Case Information

*1 Acting Officers An officer designated by a departm ent head pursuant to a statute to perform the duties o f a presidential appointee has the same authority as the officer for whom he acts, and may serve for an indefinite period notwithstanding the 30-day lim itation of the Vacancy Act, though while acting he is entitled only to the salary of his regular position. T here are, however, a num ber of practical and political reasons why the designation of acting officers should not be used as a substitute for appointm ent by and with the advice and consent of the Senate Potential infirmities in the authonty of the acting officer in any particular situation will be cured by the officer rule.

January 27, 1982 MEMORANDUM OPINION FOR TH E DEPUTY COUNSEL TO TH E PRESIDENT

This responds to the request by the Office o f Presidential Personnel for a discussion of certain issues relating to the designation of the Deputy Com m is­ sioner 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. §§ 5 0 9 ,5 1 0 an d o n § 103ofthe 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, em ployee, or agency of the Department o f Justice o f 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 Departm ent of Justice, including those of the Imm igration and Naturalization Service. The Attorney General thus has the authority under 28 U .S.C. § 510 to direct the Deputy Com m issioner 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 Im m igra­ tion 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 Departm ent 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 Com m issioner with any and all responsibilities and authority in the administra­ tion of the Service o f the Act w hich are conferred upon the Attorney General or *2 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 Com m issioner to perform or exercise, any or all the powers conferred or im posed upon the Commissioner.

The principal problem s relating to the designation of acting officers, discussed below, are the legal authority of the acting officer, the duration of the designation, and the com pensation to which the acting officer is entitled.

1. Authority c f Acting Officers. An acting officer is vested with the full authority o f the officer for whom he acts. K eyser v. H itz, 133 U .S . 138, 145—46 (1890). Ryan United States, 136 U .S. 68, 81 (1890); United States v. Lucido, 373 F.Supp. 1142, 1145 (E.D. M ich. 1974); 20 Op. A tt’y Gen. 483 (1892); 23 Op. A tt’y Gen. 473, 474-76 (1901).

2. Duration c f Designation (Relation to the Vacancy Act). The Vacancy A ct, 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 30 days. (5 U .S .C . § 3348.) It has been the position of the D epartment of Justice for many years that, if vacancies are filled pursuant to 28 U .S.C . § 510 (the same would be true o f § 103 o f the Act), they are not filled pursuant to the provisions of the Vacancy A ct, and that the 30-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 G eneral or Solicitor General became Acting Attorney General pursuant to 28 U.S.C. § 508. v. Lucido, 373 F.Supp. at 1147-51; Halmo, 386 F.Supp. 593, 595 (E.D . Wis. 1974).

The Com ptroller 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 appointm ents. The D epartm ent of Justice has never agreed with the Comptroller G eneral’s position in this regard. As explained below, however, the Department recognizes that the existence of this controversy makes tem porary designations undesirable, especially where certain functions can be exercised only by specific officers.

3. Compensation o f Acting Officers. Under 5 U .S .C . § 5535(b)(2) the Acting Com m issioner could receive only the salary of the Deputy Commissioner.

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 Article II, § 2, clause 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 *3 officer by a departm ent head. The answer is more practical and political than legal. G enerally 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.

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 frequently considered merely a caretaker without a mandate to take far- reaching measures.

3. In contrast to the position of the Departm ent of Justice that an official whose acting status is derived from a statutory base other than the Vacancy Act is not subject to the 30-day limitation of 5 U .S.C . § 3348, the Com ptroller 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 Com ptroller General in view of his congressional backing.

4. The courts have never conclusively decided the question whether the 30-day limitation of 5 U .S .C . § 3348 must be read into a statute which generally 1 M ost if not all of the agencies have provisions authorizing a departm ent head to designate any officer in his departm ent to perfo rm any function o f the departm ent head. T hese provisions, w hich go back to the H oover C om m ission R eport o f 1949, w ere first incorporated in the Reorganization Plans issued under the R eorganization Act of 1949, P ub L N o 81-109, 63 Stat. 203 Since then m any o f these provisions have becom e statutory

authorizes a departm ent head to authorize any officer or employee of the depart­ m ent to perform any function vested in the departm ent head.2 Hence in the relatively few situations where legal actions may be undertaken only by a specific officer,3 the departm ent has tried to avoid the taking of such action by an acting official w ho served for more than 30 days.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 m easure during the regular appointm ent process.

m.

In m any instances the potential infirmities in the authority of the acting officers discussed in the preceding parts o f this mem orandum will be cured by the de facto officer rule. U nder that doctrine, a person who discharges the duties of an office under color o f title is considered a de facto officer even if there are defects in that title. The public acts o f a de facto officer are binding on the public; conversely, the public may safely assume that h e is a rightful officer. M cDowell v. United States, 159 U .S . 596, 6 0 1 -0 2 (1895); Waite v. Santa Cruz, 184 U .S. 302, 322-24 (1902); United States \. Royer, 268 U .S. 394(1925); United States ex rel. D o ss\. Lindsley, 148 F.2d 22, 23 (7th Cir. 1945), cert, denied, 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 Joseph, 519 F.2d at 1071 n.4. As a rule, the authority of officers can be challenged only in special proceed­ ings in the nature of quo warranto brought directly for that purpose. ex rel. D oss Lindsley, 148 F.2d 22; v. Nussbaum, 306 F. Supp. 66, 6 8 -6 9 (N .D . C a l., 1969); F. M echem, Public Offices and Officers, §§ 343, *4 344 (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.5

A typical case o f a officer is one who has been properly appointed but who continues to serve after his term of office has expired. Waite v. Santa Cruz, 184 U .S . 302; Groupp, 333 F. Supp. 242, 245-46 (D. Maine 2 In v Joseph, 5 1 9 F 2d 106 8, 1070-71 (5th C ir 1975), cert, denied. 424 U .S . 909 (1976), 430 U S 90 5 (1977 ), the Court o f A ppeals seem s to have assum ed arguendo that 5 U S .C § 3348 lim its the period du rin g w h ich an official d esignated pursuant to 28 U .S .C . § 510 m ay act T h e co u rt, however, avoided th e issue by hold in g th e decisio n involved had been m ade b y the A ttorney G eneral h im self rather than by the A cting A ssistant A ttorney G en eral, w ho had m erely transm itted it, and that in any event the de facto officer doctrine, discussed in part III infra, ap p lied . 3 in the D ep artm ent o f Justice th is involves esp ecially certain ord ers and authorizations w ithin th e com petence of th e C rim inal and Tax D ivisions 4 A t tim es th e D ep artm en t o f Justice w as a b le to obviate this difficulty by having the acting official sign the do cu m en t in his p erm an en t rather than in h is acting capacity, o r by having it signed by his superior. 5 A n o th er rationale for the de facto officer ru le is that a person should not be able to subm it his case to an officer and accep t it if it is favorable to him , but c h a llen g e the officer's authority if the latter should rule against him Glidden Company Zdanok. 3 7 0 U S. 53 0 , 535 (1962). 1971), a jf d, 459 F.2d 178, 182 n.12 (1st Cir. 1972). 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 30 days after their designation. T h e o d o r e B . O l s o n

Assistant Attorney General Office c f Legal Counsel