40

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 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”). 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.”

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 
Authority to Employ White House Officials During Appropriations Lapse

41

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, 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 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 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”) (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 

 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, 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.”).
35 Op. O.L.C. 40 (2011)

42

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 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).
Authority to Employ White House Officials During Appropriations Lapse

43

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) (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 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 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
35 Op. O.L.C. 40 (2011)

44

§ 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 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. 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 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 commonlaw 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 
Authority to Employ White House Officials During Appropriations Lapse

45

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 section 

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. 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 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. 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 continuation during an appropriations lapse would incur any additional government obligation.
35 Op. O.L.C. 40 (2011)

46

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) 

(“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 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, 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 “express[] 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 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 
Authority to Employ White House Officials During Appropriations Lapse

47

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 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 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 

 

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. 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 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 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.
35 Op. O.L.C. 40 (2011)

48

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 “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. 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 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 

 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. 
Authority to Employ White House Officials During Appropriations Lapse

49

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 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 

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 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 [Continuance of Government Functions 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 

 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).
35 Op. O.L.C. 40 (2011)

50

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. 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 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 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