     AUTHORITY TO EMPLOY WHITE HOUSE OFFICE PERSONNEL
   EXEMPT FROM THE ANNUAL AND SICK LEAVE ACT UNDER 5 U.S.C.
      § 6301(2)(X) AND (XI) DURING AN APPROPRIATIONS LAPSE
       White House officials who are exempt from the Annual and Sick Leave Act pursuant to 5 U.S.C.
§ 6330(2)(x) and (xi) may continue to work during a lapse in the appropriations 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 appropriations. For the reasons set forth below, we conclude that they
may.

                                                 I.

        In September 1995, this Office issued an opinion regarding “the authority 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 Opinion”).
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
emergencies involving the safety of human life or the protection of property.” Id. § 1342.

        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 therefore
does not “incur an obligation on behalf of the federal government”; and personnel who hold
positions in which compensation is not fixed by law and who have lawfully waived their salaries.
White House Employees Opinion, 19 Op. O.L.C. at 235-37. We explained that the “excepted
functions” in the first category included “functions relating to emergencies 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,” including “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
                            Opinions of the Office of Legal Counsel in Volume 36

necessary implication; and certain functions necessary to the discharge of the President’s
constitutional duties and powers.” White House Employees Opinion, 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 potentially 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 “entitled to their salaries by virtue of the
office that they hold and without regard to whether they perform any services during the period
of appropriations lapse.” Participation in Congressional Hearings During an Appropriations
Lapse, 19 Op. O.L.C. 301, 301-02 (1995) (“Congressional Hearings Opinion”) (citing United
States v. Grant, 237 F.2d 511 (7th Cir. 1956)). We thus concluded that the Antideficiency Act
was “not implicated at all” by such officers’ activities, because “no federal officer or employee
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 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 appropriations for their salaries. Although such officials
are not specifically mentioned in the White House Employees Opinion and are not appointed
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 government is ‘authorized by law’ within the
meaning of 31 U.S.C. [§] 1341” to “continue to . . . emplo[y]” such persons “in the absence of
appropriations.” Id. We agree: In our view, such officials are entitled to compensation based
on their status rather than the hours they work, and the government 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 categories 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 payable
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

        1
          We also emphasized that even if salary funds could sometimes be obligated, “no salaries 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 Employees Opinion, 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.”).



                                                        2
                Authority to Employ White House Personnel During Appropriations Lapse

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 Act] applies are not entitled to the
pay of their offices solely because of their status as officers.” 5 U.S.C. § 5508. 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)
(supporting 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 sections 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 incident 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 § 233, pp. 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 failure of an officer to perform the duties
of his office d[id] not per se deprive 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.

        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).



                                                        3
                         Opinions of the Office of Legal Counsel in Volume 36

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 sections 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 postmasters, 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 compensation 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 of long-established and familiar
principles, except when a statutory purpose to the contrary is evident.”).

        This interpretation of sections 5508 and 6301 is supported by their legislative history.
The committee reports explain that the addition of sections 6301(2)(x) and (xi) was intended
to eliminate the covered officers’ “advantage . . . in being eligible to receive the benefits of a
statutory leave system and, at the same time, being exempted, in effect, from the obligations
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. Conf. Rep. No. 83-629, at 7
(1953); 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 attached 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 coverage would be regarded as being entitled to the
compensation of their offices by virtue of their officer status.” Id. at 3; H.R. Conf. 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 sections 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


                                                  4
                 Authority to Employ White House Personnel During Appropriations Lapse

the appropriations for their salaries. 31 U.S.C. § 1341(a)(1)(B). 3 As noted above, our 1995
White 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
Antideficiency 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) (“1981 Opinion”).

         We are not aware of any law that “expressly permit[s] obligations in advance of
appropriations” for salaries paid to White House Office officials 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 Opinion, 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 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

         3
           We assume that such officials receive no other form of compensation whose continuation during an
appropriations lapse would incur any additional government obligation.
         4
            We do not believe this authorization is sufficiently clear to constitute the kind of “express[] permi[ssion]”
to obligate in advance of appropriations we identified in our 1981 opinion. See 1981 Opinion, 5 Op. O.L.C. at 3-4
& n.3. Unlike section 105, other statutes we have previously included in that category expressly reference 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 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 provision 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. American
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 government. 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 evidence that Congress intended to exempt HHS from the requirements of the APA.” (citation
omitted)).



                                                           5
                            Opinions of the Office of Legal Counsel in Volume 36

Assistant Attorney General, Office of Legal Counsel (July 30, 1993) (“We believe 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 U.S.C. § 6301(2)(x). 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 “necessar[ily] impl[y]”
the further authority to continue to incur obligations for the salaries of such exempted officers in
the absence of appropriations. 1981 Opinion, 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. See 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 “authorized 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. 1981 Opinion, 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 authority 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
Antideficiency Act would arguably require him to appoint such officials to terms limited to the
fiscal year (so as to avoid incurring an indefinite obligation that potentially exceeded the current
year’s appropriations), to remove such officials during any lapse in appropriations or require

        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.
        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.



                                                         6
                  Authority to Employ White House Personnel During Appropriations Lapse

them to resign, or otherwise to find a way to avoid involving the government in an obligation
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 Copyright 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 sections 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 concluded 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 [1981 Opinion].” Id.

         Given that the President is “authorized by law” to continue the obligation 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 straightforward. As we noted in our Congressional Hearings Opinion with respect to PAS
officers, because such officials “are entitled to their salaries by virtue 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 appropriations 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 implicated at all” when they choose or are
directed to continue to work during a lapse in appropriations. Id. 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 excepted 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 obligation for their salaries during a lapse in appropriations. Accordingly, such


         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 Operations in the Event of a Lapse in Appropriations at 3-4 (Aug. 16, 1995).



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                        Opinions of the Office of Legal Counsel in Volume 36

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.


                                                            /s/

                                               KARL R. THOMPSON
                                           Deputy Assistant Attorney General




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