Continuation of Terminal Leave for Military Officer Appointed to Federal Civilian Position ( 2016 )

Continuation of Terminal Leave for Military
Officer Appointed to Federal Civilian Position
An active duty military officer on terminal leave who meets the requirements of 5 U.S.C.
§ 5334a may continue on terminal leave status after his appointment or election to a
position covered by 10 U.S.C. § 973(b)(2)(A).
March 24, 2016
MEMORANDUM OPINION FOR THE
PRINCIPAL DEPUTY GENERAL COUNSEL
DEPARTMENT OF HOMELAND SECURITY
You asked whether an active duty military officer on terminal leave
may continue on terminal leave status after being appointed or elected to
a position covered by 10 U.S.C. § 973(b)(2)(A), a provision that prohibits
active duty military officers from holding certain civilian offices in the
federal government. 1 We advised you orally and by e-mail that a military
officer appointed or elected to such a position may continue on terminal
leave status. 2 This opinion further memorializes and explains the basis
for that advice. In brief, section 973(b)(2)(A) provides that an active duty
military officer may hold a covered position if doing so is “otherwise
authorized by law,” and another statute, 5 U.S.C. § 5534a, specifically
permits “[a] member of a uniformed service” on “terminal leave” to
accept “a civilian office or position in the Government of the United
States” and to “receive the pay of that office or position in addition to
pay and allowances from the uniformed service for the unexpired portion
of the terminal leave.” In light of 5 U.S.C. § 5534a, an officer on terminal
1 E-mail for Rosemary Hart, Office of Legal Counsel, from Joseph B. Maher, Principal
Deputy General Counsel, Department of Homeland Security (June 23, 2015, 6:58 PM)
(“Maher E-mail”).
2 See E-mail for Joseph B. Maher, Principal Deputy General Counsel, Department of
Homeland Security, from Brian M. Boynton, Deputy Assistant Attorney General, Office
of Legal Counsel (Aug. 20, 2015, 2:33 PM). In reaching this conclusion, we also consid-
ered the views of the Department of Defense, as expressed in a telephone conversation on
June 29, 2015 between Brian M. Boynton, Deputy Assistant Attorney General, Office of
Legal Counsel; Paul S. Koffsky, Deputy General Counsel, Department of Defense; Steven
T. Strong, Associate Deputy General Counsel, Department of Defense; Joseph B. Maher,
Principal Deputy General Counsel, Department of Homeland Security; and Neal Swartz,
Associate General Counsel, Department of Homeland Security.
13
40 Op. O.L.C. 13 (2016)
leave status is in our view “authorized by law” to serve in a position
covered by 10 U.S.C. § 973(b)(2)(A).
I.
We begin with the relevant background and statutory text. Section
973(b)(2)(A) of title 10 of the United States Code generally prohibits
active duty military officers from holding certain high-level civilian
offices in the federal government. In particular, it provides:
Except as otherwise authorized by law, an officer to whom this
subsection applies may not hold, or exercise the functions of, a civil
office in the Government of the United States—
(i) that is an elective office;
(ii) that requires an appointment by the President by and with
the advice and consent of the Senate; or
(iii) that is a position in the Executive Schedule under sections
5312 through 5317 of title 5.
Paragraph 1 of section 973(b) explains that the prohibition on holding or
exercising the functions of covered offices applies to “regular officer[s] of
an armed force on the active-duty list (and . . . regular officer[s] of the
Coast Guard on the active duty promotion list),” as well as to retired and
reserve officers serving on active duty in certain circumstances.
Your question concerns the application of section 973(b)(2)(A)’s pro-
hibition on federal civil office-holding to members of the military on
terminal leave. “‘Terminal leave’ is ‘a term of art originating during
World War II’ meaning ‘a leave of absence granted at the end of one’s
period of service.’” Rate of Accrual of Annual Leave by a Civilian Em-
ployee Appointed While on Terminal Leave Pending Retirement From
One of the Uniformed Services, 31 Op. O.L.C. 218, 218 (2007) (quoting
Terry v. United States, 97 F. Supp. 804, 806 (Ct. Cl. 1951)). An officer
on terminal leave is considered to be on active duty status. See id. at 219;
see also Madsen v. United States, 841 F.2d 1011, 1013 (10th Cir. 1987)
(“Terminal leave, or leave taken prior to discharge, is statutorily defined
as active duty service.” (citing 10 U.S.C. § 701(e) (1982))). Thus, a mili-
tary officer on terminal leave is subject to section 973(b)(2)(A)’s general
prohibition.
14
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
A different statute, 5 U.S.C. § 5534a, establishes rules for dual pay and
employment during an officer’s period of terminal leave. In relevant part,
section 5534a provides:
A member of a uniformed service who has performed active ser-
vice and who is on terminal leave pending separation from, or re-
lease from active duty in, that service under honorable conditions
may accept a civilian office or position in the Government of the
United States, its territories or possessions, or the government of the
District of Columbia, and he is entitled to receive the pay of that of-
fice or position in addition to pay and allowances from the uni-
formed service for the unexpired portion of the terminal leave.
As you pointed out in your request for advice, under one view of these
statutes, “[section] 5534a serves as an affirmative authority [for military
members on terminal leave to hold covered positions] that fits within the
qualification of [section] 973(b)(2)(A) stating that its prohibition applies
‘[e]xcept as otherwise authorized by law.’” Maher E-mail. Under another
view, “[section] 973[(b)(2)(A)] provides the more specific rule regarding
military officers appointed to certain [civilian positions in the federal
government] and would therefore prohibit continuation of military status
(i.e., terminal leave) upon appointment” to a covered position. Id. The
Department of Defense (“DoD”) holds the latter view. For the reasons
explained below, we believe the first is the better reading of the two
statutes, and therefore conclude that an officer on terminal leave status is
“authorized by law” to hold a position covered by section 973(b)(2)(A).
II.
A.
We first analyze the text of sections 973(b)(2)(A) and 5534a. The Su-
preme Court has explained that, where two statutes govern the same
subject matter, “‘the rule is to give effect to both if possible.’” Morton v.
Mancari, 417 U.S. 535, 551 (1974) (quoting United States v. Borden Co.,
308 U.S. 188, 198 (1939)); see also, e.g., FCC v. NextWave Personal
Commc’ns, 537 U.S. 293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer
Hi-Bred Int’l, Inc., 534 U.S. 124, 143–44 (2001); Vimar Seguros y Re-
aseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995); Ruckelshaus
15
40 Op. O.L.C. 13 (2016)
v. Monsanto Co., 467 U.S. 986, 1018 (1984). “Only where a harmonious
construction of two statutes is impossible should one be construed as
overriding or implicitly repealing the other.” Access of Department of
Justice Inspector General to Certain Information Protected from Disclo-
sure by Statute, 39 Op. O.L.C. 12, 20 (2015) (citing Mancari, 417 U.S. at
551).
Although section 973(b)(2)(A) and section 5534a govern the same
subject matter—whether active duty military officers may hold civilian
positions in the federal government—they are not, in our view, irrec-
oncilable. As described above, section 973(b)(2)(A) provides that ac-
tive duty officers may not hold certain federal civilian offices “except
as otherwise authorized by law.” 10 U.S.C. § 973(b)(2)(A). Section
5534a permits active duty military members on terminal leave to ac-
cept civilian offices and to be paid as employees of the federal gov-
ernment. In other words, pursuant to section 5534a, active duty mili-
tary members, including officers, who are on terminal leave are
specifically “authorized by law” to hold civilian offices. Officers to
whom section 973(b)(2)(A) would otherwise apply are therefore ex-
empted from the statute’s prohibition by virtue of their terminal leave
status. In contrast, officers who are not on terminal leave and are not
“otherwise authorized by law” to hold covered positions remain sub-
ject to section 973(b)(2)(A). So understood, section 973(b)(2)(A) and
section 5534a do not conflict, but rather co-exist as part of a single,
coherent statutory scheme.
As noted above, DoD disagrees with this interpretation. As we under-
stand its position, DoD believes section 973(b)(2)(A)’s “otherwise author-
ized by law” exception covers only statutes that refer to specific civilian
offices, and not statutes like section 5534a that authorize a class of active
duty officers to hold civilian positions. Further, in DoD’s view, section
973(b)(2)(A) is more specific than section 5534a and was enacted later in
time. As a result, DoD believes that section 973(b)(2)(A) must be under-
stood to override section 5534a. See RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (where “a general per-
mission or prohibition is contradicted by a specific prohibition or permis-
sion . . . the specific provision is construed as an exception to the general
one”); Tenn. Gas Pipeline Co. v. FERC, 626 F.2d 1020, 1022 (D.C. Cir.
1980) (finding that a “latter law” controls an earlier one (citing C. Dallas
16
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
Sands, 2A Sutherland on Statutory Construction § 51.03, at 300 (4th ed.
1972))).
We disagree with this position for a number of reasons. Most funda-
mentally, we believe section 973(b)(2)(A)’s “otherwise authorized by
law” exception includes authorization under section 5534a. DoD is correct
that Congress has enacted statutes specifically authorizing active duty
officers to hold certain positions subject to section 973(b)(2)(A)’s prohi-
bition. See 10 U.S.C. § 528 (authorizing military officers to hold certain
positions in the Intelligence Community, including CIA Director); see
also id. §§ 3017(b), 5036(c), 8017(b) (1982) (noting that, if an active duty
military officer temporarily acted as Secretary of the Army, Navy, or Air
Force, such service should not “be considered as the holding of a civil
office within the meaning of section 973(b)”); cf. 40 U.S.C. § 311(c)
(authorizing the Administrator of General Services to “use the services”
of “armed services personnel” “[n]otwithstanding section 973 of title
10”). But nothing in the provision’s text indicates that the “otherwise
authorized by law” exception should be read to apply only to those stat-
utes, and not to more general authorizations, as its plain language would
suggest. The provision does not, for example, prohibit a military officer
from holding a covered position “except as otherwise authorized by a
statute expressly referring to section 973(b),” or “except as otherwise
authorized by a statute referring to a specified position.” The provision’s
“otherwise authorized by law” clause also does not list specific statutes
authorizing active duty officers to hold particular civilian offices. Cf. 16
U.S.C. § 2403(b) (“It is unlawful for any person, unless authorized by a
permit issued under this chapter . . . to dispose of any waste in Antarctica
(except as otherwise authorized by the Act to Prevent Pollution from
Ships)[.]”). Absent some basis in the language of section 973(b)(2)(A) to
construe the phrase “otherwise authorized by law” narrowly, and in light
of the principle that competing statutes should be interpreted harmonious-
ly whenever possible, we see no reason to exclude section 5534a from the
reach of section 973(b)(2)(A)’s exception.
Because 10 U.S.C. § 973(b)(2)(A) can be read in harmony with
5 U.S.C. § 5534a, there is no need to resort to the canons of statutory
construction on which DoD relies—the “rule of relative specificity” and
the principle that a later-enacted statute will control an earlier one. See,
e.g., Nat’l Cable & Telecomm. Ass’n v. Gulf Power Co., 534 U.S. 327,
335–36 (2002) (“It is true that specific statutory language should control
17
40 Op. O.L.C. 13 (2016)
more general language when there is a conflict between the two. Here,
however, there is no conflict.”); Nat’l Ass’n of Home Builders v. Defs. of
Wildlife, 551 U.S. 644, 662 (2007) (“We will not infer a statutory repeal
unless the later statute expressly contradict[s] the original act or unless
such a construction is absolutely necessary . . . in order that [the] words
[of the later statute] shall have any meaning at all.” (alterations in origi-
nal) (internal quotation marks omitted)). But even if those canons were
applicable, neither would compel the reading of the relevant statutory
provisions DoD advances.
We agree that section 973(b)(2)(A) is more specific than section 5534a
with respect to the federal civilian positions it covers. It applies only to
elected, presidentially appointed, and Executive Schedule offices, while
section 5534a applies to all civilian offices and positions in the federal
government. Additionally, section 973(b)(2)(A) applies only to “of-
ficer[s]” in the military, while section 5534a applies to all “member[s] of
a uniformed service.” But section 5534a is more specific with respect to
the status of the active duty military members to whom it applies. Where
section 973(b)(2)(A) applies to all “regular officer[s] of an armed force on
the active-duty list (and . . . regular officer[s] of the Coast Guard on the
active duty promotion list),” as well as to certain retired and reserve
officers, see 10 U.S.C. § 973(b)(1), section 5534a applies only to mem-
bers of the military on terminal leave. Section 5534a thus applies to a
category of military members in a very specific situation: those who are
nearing the end of their military service and are using the unexhausted
portion of their accumulated leave prior to separation. As we have previ-
ously noted, where competing statutory provisions are “more specific” in
one respect but “less specific” in another, the rule of relative specificity
is unhelpful in resolving the conflict between them. See Restrictions on
Travel by Voice of America Correspondents, 23 Op. O.L.C. 192, 195 n.2
(1999) (“We cannot resolve the issue by turning to the principle that,
absent a clear intention to the contrary, a specific statute controls a gen-
eral one. Although the statutes on which the State Department relies are
the more specific ones on the question of safety, they are less specific on
the question of VOA’s freedom to report the news.” (citation omitted));
cf. Gulf War Veterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (find-
ing the rule inconclusive where “the two provisions are at the same order
of specificity”). Accordingly, we do not believe the rule of relative speci-
ficity would be dispositive here even if it applied.
18
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
We are also unpersuaded by DoD’s reliance on the principle that a later
enactment controls an earlier one. Although, as explained below, section
973(b) was amended to take its current form in 1983, the prohibition on
military officers serving in federal civilian offices has existed in some
form since 1870. The authorization for military members on terminal
leave to hold civilian offices, in contrast—now section 5534a—originated
in 1945. It is thus unclear how this “later in time” canon would apply
here. Moreover, even if section 973(b)(2)(A) were in all relevant respects
a later-enacted provision, we do not believe its priority of enactment
would be sufficient to demonstrate that it was intended to override section
5534a. The Supreme Court has explained that while “a later enacted
statute . . . can sometimes operate to amend or even repeal an earlier
statutory provision . . . , ‘repeals by implication are not favored’ and will
not be presumed unless the ‘intention of the legislature to repeal [is] clear
and manifest.’” Defs. of Wildlife, 551 U.S. at 662 (brackets in original)
(quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)). Here, DoD’s reading
would compel the conclusion that the 1983 amendment to section 973(b)
implicitly repealed section 5534a, at least with respect to the military
officers subject to section 973(b)(2)(A)’s prohibition and the federal
civilian offices to which the prohibition applies. But nothing in the lan-
guage of section 973(b)(2)(A) makes such an intent “clear and manifest.”
We thus conclude that the text of section 973(b)(2)(A) and section
5534a supports the conclusion that military officers on terminal leave
who satisfy the requirements of section 5534a may hold covered feder-
al civilian offices notwithstanding the general prohibition in section
973(b)(2)(A).
B.
In light of the plain language of section 973(b)(2)(A)’s “otherwise au-
thorized by law” exception, there is no need to consider the legislative
history of section 973(b)(2)(A) and section 5534a. To the extent that that
history is considered, however, it supports the conclusion drawn from the
text of the provisions, and affirmatively suggests that Congress intended
section 5534a to operate as an exception to section 973(b)(2)(A).
The prohibition on active duty military officers holding civilian posi-
tions dates back to the years immediately following the Civil War. In
19
40 Op. O.L.C. 13 (2016)
1870, Congress enacted a statute providing that “it shall not be lawful for
any officer of the Army of the United States on the active list to hold any
civil office, whether by election or appointment, and any such officer
accepting or exercising the functions of a civil office shall at once cease
to be an officer of the army, and his commission shall be vacated there-
by.” Act of July 15, 1870, ch. 294, § 18, 16 Stat. 315, 319. This prohibi-
tion appeared as section 1222 of the Revised Statutes and was made part
of the United States Code in the 1925 edition as 10 U.S.C. § 576. See
Rev. Stat. § 1222 (1st ed. 1875), 18 Stat. pt. 1, at 215 (“No officer of the
Army on the active list shall hold any civil office, whether by election or
appointment, and every such officer who accepts or exercises the func-
tions of a civil office shall thereby cease to be an officer of the Army, and
his commission shall be thereby vacated.”); 10 U.S.C. § 576 (1925)
(same).
Section 5534a originated in the post-World War II period. Facing an
influx of soldiers returning from the war, Congress sought to ensure that
members of the military would not be forced to choose between forfeiting
unused leave and taking civilian positions in the federal government. A
committee report accompanying the precursor to section 5534a explained
that, under then-current law, “[a]lthough members of the armed forces on
terminal leave may accept private employment without forfeiting the pay
and allowances to which they are entitled while on terminal leave, they
may not . . . accept employment in civilian positions under the Federal
Government and receive compensation for such employment concurrently
with the receipt of military pay and allowances.” H.R. Rep. No. 79-1163,
at 1 (1945). To address that problem, Congress enacted the Act of No-
vember 21, 1945. In relevant part, that law provided:
Any person, who, subsequent to May 1, 1940, shall have performed
active service in the armed forces, may, while on terminal leave
pending separation from or release from active duty in such service
under honorable conditions, enter or reenter employment of the
Government of the United States, its Territories, or possessions, or
the District of Columbia . . . and, in addition to compensation for
such employment, shall be entitled to receive pay and allowances
from the armed forces for the unexpired portion of such terminal
leave at the same rates and to the same extent as if he had not en-
tered or reentered such employment.
20
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
Pub. L. No. 79-226, sec. 1, § 2(a), 59 Stat. 584, 584; see also H.R. Rep.
No. 79-1163, at 2 (explaining the purpose of the proposed legislation).
Notably, the committee report on the 1945 statute specifically cited the
precursor to section 973(b)(2)(A)—section 1222 of the Revised Stat-
utes—as one of the statutory obstacles to Army officers holding civilian
positions in the federal government. See H.R. Rep. No. 79-1163, at 1
(“Section 1222 of the Revised Statutes also prohibits any officer of the
Army on the active list from holding civilian office.”). The report’s refer-
ence to section 1222 suggests that, at least in the relevant House commit-
tee’s view, the new provision was intended to override that limitation.
And, citing this legislative history, the Comptroller General concluded in
1946 that the 1945 precursor to section 5534a did just that. See 25 Comp.
Gen. 677, 679 (1946). As the Comptroller General explained:
[A]n examination of the legislative history of the said act of Novem-
ber 21, 1945, discloses that the provisions of section 1222, along
with the various statutes prohibiting dual employment and the re-
ceipt of double compensation, were particularly brought to the atten-
tion of the Congressional committee considering the proposed legis-
lation. And that it was the intent of the Congress to authorize the
benefits provided by the said 1945 statute notwithstanding the provi-
sions of such laws, including section 1222, Revised Statutes, clearly
appears from House Report 1163, accompanying S. 1036 (which, as
amended by the House of Representatives, became the act of No-
vember 21, 1945), wherein specific mention is made of section 1222,
Revised Statutes, as well as the dual employment and dual compen-
sation statutes, as constituting existing legislation the provisions of
which were intended to be avoided by enactment of the bill.
Id. 3
The relevant statutory provisions were subsequently revised and trans-
ferred, but none of these changes suggests that Congress had a different
view of the relationship between the two provisions. In 1956, the pre-
cursor to section 973(b) was amended and recodified as 10 U.S.C.
3 The Comptroller General affirmed this position in 1965. See 45 Comp. Gen. 180,
181 (1965) (“In decision of March 28, 1946, 25 Comp. Gen. 677, we held that the
provisions of [the Act of Nov. 21, 1945] supersede the provisions of section 1222,
Revised Statutes[.]”).
21
40 Op. O.L.C. 13 (2016)
§ 3544(b). See Pub. L. No. 84-1028, 70A Stat. 1, 203 (1956). The lan-
guage “[e]xcept as otherwise provided by law” was added at this time.
According to the Historical and Revision Notes in the 1958 version of the
United States Code, “the words ‘Except as otherwise provided by law’
[we]re inserted, since other laws enacted after the date of enactment of
[10 U.S.C. § 576] authorize the performance of the functions of certain
civil offices.” 10 U.S.C. § 3544 (1958) (Historical and Revision Notes).
Although this statement appears to refer to laws permitting Army officers
to occupy particular civilian offices, it does not in our view suggest that
the phrase “[e]xcept as otherwise provided by law” should be read—
contrary to its plain language—to include only those statutes. Moreover,
nothing in the legislative history of the 1956 recodification indicates an
intent to alter the prior understanding—reflected in the legislative history
of the Act of November 21, 1945 and the 1946 Comptroller General
opinion relying on that history—that the terminal leave provision operated
as an exception to the prohibition on Army officers serving in federal
civilian positions.
In 1967, the terminal leave provision previously added in 1945 was re-
vised and codified at 5 U.S.C. § 5534a. See Pub. L. No. 90-83, § 22, 81
Stat. 195, 199–200 (1967). The new section 5534a was in relevant parts
the same as the current version. In 1968, the prohibition on active duty
Army officers holding civilian offices, then codified at 10 U.S.C.
§ 3544(b), was expanded to cover officers of the Navy, Air Force, Marine
Corps, and Coast Guard, and was recodified as 10 U.S.C. § 973(b). See
Pub. L. No. 90-235, § 4(a)(5)(A), 81 Stat. 753, 759 (1968). At that time,
section 973(b) provided:
Except as otherwise provided by law, no officer on the active list of
the Regular Army, Regular Navy, Regular Air Force, Regular Ma-
rine Corps, or Regular Coast Guard may hold a civil office by elec-
tion or appointment, whether under the United States, a Territory or
possession, or a State. The acceptance of such a civil office or the
exercise of its functions by such an officer terminates his military
appointment.
Id.In 1983, our Office concluded that 10 U.S.C. § 973(b) barred Judge
Advocate General officers from being appointed as Special Assistant
United States Attorneys to prosecute petty offenses on military reserva-
22
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
tions. See Memorandum for William P. Tyson, Director, Executive Office
for United States Attorneys, from Theodore B. Olson, Assistant Attorney
General, Office of Legal Counsel, Re: Applicability of 10 U.S.C. § 973(b)
to JAG Officers Assigned to Prosecute Petty Offenses Committed on
Military Reservations (May 17, 1983). In response to that decision, Con-
gress amended section 973(b) to limit the offices that active duty military
officers were prohibited from holding. See Department of Defense Au-
thorization Act, 1984, Pub. L. No. 98-94, sec. 1002(a), § 973(b)(2)(A),
97 Stat. 614, 655 (1983). Under the amended version, the prohibition on
holding federal civilian offices applied, as it does today, only to an office
that “is an elective office,” that “requires an appointment by the President
by and with the advice and consent of the Senate,” or that “is a position in
the Executive Schedule under sections 5312 through 5317 of title 5.” Id.Congress also made clear that active duty officers assigned or detailed to
federal civilian offices not covered by the prohibition could hold those
offices or exercise their functions. Id. § 973(b)(2)(B). The legislative
history of the 1983 amendment to section 973(b) confirms that the provi-
sion was narrowed in response to the OLC opinion. See S. Rep. No. 98-
174, at 232–34 (1983); see also H.R. Rep. No. 98-352, at 233 (1983)
(Conf. Rep.). 4 It makes no mention of any intention to displace the prior
understanding that section 5534a provides an exception to the general
prohibition on military officers holding federal civilian offices.
In sum, the legislative history of the 1945 statute that was the predeces-
sor to section 5534a indicates that the provision was intended to create an
exception to the general prohibition on military officers holding civilian
4 As the Committee report explained:
The Committee has been advised by the Department of Defense that the Assistant
Attorney General, Office of Legal Counsel, of the Department of Justice, has re-
cently issued an opinion that the practice of appointing military commissioned of-
ficers as Special Assistant United States Attorneys is now considered to offend the
prohibitions of section 973(b) of Title 10, United States Code. However, that same
opinion suggests that legislation be sought to amend section 973(b) to permit the
continuation of this longstanding and successful practice. The Department of De-
fense has requested such legislation.
Therefore, the Committee recommends a provision to amend section 973(b) of Ti-
tle 10 to permit the continuation of this practice of utilizing military attorneys as
Special Assistant United States Attorneys.
S. Rep. No. 98-174, at 233.
23
40 Op. O.L.C. 13 (2016)
offices in the federal government that had been in force since 1870. Noth-
ing in the history of subsequent amendments to the two provisions pro-
vides any basis to conclude that Congress intended these amendments to
achieve a different result.
C.
The conclusion that section 5534a provides an exception to the general
prohibition of section 973(b)(2)(A) is also consistent with prior advice
given by this Office. In a July 5, 1973 memorandum to the Attorney Gen-
eral, our Office considered whether the military appointment of General
Alexander M. Haig, Jr., the Vice Chief of Staff of the Army, had termi-
nated pursuant to section 973(b) when he “was called to the White House
to assume many of the responsibilities formerly held by H.R. Haldeman.”
Memorandum for the Attorney General from Robert G. Dixon, Jr., Assis-
tant Attorney General, Office of Legal Counsel, Re: Status of General
Alexander M. Haig, Jr. (July 5, 1973) (internal quotation marks omitted).
The facts surrounding General Haig’s service in the White House were
not clear at the time the memorandum was written. Among other things,
the Office did not know “whether the as yet undisclosed arrangement
between the President and General Haig had the effect of placing the
General on terminal leave.” Id. at 9. The memorandum concluded, how-
ever, that even “[i]f the facts that are developed show that General Haig
was put on terminal leave by the President acting in the capacity of Com-
mander in Chief, it would appear that 10 U.S.C. 973(b) was not violated.”
Id. at 3. The memorandum explained that the Comptroller General (in the
1946 opinion discussed above) had “interpreted the act of November 21,
1945, 59 Stat. 584, now 5 U.S.C. 5534a, as exempting officers on termi-
nal leave from the prohibition of what is now 10 U.S.C. 973(b).” Id. at 7
(citing 25 Comp. Gen. 677); see also id. at 9 (“[T]he Comptroller General
has ruled, as shown above, that by virtue of 5 U.S.C. 5534a, military
officers on terminal leave are not subject to the prohibitions of 10 U.S.C.
973(b).”).
The Office later provided informal advice to the Department of Defense
about whether a Vice Admiral who was willing to retire from the military
could be appointed to a position in the Department of the Interior before
his active duty service concluded. Our Office “advised that 10 U.S.C.
973(b) would not be a barrier to the appointment if the Admiral were
24
Continuation of Terminal Leave for Military Officer Appointed to Civilian Position
placed on terminal leave since 5 U.S.C. 5534a makes an exception to the
prohibition on military officers holding civil office if they are on terminal
leave.” Memorandum to Files from Mary C. Lawton, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: Inquiry from DOD on
exceptions to 10 U.S.C. 973(b) (Oct. 30, 1973) (citing 25 Comp. Gen. 677and 45 Comp. Gen. 180); see also Memorandum for the Files from Ed-
ward S. Lazowska, Office of the Assistant Solicitor General, Re: Pro-
posed Appointment of Major General Robert McGowan Littlejohn as War
Assets Administrator (July 2, 1946) (noting the restrictions on civilian
federal employment imposed by section 1222 of the Revised Statutes, the
predecessor to 10 U.S.C. § 973(b), but concluding that “as soon as Gen-
eral Littlejohn is placed on terminal leave pending his retirement from the
Army he may accept appointment as Administrator . . . under the provi-
sions of the act of November 21, 1945,” the predecessor to 5 U.S.C.
§ 5534a).
Although these prior writings predated the 1983 amendment to section
973(b), we do not believe that that amendment—which narrowed the
scope of section 973(b)—altered the provision in ways that are material to
the question whether a military officer on terminal leave status is “other-
wise authorized by law” to hold a covered civilian office.
III.
For the foregoing reasons, we conclude that an active duty military of-
ficer on terminal leave who meets the requirements of 5 U.S.C. § 5534a
may continue on terminal leave status after his appointment or election to
a position covered by 10 U.S.C. § 973(b)(2)(A).
KARL R. THOMPSON
Principal Deputy Assistant Attorney General
Office of Legal Counsel
25