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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/NSF
(National Science Foundation)
Box: 33
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/
DEC 28 1982
THE WHITE HOUSE
WASHINGTON
December 27, 1982
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
JOHN G. ROBERTS
2sk
SUBJECT:
Inquiry from Ron Mann Concerning Appointment
of SES Official as Acting Deputy Director,
National Science Foundation
Ron Mann, Associate Director of the Office of Presidential
Personnel, has inquired if there are any legal impediments
that would preclude the Director of the National Science
Foundation (NSF) from appointing an official of NSF in the
Senior Executive Service to the post of Acting Deputy
Director pending nomination and confirmation of a permanent
Deputy Director. The post of Deputy Director is a PAS
position.
I located in our files a January 27, 1982, Memorandum on
"Acting Officers" prepared for you by Ted Olson, Assistant
Attorney General, Office of Legal Counsel (Tab A). That
memorandum concluded that the Attorney. General could desig-
nate the Deputy Commissioner of INS as Acting Commissioner,
in part because of the authority given the Attorney General
in 28 U.S.C. $ 510 (1976) to authorize the performance of
any function of the Attorney General by any officer of the
Justice Department. There is an analogous provision
concerning NSF and its Director at 42 U.S.C. $ 1864 (c)
(1976), which provides:
The Director may from time to time make such
provisions as he deems appropriate authorizing
the performance by any other officer, agency, or
employee of the Foundation of any of his functions
under this chapter, including functions delegated
to him by the Board; except that the Director may
not redelegate policymaking functions delegated to
him by the Board.
I also located a December 5, 1982 letter to Ed Wilson from
Joseph Morris, General Counsel, Office of Personnel Manage-
ment, on the question of appointing individuals with SES
status (Tab B). In pertinent part, Morris concluded:
With respect to your first question, whether a
person presently in the SES who is named to hold
an "acting" PAS position retains his SES status
during and after his service in the PAS position,
-2-
the answer is affirmative. Designation as
"acting" does not amount to an appointment with
Senate confirmation, nor does it amount to a
recess appointment without Senate confirmation as
provided for in 5 U.S.C. $ 3349. Whereas certain
statutory procedures must be followed for PAS
appointments and recess appointments to PAS
positions, and certain changed-status consequences
flow from such appointments
Congress has
mandated no special changes in underlying status
for persons named to hold "acting" PAS positions.
I therefore conclude that such persons retain SES
status during and after temporary service in PAS
positions.
On the basis of these two memoranda, and the provision in 42
U.S.C. § 1864 (c) (1976), I am disposed to advise Mann that
the Director of NSF may appoint an SES official of NSF
Acting Deputy Director, pending the nomination and confirma-
tion of a new Deputy Director. Pursuant to the terms of 42
U.S.C. $ 1864 (c), the Acting Deputy Director should refrain
from exercising policymaking functions delegated to the
Director by the NSF Board. I discussed the question with
Herman Marcuse at the Office of Legal Counsel, who agreed
that the SES official could be appointed Acting Deputy
Director, but could not engage in policymaking. Marcuse
also pointed out that the Acting Deputy Director could not
act as Director in the absence of the Director, as provided
in 42 U.S.C. $ 1864a (1976), because an official may not be
in a position of "acting" twice.
You will recall that the above-cited OLC memorandum noted
that under the Vacancy Act, 5 U.S.C. §§ 3345-3349 (1976)
vacancies filled pursuant to that Act may be filled for no
more than thirty days. 5 U.S.C. § 3348 (1976). As stated
in the memorandum, however, it has been the consistent
position of the Department of Justice that vacancies such as
the one in question are filled pursuant to the delegation
authority -- in this case 42 U.S.C. $ 1864 (c) -- and not the
Vacancy Act, and therefore the limitations of the Vacancy
Act are not applicable. This is contrary to the position of
the Comptroller General. Out of an excess of caution, Mann
should be advised that the Acting Deputy Director, after
serving thirty days, should avoid, if possible, taking
action which may legally only be taken by the Deputy
Director. See OLC memorandum, at 4.
If you agree, I can advise Mann that the Director of NSF may
appoint an SES official Acting Deputy Director, provided
the Acting Deputy Director (1) avoid exercising policymaking
functions, (2) avoid, after serving thirty days, taking
action which specifically must be taken by the NSF Deputy
Director, and (3) not act as Director in the absence of the
Director.
U.S. Department of Justice
JAN 30 dig
Office of Legal Counsel
Office of the
Washington, D.C. 20530
Assistant Attorney General
27 JAN 1982
MEMORANDUM FOR RICHARD A. HAUSER
Deputy Counsel to the President
Re: Acting Officers
This responds to the oral request by Dennis Patrick of
the Office of Presidential Personnel for a discussion of
certain issues relating to the designation of the Deputy
Commissioner of Immigration (Deputy Commissioner) to perform
the duties of and act as Commissioner of Immigration and
Naturalization (Commissioner).
I.
The designation would be based on 28 U.S.C. §§ 509, 510
and on § 103 of the Immigration and Nationality Act (Act) (8
U.S.C. § 1103). According to 28 U.S.C. § 510 the Attorney
General may authorize the performance by any officer, employee,
or agency of the Department of Justice of any function of
the Attorney General. 28 U.S.C. $ 509 vests in the Attorney
General, with certain exceptions not here relevant, all
functions of the Department of Justice, including those of
the Immigration and Naturalization Service. The Attorney
General thus has the authority under 28 U.S.C. § 510 to
direct the Deputy Commissioner to perform the duties of and
to act as the Commissioner. Similarly § 103(a) of the Act
authorizes the Attorney General to delegate to any employee
of the Immigration and Naturalization Service (Service) or
to any officer or employee of the Department of Justice any
of the duties and powers imposed upon the Attorney General
in the Act. He may require or authorize any employee of
the Service or the Department of Justice to perform or exercise
any of the powers, privileges or duties conferred or imposed
by the Act or any regulations issued thereunder upon any
other employee of the Service. Section 103(b) of the Act
charges the Commissioner with any and all responsibilities
and authority in the administration of the Service of the
Act which are conferred upon the Attorney General or which
may be delegated to him or prescribed by the Attorney General.
The Attorney General thus has the authority to delegate to
the Deputy Commissioner, or require and authorize the Deputy
Commissioner to perform or exercise, any or all the powers
conferred or imposed upon the Commissioner.
The principal problems relating to the designation of
acting officers, discussed below, are the legal authority
of the acting officer, the duration of the designation, and
the compensation to which the acting officer is entitled.
1. Authority of Acting Officers. An acting officer is
vested with the full authority of the officer for whom he
acts. Keyser V. Hitz, 133 U.S. 138, 145-46 (1890). Ryan V.
United States, 136 U.S. 68, 81 (1890) ; United States V.
Lucido, 373 F.Supp. 1142, 1145 (E.D. Mich. 1974) 20 Op.
A.G. 483 (1892); 23 Op. A.G. 473, 474-76 (1901).
2. Duration of Designation (Relation to the Vacancy Act).
The Vacancy Act, 5 U.S.C. §§ 3345-3349, provides that where an
officer of a bureau, who is not appointed by the department
head, dies, resigns, or is sick or absent, his first assistant
shall perform the duties of the office (5 U.S.C. $ 3346), unless
the President directs a department head or another officer
of an Executive department appointed by the President by and
with the advice and consent of the Senate to perform the
duties of the office. (5 U.S.C. § 3347). Vacancies caused by
death or resignation, however, may be filled under these
provisions for not more than thirty days. 5 U.S.C. § 3348.
It has been the position of the Department of Justice for many
years that, if vacancies are filled pursuant to 28 U.S.C.
§ 510 (the same would be true of § 103 of the Act), they are
not filled pursuant to the provisions of the Vacancy Act, and
that the thirty day limitation of 5 U.S.C. § 3348 consequently
is inapplicable. This position was upheld by the courts in
the analogous situations where the Deputy Attorney General
or Solicitor General became Acting Attorney General pursuant
to 28 U.S.C. § 508. United States V. Lucido, supra, 1147-51;
United States V. Halmo, 386 F.Supp. 593, 595 (E.D. Wis.
1974).
The Comptroller General takes the position that the 30
day limitation of 5 U.S.C. § 3348 must be read into all
statutes authorizing the temporary filling of vacancies,
because otherwise the President could circumvent the power
of the Senate to advise and consent to appointments. The
Department of Justice has never agreed with the Comptroller
General's position in this regard. As explained below, how-
ever, the Department recognizes that the existence of this
controversy makes temporary designations undesirable, especially
where certain functions can be exercised only by specific
officers.
3. Compensation of Acting Officers. Under 5 U.S.C.
§ 5535 (b) (2) the Acting Commissioner could receive only the
salary of the Deputy Commissioner.
- 2 -
II.
An officer, designated by a department head under a statute
such as 28 U.S.C. § 510 to perform the duties of an officer
appointed by the President by and with the advice and consent
of the Senate, thus would have the same authority as the
officer for whom he acts, and he could serve for an indefinite
period, longer indeed than a recess appointee whose commission
expires under Art. II, § 2, cl. 3 of the Constitution at the
end of the next session of the Senate. The only direct
drawback of the status of the acting officer is that while
acting he is entitled only to the salary of his regular position
and not to the compensation of the officer for whom he acts.
The question is occasionally raised why the President
should be put to the inconvenience of having to go through
the burdensome processes of selecting officers and securing
the advice and consent of the Senate as to their appointment,
if the same result could be obtained through an informal
designation as acting officer by a department head. The
answer is more practical and political than legal. Generally
the Executive has recognized that the designation of acting
officers should never be used as a substitute for appointment
by and with the advice and consent of the Senate but only as
an interim measure during the frequently difficult and time
consuming processes of selecting a candidate and securing
his confirmation by the Senate.
The following considerations underlie this recognition:
1. The President has the duty under the Constitution to
appoint officers by and with the consent of the Senate. An
attempt to circumvent the right of the Senate to participate
in the appointment process is likely to result in political
reprisals and repercussions. Hearings may be held on the
status of the acting official which at best are time consuming
and may require embarrassing explanations.
1/ Most if not all of the agencies have provisions authorizing
a Department head to designate any officer in his Department
to perform any function of the Department head. These provisions,
which go back to the Hoover Commission Report of 1949, were
first incorporated in the Reorganization Plans issued under
the Reorganization Act of 1949. Since then many of these
provisions have become statutory.
- 3 -
2. While, as indicated above, an acting officer has the
same legal authority as a Presidential appointee, his stature
as a practical matter is often somewhat inferior. He is fre-
quently considered merely a caretaker without a mandate
to take far reaching measures.
3. In constrast to the position of the Department of
Justice that an official whose acting status is derived from
a statutory base other than the Vacancy Act is not subject
to the thirty day limitation of 5 U.S.C. § 3348, the Comptroller
General contends that 5 U.S.C. § 3348 controls the time for
which all acting officers may serve, or that a provision
such as 28 U.S.C. § 510 does not apply to officers whose
appointment requires the advice and consent of the Senate.
The Executive generally chooses to avoid, if possible, disputes
with the Comptroller General in view of his Congressional
backing.
4. The courts have never conclusively decided the question
whether the thirty day limitation of 5 U.S.C. § 3348
must be read into a statute which generally authorizes a
Department head to authorize any officer or employee of the
Department to perform any function vested in the Department
head. Hence in the relatively few situations where legal
actions may be undertaken only by a specific officer, the
Department has tried to avoid the taking of such action by
an acting official who served for more than thirty days.4/
2/ In United States V. Joseph, 519 F.2d 1068, 1070-71 (5th Cir.
1975) cert. denied 424 U.S. 909 (1976), 430 U.S. 905 (1977)
the Court of Appeals seems to have assumed arguendo that 5 U.S.C.
§ 3348 limits the period during which an official designated pursuant
to 28 U.S.C. § 510 may act. The court, however, avoided the issue
by holding the decision involved had been made by the Attorney
General himself rather than by the Acting Assistant Attorney General,
who had merely transmitted it, and that in any event the de
facto officer doctrine, discussed in part III infra, applied.
3/ In the Department of Justice this involves especially
certain orders and authorizations within the competence of
the Criminal and Tax Divisions.
4/ At times the Department of Justice was able to obviate
this difficulty by having the acting official sign the document
in his permanent rather than in his acting capacity, or by
having it signed by his superior.
- 4 -
This legal uncertainty is a further reason indicating the
importance of having the President make appointments by and
with the advice and consent of the Senate and using acting
designations only as an interim measure during the regular
appointment process.
III.
In many instances the potential infirmities in the
authority of the acting officers discussed in the preceeding
parts of this memorandum will be cured by the de facto officer
rule. Under that doctrine, a person who discharges the duties
of an office under color of title is considered a de facto
officer even if there are defects in that title. The public
acts of a de facto officer are binding on the public; con-
versely, the public may safely assume that he is a rightful officer.
McDowell V. United States, 159 U.S. 596, 601-602 (1895) Waite
V. Santa Cruz, 184 U.S. 302, 322-324 (1902); United States
V. Royer, 268 U.S. 394 (1925); United States V. Lindley, 148
F.2d 22, 23 (7th Cir. 1945), cert. den., 325 U.S. 858;
Equal Employment Opportunity Commission V. Sears Roebuck and
Co., 650 F.2d 14, 17 ( 2d Cir. 1981); see also United States
V. Joseph, supra at 1071 n.4. As a rule, the authority of
de facto officers can be challenged only in special proceedings
in the nature of quo warranto brought directly for that
purpose. United States ex rel. Dorr V. Lindley, supra;
United States V. Nussbaum, 306 F. Supp. 66, 68-69 (N.D.
Cal., 1969); Mechem, Public Office and Officers, §§ 343, 344
(1890).
As explained in the above cited cases, the de facto officer
rule rests on two basic considerations. First, when a person is
openly in the occupation of a public office, the public should not
be required to investigate his title; conversely, an individual
should not be able to challenge the validity of official acts
by alleging technical flaws in an official's title to his
office.
A typical case of a de facto officer is one who has been
properly appointed but who continues to serve after his term
of office has expired. Waite V. Santa Cruz, supra; United
States V. Groupp, 333 F. Supp. 242, 245-46 (D. Maine 1971),
aff'd, 459 F.2d 178, 182 n. 12 (lst Cir. 1971). This consideration
is of particular importance if the status of the acting
officer should be attacked on the ground that 5 U.S.C.
§ 3348 is applicable to designations of acting officers, so
that their authority expires thirty days after their
designation.
5/ Another rationale for the de facto officer rule is that a
person should not be able to submit his case to an officer
and accept it if it is favorable to him, but challenge the
officer's authority if the latter should rule against him.
Glidden Company V. Zdanok, 370 U.S. 530, 535 (1962).
- 5 -
I hope this general discussion proves helpful. Please
contact me if you require more information or if we can be
of further assistance.
Theodore B. Olson
Assistant Attorney General
Office of Legal Counsel
- 6 -
United States of America
Office of
Personnel Management
Office of the General Counsel
Washington, D.C. 20415
In Reply Refer To:
Your Reference:
Honorable D. Edward Wilson, Jr.
Associate Counsel to the President
The White House
Washington, D.C. 20500
Dear Mr. Wilson:
This responds to your communication of November 1,
1982, in which you asked three questions concerning the
retention of Senior Executive Service (SES) status and/or
benefits for persons named to hold "acting" PAS positions
(positions requiring a Presidential appointment with Senate
confirmation) and for persons given recess appointments to
PAS positions.
With respect to your first question, whether a person
presently in the SES who is named to hold an "acting" PAS
position retains his SES status during and after his service
in the PAS position, the answer is affirmative. Designation
as "acting" does not amount to an appointment with Senate
confirmation, nor does it amount to a recess appointment
without Senate confirmation as provided for in 5 U.S.C.
§ 3349. Whereas certain statutory procedures must be
followed for PAS appointments and recess appointments to PAS
positions, and certain changed-status consequences flow from
such appointments (see discussion below in question #2),
Congress has mandated no special changes in underlying
status for persons named to hold "acting" PAS positions. I
therefore conclude that such persons retain SES status
during and after temporary service in PAS positions.
With respect to your second question, whether a person
presently in the SES who is given a recess appointment to a
PAS position retains his career SES status during and
following the term of the appointment, the answer is
negative. For an SES member appointed to a PAS position
with the advice and consent of the Senate, status as an SES
member is not retained, although the former SES member may
elect to retain certain SES benefits. Congress has
specifically provided that an SES member appointed to a PAS
position may elect to retain certain SES benefits "as if the
career appointee remained in the Senior Executive Service
position from which he was appointed," 5 U.S.C. § 3392 (c)
-2-
(emphasis supplied), 1/ and Congress has further provided
that such a person is entitled to be reinstated in the SES
after separation "if the appointee applies to the Office of
Personnel Management within 90 days after separation from
the Presidential appointment." Id. $ 3593 (b). These
provisions clearly indicate, however, that persons appointed
to SES positions with Senate consent do not retain their SES
status while occupying such positions--they are granted only
the right to elect certain SES benefits. See also
5 U.S.C. $ 3132(2).
For recess appointees to PAS positions, properly
appointed pursuant to 5 U.S.C. § 3349, the situation is not
different: such persons may elect to retain SES benefits
and may apply to be reinstated in the SES upon separation,
but they do not retain SES status while serving in recess
appointments. The recess appointment is simply a vehicle
which permits the business of the Executive Branch to be
transacted during times when executive posts are vacant and
the Senate is not in session. It is not a device for
evading the command of the Constitution that the President
obtain the consent of the Senate to his appointments of
Officers of the United States. The Constitution explicitly
provides for recess appointments, and further provides that
they may not survive the adjournment of the session of the
Senate that next follows upon their makings. U.S.
Constitution, Article II, Section 2, Clause 3.
Congress sought in 5 U.S.C. § 3392 (c) to accord SES
benefits to all Presidential appointees whose nominations
must by law receive the consent of the Senate. A recess
appointee, designated pursuant to the Constitution and
5 U.S.C. $ 3349, stands for the time prescribed by the
Constitution in the place of a Senate confirmee. The
Constitution makes no distinction between executive officers
commissioned with the advice and consent of the Senate,
17 5 U.S.C. $ 3392 (c) provides, in pertinent part:
If a career appointee is appointed by the President, by
and with the advice nd consent of the Senate, to a
civilian position in the executive branch which is not
in the Senior Executive Service,
...
the career
appointee may elect
...
to continue to have the
provisions of this title relating to basic pay,
performance awards, awarding of ranks, severance pay,
leave, and retirement apply as if the career appointee
remained in the Senior Executive Service position from
which he was appointed.
-3-
and those whose appointments require the Senate's consent
but who are commissioned during a recess, save that the
commissions of the latter expire when the Senate rises from
its next session. Recess appointees are, in other respects,
fully-authorized incumbents of their executive offices.
There is nothing in the legislative history of 5 U.S.C.
§ 3392 (c) to indicate that Congress meant to exclude recess
appointees from the protections of the statute.
I conclude, therefore, that the option of electing SES
benefits- and the concomitant forswearing of actual SES
status- - apply equally to PAS appointees and recess
appointees to PAS positions.
Your third question, whether a person can continue to
hold an SES position (and compensation) after receiving a
recess appointment to a PAS slot, is answered in the
negative, for the reasons set forth in the discussion
surrounding question #2. Because a recess appointee to a
PAS position does not retain career SES status during the
term of his appointment, but must apply to be reinstated in
the SES after expiration of the appointment, see 5 U.S.C.
§ 3593 (b), it follows that such a person does not "continue
to hold an SES position" during his recess appointment but
must apply for reinstatement upon separation. This being
so, the restrictions on recess appointments mandated by
5 U.S.C. § 5503 would not be avoided by the recess
appointment of an SES member to a PAS position.
Sincerely yours,
JojepliA Josèph A. Morris Moris
General Counsel
Memorandum
John Roberts
CANADA
Subject
Date
Designation of Acting Deputy Director
December 28, 1982
of the National Science Foundation.
To
From
FILES
NAME:
Herman Marcuse
OFFICE SYMBOL:
STATEMENT:
On December 27, 1982, I received a telephone inquiry
from Mr. John Roberts in the White House Counsel's Office as
to whether the Director of the National Science Foundation
(Director) may designate a member of the Senior Executive
Service employed by his agency to be the Acting Deputy Director
of the Foundation during a vacancy in the office of the
Deputy Director. The Director and the Deputy Director are
both appointed by the President by and with the advice and
consent of the Senate. 42 U.S.C. §§ 1864 (a); 1864a(a).
After having examined the pertinent statutory provisions,
I advised Mr. Roberts that the Director has the authority to
designate an Acting Deputy Director under his powers of
delegation provided for in 42 U.S.C. § 1864 (c) but that for
two reasons the authority of the Acting Deputy Director would
be limited to routine functions.
First, 42 U.S.C. § 1864(c) precludes the Director from
redelegating policy making functions delegated to him by the
National Science Board.
Second. While the last sentence of 42 U.S.C. § 1864a( (a)
provides that the Deputy Director shall act for and exercise
the powers of the Director during the absence or disability
of the Director or in the event of a vacancy in that office,
this Office has consistently interpreted such provisions as
being inapplicable to acting officials, hence that an acting
official cannot become acting at a higher level.
The Acting Deputy Director thus could not exercise any
policy making functions delegated to the Director of the
National Science Board, and could not become Acting Director
during the absence or disability of the Director or in the
event of a vacancy.
Mr. Roberts took notice of those limitations and indicated
that the Acting Deputy Director would perform only routine
functions.
FILE COPY
FORM DOJ-226 FEB. 80
I
THE WHITE HOUSE
WASHINGTON 12/29/82
12/30 called Mann-
memo today
TO: John Roberts
FROM: Richard A. Hauser
FYI
Comment
Action as discussed
THE WHITE HOUSE
WASHINGTON
December 30, 1982
MEMORANDUM FOR RON MANN
ASSOCIATE DIRECTOR
PRESIDENTIAL PERSONNEL
FROM:
JOHN G. ROBERTS are
ASSOCIATE COUNSEL TO THE PRESIDENT
SUBJECT:
Appointment of SES Official as Acting
Deputy Director by Director, National
Science Foundation
This will confirm our conversation of this morning. The
Director of the National Science Foundation (NSF) may
designate an SES official of NSF Acting Deputy Director,
pending nomination and confirmation of a permanent Deputy
Director. The Acting Deputy Director (1) may not exercise
policymaking functions, (2) should avoid, after serving
thirty days, taking any legal action which specifically must
be taken by the Deputy Director, and (3) may not serve as
Acting Director in the absence of the Director.
Please do not hesitate to call if you have any questions.
Menuradm for RAH
7m Heb IV
Subject: Assignation by FMA Director of NORMAN
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TAB B
Memorandum
Subject
Date
Vacancies in the EPA.
March 25, 1983
To
From
Herman Marcuse
FILES
NAME:
OLC
OFFICE SYMBOL:
STATEMENT:
On March 24, 1983, I received a call from Ms. Cooksey in
the Office of the Counsel to the President concerning the
question how the vacancies in the Office of the Administrator
and Deputy Administrator, EPA, could be filled temporarily
pending the appointment of Mr. Ruckelshaus by and with the
advice and consent of the Senate.
Ms. Cooksey explained to me that as the result of the
resignation of Mrs. Burford as Administrator of the EPA,
Deputy Administrator Hernandez had become Acting Administrator
by virtue of § 1(c) of Reorganization Plan No. 3 of 1970.
Mr. Hernandez, however, would resign the following day (March
25, 1983). Neither the Reorganization Plan nor any statute
dealing with the EPA have any provision dealing with the
order of succession in the event that the offices of the
Administrator and the Deputy Administrator, EPA, should both
be vacant.
It was planned to fill those vacancies on a temporary
basis in the following manner:
Mr. Lee Verstandig would be designated to be Acting
Administrator, EPA. Mr. Verstandig was designated on February
24, 1983, to be Acting Assistant Administrator, EPA, for
Legislation. At the time of that designation Mr. Verstandig
was an Assistant Secretary for Transportation, an advice and
consent position.
Mr. Lee M. Thomas would be designated Acting Deputy
Administrator, EPA. Mr. Thomas was designated on February
24, 1983, to be Acting Assistant Administrator, EPA, for
Solid Waste and Emergency Response. At the time of that
designation Mr. Thomas was an Associate Director of FEMA, an
advice and consent position.
FILE COPY
FORM DOJ-226 FEB. 80
Ms. Cooksey inquired whether this Office was aware of
any legal objection to this plan. After discussing this inquiry
with DAAG Simms, I advised Ms. Cooksey that we saw no legal
infirmity in the proposal, indeed that we had advised the Office
of the Counsel to the President about two years ago, that
when the offices of the Administrator and Deputy Administrator,
EPA, are both vacant, the President, in view of his responsibility
for the continued operation of the Executive branch, had the
power to designate an Acting EPA Administrator. See the
attached memorandum, dated January 23, 1981.
We pointed out, however, that Mr. Verstandig and Mr.
Thomas had been designated Acting Assistant EPA Administrators
on February 24, 1983, and that three Senators claimed that
under the Vacancy Act their authority under those designations
would expire thirty days after their designation. In these
circumstances, the Senators might argue that the shift of Mr.
Verstandig and Mr. Thomas from Acting Assistant Administrators
to Acting Administrator and Acting Deputy Administrator,
respectively, was merely a strategem to avoid the operation
of the thirty day limitation of the Vacancy Act. We took the
position that, assuming arguendo that the February 24, 1983
designations were subject to time limitations which would run
out in the near future, Mr. Verstandig and Mr. Thomas were
designated to fill new vacancies governed by their own time
limitations, if any. Any claim that the proposed designations
constituted attempts to evade the time limitation on the
original designations therefore would be unfounded.
- 2 -
LU: HM: dlh
CC: Marcuse (2)
Ulman
Sudol
Retrieval (not on tape)
File
3 3 JAN 1981
MEMORANDUM FOR T. TIMOTHY RYAN, JR.
Office of the Counsel to the President
Re: Vacancies in the Environmental Protective Agency.
This responds to your telephone inquiry of January 22,
1981, concerning the manner in which the vacancy in the
office of the Administrator of the Environmental Protection
Agency (EPA), established by Reorganization Plan No. 3 of
1970, 5 U.S.C. App., P. 827, (Plan) can be filled on a
temporary basis.
We understand that the EPA is now headed by an Acting
Administrator, an EPA employee appointed by the President by
and with the advice and consent of the Senate. The Acting
Administrator plans to resign on January 25, 1931. All
other Presidential appointees of the EPA already have re-
signed. You inquire whether the President could legally
designate as Acting Administrator either a person who is now
an employee of another Agency, or a person who is not now
an employee of the Government.
Section 1 of the Plan provides for the appointment of an
Administrator, a Deputy Administrator, and not to exceed
five Assistant Administrators, by the President by and with
the advice and consent of the Senate. Section 1(c) provides
that the Deputy Administrator shall act as Administrator in
the event of a vacancy in the office of the Administrator.
The Plan does not cover the situation, which will arise next
Sunday, when the offices of the Administrator and Deputy
Administrator will both be vacant.
The Vacancy Act is not applicable to the EPA because that
Act extends only to the executive departments as defined in
5 U.S.C. § 101. The EPA is not such a department. For the
reasons set forth at PP. 3-4 of the memorandum dated June 27,
1969, to Henry C. Cashen II, Deputy Counsel to the President,
from then Assistant Attorney General Rehnquist (a copy of which
is attached), it is our opinion, although the matter is not
entirely free of doubt, that the President has the power based
on his constitutional responsibility for the continued
operation of the executive branch to designate an acting
agency head. In light of the opinion of the Court of Appeals
in Williams V. Phillips, 482 F.2d 669, 670-671 (D.C. Cir, 1973),
it would be desirable that a nomination for the position of the
Administrator of EPA be submitted to the Senate within 30 days
after the occurrence of the vacancy.
In the past this Office has consistently taken the position
that such designation should be limited to persons who already
are officers or employees of the agency concerned. Hence, a
person who is not now an officer or employee of the EPA would
have to be appointed to the agency before he can be designated
as Acting Administrator. The present Acting Administrator
should therefore prior to his resignation appoint to the EPA
the person who has been selected as Acting EPA Administrator.
Leon Ulman
Deputy Assistant Attorney General
Office of Legal Counsel
271989
MEMORANDUM FOR THE HONORABLE HENRY C. CASHEN II
Deputy Counsel to the President
This is to confirm our recent telephone conversation
concerning the legal effect of the impending expiration of
the term of the Director of the National Science Foundation
and the resulting vacancy.
The incumbent Director of the National Science Founda-
tion was appointed on July 1, 1963, for a term of six years.
See National Science Foundation Act of 1950, section 5(a),
23 amended, 42 U.S.C. 1364a. His term therefore will expire
00 June 30, 1969. The 1968 amendments to the National
Science Foundation Act also provide for the appointment by
the President, by and with the advice and consent of the
Sanate, of a Deputy Director and of four Assistant Directors,
42 U.S.C. 1864. We have, however, been advised by the General
Counsel of the National Science Foundation that these offices
have not been filled as of this date.
The memorandum forwarded to you by the National Science
Foundation indicates that if the President should designate
an Acting Director of the National Science Foundation, the
designee would have at least the status of a de facto officer.
It would seem to this Office that the President has the power
to designate a person to perform the functions of the Direc-
tor of the National Science Foundation. The matter. however,
is not free from doubt, a factor which we assume will be
taken into account in deciding whether the power should be
exercised. In this connection we might point out that virtu-
all7 all of the effects of the proposed designation of an
Acting Director can be achieved under existing delegations
to the Executive Associate Director.
I.
The President's powers to appoint officers
and to designate an officer charged with
the performance of the duties of an Office
which is vacant.
A. Regular Appointments
The regular method of filling offices in the Constitu-
tional sense (except as to "inferior officers") is by Presi-
dential appointment, by and with the advice and consent of the
Sanate. Constitution, Article II, section 2, clause 2. This
method of appointing 2 new Director of the National Science
Foundation is, of course, envisaged. Although the President
has announced his intention to nominate a new Director, it
appears, however, that it is not feasible to obtain the re-
quired Senatorial advice and consent prior to the expiration
OÉ the term of the incumbent Director.
B. Recess Appointments
Article II, section 2, clause 3 of the Constitution
enables the President "to fill up all Vacancies that may
happen during the Recess of the Senate." This method of
appointment is not available now. The Senate is not in
racess now and does not plan to take an extended recess in
connection with Independence Day.
C. The Vacancies Act, 5 U.S.C. (Supo. IV) 3345-3349
These sections, which go back to the Vacancies Act of
1868, provide the manner in which vacancies resulting from
the death, resignation, sickness or absence of a head of an
Executive or military department, or of an officer of a
Bureau of such departments, may be filled. They are not
applicable here because the National Science Foundation is
neither a military department nor an Executive department
as defined in 5 U.S.C. 101.
- 2 -
It may also be noted that those sections provide that
vacancies resulting from death or resignation may be filled
for not more than thirty days.
D. The President's bower to designate acting officials
in the absence of a specific statutory authorization
As indicated above, the Vacancies Act does not cover all
vacancies in the Executive branch of the Government. With
respect to the "departments," as defined in 5 U.S.C. 101, it
covers only the department heads and bureau officers, and
does not apply at all to those components of the Executive
branch which are not Executive departments, in particular
the "independent establishments," as defined in 5 U.S.C.
104 (1), of which the National Science Foundation is one.
IE the Vacancies Act is the only source of the President's
power to direct persons temporarily to perform the duties of
an office, it would follow that his power is limited to the
offices covered by it. However, if the Vacancies Act is not
the sole source or the President's power in this respect, but
rather 1a 3 regulation and limitation of a Presidential power
derived directly from the Constitution, it follows that the
Vacancies Act does not preclude the President from designating
acting officers in agencies not covered by the Act.
The pertinent views of the various Attorneys General in
this field have not been uniform. Compare, e.g., 27 Oo. A.G.
337; 23 id. 485; 33 1d. 298, with 6 1d. 357, 367; 25 id. 258;
37 id. Upon further reflection and reexamination of the
problem we have concluded that the second alternative is the
correct one. In our view, the power to designate acting
officials constitutes one of those necessary and essential
Presidential powers which implement his responsibilities for
the proper operation of the Srecutive branch. For the exer-
cise of that power no specific statutory suthorization is
required. On the other hand, it cannot be exercised in
violation of applicable statutes. This attribute of Presi-
dential power would appear to fall into the penumbra between
the Executive and Legislative branches, where the President
can act if Congress has been silent on the subject, but where
- 3 -
Congress by legislation can curtail or regulate the President's
power. See, e.g., United States V. McDaniel; 7 Pet. 1, 14-15;
Youngstown Co. V. Sawyer, 343 U.S. 579, 637-638 (Jackson, J.,
concurring).
Our view, that the Vacancies Act is not the source of,
but a limitation on, the Presidential power to designate acting
officials also has the support of historic practice. For
instance, from the establishment of the Department of the Navy
in 1798 until 1863, there was no statutory provision for the
appointment of an Acting Secretary of the Navy in the case of
the death, resignation, illness, or absence of the Secretary.
Nevertheless, there were, during that period, at least six
instances in which the office of the Secretary of the Navy
was held at interim, i.e., by an Acting Secretary, who was
appointed neither by and with the advice and consent of the
Senate, nor during the recess of the Senate, nor designated
pursuant to the limited provisions of the Vacancies Act of
1795, 1 Stat. 415, which did not apply to the Secretary of the
Navy. Biographical Directory of the American Congress 1774-
1961, PP. 14-18. Similarly, a tabulation prepared in 1966 by
the Executive Assistant to the President shows a number of
instances in which Presidents have made designations of Acting
Heads of Independent Establishments despite the fact that the
Vacancies Act makes no provision therefor.
Our conclusion that the President has the power to desig-
nate an Acting Director of the National Science Foundation,
however, does not necessarily mean that he should exercise
it. It has been shown that there are Opinions of the Attorney
General which would seem to deny the existence of this power.
Moreover, the exercise by the President of a nonstatutory
power sometimes leads to Congressional repercussions.
II.
The delegations to the Executive Associate
Director of the National Science Foundation.
Section 5 (c) of the National Science Foundation Act, as
amended, 42 U.S.C. 1364 (c), provides:
- 4 -
"(c) Delegation and redelegation of functions.
"The Director may from time to time make
such provisions as he deems appropriate author-
izing the performance by any other officer, agency,
or employee of the Foundation of any of his
functions under this chapter, including functions
delegated to him by the Board: except that the
Director may not redelegate policymaking functions
delegated to him by the Board."
We have been advised by the General Counsel of the
National Science Foundation that the Director of the Founda-
tion has delegated all his powers to the extent legally
possible to the Executive Associate Director of the Foundation.
It is well-established that such delegations do not terminate
when the principal ceases to be in office. 18 Op. A.G. 50;
see also 42 id. No. 24, PP. 4-5.
Hence, after the expiration of the term of the Director,
the Executive Associate Director will continue to be vested
with all the powers of the Director, except the powers relat-
ing to policymaking functions delegated to the latter by the
National Science Board. In these circumstances the Founda-
tion is able to continue its day by day operation and there
is no apparent occasion for the designation by the President
of an Acting Director. Moreover, the President has already
announced his intention to nominate Dr. McElroy as Director.
His appointment therefore presumably can be effectuated within
a reasonable time.
William H. Rehnquist
Assistant Attorney General
Office of Legal Counsel
- 5 -
THE WHITE HOUSE
WASHINGTON
April 3, 1981
MEMORANDUM FOR RICHARD A. HAUSER
FROM:
MICHAEL LUTTIG gmd.
SUBJECT:
The Vacancies Act and Its Effect on Temporary
Presidential Designations
You have asked that I outline provisions of the law which
relate to the temporary filling of positions within the
Executive Branch by the President. Given the size of the
Executive Branch of the government and the number of positions
to be filled and which have already been filled therein,
there are a myriad of ways in which issues concerning the
scope and duration of authority of temporary or interim
Presidential designations might arise. One cannot anticipate
all of these, but the following can provide guidelines for
thought.
I. The Vacancies Act: Temporary Succession By Operation
Of Law and By Presidential Designation Within Executive
And Military Departments
In the Vacancies Act, 5 U.S.C. §§ 3345-3349, the Congress
vested authority in the President to make temporary designations
to principal positions (defined as the heads of departments
or the chiefs of bureaus therein) in the Executive and
military departments of government when vacancies arise.
Id. § 3347. Section 3347 reads, in relevant part, as follows:
The President may direct the head of another
Executive department or military department or
another officer of an Executive department or
military department, whose appointment is vested
in the President, by and with the advice and
consent of the Senate, to perform the duties of
the office until a successor is appointed or the
absence or sickness stops. (emphasis added)
2
The scope of the terms "Executive department" and "military
department" are expressly circumscribed by §§ 101 and 102 of
Title 5. Section 101 enumerates those departments which are
encompassed by the technical term "Executive departments."
Included in the enumeration are the Departments of State,
Treasury, Defense, Justice, Interior, Agriculture, Commerce,
Labor, Health and Human Services, Housing and Urban Development,
Transportation, Energy, and Education. Section 102 enumerates
those departments which are encompassed by the term "military
departments." Included within Section 102 are the Departments
of the Army, Navy, and Air Force. Any authority of the
President to make temporary or interim designations to
Executive branch entities other than those enumerated above,
cannot emanate from provisions of the Vacancy Act. This is
not to say, though, that no such authority exists (see
discussion, infra).
If the President makes an appointment pursuant to Section 3347,
by operation of 5 U.S.C. § 3348, it is limited to a period
of 30 days. Moreover, once a vacancy is filled pursuant to
the President's authority under § 3347, his authority under
the statute with respect to the particular position temporarily
filled, is exhausted -- he is thereafter without power
either to designate again the same officer or to designate
another officer to fulfill the obligations of the vacant
office. 16 Op. Atty. Gen. 596 (1880) ; see, also, 17 Op. Atty.
Gen. 530 (1883) 18 Op. Atty. Gen. 50 (1884).
The authority of the President to designate temporarily an
officer to fulfill the duties of principal positions within
the Executive and military departments, is but one alternative
provided by the Congress for the temporary filling of such
positions upon vacancy. The President need not avail himself
of this authority. If he chooses not to exercise this
authority, Sections 3345 and 3346 of Title 5 become operative.
Both sections provide for a natural succession in the event
of vacancy, and absent a Presidential directive. Section
3345 provides that, absent a Presidential directive under
Section 3347, "[w]hen the head of an Executive department or
military department dies, resigns, or is sick or absent, his
first assistant
shall perform the duties of the office
until a successor is appointed or the absence or sickness
stops.' " Section 3346 provides, similarly, that absent
Presidential directive, "[w]hen an officer of a bureau of an
Executive department or military department, whose appointment
is not vested in the head of the department, dies, resigns,
or is sick or absent, his first assistant
shall perform
the duties of the office until a successor is appointed or
the absence or sickness stops."
The 30-day limitation on temporary designations mandated by
Section 3348 applies as well to a succession without Presidential
action under Sections 3345 and 3346 as it does to a Presidential
3
designation pursuant to Section 3347. 32 Op. Atty. Gen. 139
(1920) ; 17 Op. Atty. Gen. 535 (1883).
There is some conflict on whether the 30-day period to which
Section 3348 refers begins to run on the date that the
vacancy arises or on the date that the temporary officer
assumes his official duties. It is purely a matter of
statutory construction and it may become important depending
upon the circumstances. Section 3348 reads as follows:
A vacancy caused by death or resignation may be
filled temporarily under Section 3345, 3346, or
3347 of this title for not more than 30 days.
If the vacancy is filled as a result of statutory succession
under either Section 3345 or 3346, the time between creation
of the vacancy and statutory divestiture of authority should
rarely exceed 30 days, since the named assistant, presumably
in office at the time, will immediately assume responsibility
upon the vacancy. Under these circumstances, the authority
of the acting officer divests 30 days from the time of
vacancy. This would be no less true where the time of
vacancy and that of Presidential designation pursuant to
Section 3347 are coterminous.
Were there to be a lapse of time between creation of the
vacancy and succession either by operation of law pursuant
to Section 3345 or 3346, or by Presidential designation
under Section 3347, however, it is not clear whether the 30
days limitation would be held to have run from the date of
succession or designation or from the date of vacancy. Two
memoranda from the Office of Legal Counsel (OLC) of the
Department of Justice suggest different interpretations of
the statutory provision. But, in neither memorandum was
this particular issue under consideration and in both the
issue was noted only incidentally. Says one, "[u]nder 5
U.S.C. 3348, however, a person filling a vacancy by virtue
of § 3345 may not do so for more than 30 days." Memorandum
for the Honorable Robert J. Lipshutz regarding Status of the
Acting Director of the Office of Management and Budget,
December 22, 1977; says the other, "[t]he temporary filling
of a vacancy under 5 U.S.C. §§ 3346 and 3347, however, is
limited to a period of thirty days running from the beginning
of the vacancy. 5 U.S.C. § 3348." Memorandum for Margaret
McKenna regarding Vacancy in the Office of the Commissioner
of Education, July 30, 1979.
A construction identical to that in the latter memorandum
above was also suggested in an OLC memorandum of June 15, 1977.
Memorandum from John M. Harmon for the Associate Counsel to
the President regarding Power of the President to Designate
Acting Member of the Federal Home Loan Bank Board. Therein,
4
in a footnote, the author asserts that the Attorney General
has interpreted 5 U.S.C. § 3348 to mean that the power of an
acting official ends on the thirtieth day following the day
on which the vacancy arose. Although at first blush, this
assertion would appear dispositive, the author cites as
authority for this proposition the opinion of the Attorney
General in a case in which the Undersecretary of State
became Acting Secretary of State immediately upon the
resignation of the Secretary. 32 Op. Atty. Gen. 139 (1920).
The time of vacancy and that of assumption of duty by the
acting official were one in the same. The issue whether the
statutory time period began to run upon vacancy or upon
succession, thus, was not raised by the facts.
The actual language used by the Attorney General in the 1920
Opinion cited was as follows:
Where a vacancy occurs in the Office of Secretary of
State, it can not be temporarily filled for a longer
period than 30 days, either by statutory succession or
by designation of the President
One can find within this language support for either of the
interpretations of the statute given in the aforementioned
memoranda. It is probably this language which permitted the
different interpretations.
Nevertheless, the discrepancies seem irreconcilable. And
resolution of the problem is especially important during the
early days of a new Administration when authority is fluid.
The problem may arise in any of several contexts. Where the
time of vacancy and that of Presidential designation or
succession by operation of law are contemporaneous, as noted
previously, the interpretive problems are minimal. The
person filling the position may do so for no more than 30
days. But suppose instead that there is a lapse of time
before the President makes a temporary designation under
Section 3347. The question would become whether the time
between the knowledge of the vacancy and the actual designation
must be subtracted from the permitted, statutory period of
30 days to yield the total number of days during which the
temporary officer is vested with legal authority to act, or
whether he, personally, is statutorily granted 30 days
within which to conduct business with full authority. The
better view probably is that articulated by the Attorney
General -- in an opinion that dealt with a temporary Presidential
designation -- that computation of the period must begin
from the date the President designated the official to fill
the temporary vacancy and not from the date the vacancy
arose. 15 Op. Atty. Gen 457 (1878). This assessment is
premised on both a judgment that the authors of the memoranda
which take the contrary posture were not at the time addressing
this narrow issue, and the fact that the Attorney General in
5
his 1878 opinion above did address the specific issue and
reached the conclusion cited. In addition, this conclusion
would comport best with a strict construction of Section 3348
itself, Congress having chosen as it did to say that positions
may not be "filled" temporarily for in excess of 30 days.
The term "filled" clearly implies that an officer is in
position and responsible for the discharge of duties.
This conclusion, I suggest, is not one to be tested needlessly,
given the authority which apparently suggests an opposite
interpretation. The President would be well advised to make
Section 3347 designations as quickly as possible after
notification of vacancy. If the problem must be addressed
in retrospect, the best solution is to ensure that nominations
to such positions are made as soon as practicable so that,
arguably, the burden is shifted to the Senate to perform its
"advice and consent" function expeditiously.
Whether one succeeds to a position by operation of law under
Sections 3345 or 3346, or assumes authority by virtue of
Presidential designation under Section 3347, it appears
settled that his power cannot extend beyond the 30-day
limitation imposed by Section 3348 (whether the statute
begins to toll upon vacancy or upon assumption of duty is
immaterial at this juncture). It follows that action taken
beyond the 30-day period by an official acting pursuant to
the Vacancy Act provisions is without legal effect. Numerous
cases note as much in dicta. See e.g., U.S. V. Guzek, 527
F.2d 552, 559 (CA 8 1975) ; Williams V. Phillips, 482 F.2d
669, 671 (CA D.C. 1973) ; U.S. V. Lucido, 373 F. Supp. 1142,
1149 (D.C. E.D. Mich. 1974). The efforts that have been
made to circumvent, rather than directly challenge what is
perceived as this unavoidable construction are but further
evidence of its validity. In addition, in a 1920 opinion,
the Attorney General adopted the same view of the Section.
32 Op. Atty. Gen. 139 (1920). In the circumstances which
gave rise to that Opinion, the Undersecretary of State by
operation of the Vacancy Act provisions became Acting Secretary
of State upon the resignation of the Secretary of State. A
nomination to be Secretary of State was submitted by the
President. Subsequently, the Acting Secretary apprised the
Attorney General that the 30 days permitted under Section
3348 had expired, without confirmation of the nominee, and
asked the Attorney General for an opinion as to his status.
The Attorney General responded that subsequent to the period
of temporary occupancy and prior to confirmation by the
Senate of the President's nomination, "it is probably safer
to say that you should not take action in any case out of
which legal rights might arise which would be subject to
review by the courts." This decision has not been seriously
questioned in the intervening years since its rendition.
6
The inability of the acting officer to act beyond the statutory
30-day period, however, need not hamstring the entire department
or even a unit within the department. Many of the duties of
the official in question may have been assigned or delegated
to subordinates. Such assignments and delegation if made in
timely fashion would likely remain in effect during a period
of vacancy. It would only remain to be considered whether
vested in the principal position were any non-delegable
duties.
II. Temporary Presidential Designations To Positions Within
The Executive Branch But Outside The Reach Of The Vacancy Act
The Vacancy Act, as discussed, applies by its terms only to
the heads of Executive and military departments and officers
of bureaus within Executive and military departments as
enumerated in 5 U.S.C. §§ 101 and 102. There are entities
and organizations within the Executive branch of the government
which are not included in either the statutory definition of
"Executive department" or that of "military department."
The Federal Reserve Board and the Office of Economic Opportunity,
and the Office of Management and Budget are but several of
the many excepted entities. These excepted Executive branch
entities are discussed in 5 U.S.C. §§ 104, 105, and referred
to as "government corporations" and "independent establishments,"
respectively.
The question arises whether, absent statutory authority, the
President has the power to make temporary designations
within these excepted organizations. The Office of Legal
Counsel in the Department of Justice takes the position that
the President has such authority but that to avoid challenge,
the President should formally nominate a person for the
position within a reasonable time after he designates the
acting official. Memorandum of June 15, 1977 from John M. Harmon
to the Associate Counsel to the President, regarding the
Power of the President to Designate Acting Member of the
Federal Home Loan Bank Board. The position taken by the
Office of Legal Counsel is predicated upon a subtle but
careful analysis of both the original and appellate decisions
in a recent case that challenged the President's power to
make an interim designation, absent statutory limitation, to
an Executive agency not within the scope of the Vacancy Act
provisions. Williams V. Phillips, 360 F. Supp. 1363 (D.C.
D.C. 1973), motion den., 482 F.2d 669 (CA D.C. 1973).
7
In Williams V. Phillips, the President appointed an Acting
Director of the Office of Economic Opportunity (OEO). There
was no provision in the Economic Opportunity Act of 1964 for
the appointment of an Acting Director. Four United States
Senators brought suit to remove the defendant from his
position as Acting Director because he had not been appointed
by the President and confirmed by the Senate as Director of
OEO as required by 42 U.S.C. § 2941 (a) (1970). Plaintiffs
conceded that the designation could have been made by the
President pursuant to the Vacancies Act, but contended that
even if it had been so made, the 30 days permitted under
Section 3348 for such designations had expired 3-1/2 months
prior to suit. The defendant urged that the President's
Constitutional directive to "take Care that the Laws be
faithfully executed,' Art. II §3, carries with it the constitutional
authority without restriction to appoint officers temporarily
to Executive branch positions outside the Executive and
military departments.
The District Court held that, absent statutory authorization,
the President could not make a temporary appointment to a
position with the OEO which requires Senate confirmation.
The Government sought a stay in the Court of Appeals, but
the request was denied. 482 F.2d 669 (1973). The denial,
however, was not grounded in the theory articulated by the
District Court, and it is this disparate analysis by the
Court of Appeals which the Office of Legal Counsel has
relied upon for its conclusion that the President does have
authority to make interim designations to an Executive
agency not within the scope of the Vacancy Act, absent
statutory limitation, if a nomination is submitted within a
reasonable time after designation. The critical language of
the Court of Appeals is as follows:
It could be argued that the intersection of the
President's constitutional obligation to "take
care that the laws be faithfully executed" and his
obligation to appoint the director of OEO "with
the Advice and Consent of the Senate" provides the
President an implied power, in the absence of
limiting legislation, upon the resignation of an
incumbent OEO director, to appoint an acting
director for a reasonable period of time before
submitting the nomination of a new director to the
Senate.
482 F.2d 669, 670.
The Court went on to say that the "reasonable time" required
by the President to select persons for nomination is the 30-
day period in the Vacancies Act. Id. at 671. Arguably
then, it was only because the acting director served for a
period far in excess of the reasonable time period, as
defined by the Court, before a nomination was submitted (4-
1/2 months) that the stay was denied.
8
Although not without its potential pitfalls, the construction
given the above-quoted passage by the Office of Legal Counsel
permits temporary designations by the President to agencies,
boards and organizations within the Executive Branch, but
not within the Executive departments and military departments,
absent statutory limitation, if the President submits a
nomination prior to termination of a "reasonable" time
following designation. Moreover, and perhaps more significantly
for our purposes now, the Office of Legal Counsel, by extrapolation
from Williams V. Phillips, 482 F.2d 669 (1973), concludes
that if a timely nomination is made, the acting officer may
legally serve for a period beyond the 30 days to which
persons designated pursuant to Vacancy Act provisions are
subject. Memorandum of June 15, 1977, from John M. Harmon
for the Associate Counsel to the President regarding the
Power of the President to Designate Acting Member of the
Federal Home Loan Bank Board. This view if accepted by a
tribunal would permit service, after a timely nomination,
presumably until the nomination is acted upon by the Senate.
The permissibility of such an extended tenure would sooner
be acknowledged, note, were, by analogy to 5 U.S.C. § 3347,
the acting officer prior to his designation, an official
appointed after Senate confirmation. Id. The argument that
the President has such authority would be bolstered even
further if it could be shown that a vacancy in the position
would seriously hamstring the capability of the agency or
organization to discharge its responsibilities. Finally, it
should be remembered that, despite the consistency with
which the Office of Legal Counsel has espoused the above
view of Presidential authority, the question has yet to be
squarely addressed. That the judiciary has yet to address
fully and directly the issue, suggests that a degree of
circumspection with regard both to advice and action is
well-advised.
III. Vacancies For Which Express Statutory Provision Has
Been Made By Congress
The provisions of the Vacancy Act and the power of the
President, absent statutory limitation, to make temporary
designations to positions within the Executive branch but
without the scope of the "Executive and military departments,"
are inapplicable where, by statute, Congress has expressly
provided for a chain of succession in the case of vacancy.
If an express statutory provision governing succession
exists, it may or may not embody a time period beyond which
the acting official may not legally act. If the statute
does provide for a time limitation on his authority, it
controls. If no specific statutory time limitation is
imposed, it must not be concluded that the acting official,
even though he holds office by operation of law, may act
legally for an indefinite period. To the contrary, it has
been advised that if his tenure as an "acting" official
extends beyond a reasonable time, any actions beyond such
9
time are subject to challenge. Memorandum of December 22, 1977,
from John M. Harmon for Robert J. Lipshutz regarding Status
of the Acting Director of the Office of Management and
Budget.
In the circumstances which gave rise to the preceding memorandum,
the Deputy Director of OMB, by operation of 31 U.S.C. § 16
(1975 Supp.), became Acting Director of OMB upon a vacancy
in the Office of the Director. There was no statutory
limitation on the period during which the Acting Director
could serve. The Vacancy Act provision did not apply
because OMB was not an "Executive department" within the
meaning of 5 U.S.C. § 101. The Office of Legal Counsel
reasoned that although the Senate, when it considers a
nomination to the position of Deputy Director, realizes
concomitantly that the nominee may at some point become
Acting Director, implicit in Congressional creation of two
distinct positions -- Director and Deputy Director -- is
that the Deputy may not properly serve indefinitely as
Acting Director. The Office believed that the 30-day limitation
was inapplicable, but that service should not continue
beyond a reasonable time, as delimited by circumstances of
the individual case. Ingredients in the determination of
whether the time served was "reasonable" were to include the
particular functions being performed by the acting officer;
the manner in which the vacancy was created; the time when
the vacancy was created; whether the President has forwarded
his desired nomination to the Senate; and the President's
ability to devote attention to the matter. Memorandum,
December 22, 1977, supra. In the case presented to it, the
Office of Legal Counsel held that three months as Acting
Director of OMB was not unreasonable.
Additional authority exists in support of the conclusion
drawn by the Office of Legal Counsel. In United States V. Halmo,
386 F. Supp. 593 (1974), pursuant to 28 U.S.C. § 508, and
not because of 5 U.S.C. § 3345, Solicitor General Bork had
become Acting Attorney General of the United States. He
subsequently issued orders which authorized applications for
the interception of wire and oral communications, authorizations
which were not affected within 30 days after he assumed
office as Acting Attorney General. Defendants urged that
the authorizations were invalid in that they were issued
after 30 days from the date of Mr. Bork's assumption of
duties as acting Attorney General. The court summarily
rejected defendants' claim stating simply that, "[t]here is
no time limitation imposed on those who acquire office
through § 508 (b) 386 F. Supp. 593, 595. See also,
U.S. V. Pellicci, 504 F.2d 1106, 1107 (CA 1 1974), cert.
den., 419 U.S. 112, 95 S. Ct. 805, 42 L. Ed 2d 821 (1975) ;
U.S. V. Guzek, 527 F.2d 552 (CA 8 1975). Factually, the
wiretap authorizations had occurred over two months after
Solicitor General Bork became Acting Attorney General.
10
In summary, thus, no court has specifically addressed the
issue of the precise time within which an acting officer,
whose acting status is affected by an express statutory
provision governing succession, may legally serve. It is
clear that he is not subject to the 30-day limitation of 5
U.S.C. § 3348 (unless the statute so provides by coincidence).
But it seems equally clear that even he may not serve beyond
what might be understood to be a "reasonable" time period,
lest the intent of Congress that such officers be subject to
Senate confirmation be frustrated.
IV. Recess Appointments by the President
The statutory and constitutional Presidential power to
appoint, designate, or assign temporarily an official to
fill a vacancy during a recess of the Senate is unencumbered
by the type of ambiguity that attends the Vacancy Act.
Art. II, section 2, clause 3 of the Constitution provides:
The President shall have Power to fill up all
Vacancies that may happen during the Recess of the
Senate, by granting Commissions which shall expire
at the End of their next Session
This Presidential power to make recess appointments is
statutorily acknowledged by the Congress in 5 U.S.C. § 3349.
It is undisputed that this power is not limited to vacancies
that occur during the recess but rather, extends to all
vacancies that exist during a recess. 41 Op. Atty. Gen.
463 (1960) ; 16 Op. Atty. Gen. 522 (1880). The precise time
when the vacancy arose is immaterial.
Originally the Congress, although it acknowledged the President's
authority to make recess appointments, sought to frustrate
its exercise by prohibiting salary payments from the Treasury
for persons who took a recess appointment if the vacancy
existed while the Senate was in session. 5 U.S.C. § 56.
Today, however, by virtue of amendments to the original
statute, certain classes of appointments are excepted from
the salary proscription. 5 U.S.C. § 5503 (a). Thus, the
Treasury may make salary disbursements to persons who took
office under a recess appointment (1) if the vacancy arose
within 30 days before the end of the session of the Senate;
(2) if, at the end of the session, a nomination for the
office, other than the nomination of an individual appointed
during the preceding recess of the Senate, was pending
before the Senate for its advice and consent; or (3) if a
nomination for the office was rejected by the Senate within
30 days before the end of the session and an individual
other than the one whose nomination was rejected thereafter
receives a recess appointment. Id. By operation, however,
of 5 U.S.C. § 5503 (b), even this compensation is prohibited
if the President fails to submit a nomination for the position
to the Senate within 40 days after the beginning of the next
session. The submission requirement would include resubmission
of nominations pending but not acted upon at the time of
adjournment.
11
The question that might well be posed with respect to a
recess appointment made by the President is whether the
duration of the recess is sufficient in length to engage the
statute -- whether "recess" refers solely to the termination
of a session of the Senate or whether a temporary adjournment
will suffice. The Attorney General has determined that a
temporary adjournment of a length that prevents the Senate
from discharging its duty of advice and consent will suffice.
41 Op. Atty. Gen. 462 (1960). This practical standard was
first articulated by the Attorney General almost forty years
prior, 33 Op. Atty. Gen. 20 (1921), in an opinion which
relied heavily upon early opinions of Attorneys General, 1
Op. Atty. Gen. 631 (1823); 12 Op. Atty. Gen. 32 (1866), case
law, Gould V. U.S., 19 C. Cls. 593, and a Senate Committee
Report in which the term "recess" as used in Art. II,
section 2, clause 3 of the Constitution was construed. S.
Rep. No. 4389, 58th Cong., 3d Sess. (1905).
The Senate Report interpreted the term "recess" in the
following manner:
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.
Id.
The opinion of the Attorney General then went on to hold in
consideration of this language that the adjournment of
Congress from August 24 to September21, 1922, constituted a
"recess" within the meaning of Article II.
In the concluding portion of the Opinion, 33 Op. Atty. Gen.
20, 24-25 (1920), the Attorney General addressed the problems
presented by a Senate adjournment of only a few days,
concluding that ultimately it is,
a matter of sound Presidential discretion to determine
whether or not there was a real and genuine recess
making it impossible for the Senate to give its advice
and consent to executive appointments.
Id. at 25.
Although the Attorney General admitted that the line of
demarcation is difficult, he did say that a recess of 5 or
even 10 days cannot be said to constitute the kind of recess
contemplated by the Framers. Id.; See also, 23 Op. Atty.
Gen. 599 (1901).
12
The only issue which remains and which it might be sound
judgment to address here is the period during which recess
appointments are valid. Article II, section 2, clause 3
specifies that Commissions granted pursuant thereto "shall
expire at the end of their [the Senate's] next session." If
the Senate were to recess in the middle of a Session, and
reconvene, for instance, one month later, but prior to the
end of the Session which began before its recess, appointments
made during the recess would not expire until the end of the
Session which follows adjournment of the Session begun
before the recess. It is the formal definition of a Congressional
"Session" to which the Article refers. In the example
above, the return of Congress following the recess is not
the next session the conclusion of which would carry with it
termination of recess appointments; rather, it is merely a
continuation of the session that was in order prior to the
recess. See, 41 Op. Atty. Gen. 463 (1960).