B-309301, Recess Appointment of Sam Fox, June 8, 2007

B-309301 Jun 08, 2007 Jump To VIEW DECISION DOWNLOADS RELATED PAGES GAO CONTACTS Highlights An ambassador whose nomination was withdrawn, but later received a recess appointment, cannot receive a salary under 5 U.S.C. section 5503. However, the voluntary services prohibition of the Antideficiency Act does not prohibit the State Department from accepting his uncompensated services. The voluntary services prohibition was enacted to prevent subsequent claims against the government and coercive deficiencies, but the recess appointee could not raise a subsequent claim against the government because he accepted the position with full knowledge that he could not receive a salary under section 5503. Furthermore, serious constitutional issues would arise if Congress attempted by statute to restrict the President's constitutional recess appointment power. View Decision 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 (11th Cir. 2004); United States v. Woodley, 751 F.2d 1008, 1013 (9th Cir. 1985); United States v. Allocco, 305 F.2d 704, 710-12 (2nd 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.