                                Designation of Acting Solicitor of Labor
             Eugene Scalia, now serving as the Solicitor for the Department of Labor under a recess appointment,
               could be given a second position in the non-career Senior Executive Service in the Department of
               Labor before or after his recess appointment expires and, while serving in his non-career Senior
               Executive Service position, could be designated as the Acting Solicitor after his recess appointment
               expires.

                                                                                            November 15, 2002

                     MEMORANDUM OPINION FOR THE DEPUTY COUNSEL TO THE PRESIDENT

                You have asked whether Eugene Scalia, now serving as the Solicitor for the
             Department of Labor under a recess appointment, could be designated the Acting
             Solicitor after his recess appointment expires. You have asked us to address two
             scenarios. Under the first scenario, Mr Scalia would be given a second position in
             the non-career Senior Executive Service in the Department of Labor before his
             recess appointment expires. Under the second scenario, he would be given the
             non-career Senior Executive Service position in the Department of Labor after his
             recess appointment expires. We conclude, for the reasons stated below, that under
             either scenario Mr. Scalia could be designated, while serving in his non-career
             Senior Executive Service position, as the Acting Solicitor after his recess
             appointment expires.
                On April 30, 2001, the President nominated Eugene Scalia to be Solicitor for
             the Department of Labor. 147 Cong. Rec. 6508 (2001). After the Senate returned
             all pending nominations when it took a long intrasession recess, the President
             nominated Mr. Scalia again on September 4, 2001. 147 Cong. Rec. 16,339 (2001).
             Once again, the Senate failed to act on the nomination. The President gave Mr.
             Scalia a recess appointment during the Senate’s recess from December 20, 2001,
             to January 23, 2002, and submitted his nomination to the Senate on February 5,
             2002. 148 Cong. Rec. 600 (2002). The Senate has not acted upon this last
             nomination, and Mr. Scalia’s recess appointment will expire when the Senate next
             adjourns sine die. U.S. Const. art. II, § 2, cl. 3.

                                                              I.

                Under either scenario, Mr. Scalia would lawfully hold a position in the non-
             career Senior Executive Service. To begin with the second scenario: There is no
             question that Mr. Scalia may be given a position in the non-career Senior Execu-
             tive Service in the Department of Labor after his recess appointment as Solicitor
             for the Department of Labor expires. 1

                1
                  It is possible that an interruption in Mr. Scalia’s government service—i.e., the time between the
             expiration of his recess appointment and the commencement of his work in the non-career Senior




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             As for the first scenario: We also believe that Mr. Scalia, while holding the
         office of Solicitor for the Department of Labor by recess appointment, could
         simultaneously hold a position in the non-career Senior Executive Service in the
         Department of Labor. We have repeatedly concluded that “there is no longer any
         prohibition against dual office-holding.” Memorandum for Honorable John D.
         Ehrlichman, Counsel to the President, from William H. Rehnquist, Assistant
         Attorney General, Office of Legal Counsel, at 2 (Feb. 13, 1969) (“Rehnquist
         Memorandum”); see also Memorandum for James H. Thessin, Deputy Legal
         Adviser, Department of State, from Randolph D. Moss, Deputy Assistant Attorney
         General, Re: Dual Office-Holding at 2 (Dec. 3, 1997) (“Dual Office-Holding”);
         Memorandum for Philip B. Heymann, Deputy Attorney General, from Walter
         Dellinger, Assistant Attorney General, Office of Legal Counsel, Re: Creation of
         an Office of Investigative Agency Policies (Oct. 26, 1993) (“Office of Investigative
         Agency Policies”); Dual Office of Chief Judge of Court of Veterans Appeals and
         Director of the Office of Government Ethics, 13 Op. O.L.C. 241, 242 (1989)
         (“Dual Office”); Memorandum for Arnold Intrater, General Counsel, Office of
         White House Administration, from John O. McGinnis, Deputy Assistant Attorney
         General, Office of Legal Counsel, Re: Dual Office of Executive Secretary of
         National Security Council and Special Assistant (Mar. 1, 1988); Memorandum for
         the Honorable George P. Williams, Associate Counsel to the President, from Leon
         Ulman, Acting Assistant Attorney General, Office of Legal Counsel, Re: Dual
         Appointment (June 24, 1974); Memorandum for the Honorable Myer Feldman,
         Special Counsel to the President, from Norbert A. Schlei, Assistant Attorney
         General, Office of Legal Counsel, Re: Fixing of Salary of Director of Office of
         Economic Opportunity (Aug. 19, 1964). In 1964, Congress repealed a statute
         generally barring the holding of more than one office, see Rehnquist Memoran-
         dum at 1, and the current statute forbidding the receipt of pay for holding more
         than one position, 5 U.S.C. § 5533 (2000), “impliedly permits” dual office-
         holding. Dual Office, 13 Op. O.L.C. at 242. Furthermore, as we have pointed out,
         it is of no consequence if one of the offices to be held is Senate-confirmed and the
         other is not. See Rehnquist Memorandum at 2.
             A possible limit on the holding of two offices, however, may arise from the
         doctrine of “incompatibility.” This doctrine, which existed in common law,
         “precludes a person from holding two offices if public policy would make it
         improper for the person to perform both functions, such as when the functions of
         the offices are inconsistent with each other.” Office of Investigative Agency
         Policies at 6 (citations omitted). “The doctrine has been stated in various ways,
         sometimes tautologically, but usually states that offices that are incompatible ‘are
         such as bear a special relation to each other; one being subordinate to and interfer-


         Executive Service position—might have certain adverse consequences for him. But this issue, which
         you have not asked us to address, has no bearing on your question.




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             ing with the other so as, in the language of Coke, to induce the presumption that
             they cannot be executed with impartiality and honesty.’” Id. (quoting 3 McQuillin,
             The Law on Municipal Corporations § 12.67 (1982)). As we have noted, “[i]t is
             arguable that [the doctrine] has either fallen into desuetude or been repealed by
             statute.” Memorandum for Edward C. Schmults, Deputy Attorney General, from
             Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel, Re:
             Appointment as Associate Attorney General at 3, 4 (June 14, 1983). But see United
             States v. Thompson, 475 F.2d 1359, 1363 (5th Cir. 1973) (discussing whether
             positions have any “inherent” conflict). Even assuming the continued validity of
             the doctrine, however, a recess appointee could be appointed to another office as
             long as “[n]either office, as a matter of statute, reports to the other or reviews
             determinations that the other has made.” See Dual Office-Holding at 4.
                Under the Dual Compensation Act, 5 U.S.C. § 5533, the recess appointee could
             receive the pay for only one of the offices. As we have interpreted the Act, the
             holder of two offices “must be paid the higher salary if it is fixed by law,” because
             he “would otherwise be waiving a right to compensation established pursuant to
             statute—which is unlawful.” Dual Office, 13 Op. O.L.C. at 243 n.3 (citations
             omitted). 2

                                                              II.

                Under either of your two scenarios, we believe that, after expiration of his
             recess appointment, Mr. Scalia may be designated under the Vacancies Reform
             Act, 5 U.S.C. §§ 3345-3349d (2000), to act in the position he will have vacated
             when his recess appointment expired. Under the Vacancies Reform Act, the
             President “may direct an officer or employee of [an] Executive agency to perform
             the functions and duties of [a] vacant [Senate-confirmed] office temporarily in an
             acting capacity,” subject to specified time limits, provided that, during the year
             preceding the occurrence of the vacancy, the officer or employee served for at
             least 90 days in a position in that agency for which the rate of pay equaled or
             exceeded the rate for GS-15 of the General Schedule. 5 U.S.C. § 3345(a)(3). By
             virtue of his non-career Senior Executive Service position with the Department of
             Labor, Mr. Scalia would be “an officer or employee” of that agency, and, during
             the year before the expiration of his recess appointment created a vacancy, he
             would have served for at least 90 days in a position—the office of Solicitor, to
             which he was recess appointed—for which the pay exceeded the GS-15 rate. By


                 2
                   A Senior Executive Salary might, or might not, exceed the Executive Level IV pay of the Solicitor
             of Labor. Salaries in the Senior Executive Service cover a range. 5 U.S.C. § 5382(a). The lowest level
             of Senior Executive Service pay, even with a “locality-based comparability” adjustment for Washing-
             ton, D.C., see 5 U.S.C. § 5304 (2000), would be less than the pay for Executive Level IV, while the
             higher levels would exceed the pay for Executive Level IV.




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         the plain terms of the Vacancies Reform Act, he would be eligible to be designated
         to act. 3
             There are two contrary arguments, the first based on the Vacancies Reform Act
         and the second on the Recess Appointments Clause. In our view, neither argument
         is persuasive.
             The first argument is that, under the Vacancies Reform Act, the relevant vacan-
         cy would have occurred when the recess appointee’s predecessor left office and
         that the recess appointee, unless he qualified by virtue of service in the agency
         before then, would not be able to act in the position. The basis for this argument
         would be the provision of the Vacancies Reform Act stating that the Act is the
         exclusive means for designation of an acting official, with two exceptions—(1) a
         statute expressly authorizing the President, a court, or a head of a department to
         name an acting official or a statute expressly designating an official to act, or
         (2) the Recess Appointments Clause of the Constitution. 5 U.S.C. § 3347(a).
         According to this argument, the Vacancies Reform Act thus treats a recess
         appointment as identical to an acting designation, and an acting designation does
         not fill an office but only assigns its duties and powers. The provisions of the
         Vacancies Reform Act that allow designations of acting officials but set time
         limits on their service, for example, contemplate that a “vacancy” occurs when the
         occupant dies or resigns or is otherwise unavailable (except as a result of sick-
         ness), 5 U.S.C. §§ 3345-3346, and the departure of an acting official does not
         create a new vacancy. So, too, as this argument would go, the expiration of a
         recess appointment does not create a new vacancy.
             The language of the Vacancies Reform Act refutes this argument. While the
         statute provides that an acting official only will “perform the functions and duties
         of the [vacant] office temporarily,” id. § 3345(a)(1), (2), (3), it states that a recess
         appointment “fill[s] a vacancy,” id. § 3347(a)(2). Therefore, when the recess
         appointment ends, a new vacancy is created. We accordingly would read the
         statutory reference to recess appointments as simply making clear that Congress
         did not intend, by the Vacancies Reform Act, to restrict the President’s recess
         appointment power in any way.
             The second argument is that, because an acting official has the same duties and
         powers as a recess appointee, a designation to act would extend the recess
         appointment past the constitutionally mandated limit of “the End of [the Senate’s]
         next Session.” U.S. Const. art. II, § 2, cl. 3. This argument, in our view, would
         ignore the differences between holding an office and acting in it. An acting official
         does not hold the office, but only “perform[s] the functions and duties of the


             3
               A provision of the Vacancies Reform Act that, in some circumstances, forbids an official to act in
         a position for which he has been nominated, 5 U.S.C. § 3345(b)(1), does not apply if an official is
         acting pursuant to the President’s designation. See Guidance on Application of the Federal Vacancies
         Reform Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (Question 15).




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             office.” 5 U.S.C. § 3345(a)(1), (2), (3). He is not “appointed” to the office, but
             only “direct[ed]” or authorized to discharge its functions and duties, and he thus
             receives the pay of his permanent position, not of the office in which he acts. See
             5 U.S.C. § 5535(a) (2000). A recess appointee, on the other hand, is appointed by
             one of the methods specified in the Constitution itself, see Swan v. Clinton, 100
             F.3d 973, 987 (D.C. Cir. 1996) (recess appointment is not an “inferior” procedure
             to appointment with Senate confirmation); he holds the office; and he receives its
             pay. We therefore conclude that a designation to act would not unconstitutionally
             extend the tenure of a recess appointee.
                 Mr. Scalia’s service as Acting Solicitor would be subject to the time limits in
             5 U.S.C. § 3346. Ordinarily, an acting official’s service, absent any further action,
             may continue for 210 days from the occurrence of the vacancy. 5 U.S.C.
             § 3346(a)(1). However, “[i]f a vacancy occurs during an adjournment of the
             Congress sine die, the 210-day period . . . shall begin on the day that the Senate
             first reconvenes.” Id. § 3346(c). If the Senate does not adjourn sine die before the
             House, we believe that the vacancy here would occur “during an adjournment sine
             die of the Congress.” The office would be filled at all times that Congress was in
             session, because the recess appointment would expire “at the End of [the Sen-
             ate’s] . . . Session.” U.S. Const. art. II, § 2, cl. 3.
                 Notwithstanding the usual 210-day limit, if the President submitted a nomina-
             tion for the vacant office (including a nomination of Mr. Scalia), Mr. Scalia’s
             service could continue as long as the nomination was pending in the Senate. Id.
             § 3346(a)(2). If the Senate rejected or returned the nomination or the President
             withdrew it, a new 210-day period would begin. Id. § 3346(b)(1). Once again,
             however, if the President submitted a nomination, the service could continue while
             the nomination was pending. Id. § 3346(b)(2). Rejection, return, or withdrawal of
             the nomination would start a final 210-day period, which would not be suspended
             by the President’s making another nomination. Id. § 3346(b)(2)(B). If any of the
             210-day periods ends when the Senate is not in session, the second day on which
             the Senate is next in session and is receiving nominations is deemed the last day of
             the period. Id. § 3348(c).

                                                        M. EDWARD WHELAN III
                                                 Principal Deputy Assistant Attorney General
                                                           Office of Legal Counsel




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