Service of Acting Administrator of the Law Enforcement Assistance Administration Beyond Thirty Days Following the Resignation of the Administrator ( 1978 )

March 16, 1978
78-18 MEMORANDUM OPINION FOR THE
ATTORNEY GENERAL
Vacancy Act (5 U.S.C. §§ 3345-3349)— Law
Enforcement Assistance Administration
We are herewith responding to your request for our analysis and comment on
the opinion o f the Deputy Com ptroller General to Representative Holtzman of
February 27, 1978, concerning the service of Mr. James H. Gregg as Acting
Administrator of the Law Enforcement Assistance Administration (LEAA) for
a period in excess of 30 days following the resignation of its Administrator on
February 25, 1977. The opinion concludes, on the basis of the so-called
Vacancy Act, 5 U .S.C . §§ 3345-3349, that the service of Mr. Gregg as Acting
A dm inistrator could not extend beyond 30 days, and that after that date “ there
was no legal authority for anyone to perform the duties of the Administrator
except the Attorney General himself, in whom by statute, all the Administra­
to r’s functions are vested .”
I.
The sole authority cited by the opinion is the earlier opinion of the
Com ptroller General involving the service of L. Patrick Gray as Acting
Director o f the Federal Bureau o f Investigation in 1973, with which opinion
this Department disagreed.
In a letter to Senator Hruska, dated March 13, 1973, then Assistant Attorney
General Robert G. Dixon (OLC) responded to the Senator’s request concerning
the Com ptroller G eneral’s opinion. Mr. Dixon took the position that the
Vacancy Act, in particular the 30-day provision of 5 U .S.C . § 3348, did not
apply to every vacancy in the executive branch, including some of the offices
which textually might appear to be covered by the Act. To the contrary, Mr.
Dixon opined that specific or later statutes dealing with the manner in which an
officer may perform the duties of a vacant office prevailed over the Vacancy
Act. As stated in our memorandum to you o f February 27, we adhere to that
view and note that this interpretation of the Act has been upheld by the courts in
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United States v. Lucido, 373 F. Supp. 1142, 1148 (E.D. Mich. 1974) and
United States v. H alm o, 386 F. Supp. 593, 595 (E.D . Wis. 1974).'
Mr. Gregg does not exercise the powers of the Administrator, pursuant to 5
U.S.C. §§ 3345, 3346, or 3347; hence, the 30-day provision of 5 U .S.C . § 3348
is not directly applicable. The opinion of the Court of Appeals in Williams v.
Phillips, 482 F. (2d) 669 (D.C. Cir. 1973) referred to in our original
memorandum of February 27, 1978, indicates that in this situation Mr. Gregg
could act pursuant to the delegation of authority only for a reasonable period of
time and suggests that 5 U .S.C . § 3348 would constitute a guideline for what
constitutes a reasonable period in the absence of a nomination. It is clear that
the court intended to foreclose other tests o f reasonableness, or to indicate that
it would not take into account the special problems created by an impending
reorganization of the agency involved. Incidents of this type have occurred in
the past. Thus, the then-Secretary o f Commerce resigned on February 1, 1967.
At that time President Johnson planned to combine the Departments of
Commerce and Labor, and did not fill the vacancy in the Department o f
Commerce until June 1967, when it became apparent that Congress would not
accede to the consolidation of the two Departments.
II.
The consequences drawn by the Deputy Comptroller General from his
conclusion that Mr. Gregg lacks authority to perform the duties o f the
Administrator are on even less solid ground. He takes the position that only the
Attorney General can now act for LEAA and that he indeed should ratify past
actions taken by Mr. Gregg since they are subject to challenge. Those
conclusions ignore the statutory limitations on the power of the Attorney
General with respect to the LEAA and the de fa cto officer rule.
First: The basic organic provision of LEAA is 42 U .S.C . § 37 1 1(a),.as
amended by § 102 of the Crime Control Act of 1976 (Pub. L. No. 94-503; 90
Stat. 2407); it provides:
(a) There is hereby established within the Department o f Justice,
under the general authority, policy direction, and general control o f
the Attorney General, a Law Enforcement Assistance Administration
(hereafter referred to in this chapter as “ A dm inistration” ) composed
of an Administrator o f Law Enforcement Assistance and two Deputy
Administrators of Law Enforcement Assistance, who shall be appointed
by the President, by and with the advice and consent o f the Senate.
[Emphasis added.]2
'M o re o v e r, the D ep u ty C o m p tro lle r G e n e ra l's p re sen t re lia n c e on his ipse dixit in the Gray case
is m isplaced sin ce th at situ a tio n in v o lv ed a d e sig n a tio n o f an A ctin g D ire c to r o f the FBI u n d e r 28
U .S .C . §§ 5 0 9 , 5 1 0 . T h e p re sen t situ a tio n d o e s not in v o lv e a d e sig n a tio n o f an a cting head o f an
e x ec u tiv e ag en c y but ra th e r it c o n ce rn s a d e le g atio n o f a u th o rity u n d e r 4 2 U.S.C. § 3 7 5 2 , a
d ifferen t m atter fro m a legal stan d p o in t. T h e leg al e ffe c t o f the d e le g atio n w as c o n sid e re d in o u r
F ebruary 27 m e m o ra n d u m .
2W e note that th e q u o ta tio n o f th is su b se c tio n in th e D ep u ty C o m p tro lle r G e n e r a l’s o p in io n is
e rro n e o u s; it fa ils to tak e into acc o u n t its a m e n d m en t by th e C rim e C o n tro l A ct o f 1976.
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The functions o f LEAA thus are not com pletely vested in the Attorney General,
as are those o f most o f the components o f the Department o f Justice. See 28
U .S.C . § 509. The Attorney General is given “ general authority, policy
direction, and general control.” As shown by the legislative history o f the 1976
am endm ent, its purpose was to give LEAA a considerable amount of internal
autonomy, especially with respect to specific grants.
The Senate report (S. Rept. No. 94-847, 94th C ong., 2d sess. (1976), p. 15),
states:
. . . the responsibility for its [LEA A ’s] day-to-day operational control
rests with the Administrator.
And again:
The new language is added to make clear the concept that, as a
component o f the Department of Justice, the Administration falls
within the overall authority, policy direction, and control of the
Attorney G eneral, while the responsibility for its day-to-day opera­
tional control rests with the Administrator, [p. 35]
The pertinent House report, H .R. Rept. No. 94-1155, 94th C ong., 2d sess.
(1976), p. 30, contains the following statement o f then-Deputy Attorney G en­
eral Tyler:
H.R. 9236 em bodies several clarifications and refinements that we
believe would improve the efficacy o f the LEAA program. First of
all, H.R. 9236 proposes that the Act be clarified by expressly stating
that LEAA is under the policy direction o f the Attorney General. The
Act now provides that LEAA is within the Department o f Justice,
under the “ general authority” o f the Attorney General. In accord­
ance with this language, the Attorney General is deemed ultimately
responsible for LEAA. To make this responsibility meaningful, the
Attorney General must concern him self with policy direction. Under
the proposed language change, responsibility fo r the day-to-day
operations o f LEAA and particular decisions on specific grants will
remain with the Adm inistrator, as they are now. The proposed
additional language will make clear what is now assumed to be the
case. [Emphasis added.]
Senator Hruska explained on the floor of the Senate that the purpose of the
limitation on the Attorney G eneral’s power was
. . . to assure that the Senate and local nature of the program would
not be overshadowed by the Department o f Justice programs. [122
Cong. Rec. S. 23332 (Daily E d., July 22, 1976)]
The authority reserved to the A dm inistrator or Deputy Administrators and
delegated to Mr. Gregg consists, apart from personnel actions, mainly of
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approving important, com plex, and controversial grants.3 Because of the
statutory limitation on the Attorney G eneral’s authority with respect to LEAA,
those grant functions could not be performed by anyone pending Presidential
nomination and Senate confirmation of a new Administrator, LEAA, if Mr.
Gregg— as asserted by the Comptroller General— is incapable of performing
the functions delegated to him. This would be an extreme result; but it is the
logical conclusion o f the Deputy Comptroller G eneral’s reading o f the Vacancy
Act.
Second: The Deputy Comptroller G eneral’s assumption that Mr. G regg’s
past and present actions in carrying out the functions of the Administrator are
subject to challenge because his tenure violates the Vacancy Act ignores the de
facto officer principle. That principle holds that where an officer performs the
duty of an office under color of title, he is considered a de facto officer, and his
acts are binding on the public, and third persons may rely on their legality.
McDowell v. United States, 159 U .S. 596, 601-602 (1895); United States v.
Royer, 268 U.S. 394 (1925); United States ex rel. D orr v. Lindsley, 148 F. (2d)
22 (7th Cir. 1945), cert, denied, 325 U .S. 858. Indeed, the authority o f de
facto officers can be challenged as a rule only in special proceedings in the
nature of quo warranto brought directly for that purpose. United States ex rel.
Dorr v. Lindsley, supra; United States v. Nussbaum, 306 F. Supp. 66, 68-69
(N.D . Cal. 1969); M echem, Public Office and Officers, §§ 343, 344 (1890).
The reason for the principle is that there should be no cloud on the validity of
public acts and the right o f the public to rely on them in the case of technical
imperfections or doubts. A typical case o f a de fa cto officer is an officer who
continues to serve after his term of office has expired. 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, fn. 12 (1st Cir. 1972).
The Deputy Comptroller General concedes that Mr. Gregg validly exercised the
functions of the Administrator for at least 30 days. It is our conclusion,
therefore, that under the de fa cto officer principle, Mr. G regg’s actions will
continue to bind third parties until his right to perform the delegated functions
3A . A u th o rity re serv ed fo r A d m in istra to r o r D e p u ty A d m in istra to rs.
1. S ig n T rac k II d isc re tio n a ry g ra n ts, i.e., g ra n ts in v o lv in g S ta te s in o n e re g io n o f the
c o u n try , if:
a. C o st is $ 3 0 0 ,0 0 0 o r m ore;
b. P ro ject is o f a c o n tro v e rsia l n atu re;
c . P ro ject is a c o n stru c tio n p ro ject;
d . A p p ro a c h has n o t b e en te ste d o r d e m o n stra ted e lse w h e re .
2. S ig n T rac k I d isc re tio n a ry g ra n ts, i.e., in v o lv e m o re th an o n e re g io n o r h ave n atio n al
im pact.
3. S ig n P u b lic S a fe ty O ffic e rs ’ B en e fits A ct a w ard s. A lso m a k e fin al ag en c y d e c isio n on
P S O B c la im s.
4 . A p p ro v e p e rso n n el a ctio n s fo r G S -1 4 an d G S -1 5 .
5. M ak e fin al a g e n c y d e cisio n o n c o m p lia n ce an d a d ju d ic ato ry h e a rin g s in c lu d in g c iv il
rig h ts.
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has been adversely determined in proceedings specifically brought for that
purpose.4
For the reasons stated above, we disagree with the legal positions taken by
the Deputy Com ptroller General in his opinion. Nevertheless, we believe the
only satisfactory resolution o f the uncertain status o f Mr. G regg’s authority is
for the President to submit a nomination to fill the position of Administrator
even though the position may well be abolished with the proposed reorganiza­
tion of LEAA.
John M . H arm on
Assistant Attorney General
Office o f Legal Counsel
4W e m ay ad d th a t th e de facto o ffic e r ru le is not an a n tiq u a ted d o c trin e , bu t h as b e en applied
freq u e n tly in c o n n e c tio n w ith te c h n ic a l v io la tio n s in th e c o m p o sitio n o f d ra ft b o a rd s. S ee Groupp,
supra.