                Dual Office of Chief Judge of Court
              of Veterans Appeals and Director of the
                    Office of Government Ethics

Federal law does not bar a single individual from serving simultaneously as the Chief Judge
  of the Court of Veterans Appeals and the Director of the Office of Government Ethics.

                                                                                       July 21, 1989

                        M e m o r a n d u m O p in io n f o r t h e D ir e c t o r
                               O f f ic e o f G o v e r n m e n t E t h ic s


  This responds to your request for the opinion o f this Office whether
you can serve simultaneously as the Director o f the Office o f Government
Ethics and Chief Judge o f the Court o f Veterans Appeals. For the reasons
set forth below, we conclude that you are not barred by federal law from
holding both offices, since (we understand) you will receive only a single
salary, the two positions are not incompatible, and no appropriation is
being directed to any purpose other than that provided by law.1

                                           Background

   The Court o f Veterans Appeals was created by section 301 o f the
Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105, 4113,
codified at 38 U.S.C. §§ 4051-4092. The court operates under Article I o f
the Constitution, and has exclusive jurisdiction to review decisions o f the
Board o f Veterans Appeals. 38 U.S.C. § 4052(a). The court consists o f a
Chief Judge and from two to six associate judges, who are each to serve
terms o f 15 years. Id. § 4053. The President has recently appointed Judge
Nebeker to be the Chief Judge o f this court.
   Judge Nebeker is also the Director o f the Office o f Government Ethics
( “OGE”). The OGE “was established within the Office o f Personnel
Management ( “OPM”) by title IV o f the Ethics in Government Act of 1978.
The Office was created to ‘provide overall direction o f executive branch
policies related to preventing conflicts o f interest on the part o f officers and

  1   You have not requested our view s on the appropriateness under the American Bar Association Code
o f Judicial Conduct (1972) o f your serving simultaneously in these tw o positions, and w e do not address
the issue.


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employees o f any executive agency.’ The OGE Director was given the
authority and responsibility for developing rules and regulations regarding
conflicts o f interest, financial disclosure and ethical conduct by officers and
employees in the executive branch; monitoring and investigating individual
and agency compliance with financial disclosure requirements; interpreting
conflict o f interest rules and regulations; providing information on and pro­
moting understanding o f ethical standards in executive agencies; and order­
ing action by agencies and employees to comply with laws, rules, regula­
tions and standards related to conflicts o f interest and ethical conduct.”
H.R. Rep. No. 1017, 100th Cong., 2d Sess., pt. 1, at 8-9 (1988), reprinted in
1988 U.S.C.C.A.N. 4125, 4129-30. Under sections 3(a) and 10(b) of Office of
Government Ethics: Reauthorization Act o f November 3, 1988, Pub. L. No.
100-598, 102 Stat. 3031, OGE is to be removed from OPM and to be a sepa­
rate executive agency, effective October 1, 1989.
   We understand that Judge Nebeker will not be involved in adjudicating
any cases before the Court o f Veterans Appeals for some time after
assuming his position there, and that his duties at the outset o f his tenure
will be largely or entirely administrative. We also understand that Judge
Nebeker will have resigned from the Directorship o f OGE before he
begins to hear cases on the court. During the overlapping period in which
he plans to serve both as Director o f OGE and as Chief Judge, we under­
stand that Judge Nebeker will draw a salary only as Chief Judge, which is
the higher-paid o f the two positions.

A. Dual Compensation

   The Dual Compensation Act, 5 U.S.C. § 5533, repealed earlier legisla­
tion directed against dual office holdings and provides that, subject to
exceptions, “an individual is not entitled to receive basic pay from more
than one position for more than an aggregate o f 40 hours o f work in one
calendar week (Sunday through Saturday).” The Act merely prohibits the
receipt o f pay for more than one full-time dual government position (sub­
ject to certain exceptions). Accordingly, this Office has repeatedly opined
that the Dual Compensation A ct does not prohibit the holding o f two
offices simultaneously, and in fact impliedly permits it.2 “The basic prin­

  2See, e g., Memorandum fo r Arnold Intrater, General Counsel, O ffice o f White House Administration,
from John O. McGinms, Deputy Assistant A ttorney General, Office o f Legal Counsel, Re- Dual Office o f
E x e c u tive Secretary o f N a tio n a l Security C ouncil and Special Assistant (Mar         1, 1988) ( “Intrater
Mem orandum ”), Memorandum for Myer Feldman, Special Counsel to the President, from Norbert A.
Schlei, Assistant Attorney General, Office o f Legal Counsel, R e • F ix in g o f Salary o f D irector o f Office o f
E c o n o m ic O p p ortu n ity (Aug. 19, 1964) (dual appointment as Director o f the Peace Corps and Director
o f the O ffice o f Econom ic Opportunity). A pproved dual appointments also include cases in which a job
was created by statute and was subject to Senate advice and consent (as is the job o f Chief Judge o f the
Court o f Veterans Appeals). See Memorandum for G eorge P. Williams, Associate Counsel to the
President, from Leon Ulman, Acting Assistant Attorney General, O ffice o f Legal Counsel, Re. Dual
A p p o in tm e n t (June 24, 1974) (Special Representative fo r 'IYade Negotiations and Executive Director o f
the Council on International Economic P o licy )

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ciple is that there is no longer any prohibition against dual office-holding.
It seems to us that it is not material how the dual tenure comes about,
whether by successive appointments by and with the advice and consent
o f the Senate, by interim designation, or by concurrent nomination and
appointment.” Memorandum for John D. Ehrlichman, Counsel to the
President, from William H. Rehnquist, Assistant Attorney General, Office
of Legal Counsel at 2 (Feb. 13, 1969). Thus, the statute is not a bar to
Judge Nebeker’s serving in the two capacities o f Chief Judge o f the Court
o f Veterans Appeals and Director o f OGE, so long as he receives only one
salary for the work he performs.3

B. Incompatibility

   Where public policy would make it improper for one person to perform
the functions assigned to two distinct offices, a problem o f “incompati­
bility” arises. See Intrater Memorandum at 3. Such a problem could be
presented if, for example, one office adjudicated matters in which the
other was or was likely to be a party. Id. at 3-4. We perceive no such
“incompatibility” problem here, however. The function o f the Court o f
Veterans Appeals is to hear appeals from decisions o f the Board o f
Veterans Affairs. The Office o f Government Ethics is not a party to such
appeals. (In any event, we understand that Judge Nebeker will not be
hearing appeals on the court until after he has resigned as Director o f
OGE.) Further, the mere fact o f being a federal judge does not prevent
someone from holding another federal office. See Mistretta v. United
States, 488 U.S. 361, 397^404 (1989) (Article III judges may undertake cer­
tain extrajudicial functions).4

C. Augmentation

  31 U.S.C. § 1301(a) provides that “ [appropriations shall be applied
only to the objects for which the appropriations were made except as
otherwise provided by law.” This is not an absolute barrier to Judge
Nebeker’s being compensated by receiving a salary from one position
while simultaneously serving in another position. See United States v.
Morse, 292 F. 273, 277 (S.D.N.Y. 1922) (A. Hand, J.) (Special Assistant to
Attorney General could be compensated by continuing to receive his


  3 We have also consistently construed the Dual Compensation Act to require that an individual who
holds two offices must be paid the higher salary if it is fixed by law. See Intrater Memorandum at 2 n 3
The theory is that the dual office-holder would otherwise be waiving a nght to compensation established
pursuant to statute — which is unlawful. See Glavey v. United States, 182 U.S. 595 (1901), Intrater
Memorandum at 3 n 8. We understand that Judge Nebeker will receive the C hief Judge’s salary, which is
higher than the salary o f the Director o f OGE, and which is fixed by statute, see 38 U.S.C. § 4053(e)(1).
   4By its plain language, the Incompatibility Clause, U S Const art I, § 6, cl 2, applies only to members
o f Congress, see 17 Op Att’y Gen. 365, 366 (1882), and so is inapplicable here. An Article I judge is not a
member o f Congress


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salary as special counsel to a government corporation). As we have
opined before, see Intrater Memorandum at 6, so long as Judge Nebeker
performs substantial responsibilities for both positions, there is no
requirement that he devote full time to either position.

                                          WILLIAM P. BARR
                                      Assistant Attorney General
                                        Office o f Legal Counsel




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