May 18, 1978
78-94 MEMORANDUM OPINION FOR THE COUNSEL
TO THE PRESIDENT
Department of Energy— Appointment of Interim
Officers— Department of Energy Organization Act
(42 U.S.C. § 7342)
This responds to your request for our opinion concerning the legality of the
designation of certain acting officials by the Secretary of Energy.
The Department of Energy was established by the Department o f Energy
Organization Act of August 4, 1977, Pub. L. 95-91, 91 Stat. 565, 42 U .S.C .
§ 7101 et seq. (Supp. 1, 1977) (the Act). The Act involved the merger o f the
Federal Energy Administration (FEA), the Energy Research and Development
Administration (ERDA), and the Federal Power Commission, and included the
transfer of certain functions to the new Department from several other
Government agencies (Title III of the Act). When the Department became
operative on October 1, 1977, pursuant to Executive Order No. 12009, the
Secretary was the only officer required to be appointed by and with the advice
and consent of the Senate who subsequently was confirmed. The President
filled eight other positions in the Department requiring Senate confirmation on
a temporary basis pursuant to § 902 of the Act, 42 U .S.C. § 7342,' by
designating officers o f the predecessor agencies, who had been appointed by
and with the advice and consent of the Senate and who had held those positions
immediately prior to the effective date of the A ct,2 to perform the duties o f the
vacant departmental offices to which they were assigned.
'Section 902 o f the Act provides:
In the event that one or more officers required by this Act to be appointed by and
with the advice and consent o f the Senate shall not have entered upon office on the
effective date o f this A ct. the President may designate any officer, whose appointm ent
was required to be m ade, by and with the advice and consent of the Senate, and who
was such an officer im m ediately prior to the effective date o f the Act, to act in such
office until the office is fijled as provided in this Act. While so acting such persons
shall receive com pensation at the rates provided by this Act for the respective offices in
which they act.
2Section 703 of the Act (42 U .S .C . § 7293) term inated the predecessor agencies o f the
Department o f Energy, and, generally speaking, the advice and consent offices in those agencies as
of the date when the Departm ent o f Energy becam e operative.
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For four positions— the Offices of General Counsel, Inspector General, and
Assistant Secretaries for Conservation and Solar Applications and for Energy
Technology— we have been advised that no officers were available in the
predecessor agencies who had been appointed with confirmation by the Senate.
We have also been informed that, because Presidential designations under
§ 902 from personnel of the predecessor agencies were not possible, the
remaining four positions were filled by the Secretary of Energy designating the
Acting General Counsel and the Acting Inspector General of the Federal
Energy Administration, and the Acting Adm inistrator for Solar, Geothermal
and Advanced Energy Systems and the Acting Administrator for Nuclear
Energy of ERDA to perform the duties of the respective vacant offices on an
acting basis. The Acting Assistant Secretary for Defense Programs, one of the
officers designated by the President pursuant to § 902 of the Act, resigned
effective January 1, 1978. The Secretary thereupon designated his deputy as the
Acting Assistant Secretary to act in his position.
The President has submitted to the Senate nominations for four of the eight
positions requiring Senate confirm ation.3 He has indicated his intention to
nominate an Assistant Secretary for Defense Programs, but as o f this writing no
nomination has been formally submitted to the Senate. The nominees for the
positions of General Counsel, Inspector General, and Assistant Secretary for
Energy Technology were recently confirmed by the Senate. Their appointments
are imminent, in which event the designation of the acting officials will, of
course, terminate. The Acting Assistant Secretary for Energy Technology
designated by the Secretary was the only acting official who has been
nominated by the President to the same position.
I.
The authority o f the remaining five officers to act under Secretarial
designation has been questioned on the ground that it is inconsistent with § 902
o f the Act (fn. I* supra). It is asserted that § 902 establishes the exclusive
manner in which interim appointments to fill initial vacancies in the Depart
ment of Energy may be made. We disagree. Although § 902 was designed to
give the President the means to make interim designations in the Department of
Energy where possible, we doubt that Congress intended to tie his hands and
compel him to make what would be unsuitable designations to the detriment of
the newly established Department, or to preclude any other method to fill those
positions.
There is no legislative history to guide us concerning the scope of § 902. The
statutory language, “ the President may designate any officer,’’ indicates that
d o m in a tio n s were subm itted as follows: Assistant Secretary for Energy T echnology. Septem ber
13, 1977, resubm itted January 26, 1978; G eneral C ounsel, Septem ber 22. 1977, resubmitted
January 25, 1978; A ssistant Secretary for C onservation and Solar A pplications. January 25, 1978;
Inspector G eneral, A pril 20, 1978.
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the section was intended to confer on the President a discretionary power to be
exercised in conformity with the statutory purpose, rather than a binding and
exclusive method of appointment, which, as the result of circumstances
apparently not anticipated by Congress, would have brought about a highly
undesirable result.
When Congress provided for the establishment of the Department of Energy,
it was a reasonable assumption that officials on the Assistant Secretary level,
requiring Senate confirmation, would hold positions requiring highly special
ized technical expertise, and that at least some o f the nominations to those
positions would go to persons who had held corresponding advice and consent
positions in some of the predecessor agencies of the department. It was equally
reasonable to expect that some of the nominations might not be acted upon by
the time the Department became operative. The question of effectively
providing for interim appointments was certainly one that could not be ignored.
The existing procedures provided for in the Vacancy Act (5 U.S.C.
§§ 3345-3349 (1976)) were not adapted to initial vacancies in a newly estab
lished department of the character o f the Department of Energy. Section 3346
provides that in the case of a vacancy in a bureau of an Executive department4
the first assistant shall act unless the President makes a designation under
§ 3347. It is difficult to envisage a “ first assistant” before there is an Assistant
Secretary.5 Section 3347 provides an alternative method of filling a vacancy.
The President can designate a department head or any other officer appointed
by and with the advice and consent of the Senate to perform the duties of the
vacant office. That procedure, however, was unsuited to the situation confronting
the Department of Energy for several reasons.
As mentioned above, § 703 of the Act, su pra , terminated, as of the date
when that Department became operative, the predecessor agencies of the
Department of Energy and the positions in those agencies that were either
expressly authorized by law or compensated according to the Executive
Schedule. Because the officers in those agencies who had been appointed by
and with the advice and consent of the Senate lost that status under § 703 of the
Act, the President could not designate them as acting officers under § 3347. If
§ 3347 were controlling, his choice therefore would have been limited to those
already serving in advice and consent positions in other agencies. This would
mean not only that it would be extremely difficult, if not impossible, to find
acting officers possessing the necessary technical qualifications for the highly
specialized positions in the Department of Energy, but even then the designees
could perform those duties only on a part-time basis.
We do not doubt that the temporary filling of positions at the Assistant
Secretary level by persons who both lacked the necessary expertise and could
4A departmental unit headed by an Assistant Secretary or com parable officer usually constitutes a
bureau.
’ M oreover, the A ttorney General has interpreted the term "first assistant" as applying only to
officials whose appointm ent has been specifically provided for by statute. 28 Op. A .G . 95 (1909):
19 Op. A .G . 503 (1890).
407
not devote their entire time to the new position could readily have presented
difficulties for the new Department during the crucial first months of its
existence. M oreover, under the Vacancy Act a d interim designations could last
for only 30 days. Experience amply demonstrates that under present conditions,
Senate confirmation frequently takes longer than that.6
As we see it. § 902 was designed by Congress to avoid Vacancy Act
problems by enabling the President to make a d interim designations of
experienced officials of the predecessor agencies who could serve on a full-time
basis even if they no longer held advice and consent positions, and permit them
to serve more than 30 days if necessary. The last sentence of § 902 indicates
plainly that Congress intended that the interim designations under that section
would primarily, if not exclusively, be given to former advice and consent
officers who had served in the predecessor agencies, i.e .. the acting official
would receive compensation at the rate provided by the Act for the office in
which he would serve on an acting basis. We believe it was intended to take
care of the following problem: The designee originally was an advice and
consent official in a predecessor agency and as such received compensation
under the Executive Schedule (5 U .S.C . §§ 5311-5316). When the President
designated him to be an acting official he was no longer an advice and consent
officer as the result o f § 703 o f the Act which abolished his former position (see
n. 2, supra)', hence he would have to be appointed to a position that did not
require Senate confirmation and that carried a lower rate of com pensation.7
Section 5535 o f Title 5 prevents payment to an acting official of compensation
in addition to that of the regular position he holds. The last sentence of § 902
thus has the effect o f avoiding a reduction in compensation during the
confirmation proceedings.
In short, § 902 is specifically addressed to the situation in which the
President intended to appoint an advice and consent officer of a predecessor
agency of the Department o f Energy to a corresponding position in that
Department but could not expect confirmation prior to the activation of the
Department.
But § 902 was not a complete solution. When the Department of Energy
became operative, it appeared that there was no suitable advice and consent
officer, either in a predecessor agency or elsewhere, whom the President could
designate to serve full-time in an acting capacity in the several advice and
consent positions in the Department. If such officers had been available,
undoubtedly the President would have restored to the authority given him by
§ 902.
A mechanistic interpretation of the section leads to a view that is so extreme
that we cannot attribute it to the intent of Congress, namely, that the President
6ln the situation at hand the confirm ation o f the G eneral Counsel and o f the Assistant Secretary
for Energy T echnology took approxim ately seven m onths.
1l.e .. at a supergrade, rather than in the Executive Schedule usually applicable to positions at the
A ssistant Secretary level.
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was required to designate an advice and consent officer, presumably from
another agency, regardless of his qualifications and expertise and his ability to
devote himself full-time to the office, or that no designation to the office could
be made at all. Either alternative would be inconsistent with what we perceive
to be legislative purpose of § 902, that vacancies in the Department of Energy
were to be filled during the critical first months of its existence on a full-time
basis by officials who possessed the necessary expertise. An interpretation of
§ 902 to the effect that it was intended to provide the exclusive method o f filling
initial vacancies in the Department of Energy is both inconsistent with its
discretionary language and would defeat the purpose it was designed to
accomplish. It is a familiar axiom o f construction that a statute is not to be
interpreted in a manner at variance with its policy and purpose. U nited States v.
American Trucking A ssociations , 310 U .S. 534, 543 (1940); United States v.
B isceglia, 420 U.S. 141, 149-150 (1975).
II.
We therefore conclude that § 902 is not intended to establish the sole method
of filling vacancies in the Department o f Energy. The President no doubt would
have used that provision if all its underlying premises could be met, i.e ., if
qualified advice and consent officers were available who could devote
themselves full-time to the acting position. But we do not believe that the
section is to be construed as meaning that such vacancies may not be filled at all
on a temporary basis, if no advice and consent officers are available. On the
contrary, it would appear that the fundamental statutory purpose— that these
positions should be filled temporarily on a full-time basis by persons having the
necessary expertise— strongly supports the conclusion that the President or the
Secretary of Energy should look for other sources of authority to carry out that
statutory end.
Having disposed o f the question of the Vacancy Act, we think that the
Secretary of Energy had to rely on his general powers and responsibilities,
including those under 5 U .S.C . § 301,8 which he did by designating the most
experienced officials in the departmental subdivisions in which vacancies
existed. That procedure, while not specifically authorized by § 902, carried out
what we regard as its purpose— that the vacancies should be filled by qualified
persons on a full-time basis. In this context, the observations of the opinion of
the Court of Appeals in W illiams v. P hillips, 482 F.(2d) 669, 670-671 (D.C.
Cir. 1973), are helpful. There the court suggested that keeping the Government
“5 U .S.C . § 301 provides:
301. Departm ental regulations
The head of an Executive departm ent or m ilitary departm ent may prescribe
regulations for the governm ent o f his departm ent, the conduct o f its em ployees, the
distribution and perform ance o f its business, and the custody, use. and preservation of
its records, papers, and property. This section does not authorize w ithholding
information from the public or limiting the availability of records to the public.
409
running warrants the designation o f acting officials to fill vacancies in the
absence of express statutory authority. Similar considerations should be
applicable where the strict requirements of the pertinent statute cannot be met
due to unforeseen circum stances. The court, however, added that such
extra-statutory designations could not last indefinitely unless nominations were
submitted to the Senate within a reasonable time. In the circumstance of that
case the court suggested that the 30-day provision of the Vacancy Act, 5
U.S.C . § 3348 (1976), should serve as a guideline; hence that the designee in
question was no longer entitled to hold that position when no nomination had
been submitted for AVi months after the vacancy had occurred.9 If the Phillips
decision is used as a guideline, it indicates that the designations of the Acting
General Counsel and the Acting Assistant Secretary by the Secretary for Energy
Technology met the requirements of that decision. The nominations for the two
offices were submitted to the Senate in Septem ber 1977, i.e ., even before the
Department o f Energy was activated. Their extended acting service has been
due exclusively to delay in the confirmation process.
The case o f the Acting Assistant Secretary for Conservation and Solar
Applications is not so clear, because a nomination for that office was submitted
to the Senate only on January 25, 1978, nearly 4 months after the vacancy
occurred. However, the reasonableness o f the delay in submitting a nomination
must also be measured against the difficulty of finding suitable candidates for
the complex and responsible positions in the Department of Energy and the
uncertainties created by delays in the enactment o f the pending energy
legislation. M oreover, it should be noted that the delay in the nomination
included the period from December 15, 1977, to January 19, 1978, during which
the Senate was in recess between the two sessions of the 95th Congress and
during which no nominations could be made. Similar observations could apply
to the offices o f the Assistant Secretary for Defense Programs and the Inspector
General.
III.
Finally, we turn to the legality o f the actions taken by Department of Energy
officials in an acting capacity, if it should be thought that some or all of them
did not hold their positions de ju re . Under the de fa c to officer rule, one who.
performs the duty o f an office under color o f title is considered a de fa cto
officer, his acts are binding on the public, and third persons may rely on their
legality. M cD ow ell v. U nited States, 159 U .S. 596, 601-602 (1895); U nited
S tates v. Royer, 268 U.S. 394 (1925); U nited S tates v. Lindley, 148 F.(2d) 22,
23 (7th Cir. 1945), cert, den., 325 U.S. 858. Indeed, the authority o f d e fa c to
‘’An aggravating elem ent in the Phillips case w as that the acting officer in that case was charged
with seeking to sabotage the statute he was required to adm inister. That consideration, of course, is
absent in the case at hand. T o the contrary, the purpose o f the designation was to further the
adm inistration o f the statute and to com ply with the spirit o f § 902.
410
officers can be challenged as a rule only in special proceedings in the nature of
quo warranto brought directly for that purpose. U nited States ex rel. D o rr v.
Lindley, supra; U nited States v. Nussbaum, 306 F. Supp. 66, 68-69 (N.D.
Cal., 1969); Mechem, P ublic Office an d O fficers. §§ 343, 344 (1890).
The basis for the de fa c to officer principle is the avoidance of any cloud on
the validity of public acts and on the right of the public to rely on them despite
subsequent questions as to the authority of the officer to exercise the powers of
the office.10 A typical case of a de fa c to officer is one who continues to serve
after his term of office has expired. W aite v. Santa Cruz. 184 U.S. 302, 322-24
(1902); U nited States v. Groupp, 333 F. Supp. 242, 245-46 (D. Maine 1971),
a ffd , 459 F.(2d) 178, 182 n. 12 (1st Cir. 1972). This consideration is of
particular importance in view of the position of the Court of Appeals in P hillips
that the initially valid designation of an acting official may be vitiated by an
excessive delay in the submission of a nomination.
IV.
Finally, the question has been raised whether some o f the acting officials
have received the compensation for the positions in which they act pursuant to
the last clause of § 902. We have been advised by the Department of Energy
that these acting officials have not been compensated at the executive level
rates provided in § 902, but rather have been paid the appropriate compensation
under the GS salary scale that applies to GS positions in the excepted service.
V.
We have read the opinion of the Acting Comptroller General dated May 16,
1978, addressed to this problem. We agree with it to the extent that it concludes
that the Vacancy Act is inapplicable to the situation at hand. We disagree,
however, with the result reached in the opinion. It totally ignores considera
tions found by us to be decisive. The Comptroller General apparently has
concluded that § 902 provides the exclusive method for making interim
appointments at the Department of Energy, but has not addressed the factors
which led us to the contrary conclusion. The nonmandatory language of the
statute, the absence of guiding legislative history, and the plain purposes of the
section all convince us that Congress did not intend to make it the exclusive
method. Section 902 was written into the law because Congress desired that the
advice and consent positions in the Department of Energy should not remain
vacant during the crucial initial months of the Department, and the interim
designations should be given to persons having the requisite expertise who
loAnother rationale for the de facto officer rule is that a person should not be able to subm it his
case to an officer and accept it if it is favorable to him , but challenge the officer’s authority if the
latter should rule against him. Glidden Company v. Zdanok. 370 U .S. 530. 534 (1962).
41 1
could serve on a full-time basis. For these reasons, we are unable to read into
§ 902 the consequences suggested by the Office of the Comptroller General.
John M . H arm on
A ssistant Attorney G eneral
Office o f L egal Counsel
412