                                                                                                           May 18, 1978


78-29           MEMORANDUM OPINION FOR THE COUNSEL
                TO THE PRESIDENT

                Department of Energy— Vacancies (42 U.S.C.
                § 7342)— Vacancy Act (5 U.S.C. §§ 3345-3349)—
                De Facto Officers


    This responds to your request for our opinion concerning the legality o f the
designation o f certain acting officials by the Secretary of Energy.
    The Department o f Energy was established by the Department o f Energy
Organization Act o f August 4, 1977, Pub. h . No. 95-91, 91 Stat. 565, 42
U .S.C . § 7101 et seq. (Act) involving a merger of the Federal Energy
Administration (FEA), the Energy Research and Development Administration
(ERDA), and the Federal Power Com m ission, and including the transfer o f
certain functions to the new Department from several other Government
agencies (Title III o f the Act). W hen the Department became operative on
October 1, 1977, pursuant to Executive Order No. 12009, 42 F.R . 4267
(1977), the Secretary was the only officer required to be appointed by and with
the advice and consent of the Senate, who had been confirmed. The President
filled eight other positions that required Senate confirmation, on a temporary
basis pursuant to § 902 o f the Act, 42 U .S.C . § 7 3 4 2 .1 He designated officers
of the predecessor agencies, who had been appointed by and with the advice
and consent o f the Senate and who had held those positions immediately prior
to the effective date o f the A ct,2 to perform the duties o f the vacant Department
of Energy offices to which they were assigned.

   'S ec tio n 902 pro v id es:
          “ In the e v en t th at o n e o r m o re o ffice rs re q u ire d by th is A ct to be a p p o in te d by an d w ith
      the ad v ice an d c o n se n t o f th e S en a te shall not h a v e e n te re d u p on o ffic e on the effe c tiv e
      da te o f th is A ct [O c to b e r 1, 1977] th e P resid e n t m ay d e sig n a te any o ffic e r, w h o se
      a p p o in tm e n t w as re q u ire d to be m a d e , by an d w ith th e ad v ice and c o n se n t o f the S e n a te ,
      and w h o w as su ch an o ffic e r im m e d ia te ly p rio r to th e effe c tiv e da te o f the A c t, to act in
      su ch o ffice until th e o ffice is filled as p ro v id e d in th is A ct. W h ile so actin g such p e rso n s
      shall receiv e c o m p e n sa tio n at th e rates p ro v id e d by th is A ct fo r the re sp ec tiv e o ffice s in
      w hich th ey a c t .”
   2Section 703 o f the A c t, 4 2 U .S .C . § 7 2 9 3 , term in ated the p re d e ce sso r ag en cies o f the D e p art­
m ent o f E n erg y an d th e a d v ice an d c o n se n t o ffic e s in th o se a g en c ie s as o f the d a te w hen
the D epartm en t o f E n e rg y b e ca m e o p e ra tiv e .

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     For four positions— the offices o f General Counsel, Inspector General,
  Assistant Secretary for Conservation and Solar Applications, and Assistant
  Secretary for Energy Technology— we were advised by officials at the
  Department o f Energy that no officers were available in the predecessor
  agencies who had been appointed by and with the advice and consent of the
  Senate. We were also informed that, since Presidential designations under
  § 902 from personnel o f the predecessor agencies were not possible, the other
  four positions were filled by the Secretary o f Energy designating the Acting
  General Counsel, the Acting Inspector General of the Federal Energy Adminis­
  tration, the Acting Adm inistrator for Solar, Geothermal, and Advanced Energy
  Systems, and the Acting Administrator for Nuclear Energy of ERDA to
  perform the duties o f the respective vacant offices on an acting basis. The
  Acting Assistant Secretary for Defense Programs, who was one of the officers
  designated by the President pursuant to § 902 o f the Act, resigned effective
  January 1, 1978. The Secretary thereupon designated the Acting Assistant
  Secretary’s deputy to act in his place.
     The President submitted nominations to the Senate for four of the eight
  positions requiring Senate confirm ation.3 He indicated his intention to nomi­
  nate an Assistant Secretary for Defense Programs, but, as of this writing, no
  such nomination has been formally submitted to the Senate. The nominees for
  the positions o f General Counsel, Inspector General, and Assistant Secretary
  for Energy Technology were recently confirmed by the Senate. Their appoint­
  ments are imminent, in which event the designation of the acting officials will
  terminate. The Acting A ssistant Secretary for Energy Technology designated
  by the Secretary was the only acting official 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,
  supra. It is asserted that § 902 establishes the exclusive manner in which
  interim appointments to fill initial vacancies in the Department of Energy may
  be made. We disagree. Concededly, § 902 was designed to give the President
  the authority to make interim designations in the Department of Energy where
  possible, but we doubt that Congress intended to tie his hands and compel him
  to make what could be unsuitable designations to the detriment of the
  newly established Department, or to preclude any other method to fill those
  positions.




   3T h e n o m in a tio n s w ere a s fo llo w s: A ssista n t S e c re ta ry fo r E n e rg y T e c h n o lo g y , S e p te m b e r 13,
1977, re su b m itte d J a n u a ry 2 6 , 1978; G e n e ra l C o u n se l, S e p te m b e r 22 , 1977, re su b m itte d Jan u a ry
25, 1978; A ssista n t S e c re ta ry fo r C o n se rv a tio n an d S o la r A p p lic a tio n s, J an u a ry 2 5 , 1978; In sp ecto r
G e n e ra l, A p ril 2 0 , 1978.

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   There is no legislative history to guide us concerning the scope of § 902.
However, the statutory language, “ the President may designate any officer,”
indicates that the section was intended to confer on the President a discretionary
power to be exercised in conformity with the statutory spirit and purpose, rather
than a binding and exclusive method of appointment.
   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 specialized
technical expertise, and that 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. At the same time, it was
reasonable to expect that some o f the nominations might not be acted upon by
the time 'the Department became operative. The question of effectively
providing for interim appointments was one that could not be ignored.
   The existing procedures provided for in the Vacancy Act, 5 U .S.C .
§§ 3345-3349, were not adapted to initial vacancies in a newly established
department o f the character of the Department of Energy. Section 3346
provides that in the case of a vacancy in a bureau o f 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 o f Energy for several reasons.
   As mentioned above, § 703 o f the Act terminated, as o f the date when the
Department became operative, its predecessor agencies and the positions in
those agencies that were either expressly authorized by law or compensated
according to the Executive Schedule. Since the officers in those agencies who
had been appointed by and with the advice and consent o f the Senate, lost that
status under § 703 o f the Act, the President could not designate them as acting
officers under § 3347. If. § 3347 were controlling, his choice 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 to find
acting officers possessing the necessary technical qualifications for the highly
specialized positions in the Department of Energy, but that, even then, the
designees could only perform those duties on a part-time basis.
   Temporary filling o f positions on the Assistant Secretary level by persons
who both lacked the necessary expertise and could not devote their entire time
to the new positions could readily have presented difficulties for the new



    4A d ep artm e n tal u n it h e ad e d b y an A ssista n t S e c re ta ry o r c o m p a ra b le o ffic e r n o rm a lly
c o n stitu tes a b u reau .
    ’ M o re o v er, the A tto rn e y G e n e ra l has in te rp rete d th e te rm “ first a ss is ta n t” as a p p ly in g o n ly to
o fficials w h o se a p p o in tm e n t h as b e en sp e c ific a lly p ro v id e d fo r b y statu te. 1 9 0 p . A G . 5 0 3 (1 8 9 0 ) ;
28 O p. A .G . 95 (1 9 0 9 ).

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  Department during the crucial first months of its existence. Moreover, under
 the Vacancy Act ad interim designations could last for only 30 days.
 Experience amply demonstrates that under present conditions, Senate confirma­
 tion frequently takes longer than that.6
    In our view, § 902 was designed by the Congress to avoid Vacancy Act
 problems by enabling the President to make ad 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 to permit
 them to serve more than 30 days if necessary. The last sentence of § 902
 indicates that Congress envisaged that the interim designations under that
 section would primarily be given to former advice and consent officers who had
 served in the predecessor agencies. The acting official would receive compen­
 sation at the rate provided by the Act for the office in which he would serve on
 an acting basis. It was, we believe, 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 his compensation under 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 because § 703 of
 the Act had abolished his former position; hence, he would have to be
appointed to a position that did not require Senate confirmation and which
carried a lower rate o f com pensation.7 Section 5535 of title 5 prevents an acting
official from receiving compensation in addition to that of his regular position.
The last sentence o f § 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 o f the Department o f Energy to a corresponding position in that
Department, but confirm ation prior to the activation o f the Department was
remote.
    Section 902 was not a complete solution, however. 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 of Energy. If such officers had
been available, undoubtedly the President would have resorted to the authority
given him by § 902.
   A mechanistic interpretation of § 902 leads to a result that is so extreme we
cannot attribute it to the Congress. It would mean that the President was
required to designate an advice and consent officer, presumably from another
agency, regardless o f his qualifications and expertise and his ability to devote
him self full time to the office, or he could make no designation to the office at


    6In the situ a tio n a t h a n d , th e c o n firm a tio n o f th e G e n e ra l C o u n se l a n d o f the A ssistant S ecretary
fo r E n e rg y T e c h n o lo g y to o k a b o u t 7 m o n th s.
    1I.e ., at a su p e rg ra d e , ra th e r th a n in th e E x e c u tiv e S c h e d u le u su ally a p p lic ab le to p o sitio n s at the
A ssista n t S e c re ta ry level.

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all. Either alternative would be inconsistent with the 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. To interpret § 902 as providing the exclusive
method of filling initial vacancies is inconsistent with its discretionary language
and would defeat its purpose. It is a familiar axiom of construction that a statute
is not to be interpreted in a manner at variance with its policy and purpose.
United States v. American Trucking Associations, Inc., 310 U.S. 534, 543
(1940); United States v. Biscaglia, 420 U.S. 141, 149-150 (1975).

                                                                II.

   We therefore conclude that § 902 was not intended to establish the sole
method of filling vacancies in the Department of Energy. The President would
have utilized 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. We do not believe that the section is
to be construed to mean that such vacancies may not be filled at all on a
temporary basis, if no advice and consent officers were available.
   Having disposed of the question of the Vacancy Act, we believe that the
Secretary of Energy could only resort to his general powers and responsibili­
ties, 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, would
carry out what we regard as its purpose— that the vacancies should be filled by
qualified persons on a full-time basis. To keep the Government running calls
for the designation of acting officials to fill vacancies in the absence of express
statutory authority, see, Williams v. Phillips, 482 F. (2d) 669, 670-671 (D.C.
C ir., 1973). Sim ilar considerations should be applicable where the strict
requirements of the pertinent statute cannot be met due to unforeseen
circumstances.
   In Phillips the court, however, stated that such extrastatutory designations
could not last indefinitely unless nominations were submitted to the Senate
within a reasonable time. It suggested that the 30-day provision of the
Vacancy Act, 5 U .S.C . § 3348, should serve as a guideline; hence, the
designee in question was no longer entitled to hold his position when no
nomination had been submitted for more than 4 months after the vacancy




  8S ectio n 301 p ro v id es:
         “ T h e h e ad o f an E x e c u tiv e d e p a rtm e n t o r m ilitary -d e p a rtm e n t m ay p re scrib e
     reg u latio n s fo r th e g o v e rn m e n t o f h is d e p a rtm e n t, th e co n d u ct o f its e m p lo y e e s , the
     d istrib u tio n an d p e rfo rm an c e o f its b u s in e s s , an d th e c u sto d y , u se, and p re serv atio n o f its
     re c o rd s, p a p e rs, an d p ro p e rty . T h is sec tio n d o e s n o t a u th o riz e w ith h o ld in g in fo rm atio n
     from the p u b lic o r lim itin g the a v a ila b ility o f re c o rd s to th e p u b lic ."


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had occurred.9 If the Phillips decision is used as a guideline, the designations
by the Secretary of the Acting General Counsel and the Acting Assistant
Secretary for Energy Technology met the requirements of that decision. The
nominations for the two offices were submitted to the Senate in September
1977, i.e ., even before the Department of 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 perhaps not so clear, since 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 of 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 of 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 observa­
tions also apply to the offices o f the Assistant Secretary for Defense Programs
and the Inspector General.

                                                                       III.

   We turn to the legality of 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 cto officer rule, one who performs
the duty o f an office under color of title is considered a de facto officer, his acts
are binding on the public, and third persons may rely on their legality.
M cDowell v. United States. 159 U .S. 596, 601-602 (1895); United States v.
Royer, 268 U .S. 394 (1925); United States v. Lindsley, 148 F. (2d) 22, 23 (7th
Cir. 1945), cert, denied, 325 U .S. 858. Indeed, the authority of de facto
officers can normally be challenged only in special proceedings in the nature of
quo warranto brought directly for that purpose. United States ex rel. D orr v.
Lindsley, supra; U nited States v. Nussbaum , 306 F. Supp. 66, 68-69 (N.D.
C al., 1969); M echem, Public Office and Officers, §§ 343, 344 (1890).
   The basis for the de fa c to officer principle is the avoidance o f any cloud on
the validity o f public acts and on the right o f the public to rely on them despite
subsequent questions as to the authority of the officer to exercise the powers of
the o ffice.10 A typical case o f a de fa cto officer is one who continues to serve



    9A n a g g ra v atin g e le m e n t in th e Phillips c ase w as th a t th e a ctin g o ffic e r w as c h a rg e d w ith see k in g
to im p a ir th e o p e ra tio n o f th e a g e n c y . T h a t c o n sid e ra tio n is a b se n t in the c ase at h and. T o the
c o n tra ry , the p u rp o se o f th e d e sig n a tio n s h e re w as m a d e in o rd e r to fu rth e r the a d m in istra tio n o f
the A ct an d to c o m p ly w ith th e sp irit o f § 9 0 2 .
    ' “A n o th e r ra tio n a le fo r th e ru le is th a t o n e sh o u ld n o t b e a b le to s u b m it his c a s e to an o ffic e r and
a cc e p t h is ru lin g if it is fa v o ra b le , b u t c h a lle n g e th e o ff ic e r’s a u th o rity if the ru lin g is u n fa v o ra b le .
Glidden Company v. Zdanok, 3 7 0 U .S . 5 3 0 , 5 3 5 (1 9 6 2 ).                                                                   ,

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after his term of office has expired. See, Waite v. Santa Cruz , 184 U.S. 302,
322-324 (1902); United States v. Groupp, 333 F. Supp. 242, 245-246 (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 Phillips 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 of the acting officials
have received the compensation for the position 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 General Schedule salary scale which applies to 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 by its own terms.
We disagree, however, with his result. The opinion ignores the considerations
we have found decisive. The Acting Comptroller General has concluded that
§ 902 provides the exclusive method for making interim appointments at the
Department of Energy, but has not addressed the factors which have led us to a
contrary conclusion. The nonmandatory language of the section, the absence
of guiding legislative history, and its plain purpose convince us that Congress
did not intend to make it an exclusive method. Section 902 was written into the
law because Congress believed that advice and consent positions in the
Department of Energy should not remain vacant during the crucial initial
months, and that interim designations should be given to persons having the
requisite expertise and who could serve on a full-time basis.

                                                 Jo h n M . H   arm on

                                             Assistant Attorney General
                                                        Office o f Legal Counsel




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