L.C. at 235. For the reasons set forth above, we now conclude that
such personnel include officials who are exempt from the provisions of
the Annual and Sick Leave Act under 5 U.S.C. § 6301(2)(x) and (xi),
because the President’s authority to appoint such officials necessarily
implies the authority to continue the obligations for their salaries during
a lapse in appropriations. Accordingly, such officials may work during a
lapse in appropriations, so long as the employment of their services does
not create any other obligation on behalf of the government.
KARL R. THOMPSON
Deputy Assistant Attorney General
Office of Legal Counsel
50