Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
118568500
label
JGR/GAO (General Accounting Office) (2 of 2)
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
118568500
contentType
document
title
JGR/GAO (General Accounting Office) (2 of 2)
citationUrl
identifierLocal
485
collections
Records of the Office of Counsel to the President (Reagan Administration)
John Roberts' Subject Files
thumbnailUrl
largeImageUrl
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
118568500
coverageEndDate
logicalDate
1986-12-31
year
1986
coverageStartDate
logicalDate
1982-01-01
year
1982
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
aba0aced7cc89ef8
ocrText
Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/GAO
(General Accounting Office) (2 of 2)
Box: 26
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
Citation Guidelines: https://reaganlibrary.gov/citing
National Archives Catalogue: https://catalog.archives.gov/
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
SMF 8/30/2005
File Folder
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
FOIA
F05-139/01
Box Number
26
COOK
SF-8
DOC Doc Type
Document Description
No of Doc Date Restrictions
NO
Pages
COPY Reagan Presidential Record
1 MEMO
ROBERTS TO FIELDING
1 4/4/1985 B6
882
2
LETTER FIELDING TO GARY CARBONE
1 4/4/1985 B6
883
3
LETTER DUPLICATE OF DOCUMENT #2
1 4/4/1985 B6
884
4 NOTE
RE ALLEGATION
1 3/22/1985 B6
885
: :
5
LETTER
ROBERTS TO CARBONE (PARTIAL)
1 4/11/1985 B6
886
6 FORM
AUTHORIZATION (PARTIAL)
1 1/24/1985 B6
887
7 NOTE
RE ALLEGATION (PARTIAL)
1
ND
B6
888
8 MEMO
FROM JOHN WEST (PARTIAL)
1 2/1/1985 B6
889
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
SMF 8/30/2005
File Folder
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
FOIA
F05-139/01
Box Number
26
COOK
SF-8
DOC Doc Type
Document Description
No of Doc Date Restrictions
NO
Pages
COPY Reagan Presidential Record
9 MEMO
ROBERTS TO FIELDING (PARTIAL)
1 9/5/1985 B6
890
10 MEMO
ROBERTS TO FIELDING (PARTIAL)
2 7/24/1985 B6
891
11
LETTER
FIELDING TO CARBONE (PARTIAL)
2 9/5/1985 B6
892
12 LETTER
DUPLICATE OF DOCUMENT #11
2 9/5/1985 B6
894
(PARTIAL)
13 LETTER
FIELDING TO CARBONE (PARTIAL)
2 7/24/1985 B6
895
14 MEMO
RE ALLEGATION (PARTIAL)
1 7/10/1985 B6
897
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
SMF 8/6/2005
File Folder
FOIA
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
F05-139/01
COOK
Box Number
26
SF-8
DOC Document Type
No of Doc Date Restric-
NO
Document Description
pages
tions
1
MEMO
1 4/4/1985 B6
882
ROBERTS TO FIELDING
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
SMF 8/6/2005
File Folder
FOIA
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
F05-139/01
COOK
Box Number
26
SF-8
DOC Document Type
No of Doc Date Restric-
NO
Document Description
pages
tions
2 LETTER
1 4/4/1985 B6
883
FIELDING TO GARY CARBONE
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
SMF 8/6/2005
File Folder
FOIA
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
F05-139/01
COOK
Box Number
26
SF-8
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
3
LETTER
1 4/4/1985 B6
884
DUPLICATE OF DOCUMENT #2
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
1
file and
FFF response
(dow detail
413 ?)
UNITED
STATES
UNITED STATES GENERAL ACCOUNTING OFFICE
GENERAL ACCOUNTING OFFICE
WASHINGTON, D.C. 20548
APR 03 1985
ACCOUNTING AND FINANCIAL
MANAGEMENT DIVISION
Mr. John Roberts
Associate Counsel to the President
Executive Office of the President
The White House
Room 105 OEOB
Washington, D.C. 20500
Dear Mr. Roberts:
The enclosed case summary is being carried on our records
as referred to you for your follow up on the alleged
impropriety.
We would like to have your initial disposition of this case
within 30 days and a final disposition when your inquiry is
completed.
To enable us to keep track of this referral, we have
assigned control number 31605 to it and request that this number
be used in future correspondence with our office concerning this
matter.
If you have any questions, please call me at 275-9342.
Sincerely yours,
Gary W Carbona
Gary W. Carbone
Director
Fraud Referral and
Investigations Group
Enclosure
WITHDRAWAL SHEET
Ronald Reagan Library
Collection Name
Withdrawer
ROBERTS, JOHN: FILES
SMF 8/6/2005
File Folder
FOIA
JGR/GAO (GENERAL ACCOUNTING OFFICE) (2 OF 2)
F05-139/01
COOK
Box Number
26
SF-8
DOC Document Type
No of Doc Date Restric-
NO Document Description
pages
tions
4 NOTE
1 3/22/1985 B6
885
RE ALLEGATION
Freedom of Information Act - [5 U.S.C. 552(b)]
B-1 National security classified information [(b)(1) of the FOIA]
B-2 Release would disclose internal personnel rules and practices of an agency [(b)(2) of the FOIA]
B-3 Release would violate a Federal statute [(b)(3) of the FOIA]
B-4 Release would disclose trade secrets or confidential or financial information [(b)(4) of the FOIA]
B-6 Release would constitute a clearly unwarranted invasion of personal privacy [(b)(6) of the FOIA]
B-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of the FOIA]
B-8 Release would disclose information concerning the regulation of financial institutions [(b)(8) of the FOIA]
B-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of the FOIA]
E.O. 13233
C. Closed in accordance with restrictions contained in donor's deed of gift.
THE WHITE HOUSE
WASHINGTON
April 11, 1985
COPY Reagan Presidential Record
Dear Mr. Carbone:
Thank you for your letter of April 5, enclosing additional
information on control number 31605. The additional infor-
mation consisted of an allegation that
bb
uses a fake medical certificate to justify first
class air travel."
Attached for your information is a copy of the authorization
for use of first-class travel accommodations filed by
and approved by
b6
We have no reason to doubt the validity of the form.
Thank you for raising this matter with us. Please do not
hesitate to contact this office if we may be of any further
assistance.
Sincerely,
John G. Roberts
Associate Counsel to the President
Mr. Gary W. Carbone
United States General
Accounting Office
Washington, D.C. 20548
AUTHORIZATION FOR USE OF FIRST-CLASS TRAVEL ACCOMMODATIONS
BY PERMANENTLY HANDICAPPED EMPLOYEES
NAME OF EMPLOYEE:
ORGANIZATION:
COPY - Reagan Presidential Record
NATURE OF HANDICAP:
CERTIFICATION: I CERTIFY THAT I AM so HANDICAPPED OR OTHER-WISE PHYSICALLY
IMPAIRED THAT OTHER
USED.
ble
SIGNATURE OF COMPETENT MEDICAL AUTHORITY:
AUTHORIZED BY:
TITLE:
RETURN TO:
ble
UNITED
STATE
UNITED STATES GENERAL ACCOUNTING OFFICE
ACCOUNTING TING OFFICE GENERAL
WASHINGTON, D.C. 20548
APR 05 1985
ACCOUNTING AND FINANCIAL
MANAGEMENT DIVISION
Mr. John Roberts
Associate Counsel to the President
Executive Office of the President
The White House
Room 105 OEOB
Washington, D.C. 20500
Dear Mr. Roberts:
As discussed with you on April 5, 1985, the enclosed is
additional information on control number 31605, which was referred
to your office on April 3, 1985.
Sincerely yours,
Gary W. Carbone
Gary W. Carbone
Director
Fraud Referral and
Investigations Group
Enclosure
According to the caller,
uses a fake medical
certificate to justify first class air travel, at all times,
ble
between
home in California and Washington, D.C.
COPY - Reagan Presidential Record
; :
SERVICES
E HUMAN OF USA
DEPARTMENT OF HEALTH & HUMAN SERVICES
Public Health Service
Memorandum
Date
FEB 1 1985
From
Director
Division of Financial Management, ORM/OM
Subject Approval of First-Class Air Accommodations
COPY - Reagan Presidential Record
To
b6
The attached request for use of first-class air accommodations by
has been approved by the Assistant Secretary for
b6
Management and Budget, OS.
John John C. C West West
Attachment
THE WHITE HOUSE
WASHINGTON
September 5, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS JR
COPY Reagan Presidential Record
SUBJECT:
GAO Hotline Referral
You indicated that we should have
reimburse for long
distance telephone calls made in connection with
private business if they can be ascertained. According to
ble
Al Nagy, no record of individual long distance calls is
available if the caller dials "8" and then the number,
thereby using the FTS system. If the caller dials "9-1" and
the number, using an outside line, a bill would be received
identifying the specific call.
I called
who advised that
routinely used the FTS
b6
system, and would have done so for the occasional calls in
question. I have incorporated this information into a
re-dated draft of our reply to GAO.
Attachment
THE WHITE HOUSE
WASHINGTON
July 24, 1985
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS SDDR
COPY - -Reagan Presidential Record
SUBJECT:
GAO Hotline Referral
On July 11 the Director of the GAO Fraud Referral and
Investigations Group transmitted to our office an anonymous
allegation received over the fraud and abuse hotline con-
cerning
bb
- 2 -
I told
(1) to cease using the photocopier for
non-official purposes, (2) to cease making long distance
personal calls chargeable to the Government, and (3) to try
to conduct any
business away from the
b6
I did not think it necessary to assert that
could
make no local calls concerning
from
office.
COPY Reagan Presidential Record
On balance, I see only minor transgressions by
and no b6
need for additional remedial action. The attached draft
reply to GAO embodies the foregoing.
Attachment
THE WHITE HOUSE
WASHINGTON
September 5, 1985
Dear Mr. Carbone:
b6
COPY - Reagan Presidential Record
You received an anonymous allegation
to the effect that
"is managing a retail
business from his office on government time. " You referred
the allegation to this office for appropriate disposition.
ble
- 2 -
This office has admonished
not to make private
long distance telephone calls on the Government system.
advised that used the FTS system for the few such
calls, SO no record of the calls exists for reimbursement
purposes. This office has also directed
not to
use the photocopier for private purposes. Aside from these
bb
transgressions, it does not appear that
is
COPY - Reagan Presidential Record
violating any laws, regulations, or policies.
outside
business does not present a conflict of interest, and, based
on
representations to us,
cannot be said to be
running the business on Government time. In addition to the
specific admonitions referred to above, this office reminded
of the need to keep
outside business interests
fully separate from
Government employment. We believe
that
is sensitive to the need to do SO.
Thank you for referring this matter to us.
Sincerely,
Orig. signed by FFF
Fred F. Fielding
Counsel to the President
Mr. Gary W. Carbone
Director, Fraud Referral and
Investigations Group
U.S. General Accounting Office
Washington, D.C. 20548
FFF: JGR:aea 9/5/85
bcc: FFFielding
JGRoberts
Subj
Chron
THE WHITE HOUSE
WASHINGTON
September 5, 1985
===
Dear Mr. Carbone:
COPY - Reagan Presidential Record
You received an anonymous allegation
to the effect that
bb
"is managing a retail
business from his office on government time. " You referred
the allegation to this office for appropriate disposition.
b6
- 2 -
This office has admonished
not to make private
long distance telephone calls on the Government system.
advised that
used the FTS system for the few such
calls, so no record of the calls exists for reimbursement
purposes. This office has also directed
not to
use the photocopier for private purposes. Aside from these
transgressions, it does not appear that
is
66
violating any laws, regulations, or policies.
outside
COPY Reagan Presidential Record
business does not present a conflict of interest, and, based
on
representations to us, cannot be said to be
running the business on Government time. In addition to the
specific admonitions referred to above, this office reminded
of the need to keep
outside business interests
fully separate from
Government employment. We believe
that
is sensitive to the need to do SO.
Thank you for referring this matter to US.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Gary W. Carbone
Director, Fraud Referral and
Investigations Group
U.S. General Accounting Office
Washington, D.C. 20548
FFF: JGR:aea 9/5/85
bcc: FFFielding
JGRoberts
Subj
Chron
THE WHITE HOUSE
WASHINGTON
July 24, 1985
Dear Mr. Carbone:
COPY - Reagan Presidential Record
You received an anonymous allegation
bb
to the effect that
"is managing a retail
business from his office on government time. " You referred
the allegation to this office for appropriate disposition.
bb
This office has admonished
not to make private
long distance telephone calls on the Government system, and
- 2 -
not to use the photocopier for private purposes. Aside from
these transgressions, it does not appear that
is
violating any laws, regulations, or policies.
outside
business does not present a conflict of interest, and, based
on
representations to us, cannot be said to be
ble
running the business on Government time. In addition to the
specific admonitions referred to above, this office reminded
COPY - Reagan Presidential Record
of the need to keep
outside business interests
fully separate from his Government employment. We believe
that
is sensitive to the need to do SO.
Thank you for referring this matter to us.
Sincerely,
Fred F. Fielding
Counsel to the President
Mr. Gary W. Carbone
Director, Fraud Referral and
Investigations Group
U.S. General Accounting Office
Washington, D.C. 20548
FFF JGR:aea 7/24/85
bcc: FFFielding
JGRoberts
Subj
Chron
UNITED
STATE
UNITED STATES GENERAL ACCOUNTING OFFICE
ACCOUNTING GENERAL OFFICE
WASHINGTON, D.C. 20548
JUL 11 1985
ACCOUNTING AND FINANCIAL
MANAGEMENT DIVISION
Mr. John Roberts
Associate Counsel to the President
Executive Office of the President
The White House
Room 105 OEOB
Washington, D.C. 20500
Dear Mr. Roberts:
The enclosed case summary (case number 32037) is being
carried on our records as referred to you for your follow up on
the alleged impropriety.
We would like to have your initial disposition of this case
within 30 days and a final disposition when your inquiry is
completed.
To enable us to keep track of this referral, we have
assigned control number 32037 to it and request that this number
be used in future correspondence with our office concerning this
matter.
If you have any questions, please call me at 275-9342.
Sincerely yours,
Gary W. Carbone
Gary W. Carbone
Director
Fraud Referral and
Investigations Group
Enclosure
CONTROL NUMBER
DATE
CONTACT FOR FURTHER INFORMATION
32027
071085
None
BRIEF OF ALLEGATION: WORK HOUR ABUSE
An anonymous caller alleges that
COPY - Reagan Presidential Record
in the Old Executive Building is
managing a retail 1 business from
office on government time.
makes local calls and long distance calls from
photocopies business documents on government machines, and in
general spends about two hours a day on
personal business. This has
been going on since took the position.
Note: A phone call to
comfirmed that there is a
associated with the business and does "drop by" occasionally during
the day. Based on a phone call to the D.C. Department of Taxation,
ble
THE WHITE HOUSE
WASHINGTON
November 14, 1985
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS 8202
SUBJECT:
Response to GAO Inquiry About
HHS Interim Appointments
Since the attached proposed reply raises a very basic
objection to Coleman's proposed response, I thought I should
run it by you. Any comments?
Attachment
THE WHITE HOUSE
WASHINGTON
hordled
November 14, 1985
Jop"
MEMORANDUM FOR TERRY COLEMAN
DEPUTY GENERAL COUNSEL FOR REGULATIONS
U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES
FROM:
JOHN G. ROBERTS
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Response to GAO Inquiry About
HHS Interim Appointments
Counsel's Office has reviewed your proposed reply to the
General Accounting Office inquiry concerning interim
appointments at the Department of Health and Human Services.
I am not convinced that it is desirabl to emphasize the
argument that the Vacancy Act does not apply to vacancies
occurring during a recess of the Senat. The Vacancy Act
does not expressly provide that it is inapplicable to
vacancies arising during a Senate receis. What 5 U.S.C.
$ 3349 does provide is that temporary appointments may be
made otherwise than as provided by 5 U S.C. §§ 3345 and 3346
if the vacancy occurs during a Senate ecess. The exception
language was clearly intended to cover the President's
constitutional power to make recess appointments, the terms
of which are set by the Constitution. Art. II, $ 2, cl. 3.
None of the temporary appointments at ssue, however, were
Presidential recess appointments.
If a Presidential recess appointment is not made, and the
vacancy which occurred during the receive is filled by
automatic succession of the next assistmant (as happened in
six of the eight subject cases), it can be persuasively
argued that the appointment was not made "otherwise than as
provided" by 5 U.S.C. § 3346. That section, after all,
simply provides for the succession of the first assistant:
The response that the interim appointme nts here were made
not pursuant to 5 U.S.C. $ 3346 but pur suant to other,
independent legislative authority is a response that should
not be limited to vacancies arising dur ing a Senate recess.
The most troubling aspect of the argume nt that the Vacancy
Act does not apply to vacancies occurri ng during a Senate
recess is the negative implication that it does apply --
that interim appointments cannot be mad "otherwise than
as provided" by 5 U.S.C. § 3346 -- while the Senate is in
session. It so happens in this case that all of the
- 2 -
vacancies occurred during a Senate recess, but that is of
course not true of all interim appointments throughout the
Administration, which we may be called upon to defend.
If the language of footnote two is retained in your response
to GAO, I would delete the discussion of the pocket veto
cases. The D.C. Circuit's recent decision in Barnes V.
Kline, petition for certiorari pending sub nom. Burke V.
Barnes (No. 85-781), has thrown into question previously
accepted precedent in this area, and certainly rejected the
parallel to the President's recess appointment power.
I would also delete the argument in the first paragraph on
page six to the effect that Congress has relied on the Pay
Act and not the Vacancy Act as the primary limitation on
Executive authority to make interim appointments. The Pay
Act only applies to Presidential recess appointments, and so
cannot be cited as a limitation on the sort of interim
appointments at issue here. In addition, we have never
conceded the constitutionality of the Pay Act, which can be
argued to be an unconstitutional restriction on the President's
authority to make recess appointments.
ID #.
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
O # OUTGOING
H INTERNAL
I . INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent:
Terry Coleman
MI Mall Report
User Codes: (A)
(B)
(C)
Subject:
Response to 6AO inquiry about HHS interim
appointments.
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLL
ORIGINATOR 85/11/08
/ /
-
Referral Note:
CUAT 18
R 85,11,12
$ 85,11,12
Referral Note:
COB.
/ /
/ /
-
Referral Note:
/ /
/ /
-
Referral Note:
/ /
/ /
Referral Note:
ACTION CODES:
DISPOSITION CODES:
-
A - Appropriate Action
I Into Copy Only/No Action Necessary
A Answered
3 Completed
C Comment/Recommendation
R Direct Reply w/Copy
B Non-Special Referral
S Suspended
D Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
SERVICE
DEPARTMENT OF HEALTH & HUMAN SERVICES
Office of the Secretary
The General Counse
Washington, D.C. 20201
November 7, 1985
NOTE TO DICK HAUSER
Bob Charrow said that you wanted to see our response to
the GAO inquiry about the Department's interim appointments.
Attached is a memo that Tom McFee will forward to GAO. If you
have any objections, please let me know by November 12.
Develoleman Terry Coleman
DEPARTMENT OF HEALTH & HUMAN SERVICES
Office of the Secretary
The General Counsel
Washington, D.C. 20201
MEMORANDUM:
TO
: Thomas S. McFee
Assistant Secretary for Personnel Administration
FROM
:
Terry Coleman
Acting General Counsel
SUBJECT: Interim Appointments
This memorandum discusses the request from Robert L. Higgins, Assistant
General Counsel, General Accounting Office, seeking specific information
concerning nine vacancies in the Department of Health and Human Services
("Department") in positions requiring appointment by the President with the
advice and consent of the Senate. The information was requested because of a
possible violation of the Vacancies Act, 5 U.S.C. $$3345-3349, which limits ad
interim appointments to thirty days. We conclude that none of the nine
vacancies has been filled in violation of the Vacancies Act.
The information requested in Mr. Higgins' items ##1-3 and ##5-6 is contained
in Exhibit I, attached. As you will note, in eight of the nine cases, the
Secretary, pursuant to her powers of delegation set forth in the
Reorganization Plan No. 1 of 1953, has named individuals to serve in acting
capacities until the respective vacancies have been filled. In the remaining
instance--Deputy Inspector General--no ad interim appointment has been made,
and the position remains unoccupied.
In Mr. Higgins' item #4, he asked for the "authority for the temporary
appointment of each individual referred to in #1 and whether the Vacancies Act
is applicable to these appointments." In no case was a temporary appointment
made under the authority of the Vacancies Act. Instead, in each case, the
temporary appointment was made by the Secretary pursuant to the organic
legislation that established the Department. That legislation explicitly
empowers the Secretary to "make such provisions as the Secretary deems
appropriate authorizing the performance of any of the functions of the
Secretary by any other officer, or by any agency or employee, of the
Department." Section 6, Reorganization Plan No. 1 of 1953, 42 U.S.C. $3501.
The authority granted the Secretary in the Reorganization Plan traditionally
has been used to fill vacancies on a temporary basis even in positions
governed by the Appointments Clause (U. S. Const., art. II, §2, cl. 2). This
has typically been accomplished in one of two ways. First, the Secretary has
promulgated a series of organizational plans and position descriptions that
normally provide that if a vacancy occurs, the officer's first assistant (or
other designated deputy) will act for the principal until the vacancy is
filled. Here, as noted in Exhibit I, six of the eight ad interim appointees
Page 2
are currently so-called first assistants (e.g., Deputy Commissioner, Social
Security Administration) and assumed their ad interim status by virtue of the
Department's organizational plan, authority vested in such deputies by virtue
of those deputies' position descriptions, or designation from among multiple
deputies. Second, in certain instances where it was not feasible for the first
assistant to assume the duties of the officer, the Secretary has made a
special delegation of authority to a particular individual to carry out the
functions of the vacant office. As indicated in Exhibit I, this method was
used in two instances: Acting Assistant Secretary for Health and Acting
Commissioner on Aging. In both cases, the ad interim appointee had occupied a
significant position within the programmatic unit prior to the ad interim
appointment.
In no instance was an appointment made pursuant to the provisions of the
Vacancies Act of 1868, as amended. The proscriptive provisions of that Act,
most notably the 30 days limitation on the tenure of ad interim appointees,
are clearly not applicable to any of the eight vacancies referenced above for
at least two reasons. First, the proscriptive provisions of the Act do not
and cannot apply where, as here, each of the vacancies in question occurred
during a Senate recess. And second, even if the Act were arguably
applicable, it cannot be read to restrict the authority of the Secretary to
make ad interim designations where, as here, the Secretary is vested with
independent statutory authority to fill vacancies on an ad interim basis.
A. The Vacancies Act Does Not Apply With Respect to Vacancies Occurring
During a Senate Recess.
It is by now axiomatic that the plain language of a statute governs "[a]bsent
a clearly expressed legislative history to the contrary." Consumer
Product Safety Commission V. GTE Sylvania, 447 U.S. 102, 108 (1980); American
Tobacco Co. V. Patterson, 456 U.S. 63, 68 (1982). The provisions of the
Vacancies Act are unmistakeable and unambiguous; namely, the proscriptive
provisions of the Act, including the thirty-day limitation imposed by Section
The positions of Under Secretary and Administrator of the Health Care
Financing Administration fell vacant during the Semate's August 1985 recess,
which commenced on August 1, 1985, and ended on September 9, 1985. See 131
Cong. Rec. S 11022 (daily ed., August 1, 1985). The positions of Assistant
Secretary for Health, Assistant Secretary for Legislation, General Counsel,
and Commissioner on Aging fell vacant after the 98th Congress had adjourned
sine die (October 12, 1984) and before the 99th Congress had convened (January
3, 1985). See 1985-1986 Official Congressional Directory, S. Print 99-39 at
425. The position of Assistant Secretary for Planning and Evaluation fell
vacant during the Senate's Spring 1984 recess, which commenced on April 12,
1984, and ended on April 24, 1984, id. at 427 n.77- Finally, the position of
Commissioner of Social Security fell vacant during the Senate's August 1983
recess, which commenced on August 4, 1983, and ended on September 12, 1983.
Id. at 427 n.76.
Page 3
3348, simply do not apply where, as here, the vacancies in question arose
while the Senate was in recess. Specifically, 5 U.S.C. 3349 provides as
follows:
A temporary appointment, designation, or assignment
of one officer to perform the duties of another
under section 3345 or 3346 of this title may not be
made otherwise than as provided by those sections,
except to fill a vacancy occurring during a recess
of the Senate. [Emphasis supplied]
Thus, since each of the eight vacancies occurred during a Senate recess, the
proscriptive language of the Act does not apply to any of the eight positions
in the Department that is currently held on an acting basis.
The legislative history underlying the Vacancies Act supports the proposition
that its scope was limited. It only applies to vacancies that arise while the
Senate is in session and, even with respect to those vacancies, originally was
not intended to apply to vacancies filled in the natural course by the first
assistants. The Vacancies Act, in its current format, was initially
enacted during Reconstruction to limit the power of the Executive and to make
It has been consistently held that a Senate recess, for purposes of Art.
II, §2, cl. 3, is not restricted to the interval between the final adjournment
of one session and the commencement of the next session. See Gould V.
United States, 19 Ct. Cl. 593, 595 (1884). A temporary adjournment, for a
period longer than a few days, is sufficient to trigger the President's recess
powers. See 33 Op. A.G. 20, 33 (1921); 28 Comp. Gen. 30 (1948). As the
Senate Committee on the Judiciary noted: "[A] recess [is] the period of time
when the Senate is not sitting in regular or extraordinary session for the
discharge of executive functions; when its members owe no duty of attendance;
when its Chamber is empty; when, because of its absence, it cannot receive
communication from the President or participate as a body in making
appointments. S. Rept. No. 4389, 58th Cong., 3d Sess.; 39 Cong. Rec.
3823-3824 (1905). The pocket veto cases are in accord with this view. See
The Pocket Veto Case, 279 U.S. 655 (1929) (holding that a Senate adjournment
for four months was an adjournment for purposes of Art I, $7, cl.
2); Wright V. United States, 302 U.S. 583 (1938) (holding that a three day
adjournment of the Senate while the House was in session did not amount to an
adjournment for purposes of Art. I, §7, cl. 2).
Legislation empowering the President to fill vacancies in the Executive
Branch dates from the Second Congress. In 1792 Congress enacted legislation
which authorized the President to fill vacancies in the Departments of State,
Treasury and War "at his discretion." Act of May 8, 1792, 2d Cong., 1st
Sess., Ch.37., $8, 1 Stat. 218. Three years thereafter Congress amended that
legislation to limit to six months the tenure of interim appointees in those
Departments. Act of February 13, 1795, 3rd Cong., 2d Sess., Ch 21, 1 Stat.
415.
Page 4
certain that the limitations on presidential authority that were imposed by
the Tenure in Office Act of 1867, 14 Stat. 430, could not be easily
circumvented. The Tenure in Office Act attempted to restrict the authority of
then-President Andrew Johnson to dismiss certain members of Lincoln's cabinet.
It not only forbade presidential removal of designated cabinet officers
without the consent of the Senate, but also severely limited the ability of
the President to dismiss other officers. Moreover, the Act limited the
authority of the President to fill vacancies in positions that would require
the advice and consent of the Senate.
Although the Act attempted to be all-inclusive, Congress inadvertently failed
to provide for an obvious contingency: death of an incumbent officer. Under
the then-existing legislation, the President was specifically authorized to
temporarily fill for up to six months vacancies that occurred while the Senate
was in session. Consequently, in an effort to further restrict presidential
authority, Congress enacted the Vacancies Act, which limited ad interim
appointments to 10 days. 4/ 15 Stat. 168 (1868). However, as originally
adopted, the 10 day (now 30 day) limitation did not extend to vacancies, such
as the ones here, that were filled by the first assistants without the
intervention of the President. 5/ The 10 day limitation only applied if the
President intervened and named someone other than the first
4/ Although the Tenure in Office Act was repealed in 1887 and subsequent
related legislation was declared unconstitutional in Myers V. United States,
272 U.S. 52 (1926), the Vacancies Act, as amended, and related legislation,
remains.
As originally enacted, the 10 day limitation on ad interim appointments
was set forth in section 3 of the Vacancies Act of 1868, which specifically
empowered the President to designate someone other than the first officer to
act on a temporary basis. That section provided as follows:
Sec. 3 And be it further enacted. That in any of the cases -
hereinbefore mentioned it shall be lawful for the President of the
United States, in his discretion, to authorize and direct the head
of any other executive Department or other officer in either of
those Departments whose appointment is, by and with the advice and
consent of the Senate, vested in the President, to perform the
duties of the office vacant as aforesaid until a successor be
appointed, or the sickness or absence of the incumbent shall cease:
Provided, That nothing in this act shall authorize the
supplying as aforesaid a vacancy for a period longer than ten days
when such vacancy shall be occasioned by death or resignation
Page 5
assistant to temporarily fill the vacancy. However, when the federal
statutes were compiled into the so-called "Revised Statutes," 19 Stat. 268
(1867), the compilers erroneously broadened the limitation to encompass all
temporary office holders, even the first assistants. 7/ See Revised Statutes
$180. In 1891, Congress, in the course of amending the Vacancies Act to
accommodate an emergency occasioned by the death of the Secretary of the
Treasury, recognized the error, but had insufficient time in which to fully
consider the matter. Instead, Congress merely amended the Act by extending
the 10 day period to 30 days. See 22 Cong. Rec. 2077-79 (1891).
The fact that the Vacancies Act of 1868 did not extend to limit the tenure
of an individual who became an acting officer as a result of having been a
first assistant is illustrated by both the legislative history of the Act and
by the complementary provisions of the Tenure in Office Act. During debate on
the Act much attention focused on the somewhat anomolous situation that had
prevailed in the Patent Office. Under then-existing legislation enacted in
1836 the Chief Clerk of the Patent Office was empowered to act as Commissioner
in the Commissioner's absence. 39 Cong. Globe 4134 (1868). Indeed, at the
time of the debate, the Chief Clerk had been serving as Acting Commissioner
in excess of eight months. Members of Congress, though, doubted that the
Chief Clerk, as contrasted with one of the Patent Examiners, had the requisite
scientific background to adequately discharge the responsibilties of Acting
Commissioner. 39 Cong. Globe 4259 (1868). Clearly, congressional concern
with respect to the competence of the Chief Clerk would have been meaningless
had the ten day limitation been intended to apply to all ad interim
appointees, even those who had assumed authority by virtue of their status as
first assistants. Had the 10 day limitation been applicable to the Chief
Clerk, it would have eliminated the problem in the Patent Office.
The provisions of the Tenure in Office Act provide equally compelling
evidence that Congress, while intending to limit the power of the President,
did not intend to compromise the efficiency of government. With respect to
recess appointments that extended beyond the next session, the Tenure in
Office Act stated: "[D]uring such time all the powers and duties belonging to
such office shall be exercised by such other officer as may by law exercise
such powers and duties in case of a vacancy in such office." 14 Stat. 431, §3
(1867). In short, the Tenure in Office act recognized that the mantle of
authority could not be permitted to lapse if the government were to continue
functioning.
7/ It is recognized that the Revised Statutes, being an Act of Congress, have
the force of law. However, in the case of ambiguity or uncertainty, the
previous statutes may be referred to. Wright V. United States, 6 Ct. Cl. 80,
87 (1879).
Page 6
Given the Act's shallow purpose, i.e., to limit the authority of President
Andrew Johnson, and ambiguous scope, Congress has consistently construed the
Act narrowly. Indeed, contemporary Congresses have never viewed the act as
the primary limitation on the Executive's authority to temporarily fill
vacancies, even those that occurred while the Senate was in session. Instead,
Congress has consistently recognized that the President and his subordinates
have broad plenary authority to fill vacancies that arise while the Senate is
in session. In order to curb such authority, Congress has relied, not on the
Vacancies Act, but rather on 5 U.S.C. $56 [now 5 U.S.C. $5503]. That act
originally prohibited the payment of appropriated funds as salary to a person
who received an appointment during a recess of the Senate if the vacancy
existed while the Senate was in session. Thus, Congress implicitly assumed
that the power to appoint existed, but sought to render it ineffective by
prohibiting the payment of the salary to the person SO appointed. See
Memorandum submitted by Senator Butler on March 16, 1925, 67 Cong. Rec. 263,
265 (1925).
B. Interim Appointments Within the Department of Health and Human Services
Were Made Pursuant to the Department's Organic Legislation and, Therefore, Are
Not Limited by the Proscriptions of the Vacancies Act.
As noted above, the eight ad interim appointments were made by the Secretary
pursuant to the authority granted to her by the organic legislation that
created the Department of Health and Human Services. The Vacancies Act
neither restricts this authority nor limits the tenure of such interim
appointees to 30 days. Given the fact that the Vacancies Act can jeopardize
executive action and impede the efficient administration of the Executive
Branch, the courts, whenever possible, have interpreted the Act narrowly to
avoid conflict with executive prerogatives. Consequently, courts have
consistently refused to apply the restrictive provisions of the Act, where the
propriety of an interim appointment can be sustained by virtue of another
statute.
For instance, in United States V. Halmo, 386 F. Supp. 593 (E.D. Wis.
1974), defendants in a criminal action sought to suppress certain evidence
resulting from an interception of wire and oral communications. Under 18
U.S.C. 2516, a wiretap can only be authorized by the Attorney General or by
any assistant attorney general who had been specially delegated the authority
by the Attorney General. At the time of the intercept the Solicitor General
had been acting as Attorney General for more than thirty days and,
consequently, the defendants argued that at the time of the delegation the
Solicitor General's authority to act as Attorney General had expired under
the terms of the Vacancies Act. The court, however, in overruling defendants'
motion to suppress, noted that the Solicitor General had assumed office as
Acting Attorney General under the provisions of 28 U.S.C. $508(b) and,
therefore, that the limitations imposd by the Vacancies Act were not
applicable. See United States V. Lucido, 373 F. Supp. 1142 (E.D. Mich. 1974),
aff'd, 517 F.2d 1 (6th Cir. 1976) (holding that in light of 28 U.S.C. § 508,
the Vacancies Act does not apply to limit the tenure of the Deputy Attorney
General to act as the Attorney General).
Page 7
In both Halmo and Lucido the courts held that the specialized statute
governing the Deprtment of Justice controlled and, consequently, that the
restrictions imposed by the Vacancies Act did not apply. In SO holding, both
courts refused to give effect to the apparently plain language of the
Vacancies Act, which states:
A temporary appointment, designation, or assignment of
one officer to perform the duties of another under
section 3345 0: 3346 of this title may not be made
otherwise than as provided by those sections, except to
fill a vacancy occurring during a recess of the
Senate. [Emphasis supplied]
5 U.S.C. 3349.
In short, while the Vacancies Act on its face appears to restrict the scope of
other independent statutory authority respecting interim appointments, the
courts have not given effect to that language. Rather, they have uniformly
refused to invalidate appointments that have been made pursuant to such
independent authority.
Here, as in Halmo and Lucido, there is an independent statutory basis to
support the eight ad interim appointments, namely Reorganization Plan No.
1 of 1953. Moreover, here, unlike in Halmo and Lucido, the putative
restriction imposed by the Vacancies Act on the use of the other legislation,
clearly does not apply. The restriction contained in 5 U.S.C. $3349 applies,
if at all, only if the vacancy did not arise during a Senate recess. Here,
since all eight of the vacancies arose during Senate recesses, any possible
argument that the Vacancies Act governs to the exclusion of the Reorganization
Plan must be rejected out of hand.
8/ Even if the vacancies had arisen while the Senate was in session, the
provisions of the Reorganization Plan would control notwithstanding the fact
that the Vacancies Act was re enacted 13 years after the Reorganization Plan.
The Vacancies Act could only control if it were read to have impliedly
repealed Section 6 of the Reorganization Plan. However, "repeals by
implication are not favored." Morton V. Mancari, 417 U.S. 535, 549 (1974),
quoting Posades V. National City Bank, 296 U.S. 497, 503 (1936). Such repeals
are only permitted if the intention of the legislature to repeal is clear and
manifest. Watt V. Alaska, 451 U.S. 259, 267 (1981); United States V. Will,
449 U.S. 200, 221-222 (1980); TVA V. Hill, 437 U.S. 153, 190 (1978). Here, of
course, there is no evidence in the record to indicate that Congress intended
to repeal or otherwise modify the provisions of Reorganization Plan at the
time that it re-enacted the Vacancies Act of 1966. In such a setting, a court
"must read the statutes to give effect to each
while preserving their
sense and purpose." Watt V. Alaska, 451 U.S. at 267.
Page 8
In conclusion, the eight ad interim appointees, named in Exhibit I, are
serving pursuant to the provisions of the Reorganization Plan No. 1 of 1953
and are not serving pursuant to the provisions of the Vacancies Act of 1868,
as amended. Further, the provisions of the Vacancies Act that limit executive
prerogatives are inapplicable where, as here, each of the vacancies arose
during a Senate recess. Thus, the 30 day limitation on the tenure of interim
appointees contained in the Vacancies Act does not pertain with respect to the
individuals named in Exhibit I.
Attachment
EXHIBIT I
Position
Date of Vacancy
Name of Ad Interim
Position of Interim Date of Ad Interi
(GAO ITEM #1)
Appointee
Appointee Prior
Appointment
(GAO ITEM #1)
to Appointment
(GAO ITEM #2)
(GAO ITEM #5)
1. Under Secretary
8/19/85
John 'Shaughnessy
Principal Deputy
09/25/85
Under Secretary
2. Assistant
04/16/84
Robert B. Helms
Deputy Assistant
04/23/84
Secretary, for Planning
Secretary for Planning
and Evaluation
and Evaluation (Health)
3. Assistant
12/31/84
Lawrence J. DeNardis Deputy Assistant
01/29/85
Secretary, for
Secretary for
Legislation
Legislation
4. Assistant
12/31/84
James O. Mason
Director, Centers for
02/19/85
Secretary for Health
Disease Control
5. General Counsel
11/09/84
Terry S. Coleman
Deputy General Counsel,
11/21/84
Regulations
6. Commissioner of
09/10/83
Martha A. McSteen
Deputy Commissioner of
09/14/83
Social Security
Social Security
7. Administrator,
08/09/85
C. McLain Haddow
Deputy Administrator,
08/09/85
Health Care Financing
Health Care Financing
Administration
Administration
8. Commissioner on
12/17/84
Carol Fraser Fisk
Special Assistant to
1
12/18/84
Aging
Assistant Secretary, for
Human Development Services
9. Deputy Inspector
01/22/81
No appointee named
Not applicable
Not applicab
GAO ITEM #7: The appointing official in each case was the Secretary.
GAO ITEM #6: Ronald E. Robertson has been nominated for the position of General Counsel.
UNITED
THAT
UNITED STATES GENERAL ACCOUNTING OFFICE
AMOUNT TYARNBO OFFICE
WASHINGTON, D.C. 20548
OFFICE OF GENERAL COUNSEL
B-220522
October 17, 1985
Mr. Thomas S. McFee
Assistant Secretary for
Personnel Administration
Department of Health and
Human Services
200 Independence Avenue, S.W.
Washington, D.C. 20201
Dear Mr. McFee:
We have received a congressional request for a report
concerning the use of extended temporary appointments to
positions requiring Senate advice and consent in the
Department of Health and Human Services. It is reported
that nine (9) occupants of positions in your Department
requiring Senate advice and consent have not been confirmed
by the Senate and that eight (8) of these nine (9) occu-
pants have not been nominated for the positions in which
they are presently serving. The service of these individ-
uals is questioned as a possible violation of the Vacancies
Act, 5 U.S.C. SS 3345-3349 (1982). Section 3348 limits the
filling of a vacancy under sections 3345-3347 to a period
not to exceed 30 days.
Accordingly, in accordance with informal advice given
to you on October 10, 1985, by Mr. Paul J. O'Neill of our
Office, we request that you provide the following informa-
tion together with any comments you deem appropriate:
1. Names of any persons occupying positions
requiring Senate advice and consent who have
not been confirmed for such positions and the
titles of such positions.
2. Date that each individual referred to in # 1
above was appointed to such a position.
3. The official who appointed each of the
individuals referred to in #1 above to their
present positions.
OCT 7
B-220522
4. The authority for the temporary appointment of
each individual referred to in #1 and whether
the Vacancies Act is applicable to these
appointments.
5. Were any of the individuals named in #1 above
serving in an office which required Senate
confirmation immediately prior to their pres-
ent temporary position and, if so, was he or
she in fact confirmed by the Senate to serve
in the prior position?
6. Has anyone been nominated for Senate confirma-
tion by the President to any of the positions
which have been identified in #1 above?
In view of the congressional interest in this matter
we would appreciate receiving your reply at your earliest
convenience.
Sincerely yours,
Robert L. Higgins
Robert L. Higgins
Assistant General Counsel
- 2 -