Filed: Nov. 15, 2002
Latest Update: Mar. 03, 2020
Summary: As for the first scenario: We also believe that Mr. Scalia, while holding the, office of Solicitor for the Department of Labor by recess appointment, could, simultaneously hold a position in the non-career Senior Executive Service in the, Department of Labor.
Designation of Acting Solicitor of Labor
Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment,
could be given a second position in the non-career Senior Executive Service in the Department of
Labor before or after his recess appointment expires and, while serving in his non-career Senior
Executive Service position, could be designated as the Acting Solicitor after his recess appointment
expires.
November 15, 2002
MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT
You have asked whether Eugene Scalia, now serving as the Solicitor for the
Department of Labor under a recess appointment, could be designated the Acting
Solicitor after his recess appointment expires. You have asked us to address two
scenarios. Under the first scenario, Mr Scalia would be given a second position in
the non-career Senior Executive Service in the Department of Labor before his
recess appointment expires. Under the second scenario, he would be given the
non-career Senior Executive Service position in the Department of Labor after his
recess appointment expires. We conclude, for the reasons stated below, that under
either scenario Mr. Scalia could be designated, while serving in his non-career
Senior Executive Service position, as the Acting Solicitor after his recess
appointment expires.
On April 30, 2001, the President nominated Eugene Scalia to be Solicitor for
the Department of Labor. 147 Cong. Rec. 6508 (2001). After the Senate returned
all pending nominations when it took a long intrasession recess, the President
nominated Mr. Scalia again on September 4, 2001. 147 Cong. Rec. 16,339 (2001).
Once again, the Senate failed to act on the nomination. The President gave Mr.
Scalia a recess appointment during the Senate’s recess from December 20, 2001,
to January 23, 2002, and submitted his nomination to the Senate on February 5,
2002. 148 Cong. Rec. 600 (2002). The Senate has not acted upon this last
nomination, and Mr. Scalia’s recess appointment will expire when the Senate next
adjourns sine die. U.S. Const. art. II, § 2, cl. 3.
I.
Under either scenario, Mr. Scalia would lawfully hold a position in the non-
career Senior Executive Service. To begin with the second scenario: There is no
question that Mr. Scalia may be given a position in the non-career Senior Execu-
tive Service in the Department of Labor after his recess appointment as Solicitor
for the Department of Labor expires. 1
1
It is possible that an interruption in Mr. Scalia’s government service—i.e., the time between the
expiration of his recess appointment and the commencement of his work in the non-career Senior
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As for the first scenario: We also believe that Mr. Scalia, while holding the
office of Solicitor for the Department of Labor by recess appointment, could
simultaneously hold a position in the non-career Senior Executive Service in the
Department of Labor. We have repeatedly concluded that “there is no longer any
prohibition against dual office-holding.” Memorandum for Honorable John D.
Ehrlichman, Counsel to the President, from William H. Rehnquist, Assistant
Attorney General, Office of Legal Counsel, at 2 (Feb. 13, 1969) (“Rehnquist
Memorandum”); see also Memorandum for James H. Thessin, Deputy Legal
Adviser, Department of State, from Randolph D. Moss, Deputy Assistant Attorney
General, Re: Dual Office-Holding at 2 (Dec. 3, 1997) (“Dual Office-Holding”);
Memorandum for Philip B. Heymann, Deputy Attorney General, from Walter
Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Creation of
an Office of Investigative Agency Policies (Oct. 26, 1993) (“Office of Investigative
Agency Policies”); Dual Office of Chief Judge of Court of Veterans Appeals and
Director of the Office of Government Ethics, 13 Op. O.L.C. 241, 242 (1989)
(“Dual Office”); Memorandum for Arnold Intrater, General Counsel, Office of
White House Administration, from John O. McGinnis, Deputy Assistant Attorney
General, Office of Legal Counsel, Re: Dual Office of Executive Secretary of
National Security Council and Special Assistant (Mar. 1, 1988); Memorandum for
the Honorable George P. Williams, Associate Counsel to the President, from Leon
Ulman, Acting Assistant Attorney General, Office of Legal Counsel, Re: Dual
Appointment (June 24, 1974); Memorandum for the Honorable Myer Feldman,
Special Counsel to the President, from Norbert A. Schlei, Assistant Attorney
General, Office of Legal Counsel, Re: Fixing of Salary of Director of Office of
Economic Opportunity (Aug. 19, 1964). In 1964, Congress repealed a statute
generally barring the holding of more than one office, see Rehnquist Memoran-
dum at 1, and the current statute forbidding the receipt of pay for holding more
than one position, 5 U.S.C. § 5533 (2000), “impliedly permits” dual office-
holding. Dual Office, 13 Op. O.L.C. at 242. Furthermore, as we have pointed out,
it is of no consequence if one of the offices to be held is Senate-confirmed and the
other is not. See Rehnquist Memorandum at 2.
A possible limit on the holding of two offices, however, may arise from the
doctrine of “incompatibility.” This doctrine, which existed in common law,
“precludes a person from holding two offices if public policy would make it
improper for the person to perform both functions, such as when the functions of
the offices are inconsistent with each other.” Office of Investigative Agency
Policies at 6 (citations omitted). “The doctrine has been stated in various ways,
sometimes tautologically, but usually states that offices that are incompatible ‘are
such as bear a special relation to each other; one being subordinate to and interfer-
Executive Service position—might have certain adverse consequences for him. But this issue, which
you have not asked us to address, has no bearing on your question.
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Designation of Acting Solicitor of Labor
ing with the other so as, in the language of Coke, to induce the presumption that
they cannot be executed with impartiality and honesty.’” Id. (quoting 3 McQuillin,
The Law on Municipal Corporations § 12.67 (1982)). As we have noted, “[i]t is
arguable that [the doctrine] has either fallen into desuetude or been repealed by
statute.” Memorandum for Edward C. Schmults, Deputy Attorney General, from
Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:
Appointment as Associate Attorney General at 3, 4 (June 14, 1983). But see United
States v. Thompson, 475 F.2d 1359, 1363 (5th Cir. 1973) (discussing whether
positions have any “inherent” conflict). Even assuming the continued validity of
the doctrine, however, a recess appointee could be appointed to another office as
long as “[n]either office, as a matter of statute, reports to the other or reviews
determinations that the other has made.” See Dual Office-Holding at 4.
Under the Dual Compensation Act, 5 U.S.C. § 5533, the recess appointee could
receive the pay for only one of the offices. As we have interpreted the Act, the
holder of two offices “must be paid the higher salary if it is fixed by law,” because
he “would otherwise be waiving a right to compensation established pursuant to
statute—which is unlawful.” Dual Office, 13 Op. O.L.C. at 243 n.3 (citations
omitted). 2
II.
Under either of your two scenarios, we believe that, after expiration of his
recess appointment, Mr. Scalia may be designated under the Vacancies Reform
Act, 5 U.S.C. §§ 3345-3349d (2000), to act in the position he will have vacated
when his recess appointment expired. Under the Vacancies Reform Act, the
President “may direct an officer or employee of [an] Executive agency to perform
the functions and duties of [a] vacant [Senate-confirmed] office temporarily in an
acting capacity,” subject to specified time limits, provided that, during the year
preceding the occurrence of the vacancy, the officer or employee served for at
least 90 days in a position in that agency for which the rate of pay equaled or
exceeded the rate for GS-15 of the General Schedule. 5 U.S.C. § 3345(a)(3). By
virtue of his non-career Senior Executive Service position with the Department of
Labor, Mr. Scalia would be “an officer or employee” of that agency, and, during
the year before the expiration of his recess appointment created a vacancy, he
would have served for at least 90 days in a position—the office of Solicitor, to
which he was recess appointed—for which the pay exceeded the GS-15 rate. By
2
A Senior Executive Salary might, or might not, exceed the Executive Level IV pay of the Solicitor
of Labor. Salaries in the Senior Executive Service cover a range. 5 U.S.C. § 5382(a). The lowest level
of Senior Executive Service pay, even with a “locality-based comparability” adjustment for Washing-
ton, D.C., see 5 U.S.C. § 5304 (2000), would be less than the pay for Executive Level IV, while the
higher levels would exceed the pay for Executive Level IV.
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the plain terms of the Vacancies Reform Act, he would be eligible to be designated
to act. 3
There are two contrary arguments, the first based on the Vacancies Reform Act
and the second on the Recess Appointments Clause. In our view, neither argument
is persuasive.
The first argument is that, under the Vacancies Reform Act, the relevant vacan-
cy would have occurred when the recess appointee’s predecessor left office and
that the recess appointee, unless he qualified by virtue of service in the agency
before then, would not be able to act in the position. The basis for this argument
would be the provision of the Vacancies Reform Act stating that the Act is the
exclusive means for designation of an acting official, with two exceptions—(1) a
statute expressly authorizing the President, a court, or a head of a department to
name an acting official or a statute expressly designating an official to act, or
(2) the Recess Appointments Clause of the Constitution. 5 U.S.C. § 3347(a).
According to this argument, the Vacancies Reform Act thus treats a recess
appointment as identical to an acting designation, and an acting designation does
not fill an office but only assigns its duties and powers. The provisions of the
Vacancies Reform Act that allow designations of acting officials but set time
limits on their service, for example, contemplate that a “vacancy” occurs when the
occupant dies or resigns or is otherwise unavailable (except as a result of sick-
ness), 5 U.S.C. §§ 3345-3346, and the departure of an acting official does not
create a new vacancy. So, too, as this argument would go, the expiration of a
recess appointment does not create a new vacancy.
The language of the Vacancies Reform Act refutes this argument. While the
statute provides that an acting official only will “perform the functions and duties
of the [vacant] office temporarily,” id. § 3345(a)(1), (2), (3), it states that a recess
appointment “fill[s] a vacancy,” id. § 3347(a)(2). Therefore, when the recess
appointment ends, a new vacancy is created. We accordingly would read the
statutory reference to recess appointments as simply making clear that Congress
did not intend, by the Vacancies Reform Act, to restrict the President’s recess
appointment power in any way.
The second argument is that, because an acting official has the same duties and
powers as a recess appointee, a designation to act would extend the recess
appointment past the constitutionally mandated limit of “the End of [the Senate’s]
next Session.” U.S. Const. art. II, § 2, cl. 3. This argument, in our view, would
ignore the differences between holding an office and acting in it. An acting official
does not hold the office, but only “perform[s] the functions and duties of the
3
A provision of the Vacancies Reform Act that, in some circumstances, forbids an official to act in
a position for which he has been nominated, 5 U.S.C. § 3345(b)(1), does not apply if an official is
acting pursuant to the President’s designation. See Guidance on Application of the Federal Vacancies
Reform Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (Question 15).
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office.” 5 U.S.C. § 3345(a)(1), (2), (3). He is not “appointed” to the office, but
only “direct[ed]” or authorized to discharge its functions and duties, and he thus
receives the pay of his permanent position, not of the office in which he acts. See
5 U.S.C. § 5535(a) (2000). A recess appointee, on the other hand, is appointed by
one of the methods specified in the Constitution itself, see Swan v. Clinton, 100
F.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not an “inferior” procedure
to appointment with Senate confirmation); he holds the office; and he receives its
pay. We therefore conclude that a designation to act would not unconstitutionally
extend the tenure of a recess appointee.
Mr. Scalia’s service as Acting Solicitor would be subject to the time limits in
5 U.S.C. § 3346. Ordinarily, an acting official’s service, absent any further action,
may continue for 210 days from the occurrence of the vacancy. 5 U.S.C.
§ 3346(a)(1). However, “[i]f a vacancy occurs during an adjournment of the
Congress sine die, the 210-day period . . . shall begin on the day that the Senate
first reconvenes.” Id. § 3346(c). If the Senate does not adjourn sine die before the
House, we believe that the vacancy here would occur “during an adjournment sine
die of the Congress.” The office would be filled at all times that Congress was in
session, because the recess appointment would expire “at the End of [the Sen-
ate’s] . . . Session.” U.S. Const. art. II, § 2, cl. 3.
Notwithstanding the usual 210-day limit, if the President submitted a nomina-
tion for the vacant office (including a nomination of Mr. Scalia), Mr. Scalia’s
service could continue as long as the nomination was pending in the Senate. Id.
§ 3346(a)(2). If the Senate rejected or returned the nomination or the President
withdrew it, a new 210-day period would begin. Id. § 3346(b)(1). Once again,
however, if the President submitted a nomination, the service could continue while
the nomination was pending. Id. § 3346(b)(2). Rejection, return, or withdrawal of
the nomination would start a final 210-day period, which would not be suspended
by the President’s making another nomination. Id. § 3346(b)(2)(B). If any of the
210-day periods ends when the Senate is not in session, the second day on which
the Senate is next in session and is receiving nominations is deemed the last day of
the period. Id. § 3348(c).
M. EDWARD WHELAN III
Principal Deputy Assistant Attorney General
Office of Legal Counsel
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