Starting Date for Calculating the Term of an Interim United States Attorney ( 2000 )

Starting Date for Calculating the Term of an Interim United
States Attorney
Under 28 U.S.C. § 546(c)(2), the 120-day term of an interim U nited States A ttorney appointed by
the Attorney G eneral is calculated from the date o f the appointm ent, rather than the date on which
the vacancy occurred.
March 10, 2000
M em orandum O p in io n f o r t h e D eputy A tto rney G en era l
You have asked for our opinion whether the 120-day term of an interim United
States Attorney appointed by the Attorney General begins to run on the date of
the vacancy or on the date of the appointment. See 28 U.S.C. §546 (1994).
Although under a number of statutes the term of service is calculated from the
date of the vacancy,1 the 120-day period in § 546(c)(2) is calculated from the
date of the appointment by the Attorney General.
Subsection 546(a) provides that the Attorney General may, subject to certain
limitations, “ appoint a United States attorney for the district in which the office
of United States attorney is vacant.” Subsection 546(c), in turn, delimits the term
during which such a United States Attorney may serve. Under that provision, a
United States Attorney appointed by the Attorney General may serve until the
earlier of (1) the qualification of a United States Attorney appointed by the Presi­
dent under 28 U.S.C. §541 or (2) “ the expiration of 120 days after appointment
by the Attorney General under this section.” 28 U.S.C. § 546(c).2
Our conclusion that the 120 days begins upon appointment by the Attorney
General is based first and foremost on the plain language of § 546(c)(2). See,
e.g., Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“ Our first step in
interpreting a statute is to determine whether the language at issue has a plain
and unambiguous meaning with regard to the particular dispute in the case. Our
inquiry must cease if the statutory language is unambiguous and ‘the statutory
scheme is coherent and consistent.’ ” (internal citation omitted)). The 120-day
time period, by the terms of the statute, unambiguously begins with the Attorney
General’s appointment: “ the expiration of 120 days after appointment by the
Attorney General under this section.” 28 U.S.C. § 546(c)(2) (emphasis added).
The language, moreover, is consistent with the nature of the appointment under
§ 546. Unlike statutes providing for the designation of an acting officer, § 546
provides for the appointment of a full fledged United States Attorney. See United
1See. e.g., 5 U.S.C. §3346(a)(l) (Supp IV 1998) (“ may serve in the office — (1) for no longer than 210 days
beginning on the date the vacancy occurs” ), 28 U.S.C §992(a) (1994) (six year staggered terms for members of
the United States Sentencing Commission).
2 In addition to appointment by the Attorney General, § 546 provides a second mechanism for appointing an interim
United States Attorney If the 120-day term o f a United States Attorney appointed by the Attorney General expires,
the district court “ may appoint a United States attorney to serve until the vacancy is filled ” 28 U .SC § 546(d).
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Opinions o f the Office o f Legal Counsel in Volume 24
States v. Gantt, 194 F.3d 987, 999 n.5 (9th Cir. 1999) ( “ Section 546(d) appoint­
ments are fully-empowered United States Attorneys, albeit with a specially limited
term, not subordinates assuming the role of ‘Acting’ United States Attorney.” ).
As a general rule, “ when a statute provides for an [officer] to serve a term of
years, the specified time of service begins with the appointment,” except for a
multi-member body with staggered terms, in which case the term is calculated
from the expiration of the prior term in order to maintain the stagger. Term o f
a M em ber o f the M ississippi River Commission, 23 Op. O.L.C. 123, 123 (1999).
Since there is no issue regarding staggered terms here, the general rule would
apply.
In addition, while we are unaware of any cases specifically addressing when
the 120-day period begins, courts have generally assumed that that period is cal­
culated from the date of the appointment, rather than from the date of the vacancy.
When explaining that the 120-day period under § 546(c)(2) has expired in par­
ticular cases, courts have usually identified the date on which the appointment
was made and the date 120 days after the appointment, without referring to when
the vacancy itself first arose. See, e.g., United States v. Colon-Munoz, 192 F.3d
210, 216 (1st Cir. 1999), cert, denied, 529 U.S. 1055 (2000); In re Grand Jury
Proceedings, 673 F. Supp. 1138, 1139 (D. Mass. 1987).
Finally, because the authority for the Attorney General to appoint a United
States Attorney was added to § 546 as a late amendment to more general legisla­
tion, there is very little legislative history on the provision. The legislative history
that exists, however, is consistent with the conclusion that the 120-day period
is to be calculated from the date of the appointment, rather than from the date
of the vacancy: “ a person appointed by the Attorney General serves only fo r 120
days, or until a person appointed to the office by the President has qualified,
if that is earlier.” 132 Cong. Rec. 32,806 (1986) (statement of Rep. Berman)
(emphasis added). The focus is on the length of the interim United States Attor­
ney’s service, rather than the length of time since the vacancy arose. Cf. Doolin
Sec. Sav. Bank v. Office o f Thrift Supervision, 139 F.3d 203, 209 (D.C. Cir. 1998)
(concluding that the language of the Vacancies Act supports calculating its time
limits from the President’s designation, rather than the vacancy, because the Act
speaks in terms of “ how long the position may be ‘filled,’ not when the President
must do the filling” ).
For these reasons, we conclude that the 120-day period in § 546(c)(2) is cal­
culated from the date of the appointment by the Attorney General.
RANDOLPH D. MOSS
Acting Assistant Attorney General
Office o f Legal Counsel
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