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Designation of Acting General Counsel for the Federal Labor Relations Authority ( 1979 )


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  •                                                                               March 14, 1979
    79-16       MEMORANDUM OPINION FOR THE
    COUNSEL TO THE PRESIDENT
    Designation of Acting General Counsel—Federal
    Labor Relations Authority
    The Federal Labor Relations A uthority (Authority) has made an inquiry
    concerning the question o f designating an Acting General Counsel for the
    Authority. In our opinion the power to make such a designation is vested
    in the President. The issue is one o f statutory interpretation. We are ad­
    dressing this memorandum to you because it involves a question of
    Presidential authority. Mr. Cardozo is aware o f this matter. He has asked
    us to send a copy o f this memorandum to the Federal Labor Relations
    Authority, which we have done.
    The Federal Labor Relations Authority was originally created, by § 301
    o f Reorganization Plan No. 2 o f 1978 (Plan), as an independent establish­
    ment in the executive branch. Section 302 o f the Plan provides for a
    General Counsel o f the A uthority to be appointed by the President by and
    with the advice and consent o f the Senate. Under § 402 o f the Plan the
    President may fill the office o f General Counsel on an interim basis until it
    is first filled pursuant to the provisions o f the Plan or by way o f recess ap­
    pointm ent.1 The pertinent provisions o f the Plan became effective on
    January 1, 1979. See Executive Order No. 12107 o f December 29, 1978.
    The Civil Service Reform Act o f 1978 (Act) became effective on January
    11, 1979.2 Section 701 o f the Act added to title 5, United States Code, a
    section 7104 providing for a Federal Labor Relations A uthority and a
    1 Section 402 reads in pertinent part as follows:
    Section 402. Interim Officers, (a) The President may authorize any persons who, im­
    mediately prior to the effective date o f this Plan, held positions in the Executive
    Branch o f the G overnm ent, to act as * * * the General Counsel o f the A uthority, un­
    til those offices are for the first time filled pursuant to the provisions o f this
    Reorganization Plan or by recess appointm ent, as the case may be.
    2 Section 907 o f the Act provides that it shall take effect 90 days after its enactm ent. It was
    approved by the President on O ctober 13, 1978.
    101
    General Counsel o f the Authority. Its members and General Counsel are
    to be appointed by the President by and with the advice and consent o f the
    Senate. The Act, however, does not in terms contain an interim designa­
    tion authority corresponding to § 402 o f the Plan.
    The President gave recess appointm ents to two members o f the A uthor­
    ity during the interval between the 95th and 96th Congresses. He did not,
    however, make such an appointm ent to the office o f General Counsel. We
    have been told that the lack o f a General Counsel seriously hampers the
    operations o f the A uthority. In particular, because o f the close interrela­
    tion o f the functions o f the A uthority and those o f its General Counsel,
    the Authority is unable to issue its rules and regulations as required by the
    Act, 
    5 U.S.C. § 7134
    , without being joined by the General Counsel. It is
    our opinion th at it was the intention of Congress to preserve the
    President’s express authority under § 402 o f the Plan to designate an Act­
    ing General Counsel. This intention is reflected in the transitional provi­
    sions o f the Act.
    Section 904 o f the Act provides:
    Except as otherwise expressly provided in this Act, no provision
    o f this Act shall be construed to —(1) limit, curtail, abolish, or
    terminate any function of, or authority available to, the Presi­
    dent which the President had immediately before the effective
    date o f this Act; * * *.
    Immediately before the effective date o f the Act the President clearly had
    the authority under § 402 o f the Plan to designate an Acting General
    Counsel. The Act, as mentioned above, does not confer a similar authority
    on the President; but it does not contain any express provision to the con­
    trary. The President therefore retains his power to make an interim desig­
    nation under § 402 o f the Plan, notwithstanding the subsequent coming
    into effect o f the Act.
    The same result follows from § 905 o f the Act, dealing specifically with
    the interrelation between the Act and Reorganization Plan 2 o f 1978. That
    section provides:
    Any provision in either Reorganization Plan Number 1 or 2 of
    1978 inconsistent with any provision in this Act is hereby
    superseded.
    There is no provision in the Act inconsistent with the President’s interim
    designation authority under § 402 o f the Plan. The mere silence o f the Act
    with respect to a transitional provision o f the Plan is plainly not an
    inconsistency.
    As we see it, the President thus has the power under § 402 o f the Plan to
    authorize a person who on December 31, 1978, held a position in the ex­
    ecutive branch o f the Governm ent to act as the General Counsel o f the
    Authority until a General Counsel is appointed by him by and with the ad­
    vice and consent o f the Senate.
    We also note that the provisions o f the Vacancy Act, 
    5 U.S.C. §§ 3345-3349
     (in particular § 3348, which limits an interim designation to
    102
    the first 30 days o f a vacancy), are not applicable to the situation at hand.
    First, that Act applies only to vacancies in the executive and military
    departments as defined in 
    5 U.S.C. §§ 101
    , 102. The A uthority is not an
    executive or military departm ent; it is an “ independent establishment in
    the Executive Branch” within the scope o f 5 U .S.C . § 104. Section 101 o f
    the P lan.3 Moreover, 
    5 U.S.C. § 3348
     applies by its own terms only where
    a vacancy was filled temporarily pursuant to the provisions o f the Vacancy
    Act. Here the designation would not be made under that Act but under the
    authority o f § 402 o f the Plan.
    L e o n U lm a n
    Deputy Assistant A ttorney General
    Office o f Legal Counsel
    1 There is no corresponding provision in the Act. This provision o f the Plan, therefore, re­
    mains in effect in the absence o f an inconsistent provision in the Act. See § 905 of the Act,
    supra.
    

Document Info

Filed Date: 3/14/1979

Precedential Status: Precedential

Modified Date: 1/29/2017