Acting Officers ( 1982 )

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 notw ithstanding the 30-day limitation 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
de facto 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
Comm issioner 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 D epartment of Justice, including
those of the Im m 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
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any other employee of the Service. Section 103(b) of the Act charges the
C om 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
which may be delegated to him or prescribed by the Attorney General. The
Attorney G eneral 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 v. 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 G en. 473, 474-76 (1901).
2. Duration c f Designation (Relation to the Vacancy Act). The Vacancy A ct, 5
U .S .C . §§ 3 3 45-3349, 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 D eputy Attorney G eneral or Solicitor General became Acting Attorney
G eneral pursuant to 28 U.S.C. § 508. United States v. Lucido, 373 F. Supp. at
1147-51; United States v. 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 m ust be read into all statutes authorizing the temporary filling of
vacancies, because otherwise th e President could circumvent the power of the
Senate to advise and consent to appointm ents. The D epartment of Justice has
never agreed with the Com ptroller 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. U nder 5 U .S .C . § 5535(b)(2) the Acting
Com m issioner could receive only the salary of the Deputy Commissioner.
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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 o f 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 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 appointm ent 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 tim e 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 w ithout a mandate to take far-
reaching measures.
3. In contrast to the position of the D epartm 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 en t head to designate any officer in his
departm ent to perform 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 o f 1949, P ub L N o 81-109, 63 Stat. 203 Since then m any o f these provisions have becom e statutory
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authorizes a departm ent head to authorize any officer or employee of the depart­
m ent to perform any function vested in the department 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 im portance of having the President make appointments by
and w ith the advice and consent of the Senate and using acting designations only
as an interim m easure during the regular appointment 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. T he public acts o f a defacto officer are binding on the public; conversely, the
public may safely assum e 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); U nited 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 v. Joseph, 519 F.2d at 1071 n.4. As a
rule, the authority of de facto officers can be challenged only in special proceed­
ings in the nature of quo warranto brought directly for that purpose. United States
ex rel. D oss v. Lindsley, 148 F.2d 22; United States v. Nussbaum, 306 F. Supp.
66, 6 8 -6 9 (N .D . C a l., 1969); F. M echem, Public Offices 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.5
A typical case o f 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,
184 U .S . 302; United States v. Groupp, 333 F. Supp. 242, 245-46 (D. Maine
2 In United States v Joseph, 5 1 9 F 2d 1068, 1070-71 (5th C ir 1975), cert, denied. 424 U .S . 909 (1976), 430
U S 905 (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 hich 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
h o lding th e decision 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 d o ctrin e, discussed in part
III infra, ap p lied .
3 in the D epartm ent o f Justice th is involves esp ecially certain ord ers and authorizations w ithin th e com petence o f
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
d o 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 fa cto officer ru le is that a person should not be able to su b m it his case to an officer
and accept 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 v. Zdanok. 3 7 0 U S. 53 0 , 535 (1962).
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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.
Theodore B. O lson
Assistant Attorney General
Office c f Legal Counsel
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