A-32849, DECEMBER 20, 1930, 10 COMP. GEN. 273

A-32849: Dec 20, 1930

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HE IS NOT AUTHORIZED TO DELEGATE SUCH DUTY TO A SUBORDINATE IN THE ABSENCE OF AN ASSISTANT WHOSE POSITION HAS BEEN SPECIFICALLY CREATED AND FIXED BY LAW WITH POWER AND AUTHORITY TO ACT AS AND IN THE PLACE OF THE ADMINISTRATOR AS HEAD OF THE VETERANS' ADMINISTRATION. THAT HE IS NOT AUTHORIZED TO DELEGATE TO A SUBORDINATE THE RIGHT OR DUTY TO ACT FOR HIM UPON SUCH APPEALS. THE ADDITIONAL MATTERS SUBMITTED IN SUPPORT OF THE REQUEST FOR RECONSIDERATION HAVE BEEN CAREFULLY CONSIDERED. SAID RULE IS CONCISELY STATED IN DECISION OF FEBRUARY 15. FROM WHICH THE FOLLOWING IS QUOTED: * * * IN CONSTRUING SIMILAR PROVISIONS IN OTHER STATUTES IN WHICH THE AUTHORITY TO DO. IS VESTED BY STATUTE IN THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT.

A-32849, DECEMBER 20, 1930, 10 COMP. GEN. 273

DEPARTMENTS AND ESTABLISHMENTS - HEADS - DELEGATION OF AUTHORITY THE PROVISION IN THE ACT OF JULY 3, 1930, 46 STAT. 1016, THAT ALL FINAL DECISIONS OR ORDERS OF ANY DIVISION, BUREAU, OR BOARD IN THE VETERANS' ADMINISTRATION SHALL BE SUBJECT TO REVIEW, ON APPEAL, BY THE ADMINISTRATOR OF VETERANS' AFFAIRS, REQUIRES THE PERSONAL ACTION OF THE ADMINISTRATOR INVOLVING HIS PERSONAL JUDGMENT AND DISCRETION, AND HE IS NOT AUTHORIZED TO DELEGATE SUCH DUTY TO A SUBORDINATE IN THE ABSENCE OF AN ASSISTANT WHOSE POSITION HAS BEEN SPECIFICALLY CREATED AND FIXED BY LAW WITH POWER AND AUTHORITY TO ACT AS AND IN THE PLACE OF THE ADMINISTRATOR AS HEAD OF THE VETERANS' ADMINISTRATION.

COMPTROLLER GENERAL MCCARL TO THE ADMINISTRATOR OF VETERANS' AFFAIRS, DECEMBER 20, 1930:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 5, 1930, REQUESTING RECONSIDERATION OF DECISION OF THIS OFFICE DATED AUGUST 6, 1930, HOLDING THAT THE PROVISION IN THE ACT OF JULY 3, 1930, 46 STAT. 1016, THAT "ALL FINAL DECISIONS OR ORDERS OF ANY DIVISION, BUREAU, OR BOARD IN THE VETERANS' ADMINISTRATION SHALL BE SUBJECT TO REVIEW, ON APPEAL, BY SUCH ADMINISTRATOR," CONTEMPLATES THE PERSONAL ACTION OF THE ADMINISTRATOR, AND THAT HE IS NOT AUTHORIZED TO DELEGATE TO A SUBORDINATE THE RIGHT OR DUTY TO ACT FOR HIM UPON SUCH APPEALS, OR TO ACT IN HIS NAME UNDER A SPECIAL DELEGATION OF AUTHORITY TO SIGN HIS NAME.

THE ADDITIONAL MATTERS SUBMITTED IN SUPPORT OF THE REQUEST FOR RECONSIDERATION HAVE BEEN CAREFULLY CONSIDERED, BUT I AM UNABLE TO AGREE THAT THE TERMS OF THE PARTICULAR PROVISION, OR OF THE STATUTE CONSIDERED AS A WHOLE, CONSTITUTE SUFFICIENT AUTHORITY TO RELIEVE YOU FROM THE DUTY AND RESPONSIBILITY SPECIFICALLY IMPOSED TO ACT PERSONALLY ON ALL SUCH APPEALS.

THE ESTABLISHED RULE WITH RESPECT TO THE DELEGATION OF POWER OR AUTHORITY, OFTEN HAS BEEN STATED IN DECISIONS OF THE ACCOUNTING OFFICERS. SAID RULE IS CONCISELY STATED IN DECISION OF FEBRUARY 15, 1928, 7 COMP. GEN. 482, 483, ONE OF THE DECISIONS CITED IN YOUR SUBMISSION, FROM WHICH THE FOLLOWING IS QUOTED:

* * * IN CONSTRUING SIMILAR PROVISIONS IN OTHER STATUTES IN WHICH THE AUTHORITY TO DO, OR AUTHORIZE A PARTICULAR THING TO BE DONE, IS VESTED BY STATUTE IN THE HEAD OF THE DEPARTMENT OR ESTABLISHMENT, IT HAS BEEN UNIFORMLY HELD THAT THE HEAD OF A DEPARTMENT MAY NOT DELEGATE THAT AUTHORITY ENTIRELY TO A SUBORDINATE, ALTHOUGH SUCH AUTHORITY MAY BE DELEGATED TO AN ASSISTANT HEAD AUTHORIZED BY STATUTE TO ACT IN PLACE OF THE HEAD. 19 COMP. DEC. 628; 2 COMP. GEN. 459; 3 ID. 371, 460, 694, 777, 797; A-9543, MAY 26, 1925. WHEN THE CONGRESS HAS CONSIDERED THAT SUCH POWER SHOULD BE DELEGATED IT HAS AUTHORIZED SUCH ACTION BY SPECIFIC LEGISLATION, AS EVIDENCED IN THE ACT OF MAY 22, 1926, 44 STAT. 620, AUTHORIZING THE SECRETARY OF THE INTERIOR TO DELEGATE TO SUPERVISORY OFFICERS THE POWER VESTED IN HIM UNDER SECTION 169, REVISED STATUTES, TO MAKE TEMPORARY OR EMERGENCY APPOINTMENTS OF PERSONS FOR DUTY IN THE FIELD. EVEN THIS POWER OF APPOINTMENT IS MADE SUBJECT TO CONFIRMATION BY THE SECRETARY.

THE ACT OF MARCH 4, 1911, 36 STAT. 1265, CONSIDERED IN DECISION OF APRIL 10, 1928, 7 COMP. GEN. 656, WHICH YOU CITE IN SUPPORT OF YOUR REQUEST FOR RECONSIDERATION, PROVIDED AS FOLLOWS:

THAT HEREAFTER, OFFICERS AND EMPLOYEES OF THE DEPARTMENT OF AGRICULTURE TRANSFERRED FROM ONE OFFICIAL STATION TO ANOTHER FOR PERMANENT DUTY, WHEN AUTHORIZED BY THE SECRETARY OF AGRICULTURE, MAY BE ALLOWED ACTUAL TRAVELING EXPENSES, INCLUDING CHARGES FOR THE TRANSFER OF THEIR EFFECTS AND PERSONAL PROPERTY USED IN OFFICIAL WORK, UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF AGRICULTURE.

THE DECISION OF APRIL 10, 1928, IN APPLYING SAID PROVISION, PROPERLY HELD AS FOLLOWS:

WHILE THE PROVISIONS OF THE ACT OF MARCH 4, 1911, 36 STAT. 1265, ARE APPLICABLE TO TRANSFERS ,WHEN AUTHORIZED BY THE SECRETARY OF AGRICULTURE," THIS IS FURTHER QUALIFIED BY PROVIDING THAT THE ACTUAL TRAVELING EXPENSES MAY BE ALLOWED "UNDER SUCH RULES AND REGULATIONS AS MAY BE PRESCRIBED BY THE SECRETARY OF AGRICULTURE.' AS THE AUTHORITY TO PERMIT SUCH TRANSFERS HAS BEEN DELEGATED, BY REGULATION PRESCRIBED BY THE SECRETARY OF AGRICULTURE, TO THE CHIEFS OF THE RESPECTIVE BUREAUS IN WHICH THE EMPLOYEE SERVES, IT FOLLOWS THAT SUCH OFFICERS ARE QUALIFIED TO AUTHORIZE THE TRANSFERS AND TO DETERMINE AND CERTIFY THAT SUCH TRANSFERS WERE NOT FOR THE PERSONAL CONVENIENCE OF THE EMPLOYEES. * * *

THE PROVISION IN THE ACT OF JULY 3, 1930, HERE UNDER CONSIDERATION, POSITIVELY AND DEFINITELY IMPOSES ON THE ADMINISTRATOR THE DUTY OF ACTING ON APPEALS FROM ALL FINAL DECISIONS OR ORDERS OF ANY DIVISION, BUREAU, OR BOARD IN THE VETERANS' ADMINISTRATION WITHOUT ANY QUALIFICATION WHATEVER, AND THERE WOULD APPEAR TO BE NO ANALOGY WHATEVER BETWEEN SAID PROVISION AND THE PROVISION WHICH WAS CONSIDERED IN THE DECISION OF APRIL 10, 1928.

THE MERE STATEMENT OF THE PROPOSITION ADVANCED IN YOUR ARGUMENT TO THE EFFECT THAT A REVIEW OF A FINAL DECISION OR ORDER OF AN OFFICIAL OR BOARD INVOLVES ONLY A MINISTERIAL ACT, WOULD SEEM SUFFICIENT TO REFUTE IT, AND I ASSUME YOU DID NOT INTEND SERIOUSLY TO URGE SUCH A CONTENTION.

WITH REFERENCE TO YOUR STATEMENT THAT "THE SECRETARY OF THE INTERIOR UNDER HIS GENERAL AUTHORITY HAD THE POWER TO DELEGATE TO AN ASSISTANT SECRETARY AUTHORITY TO ACT ON PENSION PEALS," AND THAT SAID "POWER PASSED TO THE ADMINISTRATOR IMMEDIATELY UPON THE SIGNING OF THE EXECUTIVE ORDER OF JULY 21, 1930," IT NEED ONLY BE STATED THAT THE DELEGATION BY THE SECRETARY OF THE INTERIOR WAS IN ACCORDANCE WITH THE ESTABLISHED RULE HEREINBEFORE STATED AND PURSUANT TO THE PROVISIONS OF THE STATUTE CREATING THE OFFICE OF ASSISTANT SECRETARY OF THE INTERIOR, AND THAT THE LAW HAS NOT CREATED AN OFFICE OF ASSISTANT ADMINISTRATOR OF VETERANS' AFFAIRS NOR SPECIFICALLY VESTED IN ANY OFFICIAL THE POWER AND AUTHORITY TO ACT AS AND IN THE PLACE OF THE ADMINISTRATOR AS HEAD OF THE VETERANS' ADMINISTRATION. IF, UNDER EXISTING LAW, THE ADMINISTRATOR COULD DELEGATE TO HIS "SPECIAL ASSISTANT" THE POWER AND AUTHORITY VESTED IN THE ADMINISTRATOR TO REVIEW FINAL DECISIONS AND ORDERS, HE COULD LIKEWISE DELEGATE SAID POWER AND AUTHORITY TO ANY CLERK OR OTHER EMPLOYEE UNDER THE VETERANS' ADMINISTRATION; AND IT IS NOT TO BE ASSUMED THAT THE CONGRESS INTENDED TO CREATE SUCH A SITUATION. WHILE THE ACT OF JULY 3, 1930, GAVE BROAD AND EXCEPTIONAL AUTHORITY TO THE ADMINISTRATOR IN THE MATTER OF ORGANIZING THE FORCES PLACED UNDER HIS ADMINISTRATIVE CONTROL AND OF ASSIGNING DUTIES, ETC., THUS ENABLING HIM TO DIVEST HIMSELF OF PRACTICALLY ALL OF THE DUTIES PLACED UNDER THE VETERANS' ADMINISTRATION, IT SPECIFICALLY PROVIDED THAT ALL OF THESE FINAL DECISIONS AND ORDERS--- SOME OF WHICH ARE NOT REVIEWABLE BY ANY OTHER OFFICER OR TRIBUNAL IN THE EXECUTIVE OR JUDICIAL BRANCH OF THE GOVERNMENT--- "SHALL BE SUBJECT TO REVIEW, ON APPEAL, BY SUCH ADMINISTRATOR.' THE SITUATION WOULD SEEM TO ADMIT OF NO OTHER CONCLUSION THAN THAT THE ACTION ON SUCH APPEALS MUST BE BY THE ADMINISTRATOR IN PERSON.