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 Authority (Authority) has made an inquiry 

concerning the question of 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 of statutory interpretation. We are addressing this memorandum to you because it involves a question of 

Presidential authority. Mr. Cardozo is aware of this matter. He has asked 

us to send a copy of 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 of 1978 (Plan), as an independent establishment in the executive branch. Section 302 of the Plan provides for a 

General Counsel of the Authority to be appointed by the President by and 

with the advice and consent of the Senate. Under § 402 of the Plan the 

President may fill the office of General Counsel on an interim basis until it 

is first filled pursuant to the provisions of the Plan or by way of recess appointment.1 The pertinent provisions of the Plan became effective on 

January 1, 1979. See Executive Order No. 12107 of December 29, 1978.

The Civil Service Reform Act of 1978 (Act) became effective on January

11, 1979.2 Section 701 of the Act added to title 5, United States Code, a 

section 7104 providing for a Federal Labor Relations Authority and a

1 Section 402 reads in pertinent part as follows:

Section 402. Interim Officers, (a) The President may authorize any persons who, immediately prior to the effective date of this Plan, held positions in the Executive 

Branch o f the Government, to act as * * * the General Counsel o f the Authority, until those offices are for the first time filled pursuant to the provisions of this 

Reorganization Plan or by recess appointment, as the case may be.

2 Section 907 of the Act provides that it shall take effect 90 days after its enactment. It was 

approved by the President on October 13, 1978.

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General Counsel of the Authority. Its members and General Counsel are 

to be appointed by the President by and with the advice and consent of the 

Senate. The Act, however, does not in terms contain an interim designation authority corresponding to § 402 o f the Plan.

The President gave recess appointments to two members of the Authority during the interval between the 95th and 96th Congresses. He did not, 

however, make such an appointment to the office of General Counsel. We 

have been told that the lack of a General Counsel seriously hampers the 

operations of the Authority. In particular, because of the close interrelation of the functions of the Authority and those of 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 that it was the intention of Congress to preserve the 

President’s express authority under § 402 of the Plan to designate an Acting General Counsel. This intention is reflected in the transitional provisions of the Act.

Section 904 of the Act provides:

Except as otherwise expressly provided in this Act, no provision 

of this Act shall be construed to—(1) limit, curtail, abolish, or 

terminate any function of, or authority available to, the President which the President had immediately before the effective 

date of this Act; * * *.

Immediately before the effective date of the Act the President clearly had 

the authority under § 402 of 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 contrary. The President therefore retains his power to make an interim designation under § 402 of the Plan, notwithstanding the subsequent coming 

into effect of the Act.

The same result follows from § 905 of the Act, dealing specifically with 

the interrelation between the Act and Reorganization Plan 2 of 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 of the Plan. The mere silence of the Act 

with respect to a transitional provision of the Plan is plainly not an 

inconsistency.

As we see it, the President thus has the power under § 402 of the Plan to 

authorize a person who on December 31, 1978, held a position in the executive branch of the Government to act as the General Counsel of the 

Authority until a General Counsel is appointed by him by and with the advice and consent of the Senate.

We also note that the provisions of 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 of 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 Authority is not an 

executive or military department; it is an “ independent establishment in 

the Executive Branch” within the scope of 5 U.S.C. § 104. Section 101 of 

the Plan.3 Moreover, 5 U.S.C. § 3348 applies by its own terms only where 

a vacancy was filled temporarily pursuant to the provisions of the Vacancy 

Act. Here the designation would not be made under that Act but under the 

authority of § 402 of the Plan.

L e o n U l m a n 

Deputy Assistant Attorney General

Office o f Legal Counsel

1 There is no corresponding provision in the Act. This provision of the Plan, therefore, remains in effect in the absence of an inconsistent provision in the Act. See § 905 of the Act, 

supra.