Authority of the Comptroller General to Appoint an Acting Comptroller General
T h e C o m p tro lle r G e n e ra l is a u th o riz e d to d esig n ate an em p lo y ee o f th e G e n e ra l A c co u n tin g O ffice to a ct as C o m p tro lle r G e n e ra l in his absence, e v e n if the O ffice o f D e p u ty C o m p tro lle r G e n e ra l is v acant.
A c tin g h eads o f ag en cies h a v e p o w e rs th at are c o m m e n su ra te w ith th o se o f a g e n c y heads w h o h a v e b een co n firm ed b y th e S enate.
June 13, 1980 M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL, D E PA R TM EN T O F TH E TREASURY
This responds to your inquiry whether the Comptroller General may designate an employee of the General Accounting Office (GAO) to act as Comptroller General during his absence.1 In particular, you have asked whether a GAO employee may be designated to serve as Comp troller General for purposes of action taken by the Chrysler Corpora tion Loan Guarantee Board, of which the Comptroller General is a member. The core issue here is whether the Comptroller General may desig nate an employee of the General Accounting Office to act as Comptrol ler General pursuant to 31 U.S.C. § 43a, which provides: The Comptroller General shall designate an employee of the General Accounting Office to act as Comptroller General during the absence or incapacity o f the Comptroller General and the Deputy Comptroller General, or during a vacancy in both o f such offices. (Emphasis added.) It might be argued that the italicized language signals Congress’ intent only to authorize the designation of an Acting Comptroller General in two situations: when both the Comptroller General and Deputy Comp troller General are absent or incapacitated, or when both offices are vacant. On this reading, the provision would not cover the present case, in which the Comptroller General is absent and the office of Deputy Comptroller General is vacant.
1 You have m ade this inquiry in your capacity as G eneral Counsel to the C hrysler C orporation Loan G u aran tee Board, established pursuant to Pub. L. No. 96—185, § 3 , 93 Stat. 1324, 15 U.S.C. §§ 1861 et seq.
690 However, such a narrow interpretation ignores the well-established principle of statutory construction that literal interpretations of statutes are not to be favored at the expense of the statute’s evident purpose and history. See, e.g., Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 9-10 (1976); United States v. Public Utilities Commission. 345 U.S. 295, 315 (1953); Church o f the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). The evident aim of 31 U.S.C. § 43a is to provide a mechanism whereby an Acting Comptroller General may be designated when the Comptroller General and Deputy Comptroller General are unavailable to perform the Comptroller General’s duties. This purpose is not served by distinguishing between situations in which the Comp troller General and Deputy Comptroller General are both either absent or incapacitated or in which both offices are vacant, on the one hand, and situations in which one of the officers is absent or incapacitated and the other office is vacant, on the other hand. Furthermore, the legislative history confirms that Congress did not intend to so limit the provision’s application. The provision—enacted as part of the Independent Offices Appropriation Act of 1945, June 27, 1944, ch. 286, Title I, 58 Stat. 371—was introduced as a floor amend ment at the urging of the Comptroller General. See 90 Cong. Rec. 3069-70 (1944). The clearest statement of its purpose appears in the Comptroller General’s letter proposing it, which states in pertinent part: The need for legislation of the character here proposed is apparent in the recent history of the General Account ing Office. During the period from July 1, 1936, to April 10, 1939, and for a considerable period in 1940, the office of Comptroller General was vacant. The then Assistant Comptroller General [now the Deputy Comptroller Gen eral 2] acted as Comptroller General, pursuant to law, but there was no other officer specifically authorized by law so to act in the event o f his absence or incapacity or in the event he had resigned or retired or his term had ended. . . . (Emphasis added.)3 The provision thus was designed specifically to cover a situation in which the office of the Comptroller General was vacant and it was feared that the Assistant (now Deputy) Comptroller General might become absent or incapacitated or that he might resign or retire. It was plainly not intended to be confined to situations in which both officers were either incapacitated or absent, or in which both offices were vacant.4
2 T he Assistant C om ptroller G eneral was designated D eputy C o m ptroller G eneral pursuant to Pub. L. No. 92-51, 85 Stat. 125, 143 (1971). 3 90 C ong. Rec. 3070 (1944). 4 See also 90 C ong. Rec. 5171 (1944).
691 We therefore conclude that 31 U.S.C. § 43a authorizes the Comptrol ler General, in present circumstances, to designate an employee of the G A O to act as Comptroller General during his absence. It is established that acting heads of agencies have powers that are commensurate with those of agency heads who have been confirmed by the Senate. See, e.g., Ryan v. United States, 136 U.S. 68, 81 (1890); Marsh v. Nichols, Shepard & Co., 128 U.S. 605, 615 (1888); Shafer v. United States, 229 F.2d 124, 129 (4th Cir. 1956); Anderson v. P.W. Madsen Investment Co., 72 F.2d 768, 770-71 (10th Cir. 1934); Aderhold v. Menefee, 67 F.2d 345, 346 (5th Cir. 1933); cf. Keyser v. Hitz, 133 U.S. 138, 145-46 (1890). There is no indication in the language of the Chrysler Corporation Loan Guarantee Act of 1979, Pub. L. No. 96-185, 93 Stat. 1324, 15 U.S.C. § 1861 et seq. (1980), that Congress intended to create an excep tion to this fundamental precept in the context of the Chrysler Corpora tion Loan Guarantee Board.5 Accordingly, we believe that the Acting Comptroller General is legally authorized to serve as Comptroller Gen eral in the context of actions taken by that Board during the Comptrol ler General’s absence.6 L arry A. H am m ond Deputy Assistant Attorney General Office o f Legal Counsel
* Section 3 o f the A ct establishes the C h ry sler C orp o ration Loan G u arantee Board, "w hich shall consist o f the Secretary o f the T reasu ry w ho shall be the C hairperson o f the Board, the C hairm an of the Board o f G o v ern o rs o f the Federal R eserve System, and the C om ptroller G eneral o f ihe United States.” IS U.S.C. § 1862.
Free access — add to your briefcase to read the full text and ask questions with AI
Authority of the Comptroller General to Appoint an Acting Comptroller General
T h e C o m p tro lle r G e n e ra l is a u th o riz e d to d esig n ate an em p lo y ee o f th e G e n e ra l A c co u n tin g O ffice to a ct as C o m p tro lle r G e n e ra l in his absence, e v e n if the O ffice o f D e p u ty C o m p tro lle r G e n e ra l is v acant.
A c tin g h eads o f ag en cies h a v e p o w e rs th at are c o m m e n su ra te w ith th o se o f a g e n c y heads w h o h a v e b een co n firm ed b y th e S enate.
June 13, 1980 M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL, D E PA R TM EN T O F TH E TREASURY
This responds to your inquiry whether the Comptroller General may designate an employee of the General Accounting Office (GAO) to act as Comptroller General during his absence.1 In particular, you have asked whether a GAO employee may be designated to serve as Comp troller General for purposes of action taken by the Chrysler Corpora tion Loan Guarantee Board, of which the Comptroller General is a member. The core issue here is whether the Comptroller General may desig nate an employee of the General Accounting Office to act as Comptrol ler General pursuant to 31 U.S.C. § 43a, which provides: The Comptroller General shall designate an employee of the General Accounting Office to act as Comptroller General during the absence or incapacity o f the Comptroller General and the Deputy Comptroller General, or during a vacancy in both o f such offices. (Emphasis added.) It might be argued that the italicized language signals Congress’ intent only to authorize the designation of an Acting Comptroller General in two situations: when both the Comptroller General and Deputy Comp troller General are absent or incapacitated, or when both offices are vacant. On this reading, the provision would not cover the present case, in which the Comptroller General is absent and the office of Deputy Comptroller General is vacant.
1 You have m ade this inquiry in your capacity as G eneral Counsel to the C hrysler C orporation Loan G u aran tee Board, established pursuant to Pub. L. No. 96—185, § 3 , 93 Stat. 1324, 15 U.S.C. §§ 1861 et seq.
690 However, such a narrow interpretation ignores the well-established principle of statutory construction that literal interpretations of statutes are not to be favored at the expense of the statute’s evident purpose and history. See, e.g., Train v. Colorado Public Interest Research Group, Inc., 426 U.S. 1, 9-10 (1976); United States v. Public Utilities Commission. 345 U.S. 295, 315 (1953); Church o f the Holy Trinity v. United States, 143 U.S. 457, 459 (1892). The evident aim of 31 U.S.C. § 43a is to provide a mechanism whereby an Acting Comptroller General may be designated when the Comptroller General and Deputy Comptroller General are unavailable to perform the Comptroller General’s duties. This purpose is not served by distinguishing between situations in which the Comp troller General and Deputy Comptroller General are both either absent or incapacitated or in which both offices are vacant, on the one hand, and situations in which one of the officers is absent or incapacitated and the other office is vacant, on the other hand. Furthermore, the legislative history confirms that Congress did not intend to so limit the provision’s application. The provision—enacted as part of the Independent Offices Appropriation Act of 1945, June 27, 1944, ch. 286, Title I, 58 Stat. 371—was introduced as a floor amend ment at the urging of the Comptroller General. See 90 Cong. Rec. 3069-70 (1944). The clearest statement of its purpose appears in the Comptroller General’s letter proposing it, which states in pertinent part: The need for legislation of the character here proposed is apparent in the recent history of the General Account ing Office. During the period from July 1, 1936, to April 10, 1939, and for a considerable period in 1940, the office of Comptroller General was vacant. The then Assistant Comptroller General [now the Deputy Comptroller Gen eral 2] acted as Comptroller General, pursuant to law, but there was no other officer specifically authorized by law so to act in the event o f his absence or incapacity or in the event he had resigned or retired or his term had ended. . . . (Emphasis added.)3 The provision thus was designed specifically to cover a situation in which the office of the Comptroller General was vacant and it was feared that the Assistant (now Deputy) Comptroller General might become absent or incapacitated or that he might resign or retire. It was plainly not intended to be confined to situations in which both officers were either incapacitated or absent, or in which both offices were vacant.4
2 T he Assistant C om ptroller G eneral was designated D eputy C o m ptroller G eneral pursuant to Pub. L. No. 92-51, 85 Stat. 125, 143 (1971). 3 90 C ong. Rec. 3070 (1944). 4 See also 90 C ong. Rec. 5171 (1944).
691 We therefore conclude that 31 U.S.C. § 43a authorizes the Comptrol ler General, in present circumstances, to designate an employee of the G A O to act as Comptroller General during his absence. It is established that acting heads of agencies have powers that are commensurate with those of agency heads who have been confirmed by the Senate. See, e.g., Ryan v. United States, 136 U.S. 68, 81 (1890); Marsh v. Nichols, Shepard & Co., 128 U.S. 605, 615 (1888); Shafer v. United States, 229 F.2d 124, 129 (4th Cir. 1956); Anderson v. P.W. Madsen Investment Co., 72 F.2d 768, 770-71 (10th Cir. 1934); Aderhold v. Menefee, 67 F.2d 345, 346 (5th Cir. 1933); cf. Keyser v. Hitz, 133 U.S. 138, 145-46 (1890). There is no indication in the language of the Chrysler Corporation Loan Guarantee Act of 1979, Pub. L. No. 96-185, 93 Stat. 1324, 15 U.S.C. § 1861 et seq. (1980), that Congress intended to create an excep tion to this fundamental precept in the context of the Chrysler Corpora tion Loan Guarantee Board.5 Accordingly, we believe that the Acting Comptroller General is legally authorized to serve as Comptroller Gen eral in the context of actions taken by that Board during the Comptrol ler General’s absence.6 L arry A. H am m ond Deputy Assistant Attorney General Office o f Legal Counsel
* Section 3 o f the A ct establishes the C h ry sler C orp o ration Loan G u arantee Board, "w hich shall consist o f the Secretary o f the T reasu ry w ho shall be the C hairperson o f the Board, the C hairm an of the Board o f G o v ern o rs o f the Federal R eserve System, and the C om ptroller G eneral o f ihe United States.” IS U.S.C. § 1862. T his provision contains no limiting language indicating, for instance, that the C o m p tro ller G eneral o r o th e r Board m em bers must personally appear at Board meetings. N o other section o f the A ct w ould ap p ear to impose any such requirem ent. N or are w e aw are o f any such indication in the legislative history. T h e provision establishing a three-m em ber C hrysler C orporation Loan G u aran tee Board originated in the Senate bill, S. 2094, and its purpose is thus described in the R eport o f the Senate C om m ittee on Banking, Housing, and Urban AfTairs, 96th C ong., 1st Sess. 17 (1979): T h e A dm inistration bill w ould have had the Secretary o f the T reasury be the sole adm inistrator o f the loan guarantees for C hrysler. T h e C om m ittee believes that a three- person board ofTers m ore balance and that the addition o f tw o mem bers w ho are independent o f the Executive, the Federal R eserve Board C hairm an and the C om ptrol ler G eneral, will enable the Board to make tough decisions on the m erits o f the issues w ithout undue pressure from political considerations. T he aim o f providing for a three-person Board in o rd e r to establish balance and independence would not be undercut by the participation, pursuant to lawful designation, o f an A cting C om ptroller G eneral rath er than the C o m p tro ller G eneral d uring the latter's absence. See also H.R. Rep. No. 96- 730, 96th Cong., 1st Sess. 17 (1979) (confirm ing that the conference adopted the Senate provision regarding m em bership o f the board). 6 W e have confirm ed that o u r conclusion is consistent w ith the practice and view s o f the G eneral A ccounting Office. fA 'J