March 16, 1978
78-18 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Vacancy Act (5 U.S.C. §§ 3345-3349)— Law Enforcement Assistance Administration
We are herewith responding to your request for our analysis and comment on the opinion o f the Deputy Com ptroller General to Representative Holtzman of February 27, 1978, concerning the service of Mr. James H. Gregg as Acting Administrator of the Law Enforcement Assistance Administration (LEAA) for a period in excess of 30 days following the resignation of its Administrator on February 25, 1977. The opinion concludes, on the basis of the so-called Vacancy Act, 5 U .S.C . §§ 3345-3349, that the service of Mr. Gregg as Acting A dm inistrator could not extend beyond 30 days, and that after that date “ there was no legal authority for anyone to perform the duties of the Administrator except the Attorney General himself, in whom by statute, all the Administra to r’s functions are vested .”
I.
The sole authority cited by the opinion is the earlier opinion of the Com ptroller General involving the service of L. Patrick Gray as Acting Director o f the Federal Bureau o f Investigation in 1973, with which opinion this Department disagreed. In a letter to Senator Hruska, dated March 13, 1973, then Assistant Attorney General Robert G. Dixon (OLC) responded to the Senator’s request concerning the Com ptroller G eneral’s opinion. Mr. Dixon took the position that the Vacancy Act, in particular the 30-day provision of 5 U .S.C . § 3348, did not apply to every vacancy in the executive branch, including some of the offices which textually might appear to be covered by the Act. To the contrary, Mr. Dixon opined that specific or later statutes dealing with the manner in which an officer may perform the duties of a vacant office prevailed over the Vacancy Act. As stated in our memorandum to you o f February 27, we adhere to that view and note that this interpretation of the Act has been upheld by the courts in
72 United States v. Lucido, 373 F. Supp. 1142, 1148 (E.D. Mich. 1974) and United States v. H alm o, 386 F. Supp. 593, 595 (E.D . Wis. 1974).' Mr. Gregg does not exercise the powers of the Administrator, pursuant to 5 U.S.C. §§ 3345, 3346, or 3347; hence, the 30-day provision of 5 U .S.C . § 3348 is not directly applicable. The opinion of the Court of Appeals in Williams v. Phillips, 482 F. (2d) 669 (D.C. Cir. 1973) referred to in our original memorandum of February 27, 1978, indicates that in this situation Mr. Gregg could act pursuant to the delegation of authority only for a reasonable period of time and suggests that 5 U .S.C . § 3348 would constitute a guideline for what constitutes a reasonable period in the absence of a nomination. It is clear that the court intended to foreclose other tests o f reasonableness, or to indicate that it would not take into account the special problems created by an impending reorganization of the agency involved. Incidents of this type have occurred in the past. Thus, the then-Secretary o f Commerce resigned on February 1, 1967. At that time President Johnson planned to combine the Departments of Commerce and Labor, and did not fill the vacancy in the Department o f Commerce until June 1967, when it became apparent that Congress would not accede to the consolidation of the two Departments.
II. The consequences drawn by the Deputy Comptroller General from his conclusion that Mr. Gregg lacks authority to perform the duties o f the Administrator are on even less solid ground. He takes the position that only the Attorney General can now act for LEAA and that he indeed should ratify past actions taken by Mr. Gregg since they are subject to challenge. Those conclusions ignore the statutory limitations on the power of the Attorney General with respect to the LEAA and the de fa cto officer rule. First: The basic organic provision of LEAA is 42 U .S.C . § 37 1 1(a),.as amended by § 102 of the Crime Control Act of 1976 (Pub. L. No. 94-503; 90 Stat. 2407); it provides: (a) There is hereby established within the Department o f Justice, under the general authority, policy direction, and general control o f the Attorney General, a Law Enforcement Assistance Administration (hereafter referred to in this chapter as “ A dm inistration” ) composed of an Administrator o f Law Enforcement Assistance and two Deputy Administrators of Law Enforcement Assistance, who shall be appointed by the President, by and with the advice and consent o f the Senate. [Emphasis added.]2
'M o re o v e r, the D ep u ty C o m p tro lle r G e n e ra l's p re sen t re lia n c e on his ipse dixit in the Gray case is m isplaced sin ce th at situ a tio n in v o lv ed a d e sig n a tio n o f an A ctin g D ire c to r o f the FBI u n d e r 28 U .S .C . §§ 5 0 9 , 5 1 0 . T h e p re sen t situ a tio n d o e s not in v o lv e a d e sig n a tio n o f an a cting head o f an e x ec u tiv e ag en c y but ra th e r it c o n ce rn s a d e le g atio n o f a u th o rity u n d e r 4 2 U.S.C. § 3 7 5 2 , a d ifferen t m atter fro m a legal stan d p o in t. T h e leg al e ffe c t o f the d e le g atio n w as c o n sid e re d in o u r F ebruary 27 m e m o ra n d u m . 2W e note that th e q u o ta tio n o f th is su b se c tio n in th e D ep u ty C o m p tro lle r G e n e r a l’s o p in io n is e rro n e o u s; it fa ils to tak e into acc o u n t its a m e n d m en t by th e C rim e C o n tro l A ct o f 1976.
73 The functions o f LEAA thus are not com pletely vested in the Attorney General, as are those o f most o f the components o f the Department o f Justice. See 28 U .S.C . § 509. The Attorney General is given “ general authority, policy direction, and general control.” As shown by the legislative history o f the 1976 am endm ent, its purpose was to give LEAA a considerable amount of internal autonomy, especially with respect to specific grants. The Senate report (S. Rept. No. 94-847, 94th C ong., 2d sess. (1976), p. 15), states: . . . the responsibility for its [LEA A ’s] day-to-day operational control rests with the Administrator. And again: The new language is added to make clear the concept that, as a component o f the Department of Justice, the Administration falls within the overall authority, policy direction, and control of the Attorney G eneral, while the responsibility for its day-to-day opera tional control rests with the Administrator, [p. 35] The pertinent House report, H .R. Rept. No. 94-1155, 94th C ong., 2d sess. (1976), p. 30, contains the following statement o f then-Deputy Attorney G en eral Tyler: H.R. 9236 em bodies several clarifications and refinements that we believe would improve the efficacy o f the LEAA program. First of all, H.R. 9236 proposes that the Act be clarified by expressly stating that LEAA is under the policy direction o f the Attorney General. The Act now provides that LEAA is within the Department o f Justice, under the “ general authority” o f the Attorney General. In accord ance with this language, the Attorney General is deemed ultimately responsible for LEAA. To make this responsibility meaningful, the Attorney General must concern him self with policy direction. Under the proposed language change, responsibility fo r the day-to-day operations o f LEAA and particular decisions on specific grants will remain with the Adm inistrator, as they are now. The proposed additional language will make clear what is now assumed to be the case. [Emphasis added.] Senator Hruska explained on the floor of the Senate that the purpose of the limitation on the Attorney G eneral’s power was . . .
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March 16, 1978
78-18 MEMORANDUM OPINION FOR THE ATTORNEY GENERAL
Vacancy Act (5 U.S.C. §§ 3345-3349)— Law Enforcement Assistance Administration
We are herewith responding to your request for our analysis and comment on the opinion o f the Deputy Com ptroller General to Representative Holtzman of February 27, 1978, concerning the service of Mr. James H. Gregg as Acting Administrator of the Law Enforcement Assistance Administration (LEAA) for a period in excess of 30 days following the resignation of its Administrator on February 25, 1977. The opinion concludes, on the basis of the so-called Vacancy Act, 5 U .S.C . §§ 3345-3349, that the service of Mr. Gregg as Acting A dm inistrator could not extend beyond 30 days, and that after that date “ there was no legal authority for anyone to perform the duties of the Administrator except the Attorney General himself, in whom by statute, all the Administra to r’s functions are vested .”
I.
The sole authority cited by the opinion is the earlier opinion of the Com ptroller General involving the service of L. Patrick Gray as Acting Director o f the Federal Bureau o f Investigation in 1973, with which opinion this Department disagreed. In a letter to Senator Hruska, dated March 13, 1973, then Assistant Attorney General Robert G. Dixon (OLC) responded to the Senator’s request concerning the Com ptroller G eneral’s opinion. Mr. Dixon took the position that the Vacancy Act, in particular the 30-day provision of 5 U .S.C . § 3348, did not apply to every vacancy in the executive branch, including some of the offices which textually might appear to be covered by the Act. To the contrary, Mr. Dixon opined that specific or later statutes dealing with the manner in which an officer may perform the duties of a vacant office prevailed over the Vacancy Act. As stated in our memorandum to you o f February 27, we adhere to that view and note that this interpretation of the Act has been upheld by the courts in
72 United States v. Lucido, 373 F. Supp. 1142, 1148 (E.D. Mich. 1974) and United States v. H alm o, 386 F. Supp. 593, 595 (E.D . Wis. 1974).' Mr. Gregg does not exercise the powers of the Administrator, pursuant to 5 U.S.C. §§ 3345, 3346, or 3347; hence, the 30-day provision of 5 U .S.C . § 3348 is not directly applicable. The opinion of the Court of Appeals in Williams v. Phillips, 482 F. (2d) 669 (D.C. Cir. 1973) referred to in our original memorandum of February 27, 1978, indicates that in this situation Mr. Gregg could act pursuant to the delegation of authority only for a reasonable period of time and suggests that 5 U .S.C . § 3348 would constitute a guideline for what constitutes a reasonable period in the absence of a nomination. It is clear that the court intended to foreclose other tests o f reasonableness, or to indicate that it would not take into account the special problems created by an impending reorganization of the agency involved. Incidents of this type have occurred in the past. Thus, the then-Secretary o f Commerce resigned on February 1, 1967. At that time President Johnson planned to combine the Departments of Commerce and Labor, and did not fill the vacancy in the Department o f Commerce until June 1967, when it became apparent that Congress would not accede to the consolidation of the two Departments.
II. The consequences drawn by the Deputy Comptroller General from his conclusion that Mr. Gregg lacks authority to perform the duties o f the Administrator are on even less solid ground. He takes the position that only the Attorney General can now act for LEAA and that he indeed should ratify past actions taken by Mr. Gregg since they are subject to challenge. Those conclusions ignore the statutory limitations on the power of the Attorney General with respect to the LEAA and the de fa cto officer rule. First: The basic organic provision of LEAA is 42 U .S.C . § 37 1 1(a),.as amended by § 102 of the Crime Control Act of 1976 (Pub. L. No. 94-503; 90 Stat. 2407); it provides: (a) There is hereby established within the Department o f Justice, under the general authority, policy direction, and general control o f the Attorney General, a Law Enforcement Assistance Administration (hereafter referred to in this chapter as “ A dm inistration” ) composed of an Administrator o f Law Enforcement Assistance and two Deputy Administrators of Law Enforcement Assistance, who shall be appointed by the President, by and with the advice and consent o f the Senate. [Emphasis added.]2
'M o re o v e r, the D ep u ty C o m p tro lle r G e n e ra l's p re sen t re lia n c e on his ipse dixit in the Gray case is m isplaced sin ce th at situ a tio n in v o lv ed a d e sig n a tio n o f an A ctin g D ire c to r o f the FBI u n d e r 28 U .S .C . §§ 5 0 9 , 5 1 0 . T h e p re sen t situ a tio n d o e s not in v o lv e a d e sig n a tio n o f an a cting head o f an e x ec u tiv e ag en c y but ra th e r it c o n ce rn s a d e le g atio n o f a u th o rity u n d e r 4 2 U.S.C. § 3 7 5 2 , a d ifferen t m atter fro m a legal stan d p o in t. T h e leg al e ffe c t o f the d e le g atio n w as c o n sid e re d in o u r F ebruary 27 m e m o ra n d u m . 2W e note that th e q u o ta tio n o f th is su b se c tio n in th e D ep u ty C o m p tro lle r G e n e r a l’s o p in io n is e rro n e o u s; it fa ils to tak e into acc o u n t its a m e n d m en t by th e C rim e C o n tro l A ct o f 1976.
73 The functions o f LEAA thus are not com pletely vested in the Attorney General, as are those o f most o f the components o f the Department o f Justice. See 28 U .S.C . § 509. The Attorney General is given “ general authority, policy direction, and general control.” As shown by the legislative history o f the 1976 am endm ent, its purpose was to give LEAA a considerable amount of internal autonomy, especially with respect to specific grants. The Senate report (S. Rept. No. 94-847, 94th C ong., 2d sess. (1976), p. 15), states: . . . the responsibility for its [LEA A ’s] day-to-day operational control rests with the Administrator. And again: The new language is added to make clear the concept that, as a component o f the Department of Justice, the Administration falls within the overall authority, policy direction, and control of the Attorney G eneral, while the responsibility for its day-to-day opera tional control rests with the Administrator, [p. 35] The pertinent House report, H .R. Rept. No. 94-1155, 94th C ong., 2d sess. (1976), p. 30, contains the following statement o f then-Deputy Attorney G en eral Tyler: H.R. 9236 em bodies several clarifications and refinements that we believe would improve the efficacy o f the LEAA program. First of all, H.R. 9236 proposes that the Act be clarified by expressly stating that LEAA is under the policy direction o f the Attorney General. The Act now provides that LEAA is within the Department o f Justice, under the “ general authority” o f the Attorney General. In accord ance with this language, the Attorney General is deemed ultimately responsible for LEAA. To make this responsibility meaningful, the Attorney General must concern him self with policy direction. Under the proposed language change, responsibility fo r the day-to-day operations o f LEAA and particular decisions on specific grants will remain with the Adm inistrator, as they are now. The proposed additional language will make clear what is now assumed to be the case. [Emphasis added.] Senator Hruska explained on the floor of the Senate that the purpose of the limitation on the Attorney G eneral’s power was . . . to assure that the Senate and local nature of the program would not be overshadowed by the Department o f Justice programs. [122 Cong. Rec. S. 23332 (Daily E d., July 22, 1976)] The authority reserved to the A dm inistrator or Deputy Administrators and delegated to Mr. Gregg consists, apart from personnel actions, mainly of
74 approving important, com plex, and controversial grants.3 Because of the statutory limitation on the Attorney G eneral’s authority with respect to LEAA, those grant functions could not be performed by anyone pending Presidential nomination and Senate confirmation of a new Administrator, LEAA, if Mr. Gregg— as asserted by the Comptroller General— is incapable of performing the functions delegated to him. This would be an extreme result; but it is the logical conclusion o f the Deputy Comptroller G eneral’s reading o f the Vacancy Act. Second: The Deputy Comptroller G eneral’s assumption that Mr. G regg’s past and present actions in carrying out the functions of the Administrator are subject to challenge because his tenure violates the Vacancy Act ignores the de facto officer principle. That principle holds that where an officer performs the duty of an office under color of title, he is considered a de facto officer, and his acts are binding on the public, and third persons may rely on their legality. McDowell v. United States, 159 U .S. 596, 601-602 (1895); United States v. Royer, 268 U.S. 394 (1925); United States ex rel. D orr v. Lindsley, 148 F. (2d) 22 (7th Cir. 1945), cert, denied, 325 U .S. 858. Indeed, the authority o f de facto officers can be challenged as a rule only in special proceedings in the nature of quo warranto brought directly for that purpose. United States ex rel. Dorr v. Lindsley, supra; United States v. Nussbaum, 306 F. Supp. 66, 68-69 (N.D . Cal. 1969); M echem, Public Office and Officers, §§ 343, 344 (1890). The reason for the principle is that there should be no cloud on the validity of public acts and the right o f the public to rely on them in the case of technical imperfections or doubts. A typical case o f a de fa cto officer is an officer who continues to serve after his term of office has expired. Waite v. Santa Cruz, 184 U.S. 302, 322-324 (1902); United States v. Groupp, 333 F. Supp. 242, 245-246 (D. Maine 1971), a ffd , 459 F. (2d) 178, 182, fn. 12 (1st Cir. 1972). The Deputy Comptroller General concedes that Mr. Gregg validly exercised the functions of the Administrator for at least 30 days. It is our conclusion, therefore, that under the de fa cto officer principle, Mr. G regg’s actions will continue to bind third parties until his right to perform the delegated functions
3A . A u th o rity re serv ed fo r A d m in istra to r o r D e p u ty A d m in istra to rs. 1. S ig n T rac k II d isc re tio n a ry g ra n ts, i.e., g ra n ts in v o lv in g S ta te s in o n e re g io n o f the c o u n try , if: a. C o st is $ 3 0 0 ,0 0 0 o r m ore; b. P ro ject is o f a c o n tro v e rsia l n atu re; c . P ro ject is a c o n stru c tio n p ro ject; d . A p p ro a c h has n o t b e en te ste d o r d e m o n stra ted e lse w h e re . 2. S ig n T rac k I d isc re tio n a ry g ra n ts, i.e., in v o lv e m o re th an o n e re g io n o r h ave n atio n al im pact. 3. S ig n P u b lic S a fe ty O ffic e rs ’ B en e fits A ct a w ard s. A lso m a k e fin al ag en c y d e c isio n on P S O B c la im s. 4 . A p p ro v e p e rso n n el a ctio n s fo r G S -1 4 an d G S -1 5 . 5. M ak e fin al a g e n c y d e cisio n o n c o m p lia n ce an d a d ju d ic ato ry h e a rin g s in c lu d in g c iv il rig h ts.
75 has been adversely determined in proceedings specifically brought for that purpose.4 For the reasons stated above, we disagree with the legal positions taken by the Deputy Com ptroller General in his opinion. Nevertheless, we believe the only satisfactory resolution o f the uncertain status o f Mr. G regg’s authority is for the President to submit a nomination to fill the position of Administrator even though the position may well be abolished with the proposed reorganiza tion of LEAA.
John M . H arm on Assistant Attorney General Office o f Legal Counsel
4W e m ay ad d th a t th e de facto o ffic e r ru le is not an a n tiq u a ted d o c trin e , bu t h as b e en applied freq u e n tly in c o n n e c tio n w ith te c h n ic a l v io la tio n s in th e c o m p o sitio n o f d ra ft b o a rd s. S ee Groupp, supra.