Determination of Date of Commencement of Service of Members of the Renegotiation Board

May 24, 1977

77-30 MEMORANDUM OPINION FOR THE
CHAIRMAN OF THE RENEGOTIATION
BOARD
Determination of Date of Commencement of Service
of Federal Officers—Renegotiation Board

This is in response to your letter requesting that this Office advise
you whether tw o recently appointed members of the Renegotiation
Board began their service, for purposes of seniority, when their com­
missions were signed by the President or when they took the oath of
office. From your letter, we understand that the President signed the
commission of Mr. A four days before he signed the Commission of
Mr. B. We further understand that neither commission was stated to be
subject to any condition precedent and that both Messrs. A and B took
the oath of office on the same day.
The Constitution provides that the President “shall appoint . . .
officers of the United States,” Art. II, § 2, and that he “shall commis­
sion all the officers of the United States.” Id. § 3. It is silent as to when
an appointment is effective. But at an early date the Supreme Court
held in Marbury v. Madison, 5 U.S. 137, 156 (1803), that the last act to
be done by the President in the appointment process “is the signature of
the commission.” And in United States v. LeBaron, 60 U.S. 73, 79
(1856), the Court stated that with respect to an appointment “ [i]t is of
no importance that the person commissioned must give a bond and take
an oath.” Although there appear to be no judicial or administrative
holdings directly in point on the questions you pose, it is our opinion
that these cases establish the proposition that where two officers in the
same body are commissioned on different dates, the officer commis­
sioned first is the senior. Any doubt on this score is resolved by the
Acts of Congress dealing with the precedence of Federal judges, which
confer precedence according to the date of their commissions. 28
U.S.C. § 4 (Supreme Court), 28 U.S.C. § 45(b) (circuit judges), 28
U.S.C. § 136(b) (district judges), 28 U.S.C. § 172 (Court of Claims).
We therefore conclude that Mr. A takes precedence over Mr. B
because his commission was signed prior to the date that Mr. B’s was

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signed. It should be noted, however, that the beginning of service for
other purposes, such as the computation of pay, is determined under
different principles.
Jo hn M . H armon

Acting Assistant Attorney General
Office o f Legal Counsel

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