Applicability of the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank

Applicability of the Federal Vacancies Reform Act to Vacancies
at the International Monetary Fund and the World Bank
T he U n ited Slates E xecutive D irector and th e A lternate U nited States E xecutive D irector at the Inter­
national M onetary F und and the World B ank are not part o f an E xecutive agency, and therefore
vacancies in those offices are not covered by the Federal V acancies Reform Act.

May 11, 2000

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
D epa r tm en t o f th e T r ea su r y

You have requested our opinion whether the Federal Vacancies Reform Act
(“ Vacancies Reform Act” or “ Act” ), 5 U.S.C. §§3341-3349d (Supp. IV 1998),
applies to vacancies in the offices of the United States Executive Director
(“ USED” ) and the Alternate United States Executive Director ( “ Alternate
USED” ) at the International Monetary Fund (“ IM F” ).1 This memorandum con­
firms our oral advice that the Act does not apply to these offices. By its terms,
the Act applies only to a Senate-confirmed office “ of an Executive agency.” We
believe that the better view, based on the information provided by the Treasury
Department, is that the U.S. representatives are not part of an “ Executive agency”
and are therefore not covered by the Act.
After our oral advice about the U.S. representatives to the IMF, you asked for
our opinion whether the Vacancies Reform Act applies to vacancies in the offices
of the United States Executive Director and the Alternate United States Executive
Director at the International Bank for Reconstruction and Development ( “ World
Bank” ). The Treasury Department has informed us that the USEDs and Alternate
USEDs at the IMF and the World Bank are similar with regard to the relevant
facts discussed in this opinion. On that basis, we conclude that the USED and
Alternate USED at the World Bank are similarly outside the scope of the Vacan­
cies Reform Act because they are not part of an “ Executive agency.”

I. The United States Representatives to the IMF

A. The United States Executive D irector and Alternate United States Executive
D irector

The IMF was established under an agreement negotiated at the 1944 Bretton
Woods Conference. See IMF, What is the International Monetary Fund?, available
at http://www.imf.org/extemal/pubs/ft/exrp/what.htm (visited Mar. 29, 2000)
(“ IM F Website Summary” ). The United States agreed to join the IMF in 1945

1 In this memorandum, the USED and the Alternate USED at the IMF are referred to jointly as the “ U.S. represent­
atives to the IM F” or, simply, the “ U.S representatives.”

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 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund
and the World Bank

under the authority of the Bretton Woods Agreements Act. See 22 U.S.C. §286
(1994). An international organization currently made up of 182 member countries,
the IMF promotes international monetary cooperation, facilitates the expansion
and balanced growth of international trade, and promotes exchange stability. See
IMF Website Summary; Articles of Agreement of the International Monetary
Fund, art. I, available at http://www.imf.org/extemal/pubs/ft/aa (visited Mar. 29,
2000) (“ Articles of Agreement” ).
The authority of the IMF is vested in a Board of Governors, consisting of a
Governor and an alternate Governor from each member country. See Articles of
Agreement, art. XII, §2; IMF Website Summary. The Board of Governors has
delegated substantial authority to the IMF’s Executive Board, and it is the Execu­
tive Board that carries out the IMF’s day-to-day operations and makes most of
its decisions. See Articles of Agreement, art. XII, §§2 & 3; By-Laws, Rules, and
Regulations of the International Monetary Fund, § 15, available at http://
www.imf.org/extemal/pubs/ft/bl (visited Mar. 29, 2000); William N. Gianaris,
Weighted Voting in the International Monetary Fund and the World Bank, 14
Fordham Int’l L.J. 910, 913-14 (1990/1991). The Executive Board is made up
of 24 Executive Directors, with a Managing Director serving as chairperson. Arti­
cles of Agreement, art. XII, § 3(b). Eight of these Executive Directors represent
individual member countries, including the United States, and each of these eight
Executive Directors is appointed by the country that he or she represents. The
remaining sixteen are elected by the Governors and represent groupings of the
remaining member countries. See id. Sched. E; IMF Website Summary.
The Executive Director and the Alternate Executive Director for the United
States are appointed by the President, by and with the advice and consent of the
Senate, to two-year terms, with the right to hold over in office until a successor
has been appointed. 22 U.S.C. §286a(a), (b) (1994). The USED and Alternate
USED serve as representatives of the United States and present this Government’s
views at the IMF. See IMF Website Summary; Letter for David R. Brennan,
Deputy General Counsel, Department of the Treasury, from Margery Waxman,
General Counsel, Office of Personnel Management, Re: Whether the U.S. A lter­
nate Executive D irector o f IMF is Within the Executive Branch fo r the Purpose
o f Qualifying fo r SES Benefits under 5 U.S.C. § 3392(c), at 4 (Nov. 4, 1980)
( “ OPM Opinion” ) (“ [T]hese positions are designed to serve the President in the
exercise of his Executive branch functions concerning the implementation of for­
eign policy.” ). The Secretary of the Treasury (“ Secretary” ) has principal respon­
sibility for instructing the U.S. representatives to the IMF on the positions and
votes of the United States. See, e.g., Exec. Order No. 11269, at §3(a), reprinted
as amended in 22 U.S.C. §286b note (1994); 22 U.S.C. §§262h, 262k(b), 262m -
2(b), 286a(d)(3); 286e-8; 286e-13 (1994).

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B. The Federal Vacancies Reform A ct

Except for those offices expressly exempted by 5 U.S.C. § 3349c, the Vacancies
Reform Act applies to any vacancy in an office of an “ Executive agency” to
which appointment is required to be made by the President, with the advice and
consent of the Senate.2 The USED and the Alternate USED are both appointed
by the President, with the Senate’s advice and consent, 22 U.S.C. §286a(a), (b),
and neither office is expressly excluded from coverage by 5 U.S.C. § 3349c.
Accordingly, the critical issue in determining whether the Vacancies Reform Act
applies to the USED and the Alternate USED is whether they are officers “ of
an Executive agency’ ’ within the Act.
The use of the phrase “ of an Executive agency” imposes a meaningful limita­
tion on the scope of the Act. “ Executive agency” is a specific, defined term
in title 5, and is narrower than the executive branch as a whole. See Haddon
v. W alters, 43 F.3d 1488 (D.C. Cir. 1995). The Vacancies Reform Act incorporates
the title 5 definition of an “ Executive agency,” except that the Act adds the
Executive Office of the President to the definition and excludes the General
Accounting Office. See 5 U.S.C. § 3345(a); see also S. Rep. No. 105-250, at 12
(1998) (“ ‘Executive agency’ is defined at 5 U.S.C. § 105.” ); Guidance on
Application o f Federal Vacancies Reform A ct o f 1998, 23 Op. O.L.C. 60, 61-
62 (1999). By its plain language, therefore, the Act does not necessarily reach
all Senate-confirmed offices, but only those in “ an Executive agency.”
To be sure, at least one statement in the legislative history of the Act could
support the proposition that Congress intended to cover all Senate-confirmed
offices in the executive branch, except for those offices expressly excluded by
§ 3349c:

Section 3345 states that the provisions of the Act will apply to any
officer in any executive agency, other than the General Accounting
Office, if that officer’s appointment is made by the President, sub­
ject to the advice and consent of the Senate. Unlike current law,
this change w ill make clea r that the Vacancies Act, as amended
by this legislation, applies to all executive branch officers whose
appointm ent requires Senate confirmation, except fo r those officers
described in Section 3349c.

144 Cong. Rec. S12,824 (daily ed. Oct. 21, 1998) (statement of Sen. Byrd)
(emphasis added). Nevertheless, this remark in a floor statement, which does not
even specifically address the possibility that a Senate-confirmed office in the

2 The Vacancies Reform A ct is not necessarily the only method, however, of filling such offices on a temporary
basis. The Act also expressly preserves o th er statutory authorities that designate a specific officer to serve as the
acting officer for a vacant office or that authorize the President, a court, or the head of an Executive department
to designate an acting officer 5 U.S.C § 3347(a)(1).

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 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund
and the World Bank

Executive branch might be outside any “ Executive agency,” cannot overcome
the plain language defining the reach of the Act.
Section 105 defines an “ Executive agency” as “ an Executive department, a
Government corporation, and an independent establishment.” 5 U.S.C. § 105
(1994). These three terms are defined in §§ 101, 103, and 104 of title 5. Neither
the IMF nor the office of the U.S. representatives to the IMF is a “ Government
corporation.” Accordingly, whether the USED and the Alternate USED are offi­
cers of an Executive agency turns on whether they are in either (i) an Executive
department or (ii) an independent establishment.

C. Are the United States Executive D irector and Alternate United States Executive
D irector Part o f the Department o f the Treasury?

Because the Department of the Treasury is an Executive department, see 5
U.S.C. § 101, an officer in the Department of the Treasury is an officer of an
Executive agency within the Act. Cf. Memorandum for Files, from Daniel L.
Koffsky, Acting Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Permanent Representative to the United Nations (July 14, 1998) (“ 1998 UN
Memo” ) (concluding that the United States Permanent Representative to the
United Nations is in the State Department and therefore an officer of an Executive
agency). The information provided to us by the Treasury Department indicates
that the Treasury Department has a more direct and substantial relationship with
the U.S. representatives to the IMF than does any other Executive department.
If the U.S. representatives are within any Executive department, that department
would be the Treasury Department.
Although the issue is not entirely free from doubt, we conclude that, on balance,
the better view is that the USED and the Alternate USED are not in the Depart­
ment of the Treasury. In an Appendix, we set out the factors relevant to the anal­
ysis. Some of these factors strongly indicate that the U.S. representatives are not
part of the Treasury Department. Although others might suggest that the U.S.
representatives are in the Treasury Department, a closer examination reveals that
the relationship of the U.S. representatives to the Treasury Department is quite
limited in scope and frequently ambiguous even within that limited area.
For some of the most central elements of personnel administration, the U.S.
representatives are unconnected to the Department o f the Treasury. The Treasury
Department is not responsible for setting or paying the salaries of the U.S. rep­
resentatives. See 22 U.S.C. §286a(d). Nor does the Treasury Department carry
the U.S. representatives on its employment rolls. Furthermore, the staff for the
U.S. representatives are not Treasury Department employees, but instead are
employees of the IMF; and if they come to the IMF from the Treasury Depart­
ment, they are officially separated from the Treasury Department, removed from

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the Treasury Department’s employment rolls, and transferred to the employment
of the IM F.3
The Vacancies Reform Act appears in Title 5 and uses Title 5’s definition of
“ Executive agency.” Title 5 largely deals with personnel matters. If, for these
essential aspects of personnel administration, the U.S. representatives have no
connection to the Treasury Department, the compelling implication is that the U.S.
representatives are not located in the Treasury Department.
The strongest factor potentially arguing in favor of the view that the U.S. rep­
resentatives to the IMF are part o f the Treasury Department is that they receive
their instructions through the Secretary of the Treasury. See, e.g., Exec. Order
No. 11269, at §3(a), reprinted in 22 U.S.C. §286b note (delegating to the Sec­
retary the President’s authority to instruct United States representatives to the
international financial organizations). This factor alone, however, does not mean
that the U.S. representatives to the IMF are part of the Treasury Department. By
statute, the power to instruct is vested in the President, not the Secretary of
Treasury. As a practical matter, the President cannot personally perform all of
the duties for which he is ultimately responsible, and here he has chosen to dele­
gate the task of conveying the Government’s instructions. That the President has
determined that the Secretary of Treasury is best suited to be principally respon­
sible for providing the instructions to the U.S. representatives cannot, as a legal
matter, make the U.S. representatives part of the Treasury Department.
Moreover, the history by which the Secretary became responsible for instructing
the U.S. representatives to the IM F is consistent with the view that they are not
part of the Treasury Department. Originally, in the Bretton Woods Agreements
Act of 1945, Congress made the National Advisory Council on International
Monetary and Financial Problems responsible for instructing the U.S. representa­
tives, under the general direction of the President. 22 U.S.C. § 286b(b)(4). In 1965,
President Johnson abolished the Council and transferred to himself all of its func­
tions, including the responsibility for instructing the U.S. representatives to the
IMF. Reorg. Plan No. 4 of 1965, at §§ 1(b) & 3(a), reprinted in 5 U.S.C. app.
at 1519 (1994). In a 1966 Executive Order, the President delegated to the Sec­
retary of Treasury the authority to instruct the representatives. Exec. Order No.
11269, at §3(a), reprinted in 22 U.S.C. §286b note. It thus seems quite unlikely
that the U.S. representatives would originally have been considered within the
Department of the Treasury; and nothing in the later history of the President’s
delegation to the Secretary o f his authority to instruct the U.S. representatives
indicates that, in addition to delegating the authority to instruct, the President

3 On rare occasions, additional Treasury employees, beyond the usual staff of the U.S. representatives, may be
detailed to the IMF. U nder such details, the individual would remain a Treasury employee Such details may be,
and are, also made to a range of international organizations under the same authonty and conditions as they are
m ade to the IMF. As details o f Treasury employees to the UN Secretariat would not suggest that the UN Secretariat
is part o f the Treasury Department, details to the IMF also do not suggest that the U.S. representatives are part
o f the Treasury Department

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and the World Bank

intended to transfer the legal, administrative location of the U.S. representatives
to the Treasury Department. Nor does Congress’s passage, after the Executive
Order, of statutes directing or authorizing the Secretary to instruct the U.S. rep­
resentatives as to certain specific issues, see, e.g., 22 U.S.C. §§262h, 262k(b),
262m-2(b), 286a(d)(3), 286e-8, 286e-13, show any intent to alter the administra­
tive location of the U.S. representatives. These statutes appear to reflect the reality
of the delegation made by the Executive Order, rather than any unstated intent
to move the U.S. representatives into the Treasury Department.
The Treasury Department has some responsibility for the bookkeeping and
agency contributions associated with the U.S. representatives’s receipt of certain
employment benefits, see 22 U.S.C. §276c-2 (Supp. IV 1998), but the provision
assigning this task ultimately serves to demonstrate that the U.S. representatives
are not otherwise part of the Treasury Department. Under §276c-2, “ [t]he
Treasury Department shall serve as the employing office” in administering the
employment benefits. If the U.S. representatives were already part of the Treasury
Department, there would be no need for the statute to specifically denominate
Treasury as the employing office, because it would already be the employing
office as a result of the administrative location of the U.S. representatives.4
Finally, although the Treasury Department gives ethics advice to the U.S. rep­
resentatives, we have been informed that it does not do so as a result of any
determination that it is legally required to take this role. Furthermore, the Secretary
of Treasury, we understand, probably has never been asked to grant the U.S. rep­
resentatives a waiver under the authority of 18 U.S.C. § 208 (1994), as delegated
by the President to agency heads with respect to Presidential appointees in their
agencies, see Exec. Order No. 12731, §401, 3 C.F.R. 306 (1991).
As these factors show, the determination whether the U.S. representatives are
part of the Treasury Department requires fact-specific analysis, and the limited
situations in which this Office has previously addressed whether an officer or
entity is part of an Executive department do not present perfect analogies. Never­
theless, we believe that our prior advice in those cases is consistent with the
conclusion here that the U.S. representatives are not part of the Treasury Depart­
ment.
We have twice before considered the somewhat analogous question of whether
the United States Mission to the United Nations ( “ Mission” ) is in the Department
4 It could also be argued, more generally, that no separate provision would be needed to provide these benefits,
which are available generally to members of the civil service within the Treasury Department, if the U.S. representa­
tives were already employed there. Further, §27 6 c-2 places “ in the discretion of the Secretary of the Treasury”
the decision whether to provide these benefits to the U.S. representatives It would arguably be anomalous for Con­
gress to vest the Secretary with such discretion regarding the benefits of U.S. representatives if they were part
of Treasury, since that discretion does not exist as to other employees and officers of the Treasury Department
While we tend to think that this is further evidence that the U.S representatives are not within the Treasury Depart­
ment, we also recognize that there is a counter argument to this line o f reasoning — namely, that an express grant
of benefits was necessary to overcome the prohibition in 22 U S C §286a(d)(l) on any person’s receiving “ any
salary or other compensation from the United States” for serving as an Executive Director or Alternate at the IMF
or World Bank. As a result, we do not place any reliance on this argument in concluding that the U.S representatives
are not part o f the Treasury Department.

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of State. In the first of these matters, the status o f the Mission determined both
whether a vacancy in a Senate-confirmed position in the Mission could be filled
under the old Vacancies Act and whether a Senate-confirmed officer, also in the
Mission, could be the officer designated by the President to fill that vacancy.
See Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office of
Legal Counsel, Re: Vacancy at United States M ission to the United Nations at
1 (Apr. 8, 1996) ( “ 1996 UN Memo” ). In the second of these matters, we re­
affirmed our conclusion that the Mission was in the State Department and con­
cluded that therefore the United States Permanent Representative to the United
Nations could be detailed under the unamended Vacancies Act to fill a vacancy
in the Department of Energy. See 1998 UN Memo at 1. Although a significant
factor in the Office’s conclusion that the Mission is in the State Department was
that instructions for the Permanent Representative were sent through the Secretary
of State, there the Secretary’s power to give instructions was statutory, and in
any event that power was not the sole or determinative factor. See 1996 UN Memo
at 1-2; 1998 UN Memo at 2. To the contrary, the conclusion was premised on
a significant number of additional factors demonstrating the Mission’s administra­
tive location within the State Department. We noted, among other factors, that
the State Department exercises fiscal control over the Mission through control
of the M ission’s appropriations; the Permanent Representative is carried on the
State Department’s employment rolls; there is a “ home desk” for the Mission
within the State Department; the administrative officers within the State Depart­
ment treat the Permanent Representative as an official of the Department; the State
Department handles the FOIA, whistleblower, and ethics work for the Mission;
and the Inspector General for the State Department exercises jurisdiction over the
Mission. See 1996 UN Memo at 2; 1998 UN Memo at 2. As demonstrated above
and in the information in the Appendix, these factors are generally not present
with regard to the U.S. representatives. Moreover, unlike the situation with the
U.S. representatives and Treasury, there were no significant factors indicating that
the Mission was not part of the State Department.5 See also, e.g., Memorandum
for Ginger Lew, General Counsel, Department of Commerce, from Dawn Johnsen,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: ADEA and
Regional Fishery Management Councils at 4 & n.l (Mar. 14, 1995) (“ Regional
Fishery Management Councils O pin.” ); Memorandum for Frank K. Richardson,
Solicitor, Department of the Interior, et al., from Larry L. Simms, Deputy Assist­
ant Attorney General, Office of Legal Counsel, Re: Status o f the Navajo and Hopi

5 The only potentially contrary factor identified was an inconsistency among State Department wire diagrams;
som e clearly identified the Permanent Representative as part o f the State Department, whereas other wire diagrams
appeared to suggest that the Mission had a relationship to State more akin to an independent agency. 1998 UN
M em o at 2 n 1. The Treasury organizational charts and wire diagrams, in contrast, are consistent in not including
the U.S representatives as part o f the Treasury Department

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and the World Bank

Indian Relocation Commission and Removability o f its Commissioners at 10-11
(Jan. 17, 1985).6

D. Do the United States Representatives to the IMF Constitute an Independent
Establishment?

Because the U.S. representatives to the IMF are neither in a Government cor­
poration nor part of an executive department, they are part of an Executive agency
only if they are an independent establishment. Section 104 defines an independent
establishment as follows: “ For the purpose of this title, ‘independent establish­
ment’ means — (1) an establishment in the executive branch (other than the United
States Postal Service or the Postal Rate Commission) which is not an Executive
department, military department, Government corporation, or part thereof, or part
of an independent establishment; and (2) the General Accounting Office.” 5
U.S.C. § 104. While this definition is quite broad, its plain language requires that
a collection of offices meet three requirements in order to constitute an inde­
pendent establishment: (1) it must be an “ establishment” ; (2) it must be “ in the
executive branch” ; and (3) it must not be a part of an Executive department,
military department, Government corporation, or another independent establish­
ment. The U.S. representatives to the IMF can satisfy the third requirement, but
not the first two. Accordingly, we conclude that they are not an independent
establishment within the meaning of § 104.
To the extent that the U.S. representatives are an indivisible part of the IMF,
they would only be part of an independent establishment if the IMF is itself an
independent establishment. The IMF, however, is not within the executive branch.
It is instead an international institution made up of representatives from over 180
member countries. See OPM Opin. at 3 (“ IMF clearly is not within the Executive
Branch” ). As a result, IMF as a whole cannot constitute an independent establish­
ment.
Further, while the U.S. representatives may be officers in the executive branch,
see OPM Opin., their “ office” at IMF does not constitute an “ establishment.”
The term “ establishment” embodies the idea of a free-standing entity with its
own structure and unity. For example, one dictionary defines “ establishment,”
in relevant part, as follows:

c: a permanent civil or military force or organization; d: a more
or less fixed and usu. sizable place of business or residence together
with all the things that are an essential part of it (as grounds, fur­

6 Nor is our conclusion here inconsistent with O PM ’s conclusion that the Alternate USED is within the executive
branch for the purpose of qualifying for SES benefits OPM Opin at 3-5. The question whether a position is within
the executive branch is different from whether it is within the Treasury Department or whether the U.S representa­
tives constitute an independent establishment. Moreover, OPM, in discussing persons who went from Treasury to
be the Alternate USEDs, states that, although they never left the executive branch, they left the Treasury Department.
Id. at 4-5.

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 Opinions o f the Office o f Legal Counsel in Volume 24

niture, fixtures, retinue, employees); e: a public or private institution
(as a school or hospital)

W ebster’s Third New International Dictionary of the English Language,
Unabridged 778 (1993). The office of the U.S. representatives is not of this char­
acter. It is not in any sense an independent, free-standing establishment. It is
instead a component part of the IMF. The office is fully funded by the IMF,
with the IMF setting and paying the compensation of the U.S. representatives
and their staff, as well as the office’s operating expenses. The office, moreover,
with the exception of the U.S. representatives, is staffed by employees of the
IMF who owe their principal obligations to the IMF, rather than the federal
government. See By Laws of the IMF, Rule N -3 (employees of the IMF, in con­
trast to representatives of the member nations, owe their exclusive loyalty to the
IMF); OPM Opin. at 4 ( “ [W]e would make the distinction between [U.S. rep­
resentatives] and United States employees who transfer to international organiza­
tions to serve the organizations in their area of expertise without any direct
accountability to the United States.” ).
Beyond the language of the statute, there is little relevant guidance in OLC
opinions, case law, or the legislative history o f § 104. On a few occasions, we
have considered whether an entity is an independent establishment. These matters,
however, generally involved situations in which it was clear that the entity was
an establishment and was in the executive branch; the only question was whether
it was independent or a part of an Executive department. For example, we con­
cluded that the Commission on Fine Arts is an independent establishment because
it is a congressionally created, free-standing entity entirely financed by the federal
government. Memorandum for Charles H. Atherton, Secretary, Commission of
Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: A pplication of Executive O rder 11988, entitled “ Floodplain
Management, ” to the Commission o f Fine A rts at 2-3 (Nov. 14, 1980); see also,
e.g., Memorandum for Edward A. Frankie, General Counsel, NASA, from J.
M ichael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: D epart­
ment o f Transportation Licensing Under the Commercial Space Launch A ct at
16 (Nov. 15, 1990) (concluding NASA is an independent establishment because
it has a presidentially appointed head who is responsible for exercise of all powers
o f NASA under only the supervision and direction of the President); Regional
Fishery Management Councils Opin. at 4 & n .l (the Councils are part of Com­
merce because their primary purpose is to advise the Secretary, the majority of
voting members are appointed by the Secretary, the Secretary controls what
administrative staff Councils may have and the procedures the Councils follow,
and Commerce pays the compensation and expenses of the Councils and their
staffs).

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 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund
and the World Bank

With regard to the definition of “ executive agency” set out in 40 U.S.C.
§ 472(a) (1994), which we compared to the “ nearly identical language in the defi­
nition of ‘executive agency’ in title 5 ’s general provision (5 U.S.C. § 105),” we
noted that certain less substantial and well delineated entities within the Executive
Office of the President might not constitute independent establishments. Memo­
randum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,
Acting Assistant Attorney General, Re: Use o f GSA Authority to Accept Gift o f
Equipment at 5 -6 (Aug. 3, 1993). In particular, we concluded that while the
Executive Office of the President and some of its principal components, such as
the Office of Management and Budget, appear to fall within the ordinary meaning
of an independent establishment, “ [i]t is much less certain whether more ad hoc
and less formal entities under the [Executive Office of the President] would meet
this definition.” Id. at 5; see also H adden , 43 F.3d at 1489-90 (staff of the Execu­
tive Residence are not employees within an Executive agency).7

E. Conclusion

We recognize that Congress may not have had any specific intent to exclude
these offices from the scope of the Vacancies Reform Act. By its terms, however,
the Vacancies Reform Act applies only to vacancies in Senate confirmed offices
that are part of an “ Executive agency.” While this defined term is quite broad
and includes almost all Senate confirmed, executive branch offices, its use in the
Act has the consequence that, to be covered by the Act, an office must be not
just an office in the executive branch, but an office in an Executive department,
Government corporation, or independent establishment. Because the U.S. rep­
resentatives to the IMF are not part of an Executive department, Government cor­
poration, or independent establishment, vacancies in those offices are not covered
by the Vacancies Reform Act. We stress, however, that the category of executive
branch offices that are not part of an Executive agency is extremely narrow. In
fact, that category may well be limited to a set of offices within international
financial institutions that are similarly situated to the United States Executive
Director and Alternate United States Executive Director at the IMF.

II. The United States Representatives to the World Bank

The Department o f the Treasury has informed us that the United States Execu­
tive Director and the Alternate United States Executive Director at the World Bank
are similarly situated to the USED and Alternate USED at the IMF with regard
to the factors relevant to our determination that the USED and Alternate USED

7 Section 104 of title 5 was added as a new provision to the United States Code as part of the codification of
title 5. See Pub L. No 89-554, 80 Stat. 378, 379 (1966). The revision notes on § 104 contained in the House
and Senate reports are brief and do not shed light on the issue considered in this memorandum See H.R. Rep.
No. 89-901, at 6 (1965), S Rep No 89-1380, at 22-23 (1966).

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at the IMF are not covered by the Vacancies Reform Act. Accordingly, for the
reasons discussed in part I of this memorandum, vacancies in the offices of the
United States Executive Director and the Alternate United States Executive
Director at the World Bank also are outside the coverage of the Vacancies Reform
Act.

Conclusion

Because the United States Executive Directors and the Alternate United States
Executive Directors at the IMF and the World Bank are not part of an ‘‘Executive
agency,” vacancies in those offices are not covered by the Vacancies Reform
Act.

DANIEL L. KOFFSKY
Acting Deputy Assistant Attorney General
Office o f Legal Counsel

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 Applicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund
and the World Bank

APPENDIX

Our conclusion is based on the following information about the U.S. representa­
tives to the IMF and their relationship with the Treasury Department:8

* The U.S. representatives receive instructions on voting and
policy matters from the Secretary of the Treasury. See, e.g., Exec.
Order No. 11269, at §3(a), reprinted as amended in 22 U.S.C.
§ 286b note; 22 U.S.C. §§262h, 262k(b), 286a(d)(3).

* The U.S. representatives are eligible, in the discretion of the
Secretary of the Treasury, to receive employee benefits: “ Notwith­
standing the provisions of any other law, [U.S. representatives at
international financial organizations] shall, if they are citizens of
the United States, in the discretion of the Secretary of the Treasury,
each be eligible on the basis of such service and the total compensa­
tion received therefor, for all employee benefits afforded employees
in the civil service of the United States.” 22 U.S.C. §276c-2; see
also OPM Opinion, at 3 n.2 (Alternate USED eligible, in the discre­
tion of the Secretary, for SES retirement benefits and health, life,
and disability coverage).

* Section 276c-2 further provides: “ The Treasury Department
shall serve as the employing office fo r collecting, accounting for,
and depositing in the Civil Service Retirement and Disability Fund,
Employees Life Insurance Fund, and Employees Health Benefits
Fund, all retirement and health insurance benefits payments made
by these employees, and shall make any necessary agency contribu­
tions from funds appropriated to the Department of the Treasury.”
22 U.S.C. § 276c-2 (emphasis added).

* Treasury provides ethics advice to the U.S. representatives,
since the U.S. representatives do not have an internal source for
such advice, and the U.S. representatives are directed to file disclo­
sure forms and generally to comport themselves as if covered by
the ethics rules. Nevertheless, the Treasury Department does not
perform these functions as a result of any determination that it is
legally required to take this role, and Treasury seriously doubts that
it has ever been asked to provide a § 208(b) waiver to any USED
or Alternate USED.

8 Except for various of the statutory references, this information was provided to us by the Department of the
Treasury

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 Opinions o f the Office o f Legal Counsel in Volume 24

* The salaries of the U.S. representatives are set and paid by the
IMF. See 22 U.S.C. §286a(d)(l) ( “ No person shall be entitled to
receive any salary or other compensation from the United States
for services as a Governor, executive director, councillor, alternate,
or associate.” ). Federal law limits the salaries that IMF may pay
the U.S. representatives, capping them at the rate of a level IV of
the Executive Schedule for the USED and a level V for the Alter­
nate USED. Id. § 286a(d)(2). See also Foreign Operations, Export
Financing, and Related Agencies Appropriations Act, 1999, Pub.
L. No. 105-277, §534, 112 Stat. 2681, 2681-181 (1998) (annual
appropriations rider prohibiting payment of appropriate funds to an
international financial institution if statutory pay prohibitions are
violated).

* IMF is similarly responsible for the salaries of the staff and
other expenses of the office of the U.S. representatives.

* The office of the U.S. representatives is typically staffed by four
to six additional people. The secretaries who work in the office
are employed by the IMF. The office also typically includes an
advisor and two or three assistants who are usually from Treasury.
These individuals are transferred to the IMF under 5 U.S.C. § 3582
(1994 & Supp. IV 1998). Upon being transferred to the IMF, these
individuals are separated from Treasury and are no longer Treasury
employees. They are not carried on Treasury’s books and are not
covered by the conflict-of-interest rules or standards of conduct
applicable to Treasury employees. The only elements of employ­
ment that they retain are re-employment rights and the right to
count their years of service at the IMF toward retirement eligi­
bility.9

* In a few instances, Treasury employees have also been detailed
to the office of the U.S. representatives under 5 U.S.C. §3343
(1994) when there was a pressing need for additional assistance.
These details are rare and have generally only been for short
periods of time.

* The IMF receives an annual lump-sum contribution from the
United States. These contributions flow through Treasury, but

9 See also OPM Opin. at 4 (distinguishing staff transferred from Treasury to assist the U S representatives from
the representatives because the staff are “ without any direct accountability to the United States” and “ are separated
from their United States employment for the penod o f their international service, and by statute, under prescnbed
conditions, are given reemployment rights to their former positions” ).

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Applicability o f the Federal Vacancies Reform A ct to Vacancies at the International M onetary Fund
and the World Bank

Treasury does not exercise any discretion over the payment or how
the funds will be used by the IMF.

* Treasury does not consider the U.S. representatives to the IMF
to be part of Treasury for purposes of FOIA. More specifically,
Treasury indicated that it does not ask the U.S. representatives for
documents in responding to FOIA requests addressed to Treasury
if, e.g., the request concerns questions about the international finan­
cial organizations. As a matter of interbranch cooperation, Treasury
does provide information about the IMF in response to inquiries
from Congress and the General Accounting Office.

* The U.S. representatives are not treated as part of the Treasury
Department in the Department’s organizational charts and wire dia­
grams.

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