                                                                              March 14, 1979


79-16       MEMORANDUM OPINION FOR THE
            COUNSEL TO THE PRESIDENT

            Designation of Acting General Counsel—Federal
            Labor Relations Authority


   The Federal Labor Relations A uthority (Authority) has made an inquiry
concerning the question o f designating an Acting General Counsel for the
Authority. In our opinion the power to make such a designation is vested
in the President. The issue is one o f statutory interpretation. We are ad­
dressing this memorandum to you because it involves a question of
Presidential authority. Mr. Cardozo is aware o f this matter. He has asked
us to send a copy o f this memorandum to the Federal Labor Relations
Authority, which we have done.
   The Federal Labor Relations Authority was originally created, by § 301
o f Reorganization Plan No. 2 o f 1978 (Plan), as an independent establish­
ment in the executive branch. Section 302 o f the Plan provides for a
General Counsel o f the A uthority to be appointed by the President by and
with the advice and consent o f the Senate. Under § 402 o f the Plan the
President may fill the office o f General Counsel on an interim basis until it
is first filled pursuant to the provisions o f the Plan or by way o f recess ap­
pointm ent.1 The pertinent provisions o f the Plan became effective on
January 1, 1979. See Executive Order No. 12107 o f December 29, 1978.
   The Civil Service Reform Act o f 1978 (Act) became effective on January
 11, 1979.2 Section 701 o f the Act added to title 5, United States Code, a
section 7104 providing for a Federal Labor Relations A uthority and a



  1 Section 402 reads in pertinent part as follows:
     Section 402. Interim Officers, (a) The President may authorize any persons who, im­
     mediately prior to the effective date o f this Plan, held positions in the Executive
     Branch o f the G overnm ent, to act as * * * the General Counsel o f the A uthority, un­
     til those offices are for the first time filled pursuant to the provisions o f this
     Reorganization Plan or by recess appointm ent, as the case may be.
  2 Section 907 o f the Act provides that it shall take effect 90 days after its enactm ent. It was
approved by the President on O ctober 13, 1978.

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General Counsel o f the Authority. Its members and General Counsel are
to be appointed by the President by and with the advice and consent o f the
Senate. The Act, however, does not in terms contain an interim designa­
tion authority corresponding to § 402 o f the Plan.
   The President gave recess appointm ents to two members o f the A uthor­
ity during the interval between the 95th and 96th Congresses. He did not,
however, make such an appointm ent to the office o f General Counsel. We
have been told that the lack o f a General Counsel seriously hampers the
operations o f the A uthority. In particular, because o f the close interrela­
tion o f the functions o f the A uthority and those o f its General Counsel,
the Authority is unable to issue its rules and regulations as required by the
Act, 5 U.S.C. § 7134, without being joined by the General Counsel. It is
our opinion th at it was the intention of Congress to preserve the
President’s express authority under § 402 o f the Plan to designate an Act­
ing General Counsel. This intention is reflected in the transitional provi­
sions o f the Act.
   Section 904 o f the Act provides:
     Except as otherwise expressly provided in this Act, no provision
     o f this Act shall be construed to —(1) limit, curtail, abolish, or
     terminate any function of, or authority available to, the Presi­
     dent which the President had immediately before the effective
     date o f this Act; * * *.
Immediately before the effective date o f the Act the President clearly had
the authority under § 402 o f the Plan to designate an Acting General
Counsel. The Act, as mentioned above, does not confer a similar authority
on the President; but it does not contain any express provision to the con­
trary. The President therefore retains his power to make an interim desig­
nation under § 402 o f the Plan, notwithstanding the subsequent coming
into effect o f the Act.
   The same result follows from § 905 o f the Act, dealing specifically with
the interrelation between the Act and Reorganization Plan 2 o f 1978. That
section provides:
     Any provision in either Reorganization Plan Number 1 or 2 of
     1978 inconsistent with any provision in this Act is hereby
     superseded.
There is no provision in the Act inconsistent with the President’s interim
designation authority under § 402 o f the Plan. The mere silence o f the Act
with respect to a transitional provision o f the Plan is plainly not an
inconsistency.
   As we see it, the President thus has the power under § 402 o f the Plan to
authorize a person who on December 31, 1978, held a position in the ex­
ecutive branch o f the Governm ent to act as the General Counsel o f the
Authority until a General Counsel is appointed by him by and with the ad­
vice and consent o f the Senate.
   We also note that the provisions o f the Vacancy Act, 5 U.S.C.
§§ 3345-3349 (in particular § 3348, which limits an interim designation to

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the first 30 days o f a vacancy), are not applicable to the situation at hand.
First, that Act applies only to vacancies in the executive and military
departments as defined in 5 U.S.C. §§ 101, 102. The A uthority is not an
executive or military departm ent; it is an “ independent establishment in
the Executive Branch” within the scope o f 5 U .S.C . § 104. Section 101 o f
the P lan.3 Moreover, 5 U.S.C. § 3348 applies by its own terms only where
a vacancy was filled temporarily pursuant to the provisions o f the Vacancy
Act. Here the designation would not be made under that Act but under the
authority o f § 402 o f the Plan.

                                               L e o n U lm a n
                                  Deputy Assistant A ttorney General
                                                       Office o f Legal Counsel




 1 There is no corresponding provision in the Act. This provision o f the Plan, therefore, re­
mains in effect in the absence o f an inconsistent provision in the Act. See § 905 of the Act,
supra.
