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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. § 3348applies 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