                          Designation of Acting Associate Attorney General
             Phil Perry, who has already been designated as the first assistant to the office of the Associate Attorney
               General by virtue of his appointment as the Principal Deputy Associate Attorney General, may,
               consistent with the Vacancies Reform Act of 1998, serve as the Acting Associate Attorney General
               even though he was not the first assistant when the vacancy occurred.
             Because the President has not designated another person as the Acting Associate Attorney General
               under the Vacancies Reform Act, Mr. Perry, as the Principal Deputy, is required to perform the
               functions and duties of the office of the Associate Attorney General in an acting capacity.

                                                                                                     August 7, 2001

                   MEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT

                You have asked for our opinion whether Phil Perry, the Principal Deputy Asso-
             ciate Attorney General, can, consistent with the Vacancies Reform Act of 1998
             (“the Act”), 1 serve as the Acting Associate Attorney General. For the reasons set
             forth more fully below, we conclude that unless the President designates another
             person as the Acting Associate Attorney General under the Act, Mr. Perry, as the
             Principal Deputy, is actually required to perform the functions and duties of the
             office of the Associate Attorney General in an acting capacity.

                                                                I.

                On January 20, 2001, Daniel Marcus, the Associate Attorney General resigned.
             Two days after the vacancy in the Associate Attorney General’s office occurred,
             Mr. Perry arrived at the Department of Justice (“the Department”) as part of the
             new administration’s transition team. On July 16, 2001, Mr. Perry was officially
             appointed the Principal Deputy Associate Attorney General. As of this date, the
             President has not yet publicly announced who he intends to nominate as Associate
             Attorney General. It is our understanding, however, that the President intends to
             nominate someone other than Mr. Perry for the position.

                                                                II.

                 The Act, which took effect on November 20, 1998, replaced the old Vacancies
             Act and altered the manner in which vacancies in presidentially appointed, Senate-
             confirmed offices within the Executive Branch could be “filled” on a temporary
             basis. Under the Act, any one of three categories of individuals is eligible to serve
             in such an office in an acting capacity:


                1
                  Pub. L. No. 105-277, § 151(b), 112 Stat. 2681-611 (1998) (codified at 5 U.S.C. §§ 3345-3349d
             (Supp. IV 1998)).




                                                               177




227-329 VOL_25_PROOF.pdf 187                                                                                     10/22/12 11:10 AM
                               Opinions of the Office of Legal Counsel in Volume 25


                  (a) If an officer of an Executive agency . . . whose appointment to
                  office is required to be made by the President, by and with the advice
                  and consent of the Senate, dies, resigns, or is otherwise unable to
                  perform the functions and duties of the office—

                      (1) the first assistant to the office of such officer shall perform the
                      functions and duties of the office temporarily in an acting capaci-
                      ty subject to the time limitations of section 3346;

                      (2) notwithstanding paragraph (1), the President (and only the
                      President) may direct a person who serves in an office for which
                      appointment is required to be made by the President, by and with
                      the advice and consent of the Senate, to perform the functions and
                      duties of the vacant office temporarily in an acting capacity sub-
                      ject to the time limitations of section 3346; or

                      (3) notwithstanding paragraph (1), the President (and only the
                      President) may direct an officer or employee of such Executive
                      agency to perform the functions and duties of the vacant office
                      temporarily in an acting capacity, subject to the time limitations
                      of section 3346, if—

                          (A) during the 365-day period preceding the date of death, res-
                          ignation, or beginning of inability to serve of the applicable
                          officer, the officer or employee served in a position in such
                          agency for not less than 90 days; and

                          (B) the rate of pay for the position described under subpara-
                          graph (A) is equal to or greater than the minimum rate of pay
                          payable for a position at GS-15 of the General Schedule.

         5 U.S.C. § 3345(a). Only the first of those categories is relevant in this case. 2
         Moreover, unlike the other two categories, which require presidential action, that
         category is triggered automatically once a vacancy is created; the Act provides in
         relevant part that “the first assistant to the office of [the officer who resigned] shall
         perform the functions and duties of the office temporarily in an acting capacity.”
         Id. § 3345(a)(1) (emphasis added).


             2
               Mr. Perry does not currently serve in an office for which appointment is required to be made by
         the President, by and with the advice and consent of the Senate, see 5 U.S.C. § 3345(a)(2), and he did
         not previously serve in the Department (for any period of time, much less the required 90 days) during
         the 365-day period preceding the resignation of Mr. Marcus, see id. § 3345(a)(3)(A). Accordingly, only
         5 U.S.C. § 3345(a)(1) is at issue in this case.




                                                         178




227-329 VOL_25_PROOF.pdf 188                                                                                 10/22/12 11:10 AM
                                    Designation of Acting Associate Attorney General


                                                              III.

                As a threshold matter, we must determine whether the Principal Deputy Asso-
             ciate Attorney General is, for purposes of the Act, the “first assistant” to the
             Associate Attorney General. The Act itself does not define “first assistant.” We
             believe, however, that the phrase is a term of art that refers to the top deputy of a
             presidentially appointed, Senate-confirmed officer. Under this interpretation, the
             Principal Deputy would generally qualify as the “first assistant.” In any event, this
             Office has taken the position previously that designation of a first assistant by
             regulation, if an agency’s governing statute does not do so, is sufficient under the
             Act. See Guidance on Application of Federal Vacancies Reform Act of 1998, 23
             Op. O.L.C. 60 (1999) (“VRA Guidance”). Under Justice Department regulations,
             the “Principal Deputy” within an office run by a presidentially appointed, Senate-
             confirmed officer is the “First Assistant” for purposes of the Act. See 28 C.F.R.
             § 0.132 (2000). 3 Accordingly, we conclude that Mr. Perry is the “first assistant” to
             the Associate Attorney General for purposes of section 3345(a)(1).
                Next, we must ascertain the scope of section 3345(a)(1). In particular, we must
             determine whether subsection (a)(1) applies to someone who, like Mr. Perry, was
             designated as first assistant after the vacancy occurred. In a memorandum—
             prepared in question and answer format—intended to provide agency general
             counsels with general guidance on the Act, this Office tentatively answered that
             very question:

                      Q13. If someone is designated to be first assistant after the vacancy
                      occurs, does that person still become the acting officer by virtue of
                      being the first assistant?

                      A. While the Vacancies Reform Act does not expressly address this
                      question, we believe that the better understanding is that you must be
                      the first assistant when the vacancy occurs in order to be the acting
                      officer by virtue of being the first assistant.

             VRA Guidance, 23 Op. O.L.C. at 63-64. As the brevity of our answer makes clear,
             we did not thoroughly consider (or definitively resolve) the issue. Indeed, our
             initial understanding was offered without explanation or, more importantly, any
             analysis of the Act’s text or structure. Having now specifically considered the
             question in light of both the Act’s text and structure, we conclude that our initial
             understanding was erroneous.
                 First, the Act expressly applies to “the first assistant to the office of [the officer
             who resigned].” 5 U.S.C. § 3345(a)(1) (emphasis added). In concluding that the

                  3
                    If no principal deputy position exists in an office, then the Attorney General may designate the
             first assistant in writing. See 28 C.F.R. § 0.132.




                                                              179




227-329 VOL_25_PROOF.pdf 189                                                                                  10/22/12 11:10 AM
                               Opinions of the Office of Legal Counsel in Volume 25


         first assistant must be in place at the time of the vacancy, we necessarily construed
         the Act as applying to “the first assistant of [the officer who resigned].” Such a
         reading, however, renders the words “to the office” meaningless. See Moskal v.
         United States, 498 U.S. 103, 109-10 (1990) (stressing that a statute must be
         construed in such a fashion that gives every word some operative effect). This is
         particularly troublesome given that the Act specifically modified the old Vacan-
         cies Act by replacing the phrase “to the officer” with the phrase “to the office.”
         See 144 Cong. Rec. S12,822 (daily ed. Oct. 21, 1998) (statement of Sen. Thomp-
         son) (noting that the term “to the officer” had been part of the old Vacancies Act
         since 1868). Under the most natural reading of the Act, an individual need only be
         the first assistant to the office of the presidentially appointed, Senate-confirmed
         officer who resigned. And, unlike our initial interpretation, such a reading does not
         require that the first assistant be in place at the time the vacancy occurred to be the
         acting officer by virtue of being the first assistant.
             Second, our initial interpretation of subsection (a)(1), if correct, would also
         render subsection (b)(1)(A)(i) superfluous. See Freytag v. Comm’r, 501 U.S. 868,
         877 (1991) (stressing that courts should not interpret statutory provisions so as to
         render superfluous other provisions within the same enactment). Notwithstanding
         subsection (a)(1), subsection (b)(1) places several obstacles in the way of a first
         assistant from serving as an acting officer if the President submits the nomination
         of that person to the Senate for appointment to the office in question. 4 One of the
         obstacles set forth in subsection (b)(1) provides, in pertinent part, as follows:

                  if . . . during the 365-day period preceding the date of the death, res-
                  ignation, or beginning of inability to serve, such person . . . did not
                  serve in the position of first assistant to the office of such officer.

         5 U.S.C. § 3345(b)(1)(A)(i). In other words, an individual who was not the first
         assistant during the 365-day period preceding the vacancy may not serve in an
         acting capacity if the President has also nominated that person to the Senate for
         appointment to the vacant position. Of course, Congress’s enactment of subsection
         (b)(1)(A)(i) was meaningless if an individual who was not the first assistant when
         the vacancy occurred is already flatly prohibited from serving in an acting capacity
         pursuant to subsection (a)(1), as we previously concluded. Indeed, the enactment
         of subsection (b)(1)(A)(i) was necessary only if an individual who becomes first
         assistant after a vacancy occurs could otherwise serve in an acting capacity
         pursuant to subsection (a)(1). If subsection (b)(1)(A)(i) is to be given operative
         effect, which it must, our initial understanding of subsection (a)(1) must give way.
         Cf. 2A Norman Singer, Sutherland on Statutes and Statutory Construction § 46.06,


            4
              Because the President intends to nominate a person other than Mr. Perry to the office of the
         Associate Attorney General, these obstacles to service do not apply to him.




                                                       180




227-329 VOL_25_PROOF.pdf 190                                                                            10/22/12 11:10 AM
                                     Designation of Acting Associate Attorney General


             at 181-86 (6th ed. 2000) (“A statute should be construed so that effect is given to
             all its provisions, so that no part will be inoperative or superfluous, void or
             insignificant . . . .”) (footnote omitted).
                 Given the Act’s text and structure, we now believe that the better understanding
             is that an individual need not be the first assistant when the vacancy occurs in
             order to be the acting officer by virtue of being the first assistant. Accordingly, Mr.
             Perry, who has already been designated as the first assistant to the office of the
             Associate Attorney General by virtue of his appointment as the Principal Deputy,
             may serve as the Acting Associate Attorney General even though he was not the
             first assistant when the vacancy occurred. 5 Moreover, because the President has
             not designated another person as the Acting Associate Attorney General under the
             Act, Mr. Perry, as the Principal Deputy, is required to perform the functions and
             duties of the office of the Associate Attorney General in an acting capacity.

                                                                   SHELDON BRADSHAW
                                                                Deputy Assistant Attorney General
                                                                    Office of Legal Counsel




                 5
                   We note that the Act imposes time limits on service in an acting capacity. An acting officer may
             serve “for no longer than 210 days beginning on the date the vacancy occurs.” 5 U.S.C. § 3346(a)(1). If
             the vacancy exists during the 60-day period after a President is sworn into office, the 210-day clock is
             extended an additional 90 days. Id. § 3349a(b). Accordingly, because the vacancy in this case occurred
             on January 20, 2001, Mr. Perry may serve under this provision at least until November 16, 2001. In
             addition, once a nomination for the office is submitted to the Senate, the acting officer may serve “from
             the date of such nomination for the period that the nomination is pending in the Senate.” Id.
             § 3346(a)(2). The Act specifies the applicable term of service should the nomination be rejected,
             withdrawn, or returned. Id. § 3346(b).




                                                               181




227-329 VOL_25_PROOF.pdf 191                                                                                    10/22/12 11:10 AM
