B-80206, OCTOBER 14, 1948, 28 COMP. GEN. 238

B-80206: Oct 14, 1948

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IS TO BE REGARDED AS WITHIN THE PURVIEW OF CLAUSE (B) OF SECTION 1761. PROVIDING AN EXCEPTION TO THE RECESS SALARY PAYMENT PROHIBITION WHERE A NOMINATION TO THE OFFICE INVOLVED WAS PENDING IN THE SENATE WHEN ITS SESSION TERMINATED. SO THAT SUCH PERSON IS ENTITLED TO THE SALARY ATTACHED TO THE OFFICE. EVEN THOUGH HE WAS NOT THE PERSON NOMINATED THEREFOR WHILE THE SENATE WAS IN SESSION. 1948: I HAVE YOUR LETTER OF SEPTEMBER 22. IT IS UNDERSTOOD THAT. SAID NOMINATION WAS NOT ACTED UPON BY THE SENATE WHILE IT WAS IN SESSION FROM JANUARY TO JUNE 20. JUDGE HENDERSON WAS APPOINTED AND TOOK THE OATH AND ENTERED UPON THE PERFORMANCE OF THE DUTIES OF THE OFFICE ON SEPTEMBER 2. THERE ARE INVOLVED THE PROVISIONS OF SECTION 1761.

B-80206, OCTOBER 14, 1948, 28 COMP. GEN. 238

APPOINTMENTS - RECESS APPOINTMENTS A PERSON WHO RECEIVED A RECESS APPOINTMENT AS A FEDERAL JUDGE FROM THE PRESIDENT SUBSEQUENT TO ADJOURNMENT OF THE SENATE ON AUGUST 7, 1948, IS TO BE REGARDED AS WITHIN THE PURVIEW OF CLAUSE (B) OF SECTION 1761, REVISED STATUTES, AS AMENDED, PROVIDING AN EXCEPTION TO THE RECESS SALARY PAYMENT PROHIBITION WHERE A NOMINATION TO THE OFFICE INVOLVED WAS PENDING IN THE SENATE WHEN ITS SESSION TERMINATED, SO THAT SUCH PERSON IS ENTITLED TO THE SALARY ATTACHED TO THE OFFICE, EVEN THOUGH HE WAS NOT THE PERSON NOMINATED THEREFOR WHILE THE SENATE WAS IN SESSION.

COMPTROLLER GENERAL WARREN TO THE DIRECTOR, ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS, OCTOBER 14, 1948:

I HAVE YOUR LETTER OF SEPTEMBER 22, 1948, REQUESTING A DECISION AS TO THE RIGHT TO PAYMENT OF SALARY OF THE HONORABLE DAVID E. HENDERSON UNDER HIS RECESS APPOINTMENT OF SEPTEMBER 1, 1948, AS UNITED STATES DISTRICT JUDGE FOR THE WESTERN DISTRICT OF NORTH CAROLINA.

IT IS UNDERSTOOD THAT, ON APRIL 2, 1948, THE PRESIDENT SUBMITTED TO THE SENATE THE NOMINATION OF THE HONORABLE WILSON WARLICK FOR THE JUDGESHIP INVOLVED, THE VACANCY THEREIN RESULTING FROM THE RETIREMENT AS OF MARCH 1, 1948, OF JUDGE EDWIN Y. WEBB. YOUR LETTER STATES THAT, AS FAR AS CAN BE ASCERTAINED, THE PRESIDENT TOOK NO SUBSEQUENT ACTION IN REFERENCE TO THE NOMINATION OF JUDGE WARLICK, AND SAID NOMINATION WAS NOT ACTED UPON BY THE SENATE WHILE IT WAS IN SESSION FROM JANUARY TO JUNE 20, 1948, OR AGAIN, FROM JULY 26 TO AUGUST 7, 1948. SUBSEQUENTLY, ON SEPTEMBER 1, JUDGE HENDERSON WAS APPOINTED AND TOOK THE OATH AND ENTERED UPON THE PERFORMANCE OF THE DUTIES OF THE OFFICE ON SEPTEMBER 2, 1948.

HERE, AS IN THE DECISIONS OF JULY 16 AND AUGUST 26, 1948, B-77963, 28 COMP. GEN. 30; ID. 121, TO YOU, THERE ARE INVOLVED THE PROVISIONS OF SECTION 1761, REVISED STATUTES, AS AMENDED, 5 U.S.C. 56, WHICH ARE AS FOLLOWS:

NO MONEY SHALL BE PAID FROM THE TREASURY, AS SALARY, TO ANY PERSON APPOINTED DURING THE RECESS OF THE SENATE, TO FILL A VACANCY IN ANY EXISTING OFFICE, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION AND WAS BY LAW REQUIRED TO BE FILLED BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, UNTIL SUCH APPOINTEE HAS BEEN CONFIRMED BY THE SENATE. THE PROVISIONS OF THIS SECTION SHALL NOT APPLY (A) IF THE VACANCY AROSE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION OF THE SENATE; OR (B) IF, AT THE TIME OF THE TERMINATION OF THE SESSION OF THE SENATE, A NOMINATION FOR SUCH OFFICE, OTHER THAN THE NOMINATION OF A PERSON APPOINTED DURING THE PRECEDING RECESS OF THE SENATE, WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT; OR (C) IF A NOMINATION FOR SUCH OFFICE WAS REJECTED BY THE SENATE WITHIN THIRTY DAYS PRIOR TO THE TERMINATION OF THE SESSION AND A PERSON OTHER THAN THE ONE WHOSE NOMINATION WAS REJECTED THEREAFTER RECEIVES A RECESS COMMISSION: PROVIDED, THAT A NOMINATION TO FILL SUCH VACANCY UNDER (A), (B), OR (C) OF THE SECTION, SHALL BE SUBMITTED TO THE SENATE NOT LATER THAN FORTY DAYS AFTER THE COMMENCEMENT OF THE NEXT SUCCEEDING SESSION OF THE SENATE. AND DETERMINATIVE OF JUDGE HENDERSON'S RIGHT TO COMPENSATION IS CLAUSE (B) OF THE STATUTE, 54 STAT. 751, WHICH MAKES THE SALARY PAYMENT PROHIBITION INAPPLICABLE---

* * * IF, AT THE TIME OF THE TERMINATION OF THE SESSION OF THE SENATE, A NOMINATION FOR SUCH OFFICE * * * WAS PENDING BEFORE THE SENATE FOR ITS ADVICE AND CONSENT * * *.

THE FACTS AS STATED ABOVE DISCLOSE THAT A NOMINATION TO THE OFFICE INVOLVED WAS PENDING BEFORE THE SENATE WHEN IT ADJOURNED ON AUGUST 7, 1948. THAT THE ADJOURNMENT OF THE SENATE ON AUGUST 7, 1948, WAS A "TERMINATION OF THE SESSION" WITHIN THE MEANING OF THE FOREGOING PROVISION OF LAW IS SETTLED BY THE CITED DECISIONS OF JULY 16 AND AUGUST 26, 1948. THUS, THE ONLY QUESTION FOR DETERMINATION IS WHETHER CLAUSE (B) PROPERLY IS FOR APPLICATION WHERE, AS HERE, THE NOMINATION FOR THE OFFICE WHICH WAS PENDING BEFORE THE SENATE WHEN ITS SESSION TERMINATED WAS THAT OF A PERSON OTHER THAN THE INDIVIDUAL WHO IS GIVEN THE RECESS APPOINTMENT.

IT IS TO BE NOTED THAT BY THE PLAIN TERMS OF CLAUSE (B), SUPRA, ITS REQUIREMENTS ARE MET IF THERE MERELY IS "A" NOMINATION PENDING FOR CONSIDERATION BY THE SENATE. THE USE OF THE GENERAL OR INDEFINITE TERM "A," AS OPPOSED TO THE SPECIFIC OR DEFINITE ARTICLE "THE," REASONABLY MAY BE REGARDED AS CONTEMPLATING THAT THE REQUIREMENTS OF THE STATUTE ARE SATISFIED IF ANY NOMINATION FOR THE OFFICE IS PENDING BEFORE THE SENATE FOR ITS CONSIDERATION, RATHER THAN THE NOMINATION OF THE PARTICULAR INDIVIDUAL WHO RECEIVES THE RECESS APPOINTMENT. THUS, RESTRICTING CONSIDERATION OF THE QUESTION TO THE LETTER OF THE STATUTE, IT PROPERLY MAY BE CONCLUDED THAT ANY NOMINATION FOR A PARTICULAR OFFICE WILL SERVE TO PERMIT OF PAYMENT OF SALARY TO A PERSON GIVEN A RECESS APPOINTMENT TO SAID OFFICE, EVEN THOUGH SAID APPOINTEE WAS NOT THE PERSON NOMINATED THEREFOR WHILE THE SENATE WAS IN SESSION.

FURTHERMORE, SUPPORT FOR THE SAID VIEW IS FOUND WHEN THE QUESTION INVOLVED IS CONSIDERED IN THE LIGHT OF THE BROAD PURPOSES OF THE APPLICABLE STATUTE AS A WHOLE. SECTION 1761, REVISED STATUTES, AS ORIGINALLY ENACTED FEBRUARY 9, 1863, BARS THE PAYMENT OF SALARY TO A PERSON APPOINTED DURING A RECESS OF THE SENATE TO FILL A VACANCY IN AN OFFICE REQUIRING SENATORIAL CONFIRMATION, IF THE VACANCY EXISTED WHILE THE SENATE WAS IN SESSION. THIS LIMITATION UPON THE EXECUTIVE'S AUTHORITY TO MAKE RECESS APPOINTMENTS OBVIOUSLY STEMMED FROM A LEGISLATIVE PURPOSE TO REQUIRE THE PRESIDENT TO OBTAIN THE ADVICE AND CONSENT OF THE SENATE IN RESPECT TO FILLING A VACANCY IN CIRCUMSTANCES WHERE THAT BODY IS SITTING AND AVAILABLE FOR THAT PURPOSE; THAT IS TO SAY, THAT THE SENATE'S FUNCTION IN THAT REGARD SHOULD NOT BE AVOIDED OR THWARTED BY DELAYING APPOINTMENT ACTION UNTIL AFTER TERMINATION OF THE SESSION. THE SUBSEQUENT AMENDMENT OF THE ORIGINAL STATUTE BY THE ENACTMENT OF JULY 11, 1940, 54 STAT. 751, PROVIDED EXCEPTIONS TO THE SALARY PAYMENT PROHIBITION WHERE THE VACANCY IN QUESTION AROSE WITHIN 30 DAYS PRIOR TO TERMINATION OF THE SENATE SESSION (CLAUSE (A) ); WHERE A NOMINATION FOR AN OFFICE WAS PENDING BEFORE THE SENATE AT THE TIME OF THE TERMINATION OF ITS SESSION (CLAUSE (B) ); AND WHERE A NOMINATION FOR OFFICE WAS REJECTED BY THE SENATE WITHIN 30 DAYS PRIOR TO THE TERMINATION OF THE SESSION AND A PERSON OTHER THAN THE ONE WHOSE NOMINATION WAS REJECTED THEREAFTER RECEIVES A RECESS COMMISSION (CLAUSE (C) ).

IN THE REPORT OF THE COMMITTEE ON EXPENDITURES IN THE EXECUTIVE DEPARTMENTS OF THE HOUSE OF REPRESENTATIVES (HOUSE REPORT NO. 2656, 76TH CONGRESS) ON S. 2773, WHICH LATER WAS ENACTED INTO THE 1940 STATUTE, IT WAS STATED, IN RESPECT TO THE LIMITATION UPON THE PRESIDENT'S AUTHORITY TO MAKE RECESS APPOINTMENTS, THAT:

FROM A PRACTICAL STANDPOINT IT FREQUENTLY CREATES DIFFICULTIES ESPECIALLY IN THOSE CASES IN WHICH A VACANCY AROSE SHORTLY BEFORE THE CLOSE OF A CONGRESSIONAL SESSION, LEAVING INSUFFICIENT TIME TO FILL THE VACANCY BY NOMINATION AND CONFIRMATION. DIFFICULTIES ALSO ARISE IN CASES IN WHICH A SESSION TERMINATES BEFORE THE SENATE ACTS ON PENDING NOMINATIONS, AS HAS AT TIMES HAPPENED.

THE PURPOSE OF THE BILL IS TO RENDER THE EXISTING PROHIBITION ON THE PAYMENT OF SALARIES MORE FLEXIBLE. IT WOULD PERMIT THE PAYMENT OF SALARIES TO RECESS APPOINTEES IF THE VACANCY AROSE WITHIN 30 DAYS PRIOR TO THE TERMINATION OF A SESSION OF THE SENATE, OR IF AT THE TIME OF SUCH TERMINATION A NOMINATION WAS PENDING BEFORE THE SENATE FOR ACTION, OR IF WITHIN 30 DAYS PRIOR TO SUCH TERMINATION THE SENATE HAS REJECTED A NOMINATION FOR THE OFFICE. THE EFFECT OF THIS AMENDMENT TO EXISTING LAW WOULD BE TO MEET AT LEAST SOME OF THE DIFFICULTIES ENUMERATED ABOVE.

AND IN THE REPORT OF THE COMMITTEE ON THE JUDICIARY OF THE SENATE (SENATE REPORT NO. 1079, 76TH CONGRESS), THERE IS SET FORTH A LETTER OF THE THEN ATTORNEY GENERAL RECOMMENDING ENACTMENT OF THE MEASURE FOR REASONS AS FOLLOWS:

THE BROAD SCOPE OF THIS RESTRICTION IS MANIFESTLY DETRIMENTAL TO THE BEST INTERESTS OF THE PUBLIC SERVICE. IT NOT INFREQUENTLY OCCURS THAT A VACANCY ARISES SHORTLY BEFORE THE END OF A SESSION OF THE CONGRESS, LEAVING AN INSUFFICIENT INTERVAL FOR THE PRESIDENT TO MAKE A SELECTION OF A SUCCESSOR BEFORE ADJOURNMENT. AT TIMES NOMINATIONS ARE LEFT PENDING WITHOUT ACTION BY THE SENATE AT THE TIME THE SESSION TERMINATES. SIMILARLY, A NOMINATION MAY BE REJECTED SHORTLY BEFORE THE END OF THE SESSION, AND THE TIME REMAINING MAY BE INADEQUATE FOR THE SELECTION OF ANOTHER APPOINTEE. IT SEEMS HIGHLY UNDESIRABLE THAT UNDER SUCH CIRCUMSTANCES A RECESS APPOINTEE SHOULD BE PRECLUDED FROM RECEIVING A SALARY DURING THE RECESS. THE RESULT MAY BE THAT ON OCCASION THE VACANCY MUST REMAIN UNFILLED UNTIL SOMETIME DURING THE FOLLOWING SESSION OF THE CONGRESS. THIS IS OBVIOUSLY A CONSUMMATION THAT SHOULD BE AVOIDED. OTHER CASES IN WHICH A SUITABLE PERSON IS FOUND TO ACCEPT A RECESS COMMISSION UNDER SUCH LIMITATIONS, THE FINANCIAL SACRIFICE WHICH THE APPOINTEE IS REQUIRED TO MAKE IS ONE WHICH IN ALL FAIRNESS SHOULD NOT BE EXACTED OF HIM.

THE BILL UNDER CONSIDERATION WOULD MEET THESE OBJECTIONS BY RENDERING THE EXISTING PROHIBITION AS TO PAYMENT OF SALARIES TO RECESS APPOINTEES INAPPLICABLE IN CASES IN WHICH THE VACANCY AROSE OR A NOMINATION WAS REJECTED WITHIN 30 DAYS PRIOR TO THE TERMINATION OF A SESSION OF THE CONGRESS, AND IN CASES IN WHICH A NOMINATION REMAINS PENDING WHEN THE CONGRESS ADJOURNS. THE BILL CONTAINS AN EXCEPTION TO THE EFFECT THAT THE PROHIBITION SHALL NOT BE LIFTED IN THE EVENT THAT THE PERSON RECEIVING THE RECESS COMMISSION IS THE SAME PERSON WHOSE NOMINATION WAS REJECTED.

IT WOULD SEEM CLEAR THAT THE TERMS OF THE CITED CLAUSES (A), (B), AND(C), AND THE EXPRESSIONS OF PURPOSES BEFORE REFERRED TO, SPELL OUT A GENERAL LEGISLATIVE INTENTION TO LIFT THE SALARY PAYMENT BAN IN CIRCUMSTANCES WHERE THE PRESIDENT HAS NOT BEEN AFFORDED A REASONABLE OPPORTUNITY TO SUBMIT A NOMINATION FOR AN OFFICE TO THE SENATE OR, HAVING SOUGHT THE ADVICE AND CONSENT OF THE SENATE BY SUBMISSION OF A NOMINATION, THE SENATE ADJOURNS WITHOUT TAKING ACTION THEREON. IN THE INSTANT CASE, THE PRESIDENT, BY SUBMITTING TO THE SENATE A NOMINATION FOR THE OFFICE INVOLVED, WHICH REMAINED PENDING BEFORE THAT BODY WHEN ITS SESSION TERMINATED, DID ALL THAT WAS REQUIRED BY THE LAW TO ESTABLISH THE RIGHT OF A RECESS APPOINTEE TO THE SALARY OF THE OFFICE. IN THIS VIEW OF THE MATTER, IT WOULD SEEM THAT THAT RIGHT IS UNAFFECTED BY THE FACT THAT THE ONE SUBSEQUENTLY GIVEN THE RECESS APPOINTMENT IS NOT THE SAME PERSON WHOSE NOMINATION WAS SUBMITTED TO THE SENATE.

ACCORDINGLY, I HAVE TO ADVISE THAT, AS A NOMINATION FOR THE OFFICE WAS PENDING BEFORE THE SENATE WHEN IT ADJOURNED ON AUGUST 7, 1948, JUDGE HENDERSON IS ENTITLED TO BE PAID THE SALARY THEREOF UNDER HIS RECESS APPOINTMENT OF SEPTEMBER 1, 1948.