b'Indemnification Agreements and the Anti-Deficiency Act\nIn order to com ply with the Anti-Deficiency Act, 31 U.S.C. \xc2\xa7 1341, indemnification agreements\nwith governm ent contractors, if otherw ise authorized, must include a limitation on the amount\no f liability and m ust state both that the liability is further lim ited to the amount o f appropri\xc2\xad\nated funds available at the tim e payment must be made, and that the contracting agency\nim plies no prom ise that Congress will appropriate additional funds to meet any deficiency in\nthe event o f loss.\nA governm ent agency may not indem nify its contractors for claims brought against them by\nreason o f their own negligence. Nor may the United States agree in advance to assume\nliability for the negligence of its employees for which it may not otherwise be responsible\nunder the Federal Tort Claims Act.\n\nMay 25, 1984\nM\n\nem orandum\n\nB\n\nO p in io n\n\nureau of\n\nfor the\n\nD ir e c t o r ,\n\nP r is o n s\n\nThis memorandum responds to your request for our opinion concerning the\nauthority of the Bureau of Prisons (BOP) to enter into indemnification agree\xc2\xad\nments. Specifically, you have sought our advice concerning two such agree\xc2\xad\nments that you contemplate executing. The first would hold Telephone Com\xc2\xad\npany A harmless against any loss or injury arising from use of telephone\nmonitoring equipment which you propose to have installed in a certain United\nStates Medical Center for Federal Prisoners. The second would indemnify\nphysicians on contract with the Medical Center against liabilities incurred as a\nresult of their contract work. Factual and analytical distinctions between the\ntwo situations described lead us to reach different conclusions regarding them.\nWe conclude that indemnification of contract physicians is not authorized, but\nthat indemnification of Telephone Company A would be permissible if the\nscope of the agreement were significantly narrowed in the manner discussed below.\nI. Background\nYou have described to us a proposal to contract with Telephone Company A\nfor service observing equipment to be placed on pay telephones available to\ninmates at the Medical Center. The purpose of procuring this service is to\nfacilitate prison efforts to discover escape plots, schemes to introduce weapons\nand drugs into the institution, and other plans by inmates to violate the law. If\nthe monitoring service is obtained, each telephone used by inmates will bear a\n94\n\n\x0csign which advises that \xe2\x80\x9cuse of institutional telephones constitutes consent to\n. . . monitoring,\xe2\x80\x9d and that \xe2\x80\x9c[a] properly placed telephone call to an attorney\n[will not be] monitored.\xe2\x80\x9d The Warden of the Medical Center has expressed the\nopinion that Title III of the Omnibus Crime Control and Safe Streets Act is not\nviolated by the Bureau of Prison practices relating to this monitoring.1\nNotwithstanding the assurances that all monitoring will be conducted in\ncompliance with applicable law, Telephone Company A requires an indemnifi\xc2\xad\ncation agreement, signed by an authorized representative on behalf of the\nUnited States, before it will file the necessary tariff with the applicable Public\nService Commission. The precise language requested by Telephone Company\nA is as follows:\nNo liability shall rest on or be assumed by the Telephone Com\xc2\xad\npany in connection with the use or operation of the monitoring\nequipment, and by the acceptance of this monitoring equipment\nservice, the subscriber agrees to indemnify and save the Tele\xc2\xad\nphone Company harmless from and against any and all claims,\ndemands or liability on account of any or all injury, loss or\ndamage to any person arising out of or in any manner connected\nwith use of said equipment, or in the furnishing of said service\nand particularly against all claims, demands or suits which may\narise or be claimed to have arisen out of any violation or claimed\nviolation of any law respecting telephone and telegraph commu\xc2\xad\nnications, privacy, electronic surveillance or eavesdropping.\nWe have less background material regarding the proposed indemnification of\ncontract physicians working at the Medical Center against potential tort liabil\xc2\xad\nity. We understand that fear of personal liability by physicians stands as an\nimpediment to the Medical Center\xe2\x80\x99s ability to retain contract medical staff.\nBOP believes that indemnification would ease that burden.\nII. The Anti-Deficiency Act\nAt the outset, it appears that no statute expressly prohibits the execution of\nindemnity agreements on behalf of the United States. Nor does Article I, \xc2\xa7 9, cl.\n7 of the Constitution, which declares that \xe2\x80\x9c[n]o Money shall be drawn from the\nTreasury, but in Consequence of Appropriations made by Law,\xe2\x80\x9d foreclose the\ngovernment from entering into such contracts. See Cincinnati Soap Co. v.\nUnited States, 301 U.S. 308, 321 (1937) (clause affects only power to make\nactual disbursements).\nTwo statutes, however, are generally relevant to the resolution of this issue.\nThe Adequacy of Appropriations Act, 41 U.S.C. \xc2\xa7 11, proscribes any contrac\xc2\xad\ntual arrangement of the government \xe2\x80\x9cunless the same is authorized by law or is\n1 W e have not been asked to com m ent on the accuracy o f this legal conclusion and, because we have\ninsufficient inform ation upon which to evaluate this proposal, we express no view s regarding its legality.\n\n95\n\n\x0cunder an appropriation adequate to its fulfillment.\xe2\x80\x9d We know of no law that\nwould specifically authorize the contracts you propose. Similarly, the AntiDeficiency Act, 31 U.S.C. \xc2\xa7 1341(a)(1),2 prohibits an employee of the United\nStates from authorizing \xe2\x80\x9can expenditure or obligation exceeding an amount\navailable in an appropriation or fund for the expenditure or obligation.\xe2\x80\x9d3\nThe Comptroller General has issued a long series of opinions holding that\nthe Anti-Deficiency Act is transgressed by any indemnity provision that sub\xc2\xad\njects the United States to an indefinite, indeterminate, or potentially unlimited\nliability, because there could never be certainty that sufficient funds had been\nappropriated to cover all contingencies. E.g., 59 Comp. Gen. 369 (1980); 35\nComp. Gen. 85 (1955); 16 Comp. Gen. 803 (1937); 7 Comp. Gen. 507 (1928).\nA cco rd California-Pacific Utils. Co. v. United States, 194 Ct. Cl. 703 (1971).\nExceptions to this rule have developed, however.\nFirst, the Comptroller General has upheld indemnity clauses when the poten\xc2\xad\ntial liability of the United States was limited to an amount known at the time of\nthe agreement and was within the amount of available appropriations. For\nexample, an agency\xe2\x80\x99s promise, in lieu of paying substantial insurance costs,\neither to return a rented airplane to its lessor in good condition or to make good\nthe loss was sustained by the Comptroller General on the grounds that the\ngovernment\xe2\x80\x99s maximum liability would not exceed the value of the aircraft, the\nlikelihood of loss was remote, and the agreement was financially advantageous\nto the government. 42 Comp. Gen. 708 (1963). No reservation or obligation of\nfunds was required in this case. In our view, the indemnifications were upheld\nby the Comptroller General on these grounds only because the agency could\nmake any conceivable expenditure required by the agreement without creating\na deficiency in its appropriated funds. The information we have about your\nrequest leads us to believe that neither of the proposed indemnifications falls\nwithin this exception because they would create open-ended potential liability\nfor the United States.\nThe Comptroller General subsequently overruled a portion of the earlier\nopinion to the extent that it did not require the agency to obligate or reserve\nfunds sufficient to meet the contingent liability. This opinion permitted govern\xc2\xad\nment assumption of risk for damage to contractor-owned property used pre\xc2\xad\ndominantly in performance o f government contracts. 54 Comp. Gen. 824, 826\n(1975). The government was thus able to avoid paying the contractor\xe2\x80\x99s high\ninsurance premiums. The opinion emphasized that such a contract is permis\xc2\xad\nsible only if it states clearly that government payments will not exceed appro\xc2\xad\npriations available at the time of loss, and that the contract should not be\ndeemed to imply that Congress will appropriate funds to meet deficiencies. Id.\nat 827. These two provisos appear to be mandated by the Anti-Deficiency Act.\nIf the government\xe2\x80\x99s potential liability is rendered both limited and determin\xc2\xad\n2 T h is section, form erly 31 U.S.C. \xc2\xa7 665(a), w as enacted into positive law and reworded to some extent.\nPub. L. No. 9 7 -2 5 8 , 96 Stat. 923 (1982). Congress did not, how ever, intend to m ake any substantive changes\nin the statute. Pub. L. No. 97-258, \xc2\xa7 4, 9 6 Stat. 1067 (1982); H.R. Rep. No. 651, 97th Cong., 2d Sess. 3 (1982).\n3 H ereafter, both statutes will be referred to collectively as the A nti-D eficiency Act.\n\n96\n\n\x0cable, the agreement to indemnify for property damage will be permissible,\nassuming it is otherwise authorized.\nAnother exception was recognized by the Comptroller General to allow the\nGeneral Services Administration to agree to indemnify a public utility service\nfor injury or damage not caused by the utility company. 59 Comp. Gen. 705\n(1980). The factors enumerated in the opinion include the following:\n(1) The contractor was a state-regulated utility which was a\nvirtual monopoly; no other source was available for the needed\nservices;\n(2) The tariff requirements were applicable generally to all of\nthe same class of customers, so no danger of discriminatory\ntreatment of the Government existed;\n(3) The restrictions were part of a tariff imposed after admin\xc2\xad\nistrative proceedings in which the Government had an opportu\xc2\xad\nnity to participate;\n(4) The GSA had procured power in the past under tariffs\ncontaining the indemnity clause;\n(5) The possibility of loss was remote; and\n(6) The restrictions were non-negotiable.\nThe extent of this exception was limited when the Comptroller General held\nthat the Architect of the Capitol could not agree to indemnify a utility company\nfor losses resulting from its performance of tests on equipment installed in\ngovernment buildings. Two factors distinguished this case from the earlier one:\nthe Architect had an alternative source for the needed service, and he had not\npreviously accepted the services or agreed to the liability represented by the\nproposed indemnity agreements. Comp. Gen. Op. B-197583 (Jan. 19, 1981).\nAlthough it appears that some of the factors identified are present in the\nproposed agreement with Telephone Company A, the Comptroller General has\nconstrued the exception so narrowly that we believe the absence of any one of\nthe criteria could be dispositive. Thus, for example, the availability of an\nalternative source for the monitoring service, the possibility of discriminatory\ntreatment of the government, or absence of a longstanding tariff requirement\ncould, in our judgment, remove the indemnification from the scope of this\nlimited exception.\nFinally, exceptions to the Anti-Deficiency Act have been created by statute.\nFor example, 50 U.S.C. \xc2\xa7 1431 permits the President to authorize contracts\nwithout regard to other provisions of contract law whenever he deems such\naction would facilitate the national defense, subject to certain limitations.\nSimilarly, the Atomic Energy Act contains authority for exemptions from\ncontract law. See 42 U.S.C. \xc2\xa7 2202. We are aware of no such statutory exemp\xc2\xad\n97\n\n\x0ction from the constraints of the Anti-Deficiency Act that would apply to the\nsituation at issue here.4\nBased on the principles discussed above, we find no exception from the\ngeneral prohibition against unlimited indemnification contracts that would\nrelieve the two agreements you have proposed from the constraints of the\ngeneral rule. In order to comply with the dictates of the Anti-Deficiency Act,\nthe agreements must include a limitation on the amount of liability and must\nstate both that the liability is further limited to the amount of appropriated\nfunds available at the time payment must be made, and that the contracting\nagency implies no promise that Congress will appropriate additional funds to\nmeet any deficiency in the event of loss. These limitations are necessary if an\nagreement is to pass muster under the Anti-Deficiency Act.\nIII. \xc2\xa9tttoer Coimsndleratnoinis\n\nWhether a qualification rendering the liability definite and limited would be\nsufficient to validate the proposed agreements depends on the agency\xe2\x80\x99s autho\xc2\xad\nrization to make the kind of payments contemplated by the agreements. The\nComptroller General has held, for example, that the National Gallery of Art had\nno authority to use appropriated funds to pay the claims of its employees for\ninjuries caused by a contractor\xe2\x80\x99s negligence. The Gallery\xe2\x80\x99s agreement to in\xc2\xad\ndemnify its contractor for such claims was, therefore, ruled invalid. Comp.\nGen. Op. B-137976 (Dec. 4, 1958). The assumption of liability for claims\narising out of tortious actions of Telephone Company A would be a similar\npromise to pay the debts of a contractor, which may not be justifiable under a\n\xe2\x80\x9cnecessary expense\xe2\x80\x9d theory.5 Consequently, we believe that the prison could\nnot agree to indemnify Telephone Company A for losses resulting from the\nCompany\xe2\x80\x99s own tortious acts and the agreement must be narrowed to exclude\nany obligation to indemnify the Company for this type of loss.\nThe same infirmity exists in the indemnification of physicians, if the physi\xc2\xad\ncians are considered contractors: an agency may not indemnify its contractors\nfor claims brought against them by reason of their own negligence. If, however,\nthe physicians are considered employees rather than contractors, the agreement\n4 T his O ffice previously provided an opinion in which w e addressed the applicability o f the AntiD eficiency A ct to an ag en cy \xe2\x80\x99s agreem ent to assum e certain responsibilities for adm inistering a national\nvaccine program , containing a measure o f dam ages should -the agency fail to meet those delineated responsi\xc2\xad\nb ilities. U pon th e agency\xe2\x80\x99s assurances th a t it w as fully ab le and w illing to perform its contractual duties\nw ithout exceeding its appropriations, w e concluded that the A nti-D eficiency Act did not apply: \xe2\x80\x9cthe AntiD eficiency A ct d oes not require the G overnm ent\xe2\x80\x99s contracting officers to speculate w ithout bounds as to the\nm onetary consequences o f a breach.\xe2\x80\x9d L e tte r to W illiam H. T aft, IV, G eneral Counsel, D epartm ent o f Health,\nEducation, and W elfare, from Leon U lm an, A cting A ssistant Attorney G eneral, O ffice o f Legal Counsel 7\n(July 11, 1976). In contrast, the agreem ent you have proposed does not create merely a measure of damages,\nbut provides a substantive allocation o f liability.\n5 31 U .S.C . \xc2\xa7 1301 requires that \xe2\x80\x9c [a p p ro p ria tio n s shall be applied only to the objects for which the\nappro p riatio n s w ere m ade except as otherw ise provided by law .\xe2\x80\x9d A lthough this provision does not require\nth at ev ery item o f expenditure be specified in the appropriation act, the discretion o f the spending agency is\nlim ited to expenses \xe2\x80\x9cnecessary or proper o r incident\xe2\x80\x9d to a specified object. 6 Comp. Gen. 619, 621 (1927)\n(interp retin g fo rm er 31 U .S.C . \xc2\xa7 628).\n\n98\n\n\x0cis still impermissible, but on different grounds. The United States may be sued\ndirectly for certain torts committed by its employees acting within the scope of\ntheir employment. 28 U.S.C. \xc2\xa7 2675. Thus the United States could be held\nliable, in court proceedings, for the negligence of its employees. That possibil\xc2\xad\nity does not, however, affect the ability of the United States to agree in advance\nto assume liability for acts of its employees for which it might not otherwise be\nresponsible under the Federal Tort Claims Act (FTCA). An employee sued in\nhis or her individual capacity, for example, generally may not be reimbursed by\nthe United States. Comp. Gen. Op. B-152070 (Oct. 3, 1963). Attempts have\nbeen made to amend the FTCA to allow indemnification of employees in this\nsituation, e.g., H.R. 24, 97th Cong., 1st Sess. (1981); S. 1775, 97th Cong.,.1st\nSess. (1981), but those bills have never passed. Thus the physicians, whether\nconsidered contractors or employees, may not be indemnified by the prison.\nThe remaining matter to be addressed is that portion of the proposed contract\nwith Telephone Company A which purports to indemnify the company for\nclaims arising out of the wrongful acts of federal employees in intercepting\ntelephonic communications. In early opinions of the Comptroller General, the\nrule against indemnifications was bolstered by another principle, in addition to\nthose discussed above. Agencies were prohibited from taking on tort liability\nby contract because the United States was not otherwise liable for the tortious\nconduct of its employees. \xe2\x80\x9cIt is well settled that the United States is not\nresponsible for the negligence of its officers, employees, or agents and such\nliability cannot be imposed upon it by an attempt on the part of the contracting\nofficer to make it a part of the consideration of the contract.\xe2\x80\x9d E.g., 16 Comp.\nGen. 803, 804 (1937); 7 Comp. Gen. 507, 508 (1928). Although the passage of\nthe FTCA rendered the United States liable for many tortious acts of its\nemployees, 28 U.S.C. \xc2\xa7\xc2\xa72671-2680, the circumstances under which such\nliability would attach were carefully tailored by Congress.6 We believe, there\xc2\xad\nfore, that the principle quoted above still precludes the contractual assumption\nof tort liability, particularly since application of the FTCA to any specific set of\nfacts could not be certain in advance of judicial determination.7\nThere are certain precautions that BOP could take to protect the telephone\ncompany, however. Under Title III of the Omnibus Crime Control and Safe\nStreets Act, for example, which prohibits certain types of electronic surveil\xc2\xad\nlance, an aggrieved person may seek civil damages against any \xe2\x80\x9cperson\xe2\x80\x9d who\nviolates the title. 18 U.S.C. \xc2\xa7 2520. The statutory definition of \xe2\x80\x9cperson\xe2\x80\x9d ex\xc2\xad\ncludes the United States, but includes government employees and private\ncorporations. 18 U.S.C \xc2\xa7 2510(6). The Supreme Court has held that a district\n6 28 U.S.C. \xc2\xa7 2674 provides that \xe2\x80\x9c [t]he U nited States shall be liable . . . in the same manner and to the same\nextent as a private individual under like circum stances.\xe2\x80\x9d Thus it is possible that state law could provide a\nremedy for invasion o f privacy or the like, which the FTCA would make applicable to the U nited States\n7 Indem nification for governm ent-caused property dam age, the subject o f early C om ptroller General\nexceptions to the anti-indem nification rule, is distinguishable because such a governm ent \xe2\x80\x9ctaking\xe2\x80\x9d o f\nproperty, if not com pensated, would be actionable under the Fifth A mendment to the C onstitution in the\nCourt o f Claim s. 28 U.S.C. \xc2\xa7 1491 (1982). Such liability is not predicated upon the operation o f the FTCA\nand its monetary extent is generally ascertainable by m ere evaluation o f the property.\n\n99\n\n\x0ccourt may order a telephone company to assist in legitimate law-enforcement\nsurveillance operations. U nited States v. New York Tel. Co., 434 U.S. 159, 178\n(1977). Such a court order provides the telephone company with a good-faith\ndefense to a Title III action. 18 U.S.C. \xc2\xa7 2520; Jacobson v. Rose, 592 F.2d 515,\n522 (9th Cir. 1978), cert, denied, 442 U.S. 930 (1979). Congress established\nthe defense in part \xe2\x80\x9cto protect telephone companies who cooperate under court\norder with law enforcement officials.\xe2\x80\x9d 115 Cong. Rec. 37193 (1969). A court\norder requesting the assistance of Telephone Company A might provide the\ntelephone company with the protection it seeks.\nFinally, the Bureau of Prisons could assume liability for damage to property\nowned by Telephone Company A and used in performance of its government\ncontract. 54 Comp. Gen. 824 (1975). Such an agreement would have to state\nclearly that no obligation is assumed in excess of appropriated funds available\nat the time of collection, and that no promise is to be inferred to the effect that\nCongress will appropriate additional funds to meet deficiencies. Id. at 827.\nConclusion\nWhether BOP may enter into an indemnification agreement with Telephone\nCompany A will depend upon the company\xe2\x80\x99s willingness to limit the scope of\nthe government\xe2\x80\x99s potential liability. If the contract were altered to require the\nUnited States to assume liability only for losses arising from property damage\ncaused by the government, we believe the BOP would not contravene the AntiDeficiency Act or other restrictions by agreeing to it. Appropriate clauses, as\nexplained above, would have to be included to ensure that no obligations in\nexcess of appropriations were created. As the indemnification provision now\nreads, however, we conclude that it could result in incurring obligations be\xc2\xad\nyond BOP\xe2\x80\x99s appropriations and authorization, and therefore its execution\nwould be prohibited by the Anti-Deficiency Act. The agreement with contract\nphysicians is barred altogether by operation of the Anti-Deficiency Act and the\nFederal Tort Claims Act.\nR obert\n\nB.\n\nShanks\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n100\n\n\x0c'


b'Reinstatement of a Federal Judge\nFollowing His Service in the Army\nThe reemployment provisions of the Selective Training and Service Act of 1940 are likely inapplicable\nto a federal judge.\nIf the Selective Training and Service Act of 1940 does not run to the benefit of federal judges, Judge\nWilliam Clark has vacated his judicial office, under the circumstances presented here.\nIf the Selective Training and Service Act of 1940 does apply, then Judge Clark\xe2\x80\x99s resignation may be\nimmaterial, and the prohibition in the Act of July 31, 1894 against holding a second office probably\ndoes not apply.\nIf Judge Clark\xe2\x80\x99s further judicial services are desired, he should be given a new appointment, subject to\nSenate confirmation.\n\nDecember 19, 1945\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis is in response to your request for my views concerning the alleged right of\nformer Judge William Clark to continue as judge of the United States Circuit\nCourt of Appeals for the Third Circuit.\nI.\nMy conclusions are as follows:\n1. I seriously doubt that the reemployment provisions of the Selective Training\nand Service Act are applicable to a federal judge.\n2. If the Act does not run to the benefit of federal judges, Judge Clark has\nvacated his judicial office, under the circumstances presented here.\n3. If the Selective Training and Service Act does apply, then\n(a) Judge Clark\xe2\x80\x99s resignation may be immaterial; and\n(b) the statutory prohibition against holding a second office (Act of\nJuly 31, 1894) probably does not apply.\n4. In any event, if Judge Clark\xe2\x80\x99s further judicial services are desired, he should\nbe given a new appointment, subject to Senate confirmation.\nII.\nThere seems to be no doubt that Judge Clark tendered his resignation to the\nPresident and that the President accepted the resignation without any qualification.\n\n125\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(Attorney Stryker\xe2\x80\x99s memorandum entitled \xe2\x80\x9cJudge William Clark\xe2\x80\x94Memorandum\nin the Matter of his Right to Continue as Judge of the Circuit Court of Appeals\xe2\x80\x9d\nwill be referred to as the \xe2\x80\x9cBrief\xe2\x80\x9d or \xe2\x80\x9cBr.\xe2\x80\x9d)\nJudge William Clark was appointed judge of the Circuit Court of Appeals for\nthe Third Circuit on June 25, 1938. On March 24, 1942, he was commissioned a\nLieutenant Colonel in the Army of the United States (Br. 6b). Mr. Stryker states\nthat, on that very day (March 24, 1942), Judge Clark called upon President\nRoosevelt and submitted a letter in which he pointed out that \xe2\x80\x9che had entered the\nservice of the armed forces\xe2\x80\x9d and, for that reason, he preferred to resign from the\nThird Circuit Court of Appeals. It is further stated that President Roosevelt\ndeclined to accept the resignation, threw it into the waste basket, and suggested\nthat Judge Clark obtain a leave of absence while serving in the army (Br. 6b).\nJudge Clark\xe2\x80\x99s letter to the President reads as follows:\nThis letter submits my resignation as Circuit Judge of the United\nStates Circuit Court of Appeals for the Third Circuit. I am doing this\nbecause I am today taking the oath of office as Lieutenant Colonel in\nthe Army of the United States. I am reporting to the General Staff for\nduty and I hope will eventually be sent to some field or foreign post\nwhere I can be useful. I thought that my military experience might\nwell justify more than a transfer from one desk to another. I have\nmost enthusiastically followed your awareness of what we have been\nfacing in the world and with you I agree that \xe2\x80\x9cbusiness as usual\xe2\x80\x9d or\n\xe2\x80\x9ccourts as usual\xe2\x80\x9d must not continue. As I have on occasion expressed\nmyself to that effect, I have wanted to practice what I have been\npreaching.\nIt would be hypocritical for me to pretend that I should not like to\nhave you accede to the request of my colleagues that the Congressional precedent be followed and leave of absence be granted. I have\nbeen a judge now for eighteen years, most of my adult life. I love the\nwork and to give it up even for a short time is a great sacrifice. Because of that, however, I feel I am too closely concerned to be able\nto say what should be done. For this reason, I feel I must leave the\ndecision to you.\nGod keep you in your task of leading us all to victory.\nRespectfully,\n/s/ William Clark\n\n126\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nTwo days later, according to the Brief (at 7), which would be March 26, 1942,\nPresident Roosevelt wrote the following letter to Judge Clerk:\nSince talking to your the other day, I have been advised that under\nthe law your voluntary entry into the military service will not permit\nthe retention of your commission as United States Circuit Judge.\nUnder the circumstances, I must regretfully accept your resignation from the judicial post.\nWith appreciation for your long and able service, and for the patriotism which has moved you to your present choice, I am\nVery sincerely yours,\n/s/ Franklin D. Roosevelt\n(A copy of this letter appears in Department of Justice File 44-5-1-3 and bears a\npencil notation reading \xe2\x80\x9cThe President signed this 3-25 & said No Publicity.\xe2\x80\x9d)\nIt is stated in the Brief that Judge Clark did not receive the President\xe2\x80\x99s letter\nuntil \xe2\x80\x9csome days later on the Pacific Coast\xe2\x80\x9d while waiting transportation to the\nSouth Pacific, but it appears that on April 2, 1942, Judge Clark wrote the following letter to President Roosevelt:\nIn these times I hesitate to trouble you with anything personal.\nHowever, as we talked about the matter, I feel I should.\nOur friend Frances [Francis], seems to me to have unnecessarily\ncomplicated the matter of my resignation. As I said to you, I was\nunwilling to follow the selfish precedent of our Congressional\nfriends and therefore feel I should submit my resignation as a judge.\nYou very generously rejected it and I think I am safe in saying that\naction on your part met with universal approval.\nI try to be careful about the law, particularly when dealing with\nmy President and Commander-in-Chief. I was quite familiar with the\nstatute on which the Attorney General has advised you. It was intended to prevent the receipt of two salaries. Only by a strained construction can it be extending to what is known as \xe2\x80\x9cincompatible office holding.\xe2\x80\x9d However, I was careful about even that strained\nconstruction and discovered that the Act (it is found, I believe,\nU.S.C.A., title 8, Section 65) is in process of amendment, the amending bill being H.R. 6676 introduced March 11th and made retroactive to December 7, 1941. It would, therefore, be rather foolish to\n\n127\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nhave me declared ineligible pending the passage of the bill which\nwould make me perfectly eligible.\nDue to your kindness I am going to a far distant post and imagine\nI will be there for such length of time that I should have to insist on\nresigning in any event. It is my suggestion, however, that your recent\nletter might well be withdrawn pending a clarification of the legal\nsituation. As I say, I think I shall have to resign in any event but I\nshould be very reluctant to be forced out, so to speak, on the doubtful\ninterpretation of a statute.\nMy address from Saturday until probably Wednesday will be the\nFairmont Hotel, San Francisco, where I could be reached by telegraph from General Watson, or in any other way.\nIn conclusion, again thanking you for all your kindness, and be\nsure that I follow you with my usual affection and admiration.\nYours sincerely,\n/s/ William Clark\nThereafter, Judge Clark received a telegram from the President, which did not\nreach Judge Clark \xe2\x80\x9cuntil some months later, after he arrived in Australia\xe2\x80\x9d (Br. 8).\nThe telegram read (Br. 8):\nYour letter of April second received. In view of the doubt which\nHR 6766 is intended to remove I think the wisest thing to do is to let\nyour resignation stand.\nIII.\nA.\nIt is very doubtful that the reemployment provisions of the Selective\nTraining and Service Act of 1940, as amended, and related statutes,\nare applicable to a person holding the office of United States judge.\nJudge Clark\xe2\x80\x99s claim of right to \xe2\x80\x9creemployment\xe2\x80\x9d as a judge rests almost wholly\nupon the Selective Training and Service Act of 1940 and related statutes. Section 8\nof the Selective Training and Service Act of 1940 provides in pertinent part:\n\n128\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\n(b) In the case of any such person who, in order to perform such\ntraining and service, has left or leaves a position, other than a temporary position, in the employ of any employer and who (1) receives\nsuch certificate, (2) is still qualified to perform the duties of such position, and (3) makes application for reemployment within ninety\ndays after he is relieved from such training and service or from hospitalization continuing after discharge for a period of not more than\none year\xe2\x80\x94\n(A) if such position was in the employ of the United States\nGovernment, its Territories or possessions, or the District of\nColumbia, such person shall be restored to such position or to\na position of like seniority, status, and pay. . . .\nPub. L. No. 76-783, 54 Stat. 885, 890, as amended by Pub. L. No. 78-473, 58 Stat.\n798 (1944).\nThe above reemployment benefits have been extended to all persons who voluntarily enter active service in the land or naval forces subsequent to May 1, 1940.\nService Extension Act of 1941, Pub. L. No. 77-213, \xc2\xa7 7, 55 Stat. 626, 627 (codified as amended at 50 U.S.C. app. \xc2\xa7 357 (1940 Supp. IV)). Judge Clark entered the\narmy voluntarily. The date of his discharge is not given, but it is stated that he\nreceived a certificate of satisfactory completion of training and service and that on\nor about August 13, 1945, he applied to the Attorney General for \xe2\x80\x9creemployment\xe2\x80\x9d\nas a judge of the Circuit Court of Appeals. It is further stated that this application\nwas made within ninety days after Judge Clark was released from training and\nservice in the army (Br. 1\xe2\x80\x932).\nIt is extremely doubtful, in my opinion, that the reemployment provisions of the\nSelective Training and Service Act do, or can be properly held to, apply to the\noffice of federal judge.\nThe reemployment provisions apply \xe2\x80\x9cif such position was in the employ of the\nUnited States Government\xe2\x80\x9d (emphasis supplied). Certainly, this phrase does not\nunambiguously include the office of federal judge. For some purposes, at least, a\nconstitutional office holder may not be deemed an employee or his office a\nposition. That the Act itself in various provisions distinguishes between \xe2\x80\x9coffice,\xe2\x80\x9d\n\xe2\x80\x9cposition,\xe2\x80\x9d and \xe2\x80\x9cemployee\xe2\x80\x9d is not without significance in this connection. Thus,\nsection 5(c)(1) of the Act provides for the deferment of persons holding certain\noffices. Section 5(c)(2) authorizes the President to provide for the deferment of\nany person holding an \xe2\x80\x9coffice\xe2\x80\x9d under the United States or a state, territory, or the\nDistrict of Columbia. Section 5(e) authorizes the President to provide for the\ndeferment of persons in \xe2\x80\x9cemployment in industry, agriculture, or other occupations\nor employment.\xe2\x80\x9d See also id. \xc2\xa7\xc2\xa7 10(a)(2) (disallowing deferment of an \xe2\x80\x9cofficer,\nmember, agent, or employee of the Selective Service System\xe2\x80\x9d by reason of that\n\n129\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nstatus), 10(a)(3) (authorizing appointment by the Director of the Selective Service\nSystem of \xe2\x80\x9cofficers, agents, and employees\xe2\x80\x9d; authorizing \xe2\x80\x9cany officer or employee\nof any department or agency of the United States\xe2\x80\x9d\xe2\x80\x94or any person \xe2\x80\x9cassigned or\ndetailed to any office or position,\xe2\x80\x9d except on local boards\xe2\x80\x94to carry out the\nprovisions of the Act).\nMoreover, the policy of the Act does not require an interpretation that the\nstatutory phrase be held to cover the office of federal judge. Clearly, there was no\nintention to encourage federal judges to enter military service. On the contrary, it\nwas probably contemplated that they should not join the armed forces, since\nsection 5(c)(1) of the Act provided that they \xe2\x80\x9cshall, while holding such offices, be\ndeferred\xe2\x80\x9d (emphasis supplied).\nThe policy considerations which led to the exemption of federal judges from\ntraining and service under the Act also lead to the conclusion that they are not\ncovered by its reemployment provisions. In time of war, it is even more important\nthan in time of peace that the normal functions of government be discharged\nefficiently. If judges were permitted to enter into active service in the armed forces\nwithout permanently vacating their offices, the normal functions of government\nwould suffer. There is no authority for the appointment of an \xe2\x80\x9cacting\xe2\x80\x9d judge to\nsubstitute for another judge during the period of his military service. It must be\nassumed that the number of judges authorized for the Circuit Court of Appeals for\nthe Third Circuit is necessary to carry on the duties of the court. There being no\nauthority to appoint a temporary substitute, the work of the court would undoubtedly fall in arrears and be impeded by the extended absence of Judge Clark for\nmore than three years. It is hardly to be supposed that the Selective Training and\nService Act was intended to bring about such a result.\nIt is necessary to exclude the office of federal judge from the reemployment\nprovisions of the Act, also, in order to avoid a serious constitutional question. It\nhas been concluded that Judge Clark vacated his judicial office when he entered\nthe army. Where an office has been vacated, the former incumbent can be restored\nto it only by a new appointment. Federal judges can be appointed only by the\nPresident with the advice and consent of the Senate (U.S. Const. art. II, \xc2\xa7 2, cl. 2).\nCongress itself not only lacks power to appoint such officers of the United States,\nit also lacks power to prescribe qualifications for office which \xe2\x80\x9cso limit selection\nand so trench upon executive choice as to be in effect legislative designation.\xe2\x80\x9d\nMyers v. United States, 272 U.S. 52, 128 (1926). Hence, when an office has been\nvacated, Congress lacks power to restore to office the former incumbent.\nIt may be noted that the President, with the advice and consent of the Senate,\nappointed another judge vice Judge Clark. The President and Senate appear to\nhave assumed that Judge Clark would not be automatically restored to judicial\noffice upon completion of his military service, since it is hardly likely that they\nwould have assumed that there would necessarily be another vacancy which Clark\ncould fill upon returning to civilian life. The action of the President and Senate\n\n130\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nconstitutes a practical construction which should be given considerable weight in\nthis connection. The practice of the Department is also pertinent. This Office has\nheretofore concluded that the reemployment provisions of the Act do not apply to\nUnited States Attorneys who are commissioned by the President for a term of four\nyears. (Dep\xe2\x80\x99t of Justice File No. 44-5-1-3, \xc2\xa7 2.) The reasons underlying the\ndecision with respect to United States Attorneys apply a fortiori to federal judges.\nConsidering all the provisions of the Selective Training and Service Act, in the\nlight of the foregoing considerations, it seems extremely doubtful that the\nreemployment provisions are applicable to the office of federal judge.\nB.\nIf the Selective Training and Service Act does not run to the\nbenefit of Federal judges, Judge Clark has vacated his\njudicial office, under the circumstances presented here.\n1.\nThe evidence shows that Judge Clark\xe2\x80\x99s resignation was\nvalidly accepted. The acceptance of the resignation\nvacated the judicial office.\nWhen, on March 24, 1942, the subject was first brought to the attention of the\nPresident, it is said that he declined to accept Judge Clark\xe2\x80\x99s proffered resignation\nand insisted that Judge Clark should obtain a leave of absence. This situation was\nradically changed when the President did in fact, two days later, accept Judge\nClark\xe2\x80\x99s resignation. The evidence from here on is all in writing, which is plain and\nunambiguous. The President\xe2\x80\x99s letter of March 26, 1942, to Judge Clark states\nunequivocally, \xe2\x80\x9cI must regretfully accept your resignation from your judicial\npost.\xe2\x80\x9d There can be no doubt as to the President\xe2\x80\x99s intention to accept the resignation. This intention is emphasized by the concluding paragraph of the letter, which\nexpresses appreciation of the Judge\xe2\x80\x99s long and able service.\nIt does not seem to be material whether or not the President acted \xe2\x80\x9cunder a\nmistaken notion,\xe2\x80\x9d as contended by Mr. Stryker, that Judge Clark\xe2\x80\x99s \xe2\x80\x9cvoluntary\nentry into the military service\xe2\x80\x9d would not permit the retention of his commission\nas United States Circuit Judge. Even if it be presumed, solely for purposes of\nargument, that the President misapprehended the law or that that he was incorrectly advised, the resignation became effective when it was accepted, unless the\nacceptance was later retracted or withdrawn by the President.\nThere is no evidence that the President subsequently took any action to change\nthe legal effect of his acceptance of Judge Clark resignation. On the contrary, the\nPresident\xe2\x80\x99s telegram to Judge Clark shows clearly that he did not intend to set\naside the resignation or to change the situation created by the resignation and its\n\n131\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nacceptance. The telegram to Judge Clark stated in part: \xe2\x80\x9cI think the wisest thing to\ndo is to let your resignation stand.\xe2\x80\x9d\nAlthough the President\xe2\x80\x99s telegram is cast in language which might suggest that\nJudge Clark had the power to take some action with respect to his resignation\nwhich had already been accepted, there is no doubt that, in the absence of a court\ndecision on the issue, only the President could set aside his own action in accepting the resignation. Since the President did not take any action to change, or\nsuggest any change in, the legal status created by his acceptance of the resignation,\nit was not necessary, as suggested (Br. 8), that there should be any \xe2\x80\x9cconcurrence or\nacquiescence\xe2\x80\x9d by Judge Clark in the President\xe2\x80\x99s telegram. It is contended that the\nPresident, on March 24, rejected the offer to resign, that this revoked the offer, and\nthat thereafter when the President purported to accept, there was no offer pending\n(Br. 9). However, even if it be assumed that the President declined the offer at\nfirst, the evidence set forth above indicates that the parties deemed Judge Clark\xe2\x80\x99s\nresignation to be still pending, when it was accepted.\nIt seems clear that Judge Clark resigned and that the resignation was accepted\nby the President. The acceptance of the resignation vacated the judicial office.\n2.\nUnder the Act of July 31, 1894 (5 U.S.C. \xc2\xa7 62), there is a real question\nwhether Judge Clark did not, by acceptance of a commission in the\narmy, vacate his judicial office. The cases of Mr. Justice Murphy,\nJudge Marvin Jones and Judge Collett are distinguishable.\nMr. Stryker argues that no federal statute works a forfeiture of a judicial office\nby reason of a judge\xe2\x80\x99s acceptance of a commission in the armed forces; and that\nthe provisions in 5 U.S.C. \xc2\xa7 62 (1940) are limited to the executive department, and\nhence are not applicable to federal judges.\nI think there is a real question whether, by virtue of 5 U.S.C. \xc2\xa7 62, Judge Clark\ndid not, by accepting the commission in the army, vacate his judicial office. In any\nevent, double office-holding of the present type is in my opinion made unlawful\nby the statute.\nThe provisions of 5 U.S.C. \xc2\xa7 62 are derived from section 2 of the Act of July\n31, 1894, which provides in pertinent part:\nNo person who holds an office the salary or annual compensation attached to which amounts to the sum of two thousand five hundred\ndollars shall be appointed to or hold any other office to which compensation is attached unless . . . specially authorized thereto by\nlaw . . . .\nId. ch. 174, \xc2\xa7 2, 28 Stat. 162, 205.\n\n132\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nIt will be noted that there is nothing in the provisions of section 2 of the Act of\nJuly 31, 1894 (5 U.S.C. \xc2\xa7 62) that would limit its application to the executive\ndepartment or to any one of the three branches of the federal government. In fact,\nthe Act of July 31, 1894 was a legislative, executive, and judicial appropriation\nact, and the history of section 2 of that act suggests no intention to limit its\napplication to particular officers. S. Rep. No. 53-506 (1894); 26 Cong. Rec. 7423,\n7844, 7855 (1894).\nThe Revised Statutes of 1878 (2d ed.), which antedated the Act of July 31,\n1894, were divided into titles, arranged according to the subjects treated, in the\nsame general manner in which the United States Code is divided. Title IV of the\nRevised Statutes was entitled \xe2\x80\x9cProvisions Applicable to All the Executive Departments.\xe2\x80\x9d 18 Stat. pt. 1, at 26 (repl. vol.). Title XIX of the Revised Statutes was\nentitled \xe2\x80\x9cProvisions Applicable to Several Classes of Officer.\xe2\x80\x9d Id. at 312. Since\nthe Act of July 31, 1894 came after the promulgation of the Revised Statutes, it\ncould not be allocated to its proper place in the Revised Statutes. It is significant,\nhowever, that Gould and Tucker, in their Notes on the Revised Statutes of the\nUnited States, which are arranged according to the subdivisions of the Revised\nStatutes, place section 2 of the Act of July 31, 1894 in title XIX, \xe2\x80\x9cProvisions\nApplicable to Several Classes of Officers.\xe2\x80\x9d John M. Gould & George F. Tucker,\nSupplement to Notes on the Revised Statutes of the United States 160 (1898).\nSection 158 of the Revised Statutes (title IV, 2d ed. 1878) provides that \xe2\x80\x9c[t]he\nprovisions of this Title shall apply to the following Executive Departments,\xe2\x80\x9d\nnaming the departments then in existence. 18 Stat. pt. 1, at 26 (repl. vol.). This\nsection, with amendments bringing within its terms executive departments later\nestablished, is now 5 U.S.C. \xc2\xa7 1 (1940). Section 2 of the Act of July 31, 1894 is\nnow 5 U.S.C. \xc2\xa7 62. In view of the history of the Act of July 31, 1894, to which I\nhave referred, its inclusion by the codifiers in title V of the United States Code is\nby no means conclusive or even persuasive of the fact that the statute was intended\nto apply only to the executive departments.\nFurther support for this view is found in the actions of the Attorney General\nand the courts. Thus, Attorney General Griggs, in an opinion dated August 18,\n1898, discussed at length the application of the Act of July 31, 1894 to Circuit\nJudge William L. Putnam, in connection with the latter\xe2\x80\x99s appointment as commissioner under a convention with Great Britain relating to the seizure of vessels in\nthe Bering Sea. Office\xe2\x80\x94Compensation, 22 Op. Att\xe2\x80\x99y. Gen. 184 (1898). The\nAttorney General held that the position of commissioner was not an office within\nthe contemplation of the Act of July 31, 1894, but the whole discussion clearly\nshows that the Attorney General considered the statute to be applicable to judges.\nUnited States v. Harsha, 172 U.S. 567 (1899), involved one person holding two\npositions as clerk or other officer of the courts. The opinion of the Supreme Court\nshows that while under the facts in the case the Act of July 31, 1894 was not\n\n133\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\napplicable, the Court, nevertheless, considered the statute to be applicable to court\nofficials.\nI come now to consider the application of section 2 of the Act of July 31, 1894,\nto Judge Clark. As a judge of the Circuit Court of Appeals he held an office to\nwhich was attached a salary or annual compensation amounting to $2500. No\ncitation is needed to support the statement that the office of Lieutenant Colonel in\nthe Army of the United States is an \xe2\x80\x9coffice\xe2\x80\x9d within the meaning of the 1894\nstatute. Statutory compensation is attached to the office of Lieutenant Colonel.\nAssuming that the Selective Training and Service Act is not applicable, no other\nstatute authorizes a federal judge to be \xe2\x80\x9cappointed to or hold\xe2\x80\x9d the office of\nLieutenant Colonel. Thus, on its face, the Act of July 31, 1894, seems to apply in\nJudge Clark\xe2\x80\x99s case.\nIt must be admitted, however, that the statute has not been authoritatively construed, and, in view of the tenure federal judges have under the Constitution (art.\nIII, \xc2\xa7 1), there is a question whether, by virtue of section 2 of the Act of July 31,\n1894, a judge can be held to have vacated his judicial office by accepting a\nmilitary commission, where his ascertained intent is to continue holding his\njudicial office.\nIt has been generally held, and I think rightly, that the statute does not apply in\ncases where no statutory compensation is attached to the second office. Thus, the\nstatute is not applicable to Judge Marvin Jones and Judge Collett (Br. 6a). Judge\nJones served as Food Administrator and Judge Collett is now serving as Economic\nStabilizer. Both of these positions were created by executive order. Even if they\nwere \xe2\x80\x9coffices\xe2\x80\x9d within the meaning of the Act of July 31, 1894, no statutory\ncompensation is attached to either office and, therefore, the statute did not bar the\nholding by Judge Jones and by Judge Collett of the respective offices mentioned.\nThere are precedents to support the action of judges serving on or in connection\nwith international tribunals. Two recent examples are Mr. Justice Jackson and\nJudge Parker. Even if the international positions which they hold should be\n\xe2\x80\x9coffices,\xe2\x80\x9d no statutory compensation has been attached by Congress to these\n\xe2\x80\x9coffices.\xe2\x80\x9d\nMr. Stryker states that Mr. Justice Frank Murphy of the United States Supreme\nCourt \xe2\x80\x9cserved in the army\xe2\x80\x9d for three months during the summer of 1942. This\nstatement is believed to be in error. It was first reported by the press about\nJune 11, 1942, that Mr. Justice Murphy would accept a commission in the army.\nThis report was later denied and it was subsequently reported that Mr. Justice\nMurphy was not commissioned in the army and did not serve in the army in any\ncapacity, but that during the 1942 summer recess of the Supreme Court he spent\nsome time as an observer or in some unofficial capacity with the army in the\nUnited States.\nIt will be recalled that, when it was desired to appoint as Secretary of Commerce Mr. Jesse Jones, who then held the office of Federal Loan Administrator,\n\n134\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nthe Congress passed a special statute authorizing Mr. Jones to hold both offices,\nhis compensation being limited to that provided by law for the Secretary of\nCommerce. Act of Sept. 13, 1940, ch. 719, 54 Stat. 885.\nAttorney General Sargent construed the Act of July 31, 1894 as being in pari\nmateria with other statutes designed to prevent double salaries and as not prohibiting performance without additional compensation of the duties of two offices, one\nof which does not carry a statutory salary. Holding Two Offices\xe2\x80\x94Chief of Bureau\nof Efficiency, 34 Op. Att\xe2\x80\x99y Gen. 490 (1925).\nOn the other hand, the Supreme Court in Harsha (a case involving a person\nwho at the time of the passage of the Act of July 31, 1894, was holding two\noffices) observed with respect to this statute that \xe2\x80\x9c[i]f the appointment to the other\noffice were made after the passage of the act, it might well be held to be void,\nleaving the person in possession of the first office.\xe2\x80\x9d 172 U.S. at 572. In Pack v.\nUnited States, 41 Ct. Cl. 414, 429 (1906), the court in a dictum indicated that\n\xe2\x80\x9cacceptance of\xe2\x80\x9d the second office might \xe2\x80\x9cof itself operate\xe2\x80\x9d to vacate the first\noffice. In Double Compensation, 24 Comp. Dec. 604 (1918), it was held that\nacceptance of a second office incompatible with the first one vacated the first\noffice. Accord Civilian Employees Ordered to Active Military Duty\xe2\x80\x94Leaves Of\nAbsence, 20 Comp. Gen. 158 (1940).\nSince statutory compensation or salary is attached to the office of Lieutenant\nColonel in the Army of the United States, Judge Clark could not waive or decline\nto accept such military compensation or salary and at the same time hold the\nmilitary office. Glavey v. United States, 182 U.S. 595 (1901). See also United\nStates v. Andrews, 240 U.S. 90 (1916); MacMath v. United States, 248 U.S. 151\n(1918); Bancroft v. United States, 56 Ct. Cl. 218 (1921), aff\xe2\x80\x99d, 260 U.S. 706\n(1922) (per curiam). Attorney General Wickersham, after advising the Secretary of\nthe Interior that a retired army officer might be appointed superintendent of an\nIndian school without additional compensation, the salary of which position had\nnot been fixed by the Congress, said:\nOf course, I do not mean by anything I have said herein to intimate that persons may be appointed without compensation to any\nposition to which Congress has by law attached compensation.\n[Glavey v. United States, 182 U.S. 595 (1901); Miller v. United\nStates, 103 F. 413 (1900).] The position of superintendent of Indian\nschools, however, is one of those appropriated for in general lump\nsums [Pub. L. No. 62-335, 37 Stat. 518 (1912); Pub. L. No. 60-104,\n35 Stat. 70, 73 (1908); Pub. L. No. 59-154, 34 Stat. 1015, 1020\n(1907)] and to which, therefore, persons may be appointed either\nwithout compensation or with any compensation short of the maximum.\n\n135\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nEmployment of Retired Army Officer as Superintendent of Indian School, 30 Op.\nAtt\xe2\x80\x99y Gen. 51, 56 (1913).\nI do not discuss the Act of May 10, 1916 (Pub. L. No. 64-73, \xc2\xa7 6, 39 Stat. 66,\n120 (codified as amended at 5 U.S.C. \xc2\xa7 58 (1940))), since this statute is aimed\nonly at receipt of double salaries or compensation, and since that question is not\nmaterial to a question whether one person may hold two separate offices, to each\nof which statutory compensation is attached.\nThere appears, therefore, to be a real question whether under the Act of July 31,\n1894, the acceptance by Judge Clark of the military commission and acceptance of\ncompensation or salary attached to the military office, together with the performance of active military duties for an extended period, did not vacate his office of\njudge of the Circuit Court of Appeals.\n3.\nUnder common law a public officer may not hold two incompatible\noffices, and acceptance of the second office vacates the first.\nThis rule, which is discussed at length in a note appearing in 1917A L.R.A. 216\n(1917) (\xe2\x80\x9cIncompatibility of offices at common law\xe2\x80\x9d), may provide a useful guide\nto the construction of the statutes here involved. The question is further discussed\nin a note in 26 A.L.R. 142 (1923), entitled \xe2\x80\x9cIncompatibility of offices or positions\nin the military, and in the civil service,\xe2\x80\x9d with citations of court decisions and\nauthorities.\nAttention is invited to Lopez v. Martorell, 59 F.2d 176 (1st Cir. 1932); Montes\nv. Sancho, 82 F.2d 25 (1st Cir. 1936); Howard v. Harrington, 96 A. 769 (Me.\n1916); Crosthwaite v. United States, 30 Ct. Cl. 300 (1895), rev\xe2\x80\x99d, United States v.\nCrosthwaite, 168 U.S. 375 (1897). See also Floyd Russell Mechem, A Treatise on\nthe Law of Public Offices and Officers bk. II, \xc2\xa7\xc2\xa7 419\xe2\x80\x93431, at 267\xe2\x80\x9375 (1890).\nRulings of the Attorney General holding that certain offices named are not\nincompatible are found in District of Columbia\xe2\x80\x94Naval Militia\xe2\x80\x94Office, 22 Op.\nAtt\xe2\x80\x99y Gen. 237 (1898), and Holding Two Offices\xe2\x80\x94Chief of Bureau of Efficiency,\n34 Op. Att\xe2\x80\x99y Gen. 490 (1925).\nIt seems to be the general rule at common law that two offices are incompatible\nwhen their functions or duties are inconsistent or when they conflict with one\nanother. Almost all state constitutions have provisions prohibiting state officials\nfrom holding an office of trust or profit under the United States. Prior to World\nWar II, these provisions seem to have been strictly construed by the state courts.\nThe reverse seems to be true with respect to decisions of the state courts involving\nstate officers who have entered the armed forces of the United States. As stated in\nthe note in the George Washington Law Review,\n\n136\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nPrior to the present war, there were many decisions\xe2\x80\x94indeed, the\nweight of authority\xe2\x80\x94finding forfeiture of state office, based upon a\nstrict interpretation of the state constitutional provision. . . . However, since the beginning of the present war, the majority of opinions\nhave held against forfeiture of state office even though the incumbent has become an officer of the United States.\nThe Serviceman\xe2\x80\x99s Right to Retain His State Office, 13 Geo. Wash. L. Rev. 453,\n463 (1944\xe2\x80\x9345) (footnotes omitted).\nMost of the state court cases are collected in the above note in the George\nWashington Law Review and in a note in the Virginia Law Review, Constitutional\nLaw\xe2\x80\x94Incompatibility of Offices\xe2\x80\x94State Judge Called into Federal Service with\nNational Guard Does Not Thereby Vacate His Judgeship, 29 Va. L. Rev. 501\n(1943). With respect to the state court cases, the writer of the latter note observes:\n\xe2\x80\x9cIt would seem, therefore, that the courts prefer to do violence to the letter of a\nconstitution rather than to penalize a person for his patriotism.\xe2\x80\x9d Id. at 502.\nIn some states there are statutes authorizing the duties of an absent office holder to be performed by a substitute. This was true in two of the four cases cited in\nMr. Stryker\xe2\x80\x99s brief (at 12\xe2\x80\x9314). In State ex rel McGaughey v. Grayston, 163\nS.W.2d 335 (Mo. 1942), a circuit judge was called into active service as a colonel\nin the National Guard. In discussing questions of incompatibility between the two\noffices, the court observed: \xe2\x80\x9cIf the law did not permit a substitute to carry on the\nduties of the [judicial] office in his absence[,] a different question might be\npresented.\xe2\x80\x9d Id. at 341. Likewise, in Caudel v. Prewitt, 178 S.W.2d 22 (Ky. 1944),\nthe views of the court on the question whether the duties of the Commonwealth\xe2\x80\x99s\nattorney and those of an officer in the Officers\xe2\x80\x99 Reserve Corps on active duty are\nincompatible seem to have been considerably influenced by the fact that there was\nauthority to appoint a substitute to perform the duties of the office of the Commonwealth\xe2\x80\x99s attorney during his absence in military service.\nThe question of incompatibility, alone, does not appear to be the basis for many\nstate court decisions involving military personnel in World War II. Most of the\ncases seem to turn on constitutional and statutory provisions. However, in Perkins\nv. Manning, 122 P.2d 857 (Ariz. 1942), there was no disability under the Arizona\nconstitution, but nevertheless, the court held that the office of Major in the\nNational Guard on active duty with the army was incompatible with that of\nSuperintendent of Health.\nUnder the circumstances of Judge Clark\xe2\x80\x99s absence from the bench for more\nthan three years, part of the time outside of the United States, with no authority for\nthe President or anyone to designate a substitute judge, it could be argued that his\njudicial and military positions were incompatible. However, in the light of the\nabove discussion the contrary could also be argued. In this connection, the cases of\nJudge Collett, et al., should be borne in mind.\n\n137\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nC.\n1.\nIf the Selective Training and Service Act does apply, then\nJudge Clark\xe2\x80\x99s resignation may be immaterial.\nThe evidence shows that before Judge Clark tendered his resignation to the\nPresident, he had already entered the armed forces and been commissioned a\nLieutenant Colonel in the Army of the United States (Br. 6b). Thus, it appears that\nJudge Clark left his position or office to perform training and service in the armed\nforces. Vacating his judicial office seems to bear more on the question of whether\nby so doing he intended to waive reemployment rights rather than on the question\nof whether or not he left his civil position to enter the armed forces. Assuming the\nSelective Training and Service Act to be applicable, I am inclined to believe that\nunder the circumstances of this case, the court would be loathe to hold that the\nresignation in itself is a bar to reemployment under the statute. Where the statute\napplies it provides that a person who has been restored to his position \xe2\x80\x9cshall be\nconsidered as having been on furlough or leave of absence during his period of\ntraining and service in the land or naval forces\xe2\x80\x9d (id. \xc2\xa7 8(c)). The regulations of the\nSelective Service System also take this view of the statute, it being stated that \xe2\x80\x9cthe\nfact that a veteran signed a \xe2\x80\x98quit slip\xe2\x80\x99 or \xe2\x80\x98resignation\xe2\x80\x99 at the time of leaving his\nemployment for entrance into the armed forces does not operate to defeat the legal\nright of reinstatement\xe2\x80\x9d (Br. 9).\n2.\nThe statutory prohibition against holding a second office\n(Act of July 31, 1894) probably does not apply.\nThe Act of July 31, 1894, quoted in the preceding section, is designed to prevent one person from holding two lucrative offices. Even if it be assumed that the\nstatute is applicable, it would not bar granting a furlough or military leave from a\ncivil office to enable the incumbent of the office to perform training and service,\nas required under the Selective Training and Service Act. This requirement is\nexpressly stated in the Selective Training and Service Act. I conclude, therefore,\nthat if the Selective Training and Service Act does apply to Judge Clark, the Act of\nJuly 31, 1894, probably would not prohibit him from holding the military office\nand the judicial office at the same time.\n\n138\n\n\x0cReinstatement of a Federal Judge Following His Service in the Army\n\nD.\nIf Judge Clark\xe2\x80\x99s further judicial services are desired, he should be\ngiven a new appointment subject to Senate confirmation.\nThe evidence shows that President Roosevelt accepted unconditionally Judge\nClark\xe2\x80\x99s resignation from his judicial office. If the Selective Training and Service\nAct is not applicable to Judge Clark, President Truman would not have power to\nrestore Judge Clark to the judicial office, except by making a new appointment,\nsubject to Senate confirmation. In view of the grave doubt as to the application of\nthe Selective Training and Service Act, and the serious consequences as to other\nconstitutional officers that would follow if Judge Clark should be restored to office\nunder authority of the Selective Training and Service Act, the safest course seems\nto be for the President to make a new nomination and appointment subject to\nconfirmation by the Senate, if it should be decided that Judge Clark\xe2\x80\x99s further\nservice on the bench is wanted.*\nHAROLD W. JUDSON\nAssistant Solicitor General\n\n*\nEditor\xe2\x80\x99s Note: Judge Clark was not nominated again to the Third Circuit. In 1949, he was appointed Chief Justice of the Allied High Commission Court of Appeals in Nuremberg, Germany, and\nserved in that capacity until 1954.\n\n139\n\n\x0c'


b'Reimbursement of Expenses Under 5 U.S.C. \xc2\xa7 5503(a)\n5 U.S.C. \xc2\xa7 5503(a) does not prohibit individuals reappointed to the Board o f D irectors o f the Civil\nL iberties Public Education Fund dun n g a congressional recess from receiving reim bursem ent for\ntravel, subsistence, and other necessary expenses associated with perform ing their functions.\n\nFebruary 2, 1998\nM 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\n\nThis memorandum confirms oral advice conveyed to your office that individuals\nappointed for a second time during a congressional recess to the Board of Direc\xc2\xad\ntors of the Civil Liberties Public Education Fund may be reimbursed for expenses\nassociated with performing their functions.\nThe nine-member Board of Directors of the Civil Liberties Public Education\nFund makes disbursements from the Fund for research and educational activities\nconcerning the relocation and internment of individuals of Japanese ancestry\nduring World War II. 50 U.S.C. app. \xc2\xa7 1989b-5(b) (1994). The Board\xe2\x80\x99s members\nare appointed by the President, with the advice and consent of the Senate, to\nthree-year terms. Id. app. \xc2\xa7 1989b-5(c)(2). In January 1995, the President sub\xc2\xad\nmitted to the Senate the nominations of eight individuals for vacant Board posi\xc2\xad\ntions, but the Senate Governmental Affairs Committee never acted upon those\nnominations. During an adjournment of the Senate in January 1996, the President\nexercised his power under the Recess Appointments Clause to fill the vacancies,\nplacing the eight previously nominated individuals on the Board. See U.S. Const,\nart. II, \xc2\xa72, cl. 3 (\xe2\x80\x9c The President shall have Power to fill up all Vacancies that\nmay happen during the Recess o f the Senate, by granting Commissions which\nshall expire at the End of their next Session.\xe2\x80\x9d ). The President subsequently\nrenominated the eight individuals in January 1997, and the Senate Governmental\nAffairs Committee again did not act upon those nominations. The commissions\nof the eight recess-appointed individuals expired upon the adjournment sine die\nof the first session of the 105th Congress. See id.; 143 Cong. Rec. S12,713 (daily\ned. Nov. 13, 1997); id. at H10,952.\nBoard members serve \xe2\x80\x9c without pay,\xe2\x80\x9d but are reimbursed for \xe2\x80\x9c travel, subsist\xc2\xad\nence, and other necessary expenses incurred by them in carrying out the functions\nof the Board.\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7 1989b-5(c)(3). You asked whether 5 U.S.C.\n\xc2\xa7 5503(a) (1994) would bar reimbursement for these expenses in the event that\nthe President reappointed, during another congressional recess, the eight individ\xc2\xad\nuals whose commissions expired at the end of the first session of the 105th Con\xc2\xad\ngress.\nIn pertinent part, \xc2\xa7 5503(a) provides: \xe2\x80\x98\xe2\x80\x98Payment for services may not be made\nfrom the Treasury of the United States to an individual appointed during a recess\nof the Senate to fill a vacancy in an existing office, if the vacancy existed while\n29\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nthe Senate was in session and was by law required to be filled by and with the\nadvice and consent of the Senate, until the appointee has been confirmed by the\nSenate.\xe2\x80\x9d This prohibition does not apply \xe2\x80\x9c if, at the end of the session, a nomina\xc2\xad\ntion for the office, other than the nomination of an individual appointed during\nthe preceding recess of the Senate, was pending before the Senate for its advice\nand consent.\xe2\x80\x9d Id. \xc2\xa7 5503(a)(2). Section 5503(a) has been interpreted as prohibiting\n\xe2\x80\x9c [pjayment for services\xe2\x80\x9d to individuals receiving successive recess appointments.\nSee Memorandum for John P. Schmitz, Deputy Counsel to the President, from\nTimothy E. Flanigan, Acting Assistant Attorney General, Office of Legal Counsel,\nRe: R ecess Appointm ent o f Directors o f the Federal Housing Finance Board (Dec.\n13, 1991); Recess Appointments Issues, 6 Op. O.L.C. 585, 586 (1982); Recess\nAppointments, 41 Op. A tt\xe2\x80\x99y Gen. 463, 472, 474, 480 (1960) (interpreting prede\xc2\xad\ncessor statute).\nThe fact that Board members commissioned for a second time under the Recess\nAppointments Clause cannot receive \xe2\x80\x9c [p]ayment for services\xe2\x80\x9d does not, however,\nresolve our inquiry. We must ask whether reimbursement for travel, subsistence,\nand other necessary expenses constitutes \xe2\x80\x9c [pjayment for services\xe2\x80\x9d within the\nmeaning of \xc2\xa7 5503(a). We conclude that it does not.\nThe phrase \xe2\x80\x9c [pjayment for services\xe2\x80\x9d is not defined in \xc2\xa7 5503(a) or other provi\xc2\xad\nsions of title 5 governing pay administration. See 5 U.S.C. \xc2\xa7\xc2\xa75501-5597 (1994\n& Supp. II 1996). Nothing in \xc2\xa7 5503(a) itself reveals which of two possible\ninterpretations of the phrase is correct: a narrow interpretation, covering those\nforms of payment typically associated with the performance of personal services,\nsuch as fees, wages, salary, or commissions; or a broad interpretation, covering\nany form of payment that an individual would receive after having performed\nhis or her government services, including a payment to offset expenses. The legis\xc2\xad\nlative history of \xc2\xa7 5503(a), however, makes clear that the statute cannot be inter\xc2\xad\npreted to cover reimbursement of travel, subsistence, and other expenses. Section\n5503(a) was enacted as part of a 1966 codification of statutes relating to govern\xc2\xad\nment employees and the organization and powers of federal agencies. See Act\nof Sept. 6, 1966, Pub. L. No. 89-554, 80 Stat. 378, 475. The Report of the Senate\nCommittee on the Judiciary accompanying the proposed bill, H.R. 10104, 89th\nCong. (1965), emphasizes that the bill\xe2\x80\x99s purpose was \xe2\x80\x9c to restate in comprehensive\nform, without substantive change, the statutes in effect before July 1, 1965.\xe2\x80\x9d S.\nRep. No. 89-1380, at 18 (1966) (emphasis added); see id. at 20 ( \xe2\x80\x9c [TJhere are\nno substantive changes made by this bill enacting title 5 into law.\xe2\x80\x9d ). Section\n5503(a)\xe2\x80\x99s predecessor, 5 U.S.C. \xc2\xa756 (1964), stated: \xe2\x80\x9c No money shall be paid\nfrom the treasury, as salary, to any person appointed during the recess of the\nSenate, to fill a vacancy in any existing office, if the vacancy existed while the\nSenate was in session and was by law required to be filled by and with the advice\nand consent o f the Senate, until such appointee has been confirmed by the\nSenate.\xe2\x80\x9d (Emphasis added.) Even if there were ambiguity as to the scope of the\n30\n\n\x0cReimbursement o f Expenses Under 5 U S.C. \xc2\xa7 5503(a)\n\nphrase \xe2\x80\x9c payment for services\xe2\x80\x9d in the current version, there is no ambiguity as\nto the scope of the phrase \xe2\x80\x9c paid . . . as salary\xe2\x80\x9d in the prior version. The term\n\xe2\x80\x9c salary\xe2\x80\x9d describes a fixed, periodic payment made in exchange for services. See,\ne.g., W ebster\xe2\x80\x99s Second New International Dictionary 2203 (1935) (defining salary\nas \xe2\x80\x9c [t]he recompense or consideration paid, or stipulated to be paid, to a person\nat regular intervals for services\xe2\x80\x9d ); Benedict v. United States, 176 U.S. 357, 360\n(1900) (\xe2\x80\x9c The word \xe2\x80\x98salary\xe2\x80\x99 may be defined generally as a fixed annual or peri\xc2\xad\nodical payment for services, depending upon the time and not upon the amount\nof services rendered\xe2\x80\x9d ). The term would not encompass reimbursement of\nexpenses. If we were to interpret the substitution of the phrase \xe2\x80\x9c payment for serv\xc2\xad\nices\xe2\x80\x9d for the phrase \xe2\x80\x9c paid . . . as salary\xe2\x80\x9d as broadening the scope of \xc2\xa756 to\ncover expenses, then we would be disregarding clear direction that Congress\nintended no substantive changes to existing law. Indeed, the Report specifically\ndescribes the changes reflected in \xc2\xa7 5503(a) as \xe2\x80\x9c [sjtandard changes . . . made\nto conform with the definitions applicable and the style of this title.\xe2\x80\x9d S. Rep.\nNo. 89-1380, at 105. The substitution of \xe2\x80\x9c payment for services\xe2\x80\x9d for \xe2\x80\x9c paid . . .\nas salary\xe2\x80\x9d thus merely clarifies that the statute reaches forms of payment that,\nlike salary, compensate for the performance of personal services. Cf. id. at 20\n(\xe2\x80\x9c The word \xe2\x80\x98pay\xe2\x80\x99 includes all terms heretofore in use representing salary, wages,\npay, compensation, emoluments, and remuneration for services.\xe2\x80\x9d ). It provides no\nbasis for concluding that \xc2\xa7 5503(a) extends beyond payments that compensate for\nthe performance of personal services, to reach other payments that, like reimburse\xc2\xad\nment for expenses, are merely incidental to the performance of personal services.\nIt may be possible to argue that the purposes underlying the enactment of\n\xc2\xa7 5503(a)\xe2\x80\x99s predecessors support a broad interpretation of the current phrase \xe2\x80\x9c pay\xc2\xad\nment for services.\xe2\x80\x9d As originally enacted in 1863, the statute provided that if\na vacancy existed while the Senate was in session, a person receiving a recess\nappointment to fill that vacancy could not be paid from the Treasury until he\nor she had been confirmed by the Senate. Act of Feb. 9, 1863, ch. 25, \xc2\xa72, 12\nStat. 642, 646. This original restriction, which forced recess appointees to serve\nwithout salary, was intended to protect the prerogatives of the Senate by making\nrecess appointments more difficult. See 61 Cong. Globe, 37th Cong., 3rd Sess.\n565 (1863). In 1940, Congress amended the statute \xe2\x80\x9c to render the existing prohibi\xc2\xad\ntion on the payment of salaries more flexible,\xe2\x80\x9d H.R. Rep. No. 76-2646, at 1\n(1940), and to alleviate what was perceived to be the \xe2\x80\x9c serious injustice\xe2\x80\x9d caused\nby the law as it then stood, S. Rep. No. 76-1079, at 2 (1939). See Act of July\n11, 1940, ch. 580, 54 Stat. 751; see also 41 Op. Att\xe2\x80\x99y Gen. at 474. Thus, as\namended, 5 U.S.C. \xc2\xa7 56 permitted the immediate payment of salary to certain\nrecess appointees, including those not appointed during a previous congressional\nrecess. Because Congress sought, even through this less stringent 1940 version\nof the statute, to prevent the payment of salary to individuals who had received\na previous recess appointment, it could be argued that \xc2\xa7 56 was designed in par\xc2\xad\n31\n\n\x0cOpinions of the Office o f Legal /Counsel in Volume 22\n\nticular to prevent such successive recess appointments. That goal would be served\nby a prohibition on the reimbursement of expenses, just as it would be served\nby a prohibition on the payment o f salary.\nThe Congress that enacted \xc2\xa7 56, however, elected to prohibit salary payments,\nnot salary payments and reimbursement of expenses. In light of Congress\xe2\x80\x99s clear\nintent to effect no substantive changes in the 1966 codification of title 5,\n\xc2\xa7 5503(a)\xe2\x80\x99s prohibition cannot be interpreted to sweep in something clearly outside\nthe scope of \xc2\xa7 5 6 \xe2\x80\x99s prohibition\xe2\x80\x94 a recess appointee\xe2\x80\x99s receipt of reimbursement\nfor expenses.\nIn sum, we conclude that 5 U.S.C. \xc2\xa7 5503(a) does not prohibit individuals re\xc2\xad\nappointed to the Board of Directors of the Civil Liberties Public Education Fund\nduring a congressional recess from receiving reimbursement for travel, subsist\xc2\xad\nence, and other necessary expenses associated with performing their functions.\nDAWN JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n32\n\n\x0c'