Authority of the Comptroller General to Appoint an Acting Comptroller General ( 1980 )

Authority of the Comptroller General to Appoint an Acting
Comptroller General
T h e C o m p tro lle r G e n e ra l is a u th o riz e d to d esig n ate an em p lo y ee o f th e G e n e ra l A c ­
co u n tin g O ffice to a ct as C o m p tro lle r G e n e ra l in his absence, e v e n if the O ffice o f
D e p u ty C o m p tro lle r G e n e ra l is v acant.
A c tin g h eads o f ag en cies h a v e p o w e rs th at are c o m m e n su ra te w ith th o se o f a g e n c y heads
w h o h a v e b een co n firm ed b y th e S enate.
June 13, 1980
M EM ORANDUM OPIN IO N FOR T H E G E N ER A L COUNSEL,
D E PA R TM EN T O F TH E TREASURY
This responds to your inquiry whether the Comptroller General may
designate an employee of the General Accounting Office (GAO) to act
as Comptroller General during his absence.1 In particular, you have
asked whether a GAO employee may be designated to serve as Comp­
troller General for purposes of action taken by the Chrysler Corpora­
tion Loan Guarantee Board, of which the Comptroller General is a
member.
The core issue here is whether the Comptroller General may desig­
nate an employee of the General Accounting Office to act as Comptrol­
ler General pursuant to 31 U.S.C. § 43a, which provides:
The Comptroller General shall designate an employee of
the General Accounting Office to act as Comptroller
General during the absence or incapacity o f the Comptroller
General and the Deputy Comptroller General, or during a
vacancy in both o f such offices. (Emphasis added.)
It might be argued that the italicized language signals Congress’ intent
only to authorize the designation of an Acting Comptroller General in
two situations: when both the Comptroller General and Deputy Comp­
troller General are absent or incapacitated, or when both offices are
vacant. On this reading, the provision would not cover the present
case, in which the Comptroller General is absent and the office of
Deputy Comptroller General is vacant.
1 You have m ade this inquiry in your capacity as G eneral Counsel to the C hrysler C orporation
Loan G u aran tee Board, established pursuant to Pub. L. No. 96—185, § 3 , 93 Stat. 1324, 15 U.S.C.
§§ 1861 et seq.
690
However, such a narrow interpretation ignores the well-established
principle of statutory construction that literal interpretations of statutes
are not to be favored at the expense of the statute’s evident purpose and
history. See, e.g., Train v. Colorado Public Interest Research Group, Inc.,
426 U.S. 1, 9-10 (1976); United States v. Public Utilities Commission. 345
U.S. 295, 315 (1953); Church o f the Holy Trinity v. United States, 143
U.S. 457, 459 (1892). The evident aim of 31 U.S.C. § 43a is to provide a
mechanism whereby an Acting Comptroller General may be designated
when the Comptroller General and Deputy Comptroller General are
unavailable to perform the Comptroller General’s duties. This purpose
is not served by distinguishing between situations in which the Comp­
troller General and Deputy Comptroller General are both either absent
or incapacitated or in which both offices are vacant, on the one hand,
and situations in which one of the officers is absent or incapacitated and
the other office is vacant, on the other hand.
Furthermore, the legislative history confirms that Congress did not
intend to so limit the provision’s application. The provision—enacted as
part of the Independent Offices Appropriation Act of 1945, June 27,
1944, ch. 286, Title I, 58 Stat. 371—was introduced as a floor amend­
ment at the urging of the Comptroller General. See 90 Cong. Rec.
3069-70 (1944). The clearest statement of its purpose appears in the
Comptroller General’s letter proposing it, which states in pertinent part:
The need for legislation of the character here proposed
is apparent in the recent history of the General Account­
ing Office. During the period from July 1, 1936, to April
10, 1939, and for a considerable period in 1940, the office
of Comptroller General was vacant. The then Assistant
Comptroller General [now the Deputy Comptroller Gen­
eral 2] acted as Comptroller General, pursuant to law, but
there was no other officer specifically authorized by law
so to act in the event o f his absence or incapacity or in the
event he had resigned or retired or his term had ended. . . .
(Emphasis added.)3
The provision thus was designed specifically to cover a situation in
which the office of the Comptroller General was vacant and it was
feared that the Assistant (now Deputy) Comptroller General might
become absent or incapacitated or that he might resign or retire. It was
plainly not intended to be confined to situations in which both officers
were either incapacitated or absent, or in which both offices were
vacant.4
2 T he Assistant C om ptroller G eneral was designated D eputy C o m ptroller G eneral pursuant to
Pub. L. No. 92-51, 85 Stat. 125, 143 (1971).
3 90 C ong. Rec. 3070 (1944).
4 See also 90 C ong. Rec. 5171 (1944).
691
We therefore conclude that 31 U.S.C. § 43a authorizes the Comptrol­
ler General, in present circumstances, to designate an employee of the
G A O to act as Comptroller General during his absence. It is established
that acting heads of agencies have powers that are commensurate with
those of agency heads who have been confirmed by the Senate. See,
e.g., Ryan v. United States, 136 U.S. 68, 81 (1890); Marsh v. Nichols,
Shepard & Co., 128 U.S. 605, 615 (1888); Shafer v. United States, 229
F.2d 124, 129 (4th Cir. 1956); Anderson v. P.W. Madsen Investment Co.,
72 F.2d 768, 770-71 (10th Cir. 1934); Aderhold v. Menefee, 67 F.2d 345,
346 (5th Cir. 1933); cf. Keyser v. Hitz, 133 U.S. 138, 145-46 (1890).
There is no indication in the language of the Chrysler Corporation
Loan Guarantee Act of 1979, Pub. L. No. 96-185, 93 Stat. 1324, 15
U.S.C. § 1861 et seq. (1980), that Congress intended to create an excep­
tion to this fundamental precept in the context of the Chrysler Corpora­
tion Loan Guarantee Board.5 Accordingly, we believe that the Acting
Comptroller General is legally authorized to serve as Comptroller Gen­
eral in the context of actions taken by that Board during the Comptrol­
ler General’s absence.6
L arry A. H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel
* Section 3 o f the A ct establishes the C h ry sler C orp o ration Loan G u arantee Board, "w hich shall
consist o f the Secretary o f the T reasu ry w ho shall be the C hairperson o f the Board, the C hairm an of
the Board o f G o v ern o rs o f the Federal R eserve System, and the C om ptroller G eneral o f ihe United
States.” IS U.S.C. § 1862. T his provision contains no limiting language indicating, for instance, that the
C o m p tro ller G eneral o r o th e r Board m em bers must personally appear at Board meetings. N o other
section o f the A ct w ould ap p ear to impose any such requirem ent.
N or are w e aw are o f any such indication in the legislative history. T h e provision establishing a
three-m em ber C hrysler C orporation Loan G u aran tee Board originated in the Senate bill, S. 2094, and
its purpose is thus described in the R eport o f the Senate C om m ittee on Banking, Housing, and Urban
AfTairs, 96th C ong., 1st Sess. 17 (1979):
T h e A dm inistration bill w ould have had the Secretary o f the T reasury be the sole
adm inistrator o f the loan guarantees for C hrysler. T h e C om m ittee believes that a three-
person board ofTers m ore balance and that the addition o f tw o mem bers w ho are
independent o f the Executive, the Federal R eserve Board C hairm an and the C om ptrol­
ler G eneral, will enable the Board to make tough decisions on the m erits o f the issues
w ithout undue pressure from political considerations.
T he aim o f providing for a three-person Board in o rd e r to establish balance and independence would
not be undercut by the participation, pursuant to lawful designation, o f an A cting C om ptroller
G eneral rath er than the C o m p tro ller G eneral d uring the latter's absence. See also H.R. Rep. No. 96-
730, 96th Cong., 1st Sess. 17 (1979) (confirm ing that the conference adopted the Senate provision
regarding m em bership o f the board).
6 W e have confirm ed that o u r conclusion is consistent w ith the practice and view s o f the G eneral
A ccounting Office. fA 'J