Appointment of Uncompensated Special
Attorneys Under 28 U.S.C. § 515
The proposal of two components of the Department of Justice to hire a modest number of
uncompensated litigation attorneys would not violate the Antideficiency Act (1) be-
cause the services would be provided by a person acting in an official capacity under a
regular appointment and (2) because 28 U.S.C. § 515 authorizes the Attorney General
to appoint special attorneys to perform these services and does not specify a minimum
salary.
The Department and the special attorneys should enter into agreements acknowledging
that the special attorneys will not receive compensation for their services.
April 25, 2012
MEMORANDUM OPINION FOR THE DIRECTOR
OFFICE OF ATTORNEY RECRUITMENT AND MANAGEMENT
Section 515(a) of title 28 of the United States Code authorizes the At-
torney General to appoint special attorneys to “conduct any kind of legal
proceeding, civil or criminal,” that “United States attorneys are author-
ized by law to conduct.” Invoking this authority, two components of the
Department of Justice seek to hire a modest number of uncompensated
litigation attorneys to perform the same functions that compensated
attorneys within those components perform. The Department’s Office of
Attorney Recruitment and Management (“OARM”) has asked whether
implementing this proposal would violate the Antideficiency Act, which
forbids federal agencies to accept voluntary services, see 31 U.S.C.
§ 1341 (2006). We conclude that it would not.
Attorneys General, this Office, and the Government Accountability
Office (“GAO”) have long applied a two-part test that must be satisfied
for the federal government lawfully to accept uncompensated services.
First, the services must be provided by a person acting in an official
capacity under a regular appointment. Second, Congress must have
authorized the appointment of unpaid persons to the position at issue. If
both elements of the test are satisfied, the appointees are providing law-
ful “gratuitous” services, not unlawful “voluntary” services, and thus the
government’s acceptance of those services would not violate the Antide-
ficiency Act. The Department’s proposed appointments under section
515(a) would fulfill both parts of the standard and therefore would not
153
36 Op. O.L.C. 153 (2012)
violate the Act. We strongly advise, however, that the Department and
section 515(a) appointees enter into agreements acknowledging that the
latter will not receive compensation for their services.
Appointments that satisfy the standard for lawful gratuitous services
also comply with the anti-augmentation rule of appropriations law (as-
suming that principle applies to the receipt of services as well as funds).
Although federal agencies may not unilaterally augment their appropria-
tions from outside sources, they may do so with congressional permission.
Section 515(a) provides the Department with the requisite authority.
I.
The Justice Department’s use of uncompensated legal services is not
new. For many years lawyers have served without compensation as Spe-
cial Assistant United States Attorneys (“SAUSAs”) within U.S. Attor-
neys’ offices. See, e.g., Memorandum for Edward R. Slaughter, Jr., Spe-
cial Assistant to the Attorney General for Litigation, from Leon Ulman,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Pro-
posal by United States Attorney’s Office Concerning the Use of Private
Attorneys for Service Without Compensation at 1 (May 29, 1980) (“Pro-
posal by United States Attorney’s Office”) (approving SAUSA appoint-
ment). These appointments are authorized by a statute providing that
“[t]he Attorney General may appoint attorneys to assist United States
attorneys when the public interest so requires.” 28 U.S.C. § 543(a) (2006
& Supp. IV 2010). Recently, U.S. Attorneys have increased their offices’
use of unpaid SAUSA appointments, often in the form of fellowships or
temporary positions for junior attorneys seeking experience and training.
See Memorandum for Virginia A. Seitz, Assistant Attorney General,
Office of Legal Counsel, from Louis DeFalaise, Director, OARM, Re:
Appointment of Uncompensated Special Attorneys Pursuant to 28 U.S.C.
§ 515 at 1–2 (Sept. 26, 2011) (“OARM Memo”).
OARM’s question arises because two litigating divisions—the Criminal
Division and the Civil Rights Division—are now contemplating similar
programs under a different statutory authority. See id. at 2. Specifically,
those divisions wish to hire a limited number of special attorneys to serve
without compensation under a provision that authorizes the Attorney
General to appoint these attorneys to “conduct any kind of legal proceed-
ing, civil or criminal, . . . which United States attorneys are authorized by
154
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
law to conduct.” 28 U.S.C. § 515(a) (2006). 1 Section 515(b) provides that
“[e]ach attorney specially retained under authority of the Department of
Justice shall be commissioned as special assistant to the Attorney General
or special attorney, and shall take the oath required by law.” The statute
further states that “[t]he Attorney General shall fix the annual salary of a
special assistant or special attorney.” Id. § 515(b).
OARM informs us that the Criminal Division would like to hire rough-
ly 30 uncompensated special attorneys, or approximately five percent of
its workforce, through the proposed program. OARM Memo at 2. The
Civil Rights Division proposes to hire up to twelve uncompensated spe-
cial attorneys. OARM has asked whether the proposal would violate the
Antideficiency Act (“ADA”).
II.
A.
Generally speaking, federal agencies may not accept voluntary services.
See Employment Status of “Volunteers” Connected with Federal Advisory
Committees,
6 Op. O.L.C. 160, 161 (1982) (“Federal Advisory Commit-
tees”). This prohibition is embodied in the ADA, which provides that
“[a]n officer or employee of the United States Government . . . may not
accept voluntary services for [the] government or employ personal ser-
vices exceeding that authorized by law except for emergencies involving
the safety of human life or the protection of property,” 31 U.S.C. § 1342
(2006). 2 But the ADA does not forbid federal agencies to accept all un-
compensated services. Instead, the Department of Justice has long distin-
guished between “voluntary services,” which the federal government
cannot lawfully accept, and “gratuitous services,” for which the govern-
1 The Attorney General has delegated his appointment authority to the Deputy Attor-
ney General and authorized the Deputy Attorney General to further re-delegate it. 28
C.F.R. § 0.15 (2011); see also United States v. Prueitt,
540 F.2d 995, 1000 (9th Cir. 1976)
(“Section 515(a) imposes no limitation on the Attorney General’s authority to delegate his
power of appointment to other officers within the Department of Justice.”).
2 Congress reworded and reorganized the ADA in 1982 to modernize its language
without changing its meaning. See Pub. L. 97-258, 96 Stat 877 (1982) (“To revise, codify,
and enact without substantive change certain general and permanent laws, related to
money and finance, as title 31, United States Code, ‘Money and Finance.’”). The relevant
provision was previously located at 31 U.S.C. § 665(b).
155
36 Op. O.L.C. 153 (2012)
ment may lawfully contract. See Employment of Retired Army Officer as
Superintendent of Indian School, 30 Op. Att’y Gen. 51, 52 (1913) (“Em-
ployment of Retired Army Officer”). As Attorney General Wickersham
explained:
[I]t seems plain that the words ‘voluntary service’ were not intended
to be synonymous with ‘gratuitous service’ and were not intended to
cover services rendered in an official capacity under regular ap-
pointment to an office otherwise permitted by law to be nonsalaried.
In their ordinary and normal meaning these words refer to service in-
truded by a private person as a ‘volunteer’ and not rendered pursuant
to any prior contract or obligation . . . . It would be stretching the
language a good deal to extend it so far as to prohibit official ser-
vices without compensation in those instances in which Congress has
not required even a minimum salary for the office.
Id. at 52. This Office has repeatedly adhered to this distinction. See, e.g.,
Memorandum for Francis A. Keating II, Acting Associate Attorney Gen-
eral, from Michael Carvin, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Independent Counsel’s Authority to Accept Voluntary
Services—Appointment of Laurence W. Tribe at 2 (May 19, 1988) (“Inde-
pendent Counsel’s Authority”) (describing Attorney General Wicker-
sham’s opinion as “the authoritative construction of the prohibition on
voluntary services in the [ADA]”).
As we have explained, gratuitous services are lawful (and voluntary
services are not) because “the [ADA] was intended to eliminate subse-
quent claims against the United States for compensation of the ‘volun-
teer,’ rather than to deprive the government of the benefit of truly gratui-
tous services.” Federal Advisory Committees, 6 Op. O.L.C. at 162; see
also Employment of Retired Army Officer, 30 Op. Att’y Gen. at 55 (“[T]he
evil at which Congress was aiming was not appointment or employment
for authorized services without compensation, but the acceptance of
unauthorized services not intended or agreed to be gratuitous and there-
fore likely to afford a basis for a future claim upon Congress.”). Forbid-
ding federal agencies to accept voluntary services prevents potential
future liability based on claims for compensation for such services. In
contrast, a contract for “truly gratuitous” services would not create con-
cerns about future liability. We have also noted the separate but related
point that “employees may not waive a salary for which Congress has set
156
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
a minimum,” Federal Advisory Committees, 6 Op. O.L.C. at 161 (citing
Glavey v. United States,
182 U.S. 595 (1901)). Thus, the federal govern-
ment may not accept uncompensated services in positions for which
Congress has mandated a threshold salary. But when Congress has not
specified a minimum salary for particular positions, the acceptance of
such services cannot be said to circumvent congressional intent.
With those points in mind, we have consistently found that service is
gratuitous, and hence lawful, if it satisfies two requirements. First, a
person must render the service in an official capacity under a regular
appointment to a position. See Authority to Decline Compensation for
Service on the National Council of Arts,
13 Op. O.L.C. 113, 114 (1989)
(“National Council of Arts”). Second, the position must be permitted by
law to be nonsalaried. Permission is inferred if Congress sets “no specific
statutory rate of compensation” for a position, “but only a maximum.”
Id.
As a result, “if the level of compensation for an office is entirely discre-
tionary, or if it has only a fixed maximum and no minimum, salary for
that office may be set at zero.”
Id.
Many opinions of this Office illustrate this approach. We advised the
White House, for instance, that it could accept gratuitous secretarial and
clerical services obtained under the Executive Office Appropriations Act
of 1977, Pub. L. No. 94-363, 90 Stat. 966 (1976), because “Congress has
mandated no minimum salary for these positions.” Acceptance of Volun-
tary Service in the White House,
2 Op. O.L.C. 322, 323 (1977) (“Volun-
tary Service”). We also concluded that the Department of Commerce
could appoint uncompensated consultants under 5 U.S.C. § 3109, Federal
Advisory Committees, 6 Op. O.L.C. at 162, and that a member of the
National Council of the Arts appointed by the President, with the advice
and consent of the Senate, could “serv[e] without compensation, or more
precisely, . . . serve with compensation fixed at zero,” National Council of
the Arts, 13 Op. O.L.C. at 114. And we determined that the Independent
Counsel for Iran-Contra had statutory authority to appoint a law professor
to work on a Supreme Court brief as special counsel without pay. Inde-
pendent Counsel’s Authority at 1, 5.
The GAO has adopted this approach as well. Recognizing Attorney
General Wickersham’s opinion as “the leading case construing 31 U.S.C.
§ 1342,” the GAO “continue[s] to follow to this day . . . the distinction
between ‘voluntary services’ and ‘gratuitous services.’” 2 Principles of
157
36 Op. O.L.C. 153 (2012)
Federal Appropriations Law 6-96 (3d ed. 2006) (“GAO Redbook”). For
the government to accept “gratuitous” services, the GAO requires “the
appointment of an individual to an official government position,”
id. at
6-99, and it instructs that “if the level of compensation is discretionary, or
if the relevant statute prescribes only a maximum (but not a minimum),
the compensation can be set at zero, and an appointment without compen-
sation or a waiver, entire or partial, is permissible,”
id. at 6-97.
Applying this well-established two-part inquiry, we conclude that the
Department may appoint uncompensated special attorneys under 28
U.S.C. § 515 without violating the ADA. The first element of the gratui-
tous-service test—that the appointee render service in an official capacity
under regular appointment to an office—is satisfied because section 515 is
a “sourc[e] of explicit statutory authority to hire attorneys.” Memorandum
for Edward R. Slaughter, Jr., Special Assistant to the Attorney General for
Litigation, from Thomas O. Sargentich, Office of Legal Counsel, Re:
Hiring Law Professors or Private Attorneys to Litigate on behalf of the
United States as Department of Justice Attorneys at 2 (July 10, 1980)
(“Private Attorneys”); see also United States v. Plesinski,
912 F.2d 1033,
1037 n.5 (9th Cir. 1990) (“[S]ection 515 authorizes the appointment of
attorneys to assist the Attorney General.”).
The second element of the test for gratuitous service is also satisfied,
because the statute expressly authorizes the Attorney General to “fix
the annual salary of a special assistant or special attorney.” 28 U.S.C.
§ 515(b). The statutory grant of such discretion establishes that the
position is permitted by law to be unsalaried. See, e.g., Independent
Counsel’s Authority at 5 (“[T]he independent counsel’s authority in
section 594(c) to fix the compensation of his employees includes the
authority to fix their compensation at zero[.]”). Apart from this general
rule, specific evidence in the legislative history of section 515 shows that
Congress intended to dispose of minimum salaries for special attorneys.
Section 202 of the Department of Justice Appropriation Act of 1954, Pub.
L. No. 83-195, 67 Stat. 372, 375 (1953), allocated funds for the salaries of
Department officials including “special attorneys and special assistants to
the Attorney General . . . without regard to the Classification Act,” with
the proviso that “in no event shall the annual salary of . . . any special
attorney or special assistant be less than $6,000, if the official has been
admitted to the practice of law for 3 years, or more than $12,000.” But
shortly after that, the Department informed Congress that it could “pro-
158
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
cure lawyers to fill some of these positions, who . . . are willing to serve
for less than the $6,000 minimum,” S. Rep. No. 83-1541, at 14, and the
next appropriation act provided that “[t]he minimum annual salary of . . .
any special attorney or special assistant, as set forth in section 202 of the
[prior act] shall no longer apply to any such official after June 30, 1954,”
Departments of State, Justice, and Commerce and the U.S. Information
Agency Appropriations Act of 1955, Pub. L. No. 83-471, § 202, 68 Stat.
413, 421–22 (1954). This provision eliminating the statutory minimum
salary for special attorneys was codified as part of section 515 in 1966.
See 28 U.S.C. § 515 note. Consistent with this Office’s general rule and
the specific legislative history of section 515, we have repeatedly advised
that this section “permits employment without compensation.” E.g.,
Private Attorneys at 2. 3
These conclusions find strong support in our longstanding opinions,
noted above, concluding that the Department of Justice may employ the
uncompensated services of SAUSAs appointed under 28 U.S.C. § 543
without violating the ADA. The salary of Special Assistant U.S. Attor-
neys is “fixed administratively as authorized by 28 U.S.C. § 548.” Memo-
randum for William B. Gray, Director, Executive Office for U.S. Attor-
neys, from Leon Ulman, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Appointment of the Dean of the University of Arizona
Law School to be a Special Assistant United States Attorne[y] at 2–3
(June 18, 1976) (“Arizona Dean”). Thus, “no minimum salary is estab-
lished by law for such positions.” Memorandum for Frances M. Green,
Deputy Associate Attorney General, from Larry A. Hammond, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Questions
Raised by Proposed Appointment of Lawyer in Private Practice as Gov-
3 We previously advised that section 515 “does not except the appointments of § 515
special attorneys from the civil service classification act” because the recodification of
that provision in 1966 “does not include [the] exception from the Classification Act”
found in the prior appropriation law. Memorandum for Warren Oser, Chief, Staffing and
Employee Relations Unit, Administrative Division, from Mary C. Lawton, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Interpretation of the $12,000
Salary Limitation Imposed on Special Attorneys by 28 U.S.C. § 515(b) at 3, 4 (Mar. 12,
1974). We do not believe that advice, which also suggested that salaries set under 28
U.S.C. § 548 were subject to the General Schedule (“GS”), survives Private Attorneys,
our other opinions discussing the appointment of SAUSAs, or our adherence to the rule
that permission for a position to be unsalaried is inferred when the law states only a
maximum salary.
159
36 Op. O.L.C. 153 (2012)
ernment Attorney for Purposes of Trying Selected Civil Cases at 4 (Mar.
23, 1979) (“Hammond Memo”). Because the statute authorizes a SAUSA
to “be appointed without compensation should he so desire,” the ADA
does not proscribe an uncompensated appointment. Id.; accord Proposal
by United States Attorney’s Office at 1 (advising that it was “legally
permissible” under the ADA for the U.S. Attorney for the Northern Dis-
trict of California to implement a program under which associates in
private law firms would be employed without compensation by the U.S.
Attorney’s Office as SAUSAs under 28 U.S.C. § 543); Arizona Dean at 3
(“[O]ur conclusion that special assistants to United States Attorneys may
serve without compensation is not inconsistent with the prohibition in 31
U.S.C. § 665(b) against the acceptance of ‘voluntary service.’”).
Many of these opinions suggest that their conclusions would apply
equally to special attorneys appointed under section 515. For example,
in Private Attorneys, we explained that “if the statute authorizing the
Department to hire an employee permits employment without compensa-
tion—as we believe 28 U.S.C. §§ 515 and 543 do—then the otherwise
applicable prohibition on the government’s acceptance of ‘voluntary
services’ in 31 U.S.C. § 665(b) would not apply.” Private Attorneys at 2.
Similarly, when our Hammond Memo addressed the legality of tempo-
rarily appointing a lawyer in private practice (whom we dubbed “L”) as
a government attorney to try selected civil cases, “[w]e assume[d] that L
would be employed on a temporary basis either as a Special Assistant
United States Attorney pursuant to 28 U.S.C. § 543, or as a special
attorney or special assistant to the Attorney General pursuant to 28
U.S.C. § 515.” Hammond Memo at 3. Either way, we concluded, L’s
uncompensated service would not offend the ADA. “Like § 543,” we
explained, Ҥ 515(b) does not establish a minimum salary; service with-
out compensation would thus . . . be permissible.” Id. at 4. And in ad-
vice that did not directly address the ADA question, we treated sections
515 and 543 as materially similar authorities for the hiring of uncom-
pensated attorneys. See Assignment of Army Lawyers to the Department
of Justice,
10 Op. O.L.C. 115, 117 n.3 (1986); Acceptance of Funds by
the Department of Justice from Other Agencies to Employ Attorneys in
Land Acquisition Cases,
2 Op. O.L.C. 302, 306–07 (1978).
We therefore conclude that the uncompensated service of special at-
torneys appointed under section 515, like that of SAUSAs under section
543, is “gratuitous,” not “voluntary,” and does not violate the ADA. The
160
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
attorneys would be (1) regularly appointed to positions (2) for which
Congress has specified no minimum compensation. We suggest, howev-
er, that the Department enter into prior agreements with the appointed
attorneys memorializing that they would serve without salary. See Pri-
vate Attorneys at 2 (stating that there should be “a prior agreement be-
tween the Government and the attorney that the latter will serve at no
compensation”); GAO Redbook at 6-100 (“Proper documentation is
important for evidentiary purposes should a claim subsequently be at-
tempted. . . . [T]he individuals should acknowledge in writing and in
advance that they will receive no compensation and that they should
explicitly waive any and all claims against the government on account of
their service.”) (citations omitted).
B.
Although the above analysis answers the question presented, language
in some of our opinions suggests that appointees providing uncompen-
sated service may not perform “official work of [a] Department that
would otherwise have been performed by paid government employees as
part of their regular duties.” Memorandum for Judith A. Winston, General
Counsel, Department of Education, from Richard L. Shiffrin, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Uncompensated
Voluntary Services at 2 (Nov. 28, 1994). OARM asks whether that lan-
guage is relevant to analysis of the proposed special attorney appoint-
ments here. OARM Memo at 3–5. Such a limitation does not appear in
Attorney General Wickersham’s “authoritative construction of the prohi-
bition on voluntary services in the [ADA],” Independent Counsel’s Au-
thority at 2, or in our most recent published opinion on the issue, National
Council of Arts,
13 Op. O.L.C. 113. Nor does the GAO Redbook or any
Comptroller General decision of which we are aware discuss such a
consideration.
We now clarify that the type of work to be performed by an uncom-
pensated official is not a relevant factor in assessing whether appoint-
ments under section 515 violate the ADA. The type-of-work limitation
may be germane under some statutes authorizing federal appointments,
such as the authority to hire consultants or experts under 5 U.S.C.
§ 3109. See Employment of Temporary or Intermittent Attorneys and
Investigators,
3 Op. O.L.C. 78, 78–79 (1979) (“Temporary or Intermit-
161
36 Op. O.L.C. 153 (2012)
tent Attorneys and Investigators”) (defining the terms “consultant” and
“expert” and advising that they may not be hired without compensation
simply “to perform the same functions as are performed by regular em-
ployees”). But any constraint on the type of work an appointee may
perform is imposed by the authorizing statute, not the ADA, and no such
constraint is present here. Section 515 grants broad authority to the
Attorney General to appoint and direct the litigation activities of special
attorneys, see Infelice v. United States,
528 F.2d 204, 206–07 (7th Cir.
1975); United States v. Wrigley,
520 F.2d 362, 367–69 (8th Cir. 1975);
Congress did not restrict the type of work that such appointees may
perform (so long as it is of the type that U.S. Attorneys are authorized to
perform). As explained above, the appointment of attorneys to perform
uncompensated services complies with the ADA so long as the two
elements of the test for gratuitous service are satisfied.
The language suggesting a limit on the type of federal service that an
uncompensated employee may provide has appeared only a few times in
our opinions. We first cautioned in Federal Advisory Committees “against
the use of volunteers on a broad scale or to accomplish tasks ordinarily
performed by paid government employees.” 6 Op. O.L.C. at 163. That
passing statement, however, immediately followed our observation that
“volunteer consultants” may provide gratuitous services because Congress
had fixed no minimum salary for such appointments. Id. And we had
previously observed that consultants appointed under 5 U.S.C. § 3109
“may not be employed to perform ‘governmental functions.’” Id. at 162.
After Federal Advisory Committees, we considered four separate in-
quiries from federal agencies proposing to use the voluntary services of a
private foundation, association, corporation, or person. See Uncompen-
sated Voluntary Services at 9–11 (voluntary services from retirees and
private companies or persons); Memorandum for the Files from Randy
Beck, Attorney-Adviser, Office of Legal Counsel, Re: Points of Light
Initiative Foundation Meeting at 5 (Feb. 9, 1990) (voluntary services
from a private, nonprofit foundation); Memorandum for Joseph R. Davis,
Assistant Director, Legal Counsel Division, Federal Bureau of Investiga-
tion, from Douglas W. Kmiec, Assistant Attorney General, Office of
Legal Counsel, Re: FBI Foundation at 1, 7 (Feb. 10, 1989) (same);
Memorandum for Richard C. Stiener, Chief, INTERPOL-National Cen-
tral Bureau, from Ralph W. Tarr, Deputy Assistant Attorney General,
Office of Legal Counsel, Re: USNCB Sponsorship of INTERPOL Gen-
162
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
eral Assembly Meeting at 2 n.1, 7–8 (Aug. 16, 1983) (“INTERPOL”)
(volunteers from a private, nonprofit association). At various points these
opinions suggested that the type of service a volunteer would provide is
a relevant factor in determining whether the acceptance of that service
would violate the ADA. We stated, for instance, that “[g]ratuitous ser-
vices are those for which the individual knows he will receive no recom-
pense and which do not involve tasks that would normally be provided
by the agency.” FBI Foundation at 6–7; see also Uncompensated Volun-
tary Services at 9.
In all of these opinions, however, either no regular appointment to
office was to be made, or the statute authorizing the acceptance of
services imposed an independent limit on the scope of services that
could be accepted. In INTERPOL, for example, the United States Na-
tional Central Bureau (“USNCB”) of INTERPOL proposed to accept
free services from a private, nonprofit association without any regular
appointment of its members. Id. at 7–8. We advised that USNCB may
not “necessarily” be able “to use [uncompensated] services if the [pri-
vate association] personnel would be used to perform tasks that other-
wise would be performed by USNCB staff,” because USNCB person-
nel—like most federal civilian personnel—“are covered by the [General
Schedule], for which Congress has set fixed minimums.” Id. at 8. The
root problems this somewhat opaque passage identifies appear to be that
the volunteers would not be appointed to any regular position, and that
the positions through which the services ordinarily would be performed
(even if there were to be appointments) required minimum compensa-
tion. 4 Similarly, Uncompensated Voluntary Services rested in large
measure on our determination that the Department of Education’s statu-
tory authority to accept services “‘aiding or facilitating’” the Depart-
ment’s work could not “be construed to extend to services that would
entail the direct performance or execution of the official work of the
Department that would otherwise be done by paid government employ-
4 In fact, reading this passage to suggest that an agency’s acceptance of gratuitous ser-
vices amounts to an impermissible salary waiver if the services would mirror those
otherwise performed by an employee on the GS scale would place the INTERPOL advice
in conflict with our earlier published opinion that the White House possesses statutory
authority to accept gratuitous secretarial and clerical services, even though those services
are normally provided by individuals with statutorily mandated minimum rates of pay.
Voluntary Service, 2 Op. O.L.C. at 323.
163
36 Op. O.L.C. 153 (2012)
ees.” Uncompensated Voluntary Services at 6, 8 (quoting 20 U.S.C.
§ 3481). In other words, the Department of Education’s gift-acceptance
statute did not authorize the Department either to accept the free ser-
vices as a gift or to appoint the volunteers to an uncompensated office.
In both opinions, we observed that the agencies could hire consultants
under 5 U.S.C. § 3109, INTERPOL at 8; Uncompensated Voluntary
Services at 10—with the caveat that, as noted above, “consultants cannot
be employed to perform ‘governmental functions,’ and their services
must be limited to tasks of an advisory nature,” INTERPOL at 8.
For the reasons described earlier, we do not believe that an agency vio-
lates the ADA when it uses the services of persons obtained through a
regular appointment to a position for which Congress set no minimum
salary, even if such persons perform the type of work that other agency
employees perform. Any suggestion to the contrary in our prior opinions
was incorrect. Because the language suggesting that uncompensated
appointees cannot perform the type of service paid employees provide
was not needed to support the conclusions of any prior opinions, our
clarification here does not cast doubt on our prior advice. Each opinion
discussed above reached an outcome consistent with the approach we now
reaffirm.
In sum, we adhere to the two-part test for lawful gratuitous service as
articulated by Attorney General Wickersham and long applied by this
Office and the GAO to determine whether uncompensated appointments
to federal positions violate the ADA. Although the type of service to be
performed does not alter that test, it may be a relevant consideration
under the statute authorizing the appointment if that statute imposes a
restriction on the scope of services that may be performed by the ap-
pointee.
III.
Finally, the ADA is not the sole constraint on government agencies’
acceptance of gratuities from outside sources. The anti-augmentation
principle of appropriations law provides that “an agency may not augment
its appropriations” from outside sources “without specific statutory au-
thority.” Authority for the Removal of Fugitive Felons Apprehended under
18 U.S.C. § 1073,
7 Op. O.L.C. 75, 93 (1983). The objective of this rule,
which is derived both from Congress’s constitutional authority over
164
Appointment of Uncompensated Special Attorneys Under 28 U.S.C. § 515
spending and from several statutory sources, is “to prevent a government
agency from undercutting the congressional power of the purse by circui-
tously exceeding the amount Congress has appropriated for [an] activity.”
GAO Redbook at 6-162–63.
Our opinions and those of the GAO have generally applied the anti-
augmentation rule only to receipts of money, leaving the ADA to govern
the lawfulness of receipts of services. But there are exceptions. See GAO
Redbook at 6-164–65; see also, e.g., Memorandum for D. Lowell Jensen,
Associate Attorney General, from Ralph W. Tarr, Deputy Assistant Attor-
ney General, Office of Legal Counsel, Re: Additional Questions Raised by
Alan Hruska in Connection with His Employment as General Counsel to
the President’s Commission on Organized Crime at 4 (Sept. 16, 1983)
(“In order to avoid an unlawful augmentation, the Commission would
have to pay for the fair value of the [office] space, [office] equipment, and
[secretarial] services it receives.”); Letter for Michael Castine, Acting
Director for Private Sector Initiatives, The White House, from Robert B.
Shanks, Deputy Assistant Attorney General, Office of Legal Counsel at 3
(Feb. 16, 1983) (“An agency that accepts voluntary services or gifts which
it is not authorized to receive may violate the prohibition against unlawful
‘augmentation’ of its appropriations.”) (emphasis added).
Assuming for purposes of argument that the anti-augmentation princi-
ple applies to services, we conclude that the Department’s proposal here
would not offend it. The anti-augmentation rule prohibits only unauthor-
ized augmentations. As explained above, Congress has authorized the
Department of Justice to employ the gratuitous services of special attor-
neys. See 28 U.S.C. § 515. Statutorily authorized gratuitous services
present no anti-augmentation concerns. See Authority of the Nuclear
Regulatory Commission to Collect Annual Charges from Federal Agen-
cies,
15 Op. O.L.C. 74, 78 (1991) (“The anti-augmentation principle . . . is
not applicable here because [a provision of the Omnibus Budget Reconcil-
iation Act of 1990] provides express statutory authority for the NRC to
recover 100% of its budget authority through user fees and annual charges
from outside sources.”); Community Work Experience Program—State
General Assistance Recipients at Federal Work Sites, B-211079, B-
211079.2,
1987 WL 101336, at *1 (Comp. Gen. Jan. 2, 1987) (concluding
that an amendment to the Social Security Act “specifically authorized”
federal agencies “to accept gratuitous services”).
165
36 Op. O.L.C. 153 (2012)
Although the acceptance of congressionally authorized uncompensated
services does not violate the anti-augmentation principle, we have with-
out elaboration protectively “caution[ed] . . . against the use of volunteers
on a broad scale.” Federal Advisory Committees, 6 Op. O.L.C. at 163.
Here, the Criminal Division proposes the appointment of up to 30 law-
yers—five percent of its attorney workforce—as special attorneys, and the
Civil Rights Division proposes the appointment of an even smaller num-
ber of special attorneys. Thus, no broad-scale deployments of uncompen-
sated volunteers are contemplated, and we need not consider whether our
analysis would differ in the event that gratuitous services were solicited
on a significantly more expansive scale.
IV.
For the reasons set forth above, we conclude that OARM’s proposal
that the Department of Justice appoint a modest number of special attor-
neys to provide uncompensated services in two litigating divisions under
28 U.S.C. § 515 does not violate the ADA or the anti-augmentation prin-
ciple, even though the attorneys would perform the same functions that
compensated attorneys within those components perform. Acceptance of
the uncompensated service is lawful because the attorneys will be ap-
pointed to positions for which Congress has specified no minimum salary.
The Department should, however, enter a prior agreement with the ap-
pointed attorneys specifying that they will serve without pay.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
166
