President's Authority To Appoint an Acting Chairman of the Civil Aeronautics Board

M ay 24, 1977
77-29 MEMORANDUM OPINION FOR THE
GENERAL COUNSEL OF THE CIVIL
AERONAUTICS BOARD
President’s Authority To Appoint an Acting
Chairman of the Civil Aeronautics Board
This is in response to your letter concerning the President’s authority
to appoint an Acting Chairman of the Civil Aeronautics Board (CAB).
Your communication to the Assistant Counsel to the President took the
position that the President may not designate an Acting Chairman as
long as it had a Vice Chairman. You based that view on 49 U.S.C.
§ 1321(a)(2), which provides that the Vice Chairman of the Board
“shall act as chairman in the absence or incapacity of the chairman.”
Statutes that authorize an officer to “act” for another normally cover
three situations: vacancy, absence, and incapacity.1 The three terms are
not synonymous. “Vacancy” connotes the lack of any incumbent, as
through death or resignation, while “absence” and “incapacity” de­
scribe an incumbent who is physically or legally unable to perform the
duties of his office. See 63 Am. Jur. 713. Therefore, a statute that deals
only with absence or disability does not provide for an acting officer in
the event of a vacancy.2
Had Congress intended that the Vice Chairman of the CAB should
serve as Acting Chairman in case of a vacancy in the office of Chair­
man, it could readily have so provided by including “vacancy” among
the contingencies covered by § 1321(a)(2). W hether it should have, is
not the issue. It did not, and nothing in the legislative history of the
'See, e.g., 12 U.S.C. § 4 (D eputy C om ptroller o f the Currency); 28 U.S.C. § 508(a)
(D eputy A tto rn ey General); 31 U.S.C. § 16 (D eputy D irector, O ffice o f M anagem ent and
Budget); 31 U.S.C. §42 (D eputy C om ptroller G eneral). “ Incapacity” and “disability” are
used synonym ously in these statutes.
2 Compare, fo r example, 10 U.S.C. § 134(b), w hich authorizes the D eputy Secretary o f
Defense to act as Secretary only in the event of absence or disability, with 10 U .S.C.
§3017, w hich em pow ers the U nder Secretary o f the A rm y to perform the S ecretary’s
duties in the event o f death, resignation, rem oval, absence, o r disability.
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statute shows any intent to the contrary. It is therefore our opinion that
§ 1321(a)(2) did not preclude the President from designating a member
of the Board as Acting Chairman.
L eon U lm a n
Deputy Assistant Attorney General
Office o f Legal Counsel
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