Dual Office of Chief Judge of Court

of Veterans Appeals and Director of the

Office of Government Ethics

Federal law does not bar a single individual from serving simultaneously as the Chief Judge

of the Court of Veterans Appeals and the Director of the Office of Government Ethics.

July 21, 1989

M e m o r a n d u m O p in io n f o r t h e D ir e c t o r

O f f ic e o f G o v e r n m e n t E t h ic s

This responds to your request for the opinion of this Office whether 

you can serve simultaneously as the Director of the Office of Government 

Ethics and Chief Judge of the Court of Veterans Appeals. For the reasons 

set forth below, we conclude that you are not barred by federal law from 

holding both offices, since (we understand) you will receive only a single 

salary, the two positions are not incompatible, and no appropriation is 

being directed to any purpose other than that provided by law.1

Background

The Court of Veterans Appeals was created by section 301 of the 

Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105, 4113, 

codified at 38 U.S.C. §§ 4051-4092. The court operates under Article I of 

the Constitution, and has exclusive jurisdiction to review decisions of the 

Board of Veterans Appeals. 38 U.S.C. § 4052(a). The court consists of a 

Chief Judge and from two to six associate judges, who are each to serve 

terms of 15 years. Id. § 4053. The President has recently appointed Judge 

Nebeker to be the Chief Judge of this court.

Judge Nebeker is also the Director of the Office of Government Ethics 

(“OGE”). The OGE “was established within the Office of Personnel 

Management (“OPM”) by title IV of the Ethics in Government Act of 1978. 

The Office was created to ‘provide overall direction of executive branch 

policies related to preventing conflicts of interest on the part of officers and

1 You have not requested our views on the appropriateness under the American Bar Association Code 

of Judicial Conduct (1972) of your serving simultaneously in these two positions, and we do not address 

the issue.

241
employees of any executive agency.’ The OGE Director was given the 

authority and responsibility for developing rules and regulations regarding 

conflicts of interest, financial disclosure and ethical conduct by officers and 

employees in the executive branch; monitoring and investigating individual 

and agency compliance with financial disclosure requirements; interpreting 

conflict of interest rules and regulations; providing information on and promoting understanding of ethical standards in executive agencies; and ordering action by agencies and employees to comply with laws, rules, regulations and standards related to conflicts of interest and ethical conduct.”

H.R. Rep. No. 1017, 100th Cong., 2d Sess., pt. 1, at 8-9 (1988), reprinted in

1988 U.S.C.C.A.N. 4125, 4129-30. Under sections 3(a) and 10(b) of Office of 

Government Ethics: Reauthorization Act of November 3, 1988, Pub. L. No. 

100-598, 102 Stat. 3031, OGE is to be removed from OPM and to be a separate executive agency, effective October 1, 1989.

We understand that Judge Nebeker will not be involved in adjudicating 

any cases before the Court o f Veterans Appeals for some time after 

assuming his position there, and that his duties at the outset of his tenure 

will be largely or entirely administrative. We also understand that Judge 

Nebeker will have resigned from the Directorship of OGE before he 

begins to hear cases on the court. During the overlapping period in which 

he plans to serve both as Director of OGE and as Chief Judge, we understand that Judge Nebeker will draw a salary only as Chief Judge, which is 

the higher-paid o f the two positions.

A. Dual Compensation

The Dual Compensation Act, 5 U.S.C. § 5533, repealed earlier legislation directed against dual office holdings and provides that, subject to 

exceptions, “an individual is not entitled to receive basic pay from more 

than one position for more than an aggregate of 40 hours of work in one 

calendar week (Sunday through Saturday).” The Act merely prohibits the 

receipt of pay for more than one full-time dual government position (subject to certain exceptions). Accordingly, this Office has repeatedly opined 

that the Dual Compensation Act does not prohibit the holding of two 

offices simultaneously, and in fact impliedly permits it.2 “The basic prin2See, e g., Memorandum for Arnold Intrater, General Counsel, Office o f White House Administration, 

from John O. McGinms, Deputy Assistant Attorney General, Office o f Legal Counsel, Re- Dual Office o f

Execu tive Secretary o f Na tiona l Security Council and Special Assistant (Mar 1, 1988) ( “Intrater 

Memorandum”), Memorandum for Myer Feldman, Special Counsel to the President, from Norbert A. 

Schlei, Assistant Attorney General, Office o f Legal Counsel, R e • F ix in g o f Salary o f D irector o f Office o f

E con om ic O pp o rtun ity (Aug. 19, 1964) (dual appointment as Director o f the Peace Corps and Director 

o f the Office o f Economic Opportunity). Approved dual appointments also include cases in which a job 

was created by statute and was subject to Senate advice and consent (as is the job o f Chief Judge o f the 

Court o f Veterans Appeals). See Memorandum for George P. Williams, Associate Counsel to the 

President, from Leon Ulman, Acting Assistant Attorney General, Office of Legal Counsel, Re. Dual

Appo in tm en t (June 24, 1974) (Special Representative for 'IYade Negotiations and Executive Director of 

the Council on International Economic Policy)

242
ciple is that there is no longer any prohibition against dual office-holding. 

It seems to us that it is not material how the dual tenure comes about, 

whether by successive appointments by and with the advice and consent 

of the Senate, by interim designation, or by concurrent nomination and 

appointment.” Memorandum for John D. Ehrlichman, Counsel to the 

President, from William H. Rehnquist, Assistant Attorney General, Office 

of Legal Counsel at 2 (Feb. 13, 1969). Thus, the statute is not a bar to 

Judge Nebeker’s serving in the two capacities of Chief Judge of the Court 

of Veterans Appeals and Director of OGE, so long as he receives only one 

salary for the work he performs.3

B. Incompatibility

Where public policy would make it improper for one person to perform 

the functions assigned to two distinct offices, a problem of “incompatibility” arises. See Intrater Memorandum at 3. Such a problem could be 

presented if, for example, one office adjudicated matters in which the 

other was or was likely to be a party. Id. at 3-4. We perceive no such 

“incompatibility” problem here, however. The function of the Court of 

Veterans Appeals is to hear appeals from decisions of the Board of 

Veterans Affairs. The Office of Government Ethics is not a party to such 

appeals. (In any event, we understand that Judge Nebeker will not be 

hearing appeals on the court until after he has resigned as Director of 

OGE.) Further, the mere fact of being a federal judge does not prevent 

someone from holding another federal office. See Mistretta v. United

States, 488 U.S. 361, 397^404 (1989) (Article III judges may undertake certain extrajudicial functions).4

C. Augmentation

31 U.S.C. § 1301(a) provides that “[appropriations shall be applied 

only to the objects for which the appropriations were made except as 

otherwise provided by law.” This is not an absolute barrier to Judge 

Nebeker’s being compensated by receiving a salary from one position 

while simultaneously serving in another position. See United States v.

Morse, 292 F. 273, 277 (S.D.N.Y. 1922) (A. Hand, J.) (Special Assistant to 

Attorney General could be compensated by continuing to receive his

3 We have also consistently construed the Dual Compensation Act to require that an individual who 

holds two offices must be paid the higher salary if it is fixed by law. See Intrater Memorandum at 2 n 3 

The theory is that the dual office-holder would otherwise be waiving a nght to compensation established 

pursuant to statute — which is unlawful. See Glavey v. United States, 182 U.S. 595 (1901), Intrater 

Memorandum at 3 n 8. We understand that Judge Nebeker will receive the Chief Judge’s salary, which is 

higher than the salary of the Director of OGE, and which is fixed by statute, see 38 U.S.C. § 4053(e)(1).

4 By its plain language, the Incompatibility Clause, U S Const art I, § 6, cl 2, applies only to members 

of Congress, see 17 Op Att’y Gen. 365, 366 (1882), and so is inapplicable here. An Article I judge is not a 

member of Congress

243
salary as special counsel to a government corporation). As we have 

opined before, see Intrater Memorandum at 6, so long as Judge Nebeker 

performs substantial responsibilities for both positions, there is no 

requirement that he devote full time to either position.

WILLIAM P. BARR

Assistant Attorney General

Office o f Legal Counsel

244