B-202893, JAN 2, 1986

B-202893, JAN 2, 1986

DIGEST: PROVISIONS OF THE VACANCIES ACT GOVERN THE FILLING OF VACANCIES IN THOSE OFFICES WHICH REQUIRE SENATE CONFIRMATION IN THE DEPARTMENT OF ENERGY, EXCEPT WHERE THERE IS SPECIFIC STATUTORY AUTHORITY TO FILL SUCH VACANCIES. THE VACANCIES ACT APPLIES TO THE POSITION OF ADMINISTRATOR, ECONOMIC REGULATORY ADMINISTRATION. ACTIONS BY AN INDIVIDUAL OCCUPYING AN OFFICE PURSUANT TO THE VACANCIES ACT WHICH ARE TAKEN SUBSEQUENT TO EXPIRATION OF 30-DAY TIME LIMITATION SET FORTH IN 5 U.S.C. SEC. 3348 ARE OF UNCERTAIN VALIDITY. ACCORDINGLY, AT THE END OF THE 30-DAY PERIOD, SUCH INDIVIDUALS SHOULD REFRAIN FROM TAKING ANY FURTHER ACTION IN AN ACTING CAPACITY.

THE HONORABLE JOHN D. DINGELL:

CHAIRMAN, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

COMMITTEE ON ENERGY AND COMMERCE

HOUSE OF REPRESENTATIVES

THIS IS IN PARTIAL RESPONSE TO YOUR LETTER DATED NOVEMBER 25, 1985, IN WHICH YOU ASKED, AMONG OTHER THINGS, TO WHAT EXTENT THE VACANCIES ACT APPLIES TO THE POSITION OF ADMINISTRATOR OF THE ECONOMIC REGULATORY ADMINISTRATION (ERA), DEPARTMENT OF ENERGY, AND WHETHER THE ACTING ADMINISTRATOR OF THE ERA IS PERFORMING ACTIONS IN VIOLATION OF THAT ACT.

YOU INDICATED IN YOUR LETTER OF NOVEMBER 25 THAT AN ACTING ADMINISTRATOR HAS BEEN SERVING IN THAT CAPACITY SINCE SEPTEMBER 14, 1985. WE HAVE BEEN INFORMALLY ADVISED THAT NEITHER MR. MARSHALL A. STAUNTON, THE ACTING ADMINISTRATOR, NOR ANYONE ELSE HAVE BEEN NOMINATED BY THE PRESIDENT TO SERVE ON A PERMANENT BASIS AS OF DECEMBER 26, 1985.

FOR THE REASONS WHICH FOLLOW IT APPEARS THAT THE VACANCIES ACT FULLY APPLIES TO THE POSITION IN QUESTION AND THAT THE ACTING ADMINISTRATOR IS PERFORMING ACTIONS IN VIOLATION OF THAT ACT.

THE VACANCIES ACT

THE SO-CALLED VACANCIES ACT, 5 U.S.C. SECS. 3345-3349 (1982), PROVIDES METHODS FOR THE TEMPORARY FILLING OF VACANCIES CREATED BY THE DEATH, RESIGNATION, SICKNESS OR ABSENCE OF THE HEAD OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT OR THE HEAD OF A BUREAU THEREOF WHOSE APPOINTMENT IS NOT VESTED IN THE HEAD OF THE DEPARTMENT OR IN THE PRESIDENT ALONE. SECTION 3346 PROVIDES THAT WHEN AN OFFICER OF A BUREAU OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT WHOSE APPOINTMENT IS NOT VESTED IN THE HEAD OF THE DEPARTMENT DIES, RESIGNS, OR IS SICK OR ABSENT, UNLESS OTHERWISE DIRECTED BY THE PRESIDENT UNDER SECTION 3347, HIS FIRST ASSISTANT SHALL PERFORM THE DUTIES OF THE OFFICE UNTIL A SUCCESSOR IS APPOINTED OR THE ABSENCE OR SICKNESS STOPS. SECTION 3347 PROVIDES THAT THE PRESIDENT MAY DIRECT ANOTHER OFFICER OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT, WHOSE APPOINTMENT IS VESTED IN THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO PERFORM THE DUTIES OF THE OFFICE UNTIL A SUCCESSOR IS APPOINTED OR THE ABSENCE OR SICKNESS STOPS. SECTION 3349 MAKES THE METHODS DESCRIBED IN THE PRECEDING SECTIONS THE SOLE MEANS FOR FILLING THE VACANCIES DESCRIBED THEREIN, EXCEPT IN THE CASE OF A VACANCY OCCURING DURING A RECESS OF THE SENATE.

SECTION 3348 PROVIDES THAT A VACANCY CAUSED BY DEATH OR RESIGNATION MAY BE FILLED TEMPORARILY UNDER SECTION 3346 OR 3347 FOR NOT MORE THAN 30 DAYS. THE PROVISIONS OF THE VACANCIES ACT ARE DERIVED FROM THE ACT OF JULY 23, 1868, CH. 227, 15, STAT. 168. THE TIME LIMIT NOW SET FORTH IN SECTION 3348 WAS ORIGINALLY 10 DAYS AND WAS INCREASED TO 30 DAYS BY THE ACT OF FEBRUARY 6, 1891, CH. 113, 26 STAT. 733.

THE CONGRESSIONAL INTENT IN PASSING THE 1868 ACT IS INDICATED BY DEBATE RECORDED IN THE CONGRESSIONAL GLOBE ON FEBRUARY 14, 1868:

"MR. TRUMBULL. THE INTENTION OF THE BILL WAS TO LIMIT THE TIME WITHIN WHICH THE PRESIDENT MIGHT SUPPLY A VACANCY TEMPORARILY IN THE CASE OF THE DEATH OR RESIGNATION OF THE HEAD OF ANY OF THE DEPARTMENTS OR OF ANY OFFICER APPOINTED BY HIM BY AND WITH THE ADVICE AND CONSENT OF THE SENATE IN ANY OF THE DEPARTMENTS. AS THE LAW NOW STANDS, HE IS AUTHORIZED TO SUPPLY THOSE VACANCIES FOR SIX MONTHS WITHOUT SUBMITTING THE NAME OF A PERSON FOR THAT PURPOSE TO THE SENATE; AND IT WAS THOUGHT BY THE COMMITTEE TO BE AN UNREASONABLE LENGTH OF TIME, AND HENCE THEY HAVE LIMITED BY THIS BILL TO THIRTY DAYS." (CHANGED BY FLOOR AMENDMENT TO 10 DAYS.) CONGRESSIONAL GLOBE 1163, FEBRUARY 14, 1868.

IT HAS LONG BEEN HELD BY THE ATTORNEY GENERAL THAT AFTER A VACANT POSITION HAS BEEN TEMPORARILY FILLED UNDER THE VACANCIES ACT THE POWER CONFERRED BY THE ACT IS EXHAUSTED AND THE PRESIDENT DOES NOT HAVE THE AUTHORITY TO APPOINT EITHER THE SAME OR ANOTHER OFFICER TO TEMPORARILY FILL THE OFFICE FOR AN ADDITIONAL PERIOD. 16 OP. ATTY. GEN. 596 (1880); 18 OP. ATTY. GEN. 50 (1884); ID. AT 58; 20 OP. ATTY. 8 (1891).

SINCE THE INTENT OF THE VACANCIES ACT WAS TO PRECLUDE UNREASONABLE DELAYS IN SUBMITTING NOMINATIONS FOR OFFICES SUBJECT TO SENATE CONFIRMATION WE HAVE ADOPTED THE VIEW THAT THE 30-DAY LIMITATION CONTAINED IN 5 U.S.C. SEC. 3348 RUNS ONLY DURING THE PERIOD THAT THERE IS NO NAME BEFORE THE SENATE FOR CONFIRMATION BY THAT BODY. SEE 56 COMP.GEN. 761 (1977). ALSO SEE WILLIAMS V. PHILLIPS, 482 F.2D 669 (D.C. CIR. 1973). BUT SEE UNITED STATES V. LUCIDO, 373 F.SUPP. 1142 (E.D. MICHIGAN, 1974), WHEREIN THE COURT IN EFFECT STATED THAT NOTWITHSTANDING THAT A NAME HAD BEEN SUBMITTED TO THE SENATE FOR CONFIRMATION AN APPOINTMENT UNDER THE VACANCIES ACT WOULD TERMINATE AT THE END OF THE 30-DAY PERIOD SET FORTH IN 5 U.S.C. SEC. 3348. ACCORD, 32 OP. ATTY. GEN. 139 (1920).

THE 30-DAY LIMITATION PLACED ON TEMPORARY APPOINTMENTS BY 5 U.S.C. SEC. 3348 APPLIES BY ITS EXPRESS TERMS ONLY TO APPOINTMENTS OR DESIGNATIONS MADE UNDER THE VACANCIES ACT. ACCORDINGLY, THE LIMITATION CONTAINED IN SECTION 3348 IS NOT APPLICABLE WHERE VACANCIES ARE FILLED PURSUANT TO AUTHORITY OTHER THAN THE VACANCIES ACT.

DEPARTMENT OF ENERGY

BY ITS EXPRESS TERMS THE VACANCIES ACT IS APPLICABLE TO THE EXECUTIVE DEPARTMENTS AND MILITARY DEPARTMENTS. THE EXECUTIVE DEPARTMENTS INCLUDE THE DEPARTMENT OF ENERGY. SEE 5 U.S.C. SEC. 101 (1982).

CONCERNING AN APPOINTMENT TO THE POSITION OF ADMINISTRATOR, ECONOMIC REGULATORY ADMINISTRATION, SECTION 206(A) OF THE DEPARTMENT OF ENERGY ORGANIZATION ACT, PUBLIC LAW 95-91, 91 STAT. 574 (1977), 42 U.S.C. SEC. 7136(A) (1982), PROVIDES AS FOLLOWS:

"(A) THERE SHALL BE WITHIN THE DEPARTMENT OF ECONOMIC REGULATORY ADMINISTRATION TO BE HEADED BY AN ADMINISTRATOR, WHO SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND WHO SHALL BE COMPENSATED AT A RATE PROVIDED FOR LEVEL IV OF THE EXECUTIVE SCHEDULE UNDER SECTION 5315 OF TITLE 5. SUCH ADMINISTRATOR SHALL BE, BY DEMONSTRATED ABILITY, BACKGROUND, TRAINING, OR EXPERIENCE, AN INDIVIDUAL WHO IS SPECIALLY QUALIFIED TO ASSESS FAIRLY THE NEEDS AND CONCERNS OF ALL INTERESTS AFFECTED BY FEDERAL ENERGY POLICY. THE SECRETARY SHALL BY RULE PROVIDE FOR A SEPARATION OF REGULATORY AND ENFORCEMENT FUNCTIONS ASSIGNED TO, OR VESTED IN, THE ADMINISTRATION."

THE DEPARTMENT OF ENERGY ORGANIZATION ACT DOES NOT PROVIDE ANY SPECIFIC AUTHORITY FOR ANOTHER AGENCY OFFICIAL TO SERVE IN AN ACTING CAPACITY WHEN THE POSITION OF ADMINISTRATOR, ERA, IS VACANT. THEREFORE, IT WOULD APPEAR THAT THE ONLY AUTHORITY UNDER WHICH A VACANCY IN THE POSITION OF ADMINISTRATOR, ERA, COULD BE FILLED WOULD BE THE VACANCIES ACT, AND THE 30 -DAY LIMITATION SET FORTH IN 5 U.S.C. SEC. 3348 WOULD BE APPLICABLE.

EFFECT OF VACANCIES ACT ON ACTIONS TAKEN BY TEMPORARY APPOINTEES

THE LEGAL STATUS OF ACTIONS TAKEN BY TEMPORARY APPOINTEES UNDER THE VACANCIES ACT WHO CONTINUE TO SERVE IN AN ACTING CAPACITY BEYOND THE 30 DAY LIMITATION IS UNCERTAIN.

THOSE ACTIONS MAY POSSIBLY BE VIEWED AS ACTS PERFORMED BY A DE FACTO OFFICER. A DE FACTO OFFICER OR EMPLOYEE IS ONE WHO PERFORMS THE DUTIES OF AN OFFICE OR POSITION WITH APPARENT RIGHT AND UNDER COLOR OF APPOINTMENT AND CLAIM TO TITLE OF SUCH OFFICE OR POSITION. MATTER OF WILLIAM A. KEEL, JR., B-188424, MARCH 22, 1977, AND DECISIONS CITED. IN GENERAL WE HAVE HELD THAT ACTS PERFORMED WHILE A PERSON IS SERVING IN A DE FACTO STATUS ARE VALID AND EFFECTUAL INSOFAR AS CONCERNS THE PUBLIC AND THE RIGHTS OF THIRD PERSONS. 42 COMP.GEN. 495 (1963); SEE ALSO 63 AM. JUR.2D PUBLIC OFFICERS AND EMPLOYEES SEC. 518.

WITH REGARD TO DEFECTIVE OR INVALID APPOINTMENTS, THE GENERAL RULE IS STATED IN 63 AM. JR.2D PUBLIC OFFICERS AND EMPLOYEES SEC. 504 (1972) AS FOLLOWS:

"*** THE GENERAL RULE IS THAT WHEN AN OFFICIAL PERSON OR BODY HAS APPARENT AUTHORITY TO APPOINT TO PUBLIC OFFICE, AND APPARENTLY EXERCISES SUCH AUTHORITY, AND THE PERSON SO APPOINTED ENTERS ON SUCH OFFICE, AND PERFORMS ITS DUTIES HE WILL BE AN OFFICER DE FACTO, NOTWITHSTANDING THAT THERE WAS WANT OF POWER TO APPOINT IN THE BODY OR PERSON WHO PROFESSED TO DO SO, OR ALTHOUGH THE POWER WAS EXERCISED IN AN IRREGULAR MANNER."

IT IS NOT CLEAR, HOWEVER, WHETHER THE COURTS WOULD APPLY THE DE FACTO DOCTRINE WHERE A STATUTE SPECIFICALLY PRECLUDED THE CONTINUED OCCUPANCY OF THE POSITION. IN 32 OP. ATTY. GEN. 139 (1920), THE ATTORNEY GENERAL ADVISED THE UNDERSECRETARY OF STATE, WHO INQUIRED AS TO WHAT ACTION HE AND THE OFFICERS OF THE DEPARTMENT OF STATE SHOULD TAKE UPON THE END OF HIS 30 -DAY PERIOD OF SERVICE AS ACTING SECRETARY OF STATE PURSUANT TO THE VACANCIES ACT:

"IT IS PROBABLY SAFER TO SAY THAT YOU SHOULD NOT TAKE ACTION IN ANY CASE OUT OF WHICH LEGAL RIGHTS MIGHT ARISE WHICH WOULD BE SUBJECT TO REVIEW BY THE COURTS."

IN 56 COMP.GEN. 761 (1977) WE CONSIDERED THE EFFECT OF ACTIONS TAKEN BY THE ACTING INSURANCE ADMINISTRATOR, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, WHO HAD CONTINUED TO SERVE BEYOND THE 30-DAY LIMITATION SET FORTH AT 5 U.S.C. SEC. 3348. WE STATED THAT WHEN IT IS TOO LATE TO OFFER THE ADVICE SET FORTH BY THE ATTORNEY GENERAL IN 32 OP. ATTY. GEN. 139, THE SECRETARY OF THE DEPARTMENT SHOULD CONSIDER RATIFICATION OF THOSE ACTIONS AND DECISIONS ALREADY TAKEN WHICH SHE AGREED WITH TO AVOID ANY FURTHER CONFUSION AS TO THEIR BINDING EFFECT.

WE WOULD SUGGEST THAT, IN VIEW OF THE UNCERTAINTY SURROUNDING THE VALIDITY OF ACTIONS TAKEN AFTER 30 DAYS OF SERVICE BY OFFICERS WHO SERVE IN AN ACTING CAPACITY UNDER THE VACANCIES ACT, SUCH OFFICERS SHOULD REFRAIN FROM FURTHER ACTIONS IN AN ACTING CAPACITY AT THE END OF 30 DAYS. WE SUGGEST THAT, PURSUANT TO HIS STATUTORY AUTHORITY TO CARRY OUT THE FUNCTIONS OF HIS DEPARTMENT, THE SECRETARY OF ENERGY CONSIDER RATIFICATION OF THOSE ACTIONS AND DECISIONS WHICH WERE TAKEN SUBSEQUENT TO THE EXPIRATION OF THE 30 DAYS.

WE TRUST THAT THE ABOVE INFORMATION SERVES THE PURPOSE OF YOUR INQUIRY CONCERNING THE APPLICABILITY OF THE VACANCIES ACT TO THE POSITION OF ADMINISTRATOR, ERA. THE OTHER ISSUES RAISED IN YOUR NOVEMBER 25 LETTER WILL BE ANSWERED IN THE NEAR FUTURE.