b'N ovem ber 10, 1977\n\n77-64\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL,\nANTITRUST DIVISION\nParticipation of Antitrust Division Attorney in\n\xe2\x80\x9cArmored Car\xe2\x80\x9d Cases\n\nThis is in response to your request for the opinion of the Office of\nLegal Counsel on whether there would be any conflict of interest\ninvolved in the assignment of a named (Mr. G) attorney in your\nDivision to work on several antitrust matters involving armored car\ncompanies, apparently including Wells Fargo. Tw o of the matters are\ncriminal antitrust cases, one is a civil case, and the fourth is a grand\njury investigation. We see no objection to Mr. G \xe2\x80\x99s participation.\nIt appears that Mr. G was formerly an associate with a law firm from\nSeptember 1974 through March 1977, and that the law firm was previ\xc2\xad\nously general counsel for Wells Fargo, but that he \xe2\x80\x9cnever had any\noccasion to work on or indeed, to be made aware of any matter in any\nway connected with the firm\xe2\x80\x99s representation of Wells Fargo.\xe2\x80\x9d Wells\nFargo took the position that in view of the law firm\xe2\x80\x99s prior position as\na general counsel for Wells Fargo, no member of the firm could\nproperly be involved in the representation of any company or individu\xc2\xad\nal called before any grand jury investigating possible violations in the\narmored car industry. The law firm ultimately acquiesced in this view.\nHowever, apparently before the law firm had agreed to decline all\nrepresentation of companies or individuals connected with the grand\njury investigation, a member of the law firm was contacted concerning\nthe possibility of his representing an individual who had been subpoe\xc2\xad\nnaed before the armored car grand jury. A t the request of the member,\nMr. G contacted your division to obtain information about procedural\naspects of compliance with the subpoena, such as the date the grand\njury was empanelled, whether evidence had been presented before a\nprevious grand jury in the matter, the filing of letters of authority and\noaths of office, where subpoena returns were filed, and whether the\nnames of companies and individuals subpoenaed to appear could be\nobtained. He reported the substance of that conversation to the particu261\n\n\x0clar member of the law firm and had no further contact with the case.\nSeveral days later, he was told that because of the firm\xe2\x80\x99s prior represen\xc2\xad\ntation of Wells Fargo, the firm could not represent the individual.\nBased on these facts, it is our view that there would be no actual or\napparent impropriety involved in Mr. G \xe2\x80\x99s participation in the armored\ncar cases.\nThe applicable standards are contained in the American Bar Associ\xc2\xad\nation (ABA) Code of Professional Responsibility, to which all Justice\nDepartm ent attorneys are subject. See 28 CFR 45.735-1(b). Canon 4 of\nthe Code requires an attorney to preserve the confidences of a client.\nAlthough a lawyer violates this provision only if he actually breaches\nthe confidential relationship, many courts have held that in order to\nprotect the confidentiality o f the relationship, a lawyer is disqualified\nfrom representing a party in a matter \xe2\x80\x9csubstantially related\xe2\x80\x9d to the\nsubject m atter o f a prior representation in which he may have obtained\nconfidential information. See, e.g., American Roller Co. v. Budinger, 513\nF. 2d 982, 984 (3d Cir. 1975); Emle Industries, Inc. v. Patentex, Inc., 478\nF. 2d 562, 570-71 (2d Cir. 1973); American Can Co. v. Citrus Feed Co.,\n436 F. 2d 1125 (5th Cir. 1971). See also ABA Formal Opinion 342, 62\nA.B.A.J. 517.\nW e may assume that the law firm\xe2\x80\x99s earlier representation of Wells\nFargo was in matters \xe2\x80\x9csubstantially related\xe2\x80\x9d to the armored car cases,\nso that attorneys who actually worked on Wells Fargo matters would\nbe barred from all involvement in those cases. But this does not neces\xc2\xad\nsarily mean that Mr. G is disqualified. The courts have declined to\nimpute all confidential information received in a law firm to all persons\nin the firm. W here the individual involved was merely an associate in\nthe law firm and had no connection w ith the matters in question, the\nindividual is not barred under Canon 4. See, e.g., Gas-A-Tron v. Union\nOil Co., 534 F. 2d 1322 (9th Cir. 1976); Silver Chrysler Plymouth, Inc. v.\nChrysler Motors Corp., 518 F. 2d 751, 756-57 (2d Cir. 1975).\nN or do we believe that Mr. G is barred- by virtue of his limited\ninquiries to your Division. First, it appears that the law firm declined\nthe requested representation; we would be reluctant to find disqualifica\xc2\xad\ntion under Canon 4 on the basis of only a fleeting association with a\ncase that was soon declined. Second, even assuming that the firm may\nhave received some confidential information in connection with the\npreliminary inquiry about its handling of the case, it does not appear\nthat any such information was imparted to Mr. G. He states that it is\nhis recollection that he was never told the identity of the client, and he\ndoes not now even recall the name o f the New York attorney who\ncontacted the firm. Mr. G merely obtained information from your\nDivision about the grand ju ry investigation generally and relayed it to\n\n262\n\n\x0cthe firm. This type of peripheral involvement does not, in our view,\ngive rise to disqualification under Canon 4. See, Silver Chrysler Plym\xc2\xad\nouth, Inc. v. Chrysler Motors Corp., supra, at 756-57.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n263\n\n\x0c'


b'January 16, 1979\n\n79-4\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nConstitutional Law\xe2\x80\x94Constitution\xe2\x80\x94Article V\xe2\x80\x94The\nAmending Process\xe2\x80\x94The Convention Method\n\nThis responds to your request for our views on several questions per\xc2\xad\ntaining to the process of amending the Constitution by convention. We\nshould note at the outset that, because no amending convention has ever\nbeen called, there is little history or law on the subject. Much of our dis\xc2\xad\ncussion here is thus necessarily predicated not on history or judicial deci\xc2\xad\nsions, but on the views of legal scholars. A number of important questions\nhave been identified in the scholarly writing1 and we have endeavored to\noutline the most important of those. Most of these issues lack clear\nanswers, and in the time available we have not undertaken to resolve all of\nthem.\nArticle V of the Constitution reads:\nThe Congress, whenever two thirds of both Houses shall deem it\nnecessary, shall propose Amendments to this Constitution, or,\non the Application of the Legislatures of two thirds of the several\nStates, shall call a Convention for proposing Amendments,\nwhich in either Case, shall be valid to all Intents and Purposes, as\nPart of this Constitution, when ratified by the Legislatures of\nthree fourths of the several States or by Conventions in three\nfourths thereof, as the one or the other Mode of Ratification\nmay be proposed by the Congress * * *.\nThe provision for State initiative was regarded by the Framers of the Con\xc2\xad\nstitution as an important safety valve to allow the States to correct Federal\nabuses of power or to propose amendments Congress refused to propose.\n\n1 Much of the legal writing in this area was occasioned by two events: (1) the effort of a\nlarge number of States to call for a convention on the reapportionment issue; and (2) a bill in\xc2\xad\ntroduced by Senator Ervin and passed by the Senate which provided for procedures necessary\nto effectuate the convention process.\n\n16\n\n\x0cIn order to initiate the convention process, two-thirds of the States must\nsubmit applications to Congress. Before issuing its \xe2\x80\x9c call\xe2\x80\x9d for the conven\xc2\xad\ntion, Congress must determine whether the requisite number of applica\xc2\xad\ntions has been received. The authority to call the convention, we think,\nnecessarily requires a determination that the basic conditions for a conven\xc2\xad\ntion are met. However, once it has been determined that two-thirds of the\nStates have submitted valid applications, Congress is generally thought to\nbe obliged to call a convention.\nAlthough Article V says nothing as to the organization of a convention,\nit is the general view that Congress may establish the convention\xe2\x80\x99s\n\xe2\x80\x9c ground rules\xe2\x80\x9d \xe2\x80\x94e.g., the time and place of meeting, the number of\ndelegates, the basis of representation, etc. Since Article V contemplates a\n\xe2\x80\x9c Convention for proposing Amendments\xe2\x80\x9d [emphasis added], most\nauthorities believe that the convention must be free to weigh and evaluate\nvarious alternatives and to frame its own proposed amendment. If that is\nso, Congress would not have the power to structure the precise wording of\nan amendment. Once drafted and approved by the convention, the pro\xc2\xad\nposed amendment must then be ratified, as Article V specifies, \xe2\x80\x9c by the\nLegislatures of three fourths of the several States or by Conventions in\nthree fourths thereof, as the one or the other Mode of Ratification may be\nproposed by the Congress.\xe2\x80\x9d\nSeveral questions may arise with respect to the validity of State applica\xc2\xad\ntions. The first is whether an application might lapse over time. In order\nthat the applications demonstrate a national consensus, we believe, as does\nevery authority known to us, that the States\xe2\x80\x99 applications must be\nreasonably contemporaneous. This view is supported by the decision in\nDillon v. Gloss, 256 U.S. 368, 274-75 (1921), in which the Supreme Court\nspoke of a contemporaneous State consensus as necessary to support an\namendment. While this case dealt with ratification by the States, it is\ngenerally agreed that notions of responsible timeliness should also be re\xc2\xad\nquired in the application process. There are, however, widely divergent\nviews as to what constitutes a \xe2\x80\x9c contemporaneous\xe2\x80\x9d period of time\xe2\x80\x94\nsuggestions range from a generation to 2 years. Congress will necessarily\nhave to make a judgment in this area, taking into account the time neces\xc2\xad\nsary for the States to respond to an issue and perhaps other factors such as\nchanged political, economic, or social conditions. Congress\xe2\x80\x99 focus here\nshould be on the question whether, in fact, the applications fairly reflect\nthe current judgment of the requisite number of States that a constitu\xc2\xad\ntional change is needed. It should be noted that the bill introduced several\nyears ago by Senator Ervin, which passed the Senate but was never con\xc2\xad\nsidered further, provided that all calls must have occurred within a 7-year\nperiod. For your information, the approximately 20 calls related to the\nFederal budget issue have come within the past 3 to 4 years.\nA second question is whether State applications on different topics may\n(or must) be aggregated for purposes of determining whether two-thirds of\nthe States seek a convention. The view of most, but not all, legal authorities\n17\n\n\x0cis that applications relating to different matters should not be counted\ntogether. In our opinion, this position is correct. Unless the applications\ndeal with the same issue, it would seem that the fundamental prerequisite\nof calling a convention, i.e., the existence of a national consensus that a\nconstitutional change is desirable, is not satisfied. It is generally agreed\nthat States may call for a general revision of the Constitution, but short of\nsuch a general undertaking, we think it would circumvent one of the cen\xc2\xad\ntral principles of the amendment process to allow the combining of calls\non issues as disparate as reapportionment, abortion, or budgetary re\xc2\xad\nstraint, no one of which was deemed by two-thirds of the States as worthy\nof consideration. We have been advised that the recent flurry of applica\xc2\xad\ntions have been variously stated as relating to limiting the Federal debt,\nbalancing the Federal budget, or prohibiting deficit spending, matters that\nmight or might not be regarded as proper subjects for a single call.\nIf this is a correct view of the law, the next question is how similar the\nStates\xe2\x80\x99 applications must be in order for them to be aggregated. The\nvarious authorities agree that the applications need not be identical, but\nthat it suffices if the States request a convention to address the same\ngeneral problem or issue. The Congress, in deciding whether the requisite\nnumber of applications has been made, must necessarily determine\nwhether this requirement is met.\nOnce Congress ascertains that a convention is appropriate, the next\nquestion is whether Congress may impose limitations on the convention\xe2\x80\x99s\ndeliberations. There is substantial disagreement among the legal\nauthorities on this question. Those who believe that the convention may\nnot be limited, but may consider whatever issues it deems desirable, rely\non the following arguments. The language referring to a \xe2\x80\x9c Convention for\nproposing Amendments\xe2\x80\x9d suggests that the convention may propose any\namendment it sees fit to support. Since the Framers provided the conven\xc2\xad\ntion process as a means to check Federal abuses, some argue that it would\nundermine this purpose to allow Congress to limit the convention\xe2\x80\x99s\ndeliberations. In addition, some theorists assert that the States cannot be\ndeemed to be authorized to limit an instrumentality created under the\nConstitution. In fact, some argue that a convention is a body endowed\nwith all power residing in the people, and as such may not be limited by the\nStates, the branches of the Federal Government, or even the Constitution.\nThe majority view, however, is that Congress may limit the\nconvention\xe2\x80\x99s deliberations. The arguments for this proposition, at least on\nour consideration of them, appear to be persuasive. Since Article V allows\na convention to be called only where there is a consensus among the States\nas to an area of proposed change, the convention should not be allowed to\ndiscuss issues as to which there is no demonstrated consensus. The history\nof Article V suggests that the convention process was intended to serve as a\nmeans of considering specific amendments. Since the States would still\nbe free to initiate any amendment they wished, this view is entirely consist\xc2\xad\nent with the underlying purpose of Article V. Some have also\n18\n\n\x0cargued that this view furthers the purpose of Article V, since the States\nmay be less likely to call for conventions if they know that those conven\xc2\xad\ntions are free to propose changes beyond the proposed areas. Finally, con\xc2\xad\ntrary to the view of some commentators, it is contended that a convention\nis not a sovereign body, but rather only a body summoned pursuant to the\nterms and under the authority of Article V. The House of Delegates of the\nAmerican Bar Association in its recent deliberations on the amendment\nprocess concluded that limitations on the convention would be\nappropriate.\nThe question whether the President may become involved in Congress\xe2\x80\x99\ncall for a convention is also a much-debated one. Those who believe the\nPresident must be involved in this process rely on Article I, section 7, of\nthe Constitution, which requires any \xe2\x80\x9c Order, Resolution, or Vote to\nwhich the Concurrence of the Senate and House of Representatives [is]\nnecessary * * * shall be presented to the President\xe2\x80\x9d for approval. Since\nCongress\xe2\x80\x99 call for a convention must necessarily provide the \xe2\x80\x9c ground\nrules\xe2\x80\x9d of the convention, the call would have the force of law and thus\nmight be seen as requiring Presidential approval under this provision. As\nyou know, in our opinions on the \xe2\x80\x9c legislative veto\xe2\x80\x9d we have taken the\nview generally that the only way for Congress to \xe2\x80\x9c make law\xe2\x80\x9d is through\nArticle I, section 7, and that the President must always have a veto func\xc2\xad\ntion. The argument in favor of Presidential involvement would seem par\xc2\xad\nticularly strong if Congress, in the process of issuing a call, is required, as\nwe suppose it is, to appropriate funds for the convention\xe2\x80\x99s operations; or\xc2\xad\ndinarily, we would presume a role for the executive branch whenever\nfunds are to be appropriated. The fact that the Supreme Court decided in\nHollingsworth v. Virginia, 3 Dali. 378, 381 (1798), that the President \xe2\x80\x9c has\nnothing to do with the proposition, or adoption, of amendments to the\nconstitution\xe2\x80\x9d has been discounted by these authorities on the ground the\nopinion offers no rationale and because the decision was rendered in the\ncontext of an amendment proposed by Congress.\nThose who believe that the President may have no role in approving or\nvetoing Congress\xe2\x80\x99 call for a convention rely on the language in Article V\nthat \xe2\x80\x9c the Congress\xe2\x80\x9d is to call a convention and on the Supreme Court\xe2\x80\x99s\ndecision in Hollingsworth v. Virginia. In addition, these authorities argue\nthat Presidential involvement may be contrary to the purpose underlying\nArticle V. Such involvement would make the convention amendment\nprocess undergo a requirement not involved in the usual mode of amend\xc2\xad\ning the Constitution; it would also allow the President to block a process\nwhose purpose is to allow the States some independence in the area of con\xc2\xad\nstitutional change. The requirement of Article I, section 7, these commen\xc2\xad\ntators contend, is inapplicable here since Congress does not judge the\nsubstance of the proposed amendments, but merely regulates matters nec\xc2\xad\nessary to the implementation of Article V. Finally, it is argued that\nPresidential involvement is unnecessary since, in light of the fact that the\nproposal is advanced by the States and must be referred to the convention,\n19\n\n\x0cthere is little opportunity for meaningful review or to safeguard the Execu\xc2\xad\ntive\xe2\x80\x99s powers.2\nRole o f the courts. In Coleman v. Miller, 307 U.S. 433 (1939), the\nSupreme Court held several aspects of the amendment process to be\npolitical questions and nonjusticiable. In our view, however, this decision\ncannot be taken to mean that all questions arising in the course of the\namendment process will not be reviewed by the courts. In several decisions\nprior to Coleman the court had reviewed and resolved such questions. See\ne.g., Dillon v. Gloss, supra; Hollingsworth v. Virginia, supra. The fact\nthat Coleman did not overrule these cases suggests that review on some\nquestions is still available, particularly if the question does not involve an\nassessment of political, social, or economic factors, which were thought to\npreclude review in Coleman. In addition, decisions after Coleman suggest\nthat the Court may be willing to review questions relating to the amend\xc2\xad\nment process if there is neither a textually demonstrable commitment of\ntheir resolution to the Congress nor a lack of judicially discoverable stand\xc2\xad\nards by which to resolve the questions presented. See, e.g., Baker v. Carr,\n369 U.S. 186 (1962). The decisions both before and after Coleman thus\nsuggest that such issues as the imposition of limits on the convention\xe2\x80\x99s\ndeliberations and the President\xe2\x80\x99s involvement in the process of amend\xc2\xad\nment by convention may well be reviewable in the courts.\nLarry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n! You may recall that when the 95lh Congress passed the Equal Rights Amendment exten\xc2\xad\nsion bill, we concluded that a Presidential signature was not required but that the President\nmight elect to sign the bill as a matter of discretion. He did elect to do so, but noted the legal\nconclusion that he was not required to pass on it since it involved a matter within the province\nof Congress under Article V.\n\n20\n\n\x0c'


b"December 14, 1979\n\n79-86\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, NATIONAL OCEANIC\nAND ATMOSPHERIC ADMINISTRATION,\nDEPARTMENT OF COMMERCE\nFishery Conservation and Management Act (16\nU.S.C. \xc2\xa7 1801 et seq .)\xe2\x80\x94Boundaries between\nAdjoining Regional Fishery Management Councils\n\nThis responds to your request for our opinion whether the Secretary of\nCommerce is required by the Fishery Conservation and Management Act\no f 1976 (Act), 90 Stat. 331, 16 U.S.C.A. \xc2\xa7 1801 et seq. (1979 Supp.) to\nestablish boundaries between adjoining regional fishery management\ncouncils on a geographical basis rather than on the basis of considerations\nother than geography.1\nThere are eight regional fishery councils, each covering certain\ndesignated States and having jurisdiction over fisheries in areas seaward of\nthose States. The question of boundaries is most controversial\xe2\x80\x94and has\narisen in this case\xe2\x80\x94in the context of those adjoining fishery councils that\ninclude the same State, in this instance Florida. In such a situation, one\ncannot begin with an established State boundary and derive a \xe2\x80\x9c seaward\xe2\x80\x9d\nline from it. Theoretically, the Secretary could establish a boundary be\xc2\xad\ntween two adjoining councils at any point along the Florida coastline, even\nthough it does not rest only on a geographical standard, as long as it does\nconform to a rational division between fisheries in areas seaward of the\nshore. The question you have asked is essentially whether such discretion\nhas been delegated, or whether it is barred, by the Act.\nFor the reasons discussed below, we conclude that discretion is barred.\nThe Act contemplates that boundaries between adjoining regional fishery\nmanagement councils are to be established solely on the basis of geograph\xc2\xad\nical factors.\n'The second question raised by you concerning the litigation authority o f regional fishery\ncouncils will be addressed in a separate, forthcom ing m em orandum .\nAll references in this m em orandum to title 16 o f the United States Code A nnotated are to\nthe 1979 Supplement.\n\n464\n\n\x0cI.\n\nBackground\n\nThe issue presented derives from a long-standing controversy between\nthe South Atlantic Fishery Management Council (SAFMC) and the Gulf\nof Mexico Fishery Management Council (GMFMC). The SAFMC consists\nof the States of North Carolina, South Carolina, Georgia, and Florida,\nand it \xe2\x80\x9c shall have authority over the fisheries in the Atlantic Ocean sea\xc2\xad\nward of such States.\xe2\x80\x9d \xc2\xa7 302(a)(3) of the Act, 16 U.S.C.A. \xc2\xa7 1852(a)(3).\nThe GMFMC consists of the States of Texas, Louisiana, Mississippi,\nAlabama, and Florida, and it \xe2\x80\x9c shall have authority over the fisheries in\nthe Gulf of Mexico seaward of such States.\xe2\x80\x9d \xc2\xa7 302(a)(5) of the Act, 16\nU.S.C.A. \xc2\xa7 1852(a)(5).\nIn 1977, the National Oceanic and Atmospheric Administration\n(NOAA) published interim regulations, see 42 F.R. 36980, proposing that\nthe boundary between the two Councils be located at the point of intersec\xc2\xad\ntion of Dade County and Monroe County in Florida, and seaward of that\npoint. That boundary was not based on geographical factors.2 It is\nlocated, we are told, some 200 miles north of the southernmost part of the\nFlorida Keys. Accordingly, it would give the GMFMC jurisdiction over\nthe water areas seaward of the Florida Keys, and would confine the\njurisdiction of the SAFMC to an area north of a line running seaward of\nthe Dade County-Monroe County border. The SAFMC has objected to\nthis boundary on the ground that it gives the GMFMC jurisdiction over\npart of the Atlantic Ocean.\nFor an extended period of time, negotiations were carried on between\nthe councils, and between them and the regional and national authorities\nof NOAA. Memoranda of law were submitted by both sides to NOAA. In\na decision published on April 20, 1979, NOAA reaffirmed the earlier\nboundary ruling. See 44 F.R. 23528-29.\nThe legal reasoning underlying NOAA\xe2\x80\x99s determination rests signifi\xc2\xad\ncantly on \xc2\xa7 304(f)(2) of the Act, 16 U.S.C.A. \xc2\xa7 1854(0(2). It identifies as\none of the Secretary\xe2\x80\x99s miscellaneous duties that he \xe2\x80\x9c shall establish the\nboundaries between the geographical areas of authority of adjacent Coun\xc2\xad\ncils.\xe2\x80\x9d Although NOAA notes that this grant of authority was added to the\noriginal bill without explanation, it maintains that, on its face, the statute\ndelegates to the Secretary a broad discretion to establish boundaries be\xc2\xad\ntween adjacent councils. Moreover, it urges that if \xc2\xa7 302(a) of the Act\n(which stipulates that the SAFMC and the GMFMC shall have authority\nover fisheries in the Atlantic Ocean and the Gulf of Mexico, respectively)\nis read to limit the Secretary\xe2\x80\x99s discretion to the identification of a\ngeographical line between the Atlantic and the Gulf, then, in effect,\n\nMn the interim regulations, 50 CFR \xc2\xa7 601.12(c)(2) (1978), the explanation is as follows:\nThe boundary between the South Atlantic and G ulf o f Mexico Councils continues the\nagreed county boundary between Dade and M onroe Counties to minimize potential dif\xc2\xad\nficulties for fishermen, the affected councils, and outward bordering countries.\n\n465\n\n\x0c\xc2\xa7 302(a) would contradict \xc2\xa7 304(f)(2)\xe2\x80\x99s grant of broad discretion to the\nSecretary. To avoid such inconsistency, NOAA argues, it is necessary to\nread \xc2\xa7 302(a) in an expansive manner3 so as to permit the establishment of\nboundaries on the basis of several factors including, but not confined to,\ngeographical considerations.\nApart from statutory language, NOAA believes that a broad reading is\nnecessitated by the underlying purpose of \xc2\xa7 304(0(2) to promote the con\xc2\xad\nservation and management of fisheries. Because fish do not respect geo\xc2\xad\ngraphical boundaries established by cartographers and geographers,\nNOAA reasons, it would not be consistent with the statute\xe2\x80\x99s aim to insist\nthat boundaries between adjoining councils must have only a geograph\xc2\xad\nical foundation.4 Furthermore, NOAA argues that a strictly geographical\nreading of the statutory provision dealing with the council\xe2\x80\x99s boundaries is\ninconsistent with the intent of Congress indicated in passages in the\nlegislative history dealing with the membership of certain western States\non regional councils. In particular, NOAA relies on indications in the\nlegislative history that certain States were included on more than one\ncouncil because, apart from purely geographical considerations, their resi\xc2\xad\ndents have interests in the management of the area\xe2\x80\x99s fisheries.\nII.\n\nDiscussion\n\nWe start our analysis with the statutory language. The Act announces\nthat the SAFMC \xe2\x80\x9c shall have authority over the fisheries in the Atlantic\nOcean seaward\xe2\x80\x9d of its constituent States, including Florida, and that the\nGMFMC \xe2\x80\x9c shall have authority over the fisheries in the Gulf of Mexico\nseaward\xe2\x80\x9d of its constituent States, also including Florida. \xc2\xa7\xc2\xa7 302(a)(3),\n(5), 16 U.S.C.A. \xc2\xa7 1852(a)(3), (5).\nThese provisions distinguish the areas of jurisdiction of the SAFMC and\nGMFMC with reference to two different water areas\xe2\x80\x94the Atlantic Ocean\nand the Gulf of Mexico. This is clarified by comparing the SAFMC\xe2\x80\x99s juris\xc2\xad\ndiction, which has authority over \xe2\x80\x9c the fisheries in the Atlantic Ocean sea\xc2\xad\nward\xe2\x80\x9d of its States, with that of the Mid-Atlantic Fishery Management\nCouncil, which has authority over \xe2\x80\x9c the fisheries in the Atlantic Ocean sea\xc2\xad\nward of such States.\xe2\x80\x9d The characteristic distinguishing the jurisdictions of\nthe SAFMC and the Mid-Atlantic Fishery Management Council is the fact\nthat their members are representatives of different States; both have\njurisdiction over different parts of the same ocean. In contrast, the distin\xc2\xad\nguishing characteristic between the jurisdiction of the SAFMC and that of\n\n\xe2\x80\x99In a supporting m em orandum o f law, NOAA describes its broad reading o f \xc2\xa7 302(a) as a\n\xe2\x80\x9c functional\xe2\x80\x9d approach, as opposed to what it calls the SA FM C\xe2\x80\x99s \xe2\x80\x9c literal\xe2\x80\x9d interpretation.\n\xe2\x80\x98This argum ent is said to be strengthened by the A ct\xe2\x80\x99s definition o f a fishery; it speaks o f\nstocks o f fish identified \xe2\x80\x9c on the basis o f geographical, scientific, technical, recreational, and\neconomic characteristics * * * . \xe2\x80\x9d 16 U .S.C .A . \xc2\xa7 1802(7)(A). Because the definition is not\nconfined to geographical factors, it is said to buttress the view that the A ct\xe2\x80\x99s drafters were\nnot attem pting to limit the Secretary\xe2\x80\x99s discretion in establishing boundaries between adjoin\xc2\xad\ning councils to the consideration o f geographical matters.\n\n466\n\n\x0cthe GMFMC is that the former has authority over fisheries in the Atlantic\nOcean, as distinct from the Gulf of Mexico. This suggests that Congress\nintended that the boundary identification between the latter two councils\nshould ultimately rest on this geographical criterion.\nThat interpretation is strengthened by \xc2\xa7 302(a)\xe2\x80\x99s last sentence. It pro\xc2\xad\nvides that \xe2\x80\x9c [e]ach Council shall reflect the expertise and interest of the\nseveral constituent States in the ocean area over which such Council is\ngranted authority.\xe2\x80\x9d [Emphasis added.] This pronouncement reaffirms the\nstraightforward reading of the statute to the effect that Congress intended\nthe councils\xe2\x80\x99 jurisdictions to be defined geographically in terms of ocean\nareas, not in terms of nongeographical factors. We next will discuss\nwhether this reading is consistent with (1) other provisions of the Act,\n(2) its underlying purposes, and (3) its legislative history.\nA.\n\nConsistency with Other Provisions of the Act\n\nWe find no inconsistency between, on the one hand, saying that \xc2\xa7 302(a)\nlimits the Secretary\xe2\x80\x99s authority in establishing boundaries by positing cer\xc2\xad\ntain geographical criteria as guideposts and, on the other hand, saying that\n\xc2\xa7 304(f)(2) grants the Secretary authority to establish the boundaries. One\nprovision simply limits the authority granted by the other provision. Pur\xc2\xad\nsuant to \xc2\xa7 304(0(2), the Secretary would still have a significant function to\nperform, namely, identifying with precision the boundaries between ad\xc2\xad\njoining councils.\nThis interpretation is borne out by \xc2\xa7 304(0(2), which does not purport\nto grant the Secretary unlimited discretion in establishing boundaries, but\nrather provides that the Secretary \xe2\x80\x9c * * * shall establish the boundaries\nbetween the geographical areas o f authority of adjacent Councils.\xe2\x80\x9d [Em\xc2\xad\nphasis added.] The use of the modifier \xe2\x80\x9c geographical\xe2\x80\x9d reaffirms the view\nthat geographical considerations define the council\xe2\x80\x99s areas of authority.\xe2\x80\x99\nMoreover, the contrary view appears to be inconsistent with other pro\xc2\xad\nvisions of the Act. As we have noted, the major feature distinguishing the\nareas o f authority of two councils such as, for example, the Mid-Atlantic\nand the South Atlantic Councils, is geographical\xe2\x80\x94namely, the boundary\nbetween different States on each council. Absent an affirmative basis for\ndoing so, which does not appear in the statute, it would be anomalous to\ndistinguish the areas of authority of some councils, but not of others, on\ngeographical grounds.\n\n\xe2\x80\x99It may be suggested that the use o f the word \xe2\x80\x9c geographical\xe2\x80\x9d in the phrase \xe2\x80\x9c geographical\nareas o f authority\xe2\x80\x9d does not m ean that the areas o f authority are to be based on geographical\nconsiderations but rather, once established, that they have a geographical dimension. No\nother dimension is identified in the cited statutory language. In conjunction with the\nlanguage o f \xc2\xa7 302(a) and the legislative history, this indicates that Congress intended to\nground the councils\xe2\x80\x99 areas o f authority on geographical factors alone.\n\n467\n\n\x0cB.\n\nConsistency with the Act\xe2\x80\x99s Purposes\n\nThe vindication of the Act\xe2\x80\x99s aim\xe2\x80\x94the conservation and management of\nfishery resources off the coasts of the United States, see 16 U.S.C.\n\xc2\xa7\xc2\xa7 1801 (b)( 1)-(6)\xe2\x80\x94would not be undermined by a decision that the\nSecretary is bound to establish boundaries between adjoining councils on a\ngeographical basis. We believe that the statute provides sufficient flexibil\xc2\xad\nity for particularized treatment of fisheries that overlap the boundaries of\nadjoining councils.\nWhen a fishery extends on both sides of a boundary, the Secretary is\nempowered to direct either one of the adjoining councils to prepare the\nmanagement plan for the fishery. Alternatively, the councils could be\ndirected to prepare jointly a plan to be approved by a majority of each\ncouncil. See \xc2\xa7 304(0(1), 16 U.S.C.A. \xc2\xa7 1854(0(1). The fact that a\ngeographically defined boundary divides two adjoining councils would not\nprevent effective management of a fishery the location of which does not\nconform to the boundary.6\nC.\n\nConsistency with the Legislative History\n\nThe scant legislative history on the issue confirms the interpretation we\nhave sketched. The forerunner of the crucial language of what became\n\xc2\xa7 302(a) first appeared in the bill reported by the Senate Committee on\nCommerce,1 which stated in its report that national standards for fishery\nmanagement and conservation:\n* * * are to be applied by * * * newly-created Regional\nFishery Management Councils (one f o r each major ocean area)\nin the development of management plans for each fishery deter\xc2\xad\nmined to be in need of management and conservation * * * .*\n[Emphasis added.]\nThe language in italics reaffirms that regional councils are to be\ndistinguished geographically on the basis of different ocean areas, not on\nthe basis of nongeographical factors.\nNor is this view weakened by passages in the legislative history indicating\nthat certain western States should be represented on more than one council\nbecause, apart from solely geographical factors, their residents have an\n\n\xe2\x80\xa2We do not consider the A ct\xe2\x80\x99s definition o r a \xe2\x80\x9c fishery\xe2\x80\x9d to support the view that bound\xc2\xad\naries between adjoining councils should be defined in terms o f all the factors that define a\nfishery. A fishery and an area o f authority o f fishery councils are analytically distinct. The\nformer may be quite broadly defined while the latter may be more precisely defined. The key\nstatutory provisions o f concern here relate to the councils\xe2\x80\x99 areas o f authority, not the defini\xc2\xad\ntion o f a fishery.\n\xe2\x80\x99S. Rept. 416, 94th C ong., 1st sess. 52 (1975).\n'Id. at 3.\n\n468\n\n\x0cinterest in the management of the area\xe2\x80\x99s fisheries.\xe2\x80\x99 Such passages show\nonly that Congress relied on more than strictly geographical justifications\nfor including representatives of a single State on more than one council.\nOnce a council\xe2\x80\x99s membership is settled, the boundaries between adjoining\ncouncils are to be based on geographical grounds. Council membership\nand its boundary are simply two different subjects.\nWe are constrained to conclude that the Act requires boundaries be\xc2\xad\ntween adjoining regional fishery management councils to be based on\ngeographical factors alone.10\nLeo n U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99For example, the report o f the House Committee on Merchant Marine and Fisheries noted\nthat California and Oregon were to be represented on both the Pacific and Alaska Councils\n(as they were called in the House bill) \xe2\x80\x9c because o f the migratory habits and movements o f\nanadrom ous species, many o f which spawn in their waters and migrate to areas o ff the coast\no f Alaska, and because o f the participation o f their fishermen in this fishery o ff the coasts o f\nAlaska * * *\nH. Rept. 445, 94th C ong., 1st sess. 62 (1975). Similarly, the Senate C om \xc2\xad\nmerce Committee report called for the inclusion o f W ashington on both the Pacific and\nNorth Pacific Councils (as the Senate bill termed them):\nThe Pacific Council would be concerned with the fisheries in the Pacific O cean, seaward\no f California, Oregon, and W ashington * * * . The North Pacific Fishery Council\nwould be concerned with the fisheries in the northern Pacific Ocean o ff the State o f\nAlaska. For the most part, fishermen in this area reside in Alaska, however, a fairly\nlarge num ber o f residents from the State o f W ashington also fish in this area. [S. Rept.\n416, 94th C ong., 1st sess. 32 (1975).)\n'\xe2\x80\x9cWe do not address the question where, in particular, the geographical line between the\nAtlantic Ocean and the G u lf o f Mexico should be located in the absence o f the views o f your\nagency.\n\n469\n\n\x0c"


b'(Slip Opinion)\n\nDesignating an Acting Director of National Intelligence\nIn designating an Acting Director of National Intelligence, the President could choose\nanyone who is eligible under the Federal Vacancies Reform Act of 1998, even though\n50 U.S.C. \xc2\xa7 3026(a)(6) specifies that the Principal Deputy DNI \xe2\x80\x9cshall act for\xe2\x80\x9d the DNI\nduring a vacancy.\nThe President could designate the Senate-confirmed Director of the National Counterterrorism Center as the Acting DNI, but that person could not perform the duties of the\nNCTC Director during his time as the Acting DNI because no person may \xe2\x80\x9csimultaneously serve\xe2\x80\x9d as NCTC Director and \xe2\x80\x9cin any other capacity in the executive branch,\xe2\x80\x9d\n50 U.S.C. \xc2\xa7 3056(b)(2).\nBecause the incumbent NCTC Director was rendered unable to perform the duties of that\noffice while serving as Acting DNI, the NCTC Director\xe2\x80\x99s first assistant would, in the\nabsence of an alternative presidential designation, automatically serve as Acting\nNCTC Director under the Vacancies Reform Act.\nNovember 15, 2019\n\nMEMORANDUM FOR THE LEGAL ADVISOR\nTO THE NATIONAL SECURITY COUNCIL\nOn July 28, 2019, Daniel R. Coats submitted his resignation as the\nDirector of National Intelligence (\xe2\x80\x9cDNI\xe2\x80\x9d), effective August 15, 2019. On\nAugust 8, 2019, Susan M. Gordon, the Principal Deputy DNI, announced\nthat she would resign at the same time as the DNI. In connection with\nthese impending vacancies, you asked whether the President could invoke\nthe Federal Vacancies Reform Act of 1998, 5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349d, to\nauthorize Joseph Maguire, the Director of the National Counterterrorism\nCenter (\xe2\x80\x9cNCTC Director\xe2\x80\x9d), to serve as Acting DNI and whether someone\nelse might then serve as Acting NCTC Director. We advised that the\nPresident could designate the NCTC Director as the Acting DNI, but\nbecause no person may \xe2\x80\x9csimultaneously serve\xe2\x80\x9d as NCTC Director and \xe2\x80\x9cin\nany other capacity in the executive branch,\xe2\x80\x9d 50 U.S.C. \xc2\xa7 3056(b)(2), Mr.\nMaguire could not perform the duties of the NCTC Director during his\ntime as the Acting DNI. We further advised that, because Mr. Maguire\nwould be legally disabled from serving as NCTC Director during that\nperiod, the Vacancies Reform Act would authorize someone else to serve\nas Acting NCTC Director.\nThis memorandum memorializes the reasoning underlying our advice.\nIn reaching our conclusions, we considered the interaction between the\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nVacancies Reform Act and the provisions of the Intelligence Reform and\nTerrorism Prevention Act of 2004 (\xe2\x80\x9cIRTPA\xe2\x80\x9d), 50 U.S.C. \xc2\xa7 3003 et seq.,\nthat establish the offices of the DNI and the NCTC Director. First, consistent with our prior opinions, we concluded that the Vacancies Reform\nAct would remain an available means for designating an Acting DNI,\neven though IRTPA specifies that the Principal Deputy DNI \xe2\x80\x9cshall act\nfor\xe2\x80\x9d the DNI during a vacancy, id. \xc2\xa7 3026(a)(6). Second, upon the Principal Deputy DNI\xe2\x80\x99s resignation, no officer would automatically become the\nActing DNI under either IRTPA or the Vacancies Reform Act, and that\nwould remain true even if someone else became the Acting Principal\nDeputy DNI, because the statutes do not allow a \xe2\x80\x9cdouble acting\xe2\x80\x9d arrangement. Third, the first person named in the operative order of succession, established by a 2013 presidential memorandum, could not serve as\nActing DNI because she was on detail to the Office of the Director of\nNational Intelligence (\xe2\x80\x9cODNI\xe2\x80\x9d) and was not otherwise eligible under\n5 U.S.C. \xc2\xa7 3345(a)(3). Fourth, the second person on the order of succession, the NCTC Director, was available to serve as Acting DNI, but, as\ncontemplated in IRTPA and the 2013 presidential memorandum, could\nnot perform the duties of the NCTC Director while serving as Acting\nDNI. Finally, because an incumbent NCTC Director is, by statute, rendered unable to perform the duties of that office while serving as Acting\nDNI, this was an unusual instance in which someone else could act in an\nalready-encumbered position\xe2\x80\x94here, become the Acting NCTC Director\xe2\x80\x94\nwhile the incumbent served elsewhere in an acting capacity.\nI.\nIn 2004, Congress enacted IRTPA, which established the position of\nthe DNI to serve as the \xe2\x80\x9chead of the intelligence community\xe2\x80\x9d and \xe2\x80\x9cprincipal adviser to the President\xe2\x80\x9d and others on \xe2\x80\x9cintelligence matters related to\n. . . national security.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 3023(a), (b) (codifying Pub. L. No.\n108-458, sec. 1011(a), \xc2\xa7 102(a), (b), 118 Stat. 3638, 3644). The DNI\nis appointed by the President with the advice and consent of the Senate.\n50 U.S.C. \xc2\xa7 3023(a)(1).\nIRTPA also established the ODNI to assist the DNI in carrying out\nhis duties. Id. \xc2\xa7 3025(a), (b). Congress created several offices within\nthe ODNI and authorized the DNI to establish additional offices and to\nhire staff members. Id. \xc2\xa7 3025(c), (d). In practice, many of those on the\n2\n\n\x0cDesignating an Acting DNI\n\nODNI\xe2\x80\x99s staff are detailed from other agencies in the intelligence community. See id. \xc2\xa7 3024(l )(1)\xe2\x80\x93(2) (authorizing the DNI to prescribe mechanisms to encourage such details); ODNI, Who We Are, www.dni.gov/\nindex.php/who-we-are/organizations (last visited Nov. 15, 2019) (noting\nthat \xe2\x80\x9c[t]he ODNI is staffed by officers from across the [intelligence community]\xe2\x80\x9d).\nOne of the ODNI\xe2\x80\x99s statutory officers is the Principal Deputy DNI,\n50 U.S.C. \xc2\xa7 3025(c)(2), who is appointed by the President with the advice\nand consent of the Senate, id. \xc2\xa7 3026(a)(1). The Principal Deputy DNI\n\xe2\x80\x9cassist[s] the [DNI] in carrying out the duties and responsibilities of the\n[DNI].\xe2\x80\x9d Id. \xc2\xa7 3026(a)(5). The statute further provides that the Principal\nDeputy DNI \xe2\x80\x9cshall act for, and exercise the powers of, the [DNI] . . .\nduring a vacancy in the position of [DNI].\xe2\x80\x9d Id. \xc2\xa7 3026(a)(6).\nAnother of the ODNI\xe2\x80\x99s statutory officers is the NCTC Director, id.\n\xc2\xa7 3025(c)(11), who is also appointed by the President with the advice and\nconsent of the Senate, id. \xc2\xa7 3056(b)(1). The NCTC Director serves as\nthe \xe2\x80\x9cprincipal adviser\xe2\x80\x9d to the DNI on \xe2\x80\x9cintelligence operations relating\nto counterterrorism\xe2\x80\x9d and has \xe2\x80\x9cprimary responsibility within the United\nStates Government for conducting net assessments of terrorist threats.\xe2\x80\x9d Id.\n\xc2\xa7 3056(f )(1). The NCTC Director \xe2\x80\x9cmay not simultaneously serve in any\nother capacity in the executive branch.\xe2\x80\x9d Id. \xc2\xa7 3056(b)(2).\nII.\nWe first explain who was eligible to serve as Acting DNI upon the\nresignations of both the DNI and the Principal Deputy DNI on August 15,\n2019. We advised not only that the President could designate the NCTC\nDirector as the Acting DNI, but also that he would become the Acting\nDNI by operation of the current order of succession, which was issued in\n2013 as an advance exercise of the President\xe2\x80\x99s authority under the Vacancies Reform Act.\nA.\nThroughout the Executive Branch, the Vacancies Reform Act generally\napplies when a Senate-confirmed officer, such as the DNI or NCTC\nDirector, \xe2\x80\x9cdies, resigns, or is otherwise unable to perform the functions\nand duties of the office.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a). By default, anyone serving\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nas \xe2\x80\x9cthe first assistant\xe2\x80\x9d to the vacant office \xe2\x80\x9cshall\xe2\x80\x9d become the acting\nofficer. Id. \xc2\xa7 3345(a)(1). But the President \xe2\x80\x9cmay\xe2\x80\x9d instead choose to designate, as the acting officer, someone who already holds an \xe2\x80\x9coffice for\nwhich appointment is required to be made by the President, by and with\nthe advice and consent of the Senate,\xe2\x80\x9d id. \xc2\xa7 3345(a)(2), or an \xe2\x80\x9cofficer\nor employee\xe2\x80\x9d of the same agency who has served in a position with a\nsufficiently high level of compensation \xe2\x80\x9cfor not less than 90 days\xe2\x80\x9d of the\n\xe2\x80\x9c365-day period preceding\xe2\x80\x9d the vacancy, id. \xc2\xa7 3345(a)(3).\nIRTPA states that the Principal Deputy DNI \xe2\x80\x9cshall act for\xe2\x80\x9d and \xe2\x80\x9cexercise the powers of \xe2\x80\x9d the DNI \xe2\x80\x9cduring a vacancy in the position of \xe2\x80\x9d the\nDNI, 50 U.S.C. \xc2\xa7 3026(a)(6), but IRTPA does not otherwise make the\nVacancies Reform Act inapplicable to the position of DNI. In a series of\nopinions dating back to 2003, this Office has consistently explained that\nthe Vacancies Reform Act remains available to the President as a means\nfor designating an acting official even when an office-specific statute\nprovides that someone else \xe2\x80\x9cshall\xe2\x80\x9d serve in that role. See Designating an\nActing Director of the Federal Housing Finance Agency, 43 Op. O.L.C.\n__, at *4\xe2\x80\x9310 (Mar. 18, 2019) (\xe2\x80\x9cActing Director of FHFA\xe2\x80\x9d); Designating\nan Acting Attorney General, 42 Op. O.L.C. __, at *3\xe2\x80\x938 (Nov. 14, 2018);\nDesignating an Acting Director of the Bureau of Consumer Financial\nProtection, 41 Op. O.L.C. __, at *4\xe2\x80\x9311 (Nov. 25, 2017); Authority of\nthe President to Name an Acting Attorney General, 31 Op. O.L.C. 208,\n208\xe2\x80\x9311 (2007); Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 121 & n.1 (2003). When another\nstatute does so, we have explained, the Vacancies Reform Act ceases to\nprovide the exclusive means of filling vacancies on an acting basis, but,\nwithout something more to displace the Vacancies Reform Act, it remains\nan available alternative to the other statute. See Acting Director of FHFA,\n43 Op. O.L.C. __, at *4\xe2\x80\x936. Every court to address this question has agreed\nwith our reasoning. 1 And we think that the same conclusion applies to the\nSee United States v. Castillo, 772 F. App\xe2\x80\x99x 11, 13 (3d Cir. 2019) (noting that district\n\xe2\x80\x9ccourts have been asked to address the validity of [Matthew Whitaker\xe2\x80\x99s] designation\n[as the Acting Attorney General] and have, thus far, uniformly concluded that it was\nproper\xe2\x80\x9d); Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 556 (9th Cir. 2016)\n(addressing designation of Acting General Counsel of the NLRB; \xe2\x80\x9cneither the [Vacancies\nReform Act] nor the [National Labor Relations Act] is the exclusive means of appointing\nan Acting General Counsel\xe2\x80\x9d; \xe2\x80\x9cthe President is permitted to elect between these two\nstatutory alternatives to designate an Acting General Counsel\xe2\x80\x9d); United States v. Patara,\n1\n\n4\n\n\x0cDesignating an Acting DNI\n\nDNI. Notwithstanding section 3026(a)(6)\xe2\x80\x99s provision that the Principal\nDeputy DNI \xe2\x80\x9cshall act for\xe2\x80\x9d the DNI during a vacancy, the President may\nchoose to designate as Acting DNI a different official who qualifies under\nthe Vacancies Reform Act.\nNo other provision of IRTPA counsels a different result. In 2012,\nIRTPA was amended to authorize the President to fill vacancies in some\nODNI offices with non-Senate-confirmed individuals drawn from other\nagencies in the intelligence community. See Intelligence Authorization\nAct for Fiscal Year 2012, Pub. L. No. 112-87, sec. 405(2), \xc2\xa7 103(e), 125\nStat. 1876, 1889 (codified at 50 U.S.C. \xc2\xa7 3025(e)). Congress achieved\nthat result by expanding the third category of officials made eligible\nto serve as acting officials by the Vacancies Reform Act. See 5 U.S.C.\n\xc2\xa7 3345(a)(3). As it applies to other agencies, section 3345(a)(3) limits the\navailable pool to certain officials in the \xe2\x80\x9cExecutive agency\xe2\x80\x9d where the\nvacancy occurs. Id. For the ODNI, however, section 3025(e) expands\nthat pool to include officials within the entire \xe2\x80\x9cintelligence community.\xe2\x80\x9d\n50 U.S.C. \xc2\xa7 3025(e). That expansion applies to all vacancies \xe2\x80\x9cwithin the\nOffice of the Director of National Intelligence (other than that of the\nDirector of National Intelligence).\xe2\x80\x9d Id.\nAlthough Congress precluded resort to the expanded section 3345(a)(3)\npool when selecting an Acting DNI, we cannot read that parenthetical\nas making the Vacancies Reform Act itself inapplicable to that position.\nTo the contrary, by excepting the DNI from its tailored expansion of\nsection 3345(a)(3), section 3025(e) implies that section 3345(a)(3) applies\nto the DNI in its non-expanded form, which means that the President may\n365 F. Supp. 3d 1085, 1088\xe2\x80\x9391 (S.D. Cal. 2019) (sustaining designation of Acting\nAttorney General); Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives,\n356 F. Supp. 3d 109, 139, 153\xe2\x80\x9354 (D.D.C. 2019) (same), aff \xe2\x80\x99d on other grounds, 920\nF.3d 1 (D.C. Cir. 2019), petition for cert. filed, No. 19-296 (U.S. Aug. 29, 2019); United\nStates v. Santos-Caporal, No. 18-cr-171, 2019 WL 468795, at *6\xe2\x80\x937 (E.D. Mo. Jan. 9,\n2019) (same), report and recommendation adopted by 2019 WL 460563, at *1 (E.D. Mo.\nFeb. 6, 2019); United States v. Smith, No. 18-cr-115, 2018 WL 6834712, at *2 (W.D.N.C.\nDec. 28, 2018) (same); United States v. Peters, No. 17-cr-55, 2018 WL 6313534, at *2\xe2\x88\x925\n(E.D. Ky. Dec. 3, 2018) (same); United States v. Valencia, No. 17-cr-882, 2018 WL\n6182755, at *2\xe2\x88\x924 (W.D. Tex. Nov. 27, 2018) (same), appeal dismissed, 940 F.3d 181 (5th\nCir. 2019); English v. Trump, 279 F. Supp. 3d 307, 319\xe2\x88\x9231 (D.D.C. 2018) (sustaining\ndesignation of Acting Director of the Bureau of Consumer Financial Protection), appeal\ndismissed upon appellant\xe2\x80\x99s motion, No. 18-5007, 2018 WL 3526296 (D.C. Cir. July 13,\n2018).\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nselect an Acting DNI from certain senior ODNI officers and employees.\nAnd section 3025(e) says nothing to alter the applicability of section\n3345(a)(2), which enables the President to choose a Senate-confirmed\nofficer to fill a vacancy when the Vacancies Reform Act is available. 2\nCongress could have easily excluded the DNI from coverage under the\nVacancies Reform Act by, for instance, adding the DNI to the list of\nexcluded offices in 5 U.S.C. \xc2\xa7 3349c or specifying that section 3026(a)(6)\napplies notwithstanding the Vacancies Reform Act. Cf. 6 U.S.C. \xc2\xa7 113(g)(1),\n(2) (specifying who shall serve as Acting Secretary of Homeland Security\nin certain circumstances \xe2\x80\x9c[n]otwithstanding chapter 33 of title 5\xe2\x80\x9d). But\nCongress took no such course. As a result, IRTPA is not the exclusive\nmeans of temporarily filling a vacancy in the position of DNI, regardless\nof whether there is an incumbent Principal Deputy DNI. Consistent with\nthe opinions of this Office and the decisions of federal courts, the President would have discretion to designate as Acting DNI someone else who\nis eligible under the Vacancies Reform Act\xe2\x80\x94either as an official in a\nSenate-confirmed position or as a senior ODNI official who satisfies the\nstatute\xe2\x80\x99s pay and tenure requirements.\nB.\nThe Principal Deputy DNI is the first assistant to the DNI. See 50\nU.S.C. \xc2\xa7 3026(a)(5), (6); Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 179 (2001) (\xe2\x80\x9c[T]he phrase [\xe2\x80\x98first assistant\xe2\x80\x99] is a\nterm of art that refers to the top deputy,\xe2\x80\x9d and, \xe2\x80\x9c[u]nder this interpretation,\nthe Principal Deputy would generally qualify as the \xe2\x80\x98first assistant.\xe2\x80\x99\xe2\x80\x9d).\nYet, because that position became vacant at the same time as the DNI, no\none automatically became the Acting DNI under either IRTPA (50 U.S.C.\n\xc2\xa7 3026(a)(6)) or the first-assistant provision of the Vacancies Reform Act\n(5 U.S.C. \xc2\xa7 3345(a)(1)). Moreover, because an Acting Principal Deputy\nDNI does not satisfy either of those statutory provisions, nobody will be\n2 The legislative history of section 3025(e) does not indicate that Congress believed the\nexclusion of the DNI from the tailored expansion of section 3345(a)(3) would prevent the\nPresident from using the Vacancies Reform Act. A section-by-section analysis stated that\nthe DNI would be excepted from the new authority and that, under section 3026(a)(6),\n\xe2\x80\x9cthe Principal Deputy DNI is next in line.\xe2\x80\x9d 157 Cong. Rec. 20160 (Dec. 14, 2011). The\nanalysis noted that the amendment would not \xe2\x80\x9cmodif [y] or preclude[] the utilization of\nsections 3345(a)(1) or (2) of title 5 to fill vacancies.\xe2\x80\x9d Id.\n\n6\n\n\x0cDesignating an Acting DNI\n\neligible under them until a new Principal Deputy DNI is appointed by the\nPresident.\nAn Acting Principal Deputy DNI\xe2\x80\x99s ineligibility, by virtue of acting in\nthat position, to become the Acting DNI is consistent with this Office\xe2\x80\x99s\nlong-standing approach. More than forty years ago, we recognized \xe2\x80\x9cas a\ngeneral rule of interpretation\xe2\x80\x9d that \xe2\x80\x9ca statute providing that a deputy shall\nperform the duties of the principal officer in case of a vacancy . . . should\nbe construed as referring to an actual and not an acting deputy.\xe2\x80\x9d Memorandum for John W. Dean III, Counsel to the President, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nActing Deputy Public Printer at 2 (Jan. 26, 1973). In 1984, we explained\nthat the \xe2\x80\x9cOffice has consistently taken the position that statutes providing\nthat a deputy shall perform the duties of his principal during absence or\ndisability or in case of a vacancy refer to an actual and not to an acting\ndeputy.\xe2\x80\x9d Memorandum for D. Lowell Jensen, Associate Attorney General,\nfrom Theodore B. Olson, Assistant Attorney General, Office of Legal\nCounsel, Re: Service of John C. Lawn as Acting Deputy Administrator of\nthe Drug Enforcement Administration at 3 (July 31, 1984). We have\ntherefore \xe2\x80\x9ccautioned against a \xe2\x80\x98double acting\xe2\x80\x99 arrangement.\xe2\x80\x9d Id.\nOur rationale for continuing to disapprove double-acting arrangements\nis grounded in statutory text, executive practice, and common sense. In\nthe Vacancies Reform Act, the reference in section 3345(a)(1) to \xe2\x80\x9cthe first\nassistant to the [vacant] office\xe2\x80\x9d is best understood as a reference to\nan individual who has actually been appointed to\xe2\x80\x94and is thus encumbering, for personnel-law purposes\xe2\x80\x94the position of first assistant. In other\nwords, only an individual encumbering the position of first assistant is the\nfirst assistant; the term does not include someone who holds another\nposition but is temporarily performing the duties of the first assistant.\nThat is consistent with the venerable principle that an office remains\nvacant even when someone has been assigned to perform its duties on a\ntemporary basis. See, e.g., District Attorney\xe2\x80\x94Temporary Appointment,\n16 Op. Att\xe2\x80\x99y Gen. 538, 540 (1880) (\xe2\x80\x9cThe office in no respects ceases to\nbe vacant . . . for the reason that the [assignment] itself contemplates only\na temporary mode of having the duties of the office performed.\xe2\x80\x9d). And\nwe construe analogous provisions similarly. Thus, for purposes of 50\nU.S.C. \xc2\xa7 3026(a)(6), only an individual appointed as, and encumbering\nthe position of, Principal Deputy DNI is the Principal Deputy DNI.\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nConsistent with that view, when Presidents issue orders of succession\nas an advance exercise of their authority to name acting officials under the\nVacancies Reform Act, they often specify that \xe2\x80\x9c[n]o individual who is\nserving in an office . . . in an acting capacity, by virtue of so serving, shall\nact as [the agency head] pursuant to this order.\xe2\x80\x9d 3 In fact, such a proviso\nhas been included in all four of the presidential memoranda that have\nestablished orders of succession for the DNI, going back to 2005. 4\nThat practice is strongly supported by common sense. When a line\nof succession for one office lists several officials, we look for the first\navailable official on the list. In doing so, we pay no heed to any underlying lines of succession that may exist for each of the listed officials.\nThus, Congress has included fifteen Cabinet officials in the statutory\nline of succession to be Acting President when the offices of President\nand Vice President are vacant. See U.S. Const. art. II, \xc2\xa7 1, cl. 6; 3 U.S.C.\n\xc2\xa7 19(d)(1). Although Congress has specified that only officers appointed\nwith the Senate\xe2\x80\x99s advice and consent will count as Cabinet officials for\nsuccession purposes, see 3 U.S.C. \xc2\xa7 19(e), the line of succession for each\nCabinet official typically includes multiple Senate-confirmed officers. For\nexample, the order of succession for the office of Secretary of State includes literally hundreds of Senate-confirmed officers, from the Deputy\nSecretary of State to every Under Secretary, every Assistant Secretary,\nE.g., Providing an Order of Succession Within the Department of Justice, Exec.\nOrder No. 13787, \xc2\xa7 2(a) (Mar. 31, 2017), 82 Fed. Reg. 16723, 16723 (Apr. 5, 2017);\nProviding an Order of Succession Within the Department of the Treasury, Exec. Order\nNo. 13735, \xc2\xa7 3(a) (Aug. 12, 2016), 81 Fed. Reg. 54709, 54709 (Aug. 17, 2016); Providing\nan Order of Succession in the Environmental Protection Agency and Amending Certain\nOrders on Succession, Exec. Order No. 13261, \xc2\xa7\xc2\xa7 3(a), 4(a)\xe2\x80\x93(i) (Mar. 19, 2002), 67 Fed.\nReg. 13243, 13243\xe2\x80\x9344 (Mar. 21, 2002).\n4 See Presidential Memorandum for the Director of National Intelligence, Designation\nof Officers of the Office of the Director of National Intelligence to Act as Director of\nNational Intelligence \xc2\xa7 3(a) (Sept. 20, 2013), 78 Fed. Reg. 59159, 59159 (Sept. 25, 2013);\nPresidential Memorandum for the Director of National Intelligence, Designation of\nOfficers of the Office of the Director of National Intelligence to Act as Director of\nNational Intelligence \xc2\xa7 4(a) (Mar. 8, 2011), 76 Fed. Reg. 13499, 13499 (Mar. 11, 2011);\nPresidential Memorandum for the Director of National Intelligence, Designation of\nOfficers of the Office of the Director of National Intelligence to Act as Director of\nNational Intelligence \xc2\xa7 3(a) (Oct. 3, 2008), 73 Fed. Reg. 58869, 58869 (Oct. 8, 2008);\nPresidential Memorandum for the Director of National Intelligence, Designation of\nOfficers of the Office of the Director of National Intelligence to Act as Director of\nNational Intelligence \xc2\xa7 4(a) (Dec. 20, 2005), 70 Fed. Reg. 76375, 76375 (Dec. 23, 2005).\n3\n\n8\n\n\x0cDesignating an Acting DNI\n\nand eventually every \xe2\x80\x9cChief [] of Mission, in the order in which they shall\nhave taken the oath of office.\xe2\x80\x9d Providing an Order of Succession Within\nthe Department of State, Exec. Order No. 13251, \xc2\xa7 2(a)\xe2\x80\x93(m) (Dec. 28,\n2001), 67 Fed. Reg. 1599, 1599\xe2\x80\x9360 (Jan. 11, 2002). But, whenever any of\nthose officers is the Acting Secretary of State, the presidential line of\nsuccession skips that person and passes on to the Secretary of the Treasury. See 3 U.S.C. \xc2\xa7 19(d)(1); Operation of the Twenty-Fifth Amendment\nRespecting Presidential Succession, 9 Op. O.L.C. 65, 69 (1985) (noting\nthat \xe2\x80\x9cthe acting heads of departments . . . are not Presidential successors\xe2\x80\x9d).\nSimilarly, within the Department of Justice, if the President does not\ninvoke the Vacancies Reform Act, the statutory order of succession for\nthe office of Attorney General includes the Deputy Attorney General, the\nAssociate Attorney General, the Solicitor General, and several Assistant\nAttorneys General. See 28 U.S.C. \xc2\xa7 508(a), (b). Each of those offices has\nits own principal deputy who is the first assistant to that office for purposes of the Vacancies Reform Act. See 28 C.F.R. \xc2\xa7 0.137(b). Yet, when\nthere is only an Acting Deputy Attorney General, the first available person\nin the line for Acting Attorney General is the Associate Attorney General;\nwhen there is also only an Acting Associate, the next available person in\nthe line is the Solicitor General; and so on. 5\nThe bar on double-acting arrangements finds inferential support in judicial decisions. When the Attorney General and Deputy Attorney General both resigned on October 20, 1973, the Solicitor General became\nActing Attorney General. The district court in United States v. Halmo,\n386 F. Supp. 593 (E.D. Wis. 1974), recognized that the Solicitor General\nhad become Acting Attorney General not by virtue of being Acting Deputy Attorney General\xe2\x80\x94i.e., by acting as the \xe2\x80\x9cfirst assistant\xe2\x80\x9d mentioned in\nthe then-applicable versions of 5 U.S.C. \xc2\xa7 3345 and 28 U.S.C. \xc2\xa7 508(a)\xe2\x80\x94\nbut rather as Solicitor General under 28 U.S.C. \xc2\xa7 508(b). See 386 F. Supp.\nat 595. And a 2009 court-of-appeals decision implicitly applied the bar on\n5 Thus, our 2007 opinion explained that \xe2\x80\x9cwhen the positions of Deputy Attorney General and Associate Attorney General are vacant\xe2\x80\x94as they are now\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9c[t]he Solicitor\nGeneral is first in line\xe2\x80\x9d to \xe2\x80\x9cact as Attorney General.\xe2\x80\x9d Authority of the President to Name\nan Acting Attorney General, 31 Op. O.L.C. at 208. The opinion did not mention that, at\nthe time, the Department had both an Acting Deputy Attorney General and an Acting\nAssociate Attorney General.\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\ndouble-acting arrangements by declining to treat an Acting Principal\nDeputy Assistant Secretary in the Department of the Interior as an Acting\nAssistant Secretary under section 3345(a)(1). See Schaghticoke Tribal\nNation v. Kempthorne, 587 F.3d 132, 135 (2d Cir. 2009). 6\nC.\nThe Principal Deputy DNI\xe2\x80\x99s resignation alongside the DNI meant that\nneither section 3026(a)(6) nor section 3345(a)(1) was available for automatic accession to the role of Acting DNI. As a result, no one would have\nbecome the Acting DNI in the absence of presidential action under the\nVacancies Reform Act. Since 2005, however, Presidents have exercised\ntheir authority under the Vacancies Reform Act to prescribe, in advance,\nan order of succession that would apply to the DNI.\nThe current order of succession specifies, when the DNI and the Principal Deputy DNI are both vacant, a line of four officials to serve as Acting\nDNI, unless the President chooses to depart from that list. See Presidential\nMemorandum for the Director of National Intelligence, Designation of\nOfficers of the Office of the Director of National Intelligence to Act as\nDirector of National Intelligence \xc2\xa7\xc2\xa7 1, 3(c) (Sept. 20, 2013), 78 Fed. Reg.\n59159, 59159 (Sept. 25, 2013) (\xe2\x80\x9cDNI Order of Succession\xe2\x80\x9d). The first\nposition on the list is the Deputy DNI for Mission Integration. Id. \xc2\xa7 1(a). 7\nBut the person who was serving in that position when the vacancies\n6 In Schaghticoke Tribal Nation, the appellant contended that the Associate Deputy\nSecretary of the Interior had violated the Vacancies Reform Act by performing a function\nthat regulations assigned to the Assistant Secretary of the Interior for Indian Affairs. 587\nF.3d at 134\xe2\x80\x9335. At the time, the position of the Assistant Secretary was vacant, and the\nduties of Principal Deputy Assistant Secretary for Indian Affairs\xe2\x80\x94the first assistant to the\nAssistant Secretary\xe2\x80\x94were being performed by another official. See Brief for DefendantsAppellees (2d Cir. May 6, 2009) (No. 08-4735), 2009 WL 8189661, at *79. The appellant\nargued that the Acting Principal Deputy Assistant Secretary was functioning as the Acting\nAssistant Secretary under 5 U.S.C. \xc2\xa7 3345(a)(1)\xe2\x80\x94effectively urging the court to recognize a double-acting arrangement. See Reply Brief for Plaintiff-Appellant (2d Cir. June 8,\n2009) (No. 08-4735), 2009 WL 8189664, at *35\xe2\x80\x9336. The Second Circuit declined to do\nso. Instead, it concluded that the \xe2\x80\x9cPrincipal Deputy position was vacant\xe2\x80\x9d and that there\nwas no Acting Assistant Secretary for Indian Affairs under section 3345(a)(1). 587 F.3d\nat 135.\n7 The 2013 order refers to the Deputy DNI for \xe2\x80\x9cIntelligence Integration,\xe2\x80\x9d but in a restructuring completed in July 2018, that position was redesignated as the Deputy DNI for\n\xe2\x80\x9cMission Integration.\xe2\x80\x9d\n\n10\n\n\x0cDesignating an Acting DNI\n\noccurred was ineligible to serve as Acting DNI because she was on detail\nto the ODNI from another agency and did not have a separate appointment from the DNI as a Deputy DNI.\nThe Vacancies Reform Act generally permits the President to designate\ncertain senior agency officials to act in a vacant office; when a Senateconfirmed officer \xe2\x80\x9cof an Executive agency . . . dies, resigns, or is otherwise unable to perform the functions and duties of the office . . . the\nPresident . . . may direct an officer or employee of such Executive agency\nto perform the functions and duties of the vacant office temporarily in an\nacting capacity.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a)(3) (emphasis added). Because the\nstatute requires the official to be an officer or employee \xe2\x80\x9cof such Executive agency,\xe2\x80\x9d it excludes someone who has merely been detailed to that\nagency from somewhere else and does not have any independent claim to\nbe an officer or employee of the agency receiving the detail. That conclusion is consistent with how details generally work in the Executive\nBranch. See, e.g., 5 C.F.R. \xc2\xa7 317.903(a) (explaining that, for details of\nSenior Executive Service employees, there is an \xe2\x80\x9cexpectation that the\nemployee will return to the official position of record upon expiration of\nthe detail\xe2\x80\x9d and \xe2\x80\x9c[f ]or purposes of pay and benefits, the employee continues to encumber the position from which detailed\xe2\x80\x9d). It is also consistent\nwith our conclusion in 1986 that, if the Army assigned lawyers from the\nJudge Advocate General Corps to the Department of Justice, they would\nneed formal appointments from the Attorney General before they could\nrepresent the United States in litigation, because 28 U.S.C. \xc2\xa7 516 reserves\nthe conduct of litigation on behalf of the United States to \xe2\x80\x9cofficers of\nthe Department of Justice.\xe2\x80\x9d Assignment of Army Lawyers to the Department of Justice, 10 Op. O.L.C. 115, 117 & n.2 (1986). Moreover, our\nconclusion is consistent with Congress\xe2\x80\x99s tailored expansion of section\n3345(a)(3) for purposes of most ODNI positions covered by the Vacancies Reform Act, which reflected the fact that so many ODNI staff members are, in practice, detailees from other intelligence-community elements, thus shrinking the pool of senior agency officials who would\notherwise be eligible under section 3345(a)(3). See 157 Cong. Rec. 20160\n(Dec. 14, 2011) (section-by-section analysis of 2012 amendment, noting\n\xe2\x80\x9cthe relatively small size of the ODNI\xe2\x80\x9d and \xe2\x80\x9cthe fact that a significant\nnumber\xe2\x80\x9d of its personnel \xe2\x80\x9care on detail to the office\xe2\x80\x9d).\nTo be eligible to serve as Acting DNI under section 3345(a)(3), or under the order of succession invoking that provision, a detailee at the ODNI\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nmust have held a separate appointment within that \xe2\x80\x9cagency\xe2\x80\x9d for at least\n90 days in the year preceding the vacancy. 5 U.S.C. \xc2\xa7 3345(a)(3); see 50\nU.S.C. \xc2\xa7 3025(e) (modifying this aspect of section 3345(a)(3) only for\nvacancies in the ODNI \xe2\x80\x9cother than that of the [DNI]\xe2\x80\x9d); see also 50 U.S.C.\n\xc2\xa7 3025(c)(14) (authorizing the DNI to \xe2\x80\x9cestablish\xe2\x80\x9d additional \xe2\x80\x9coffices and\nofficials\xe2\x80\x9d in the ODNI). 8 Because the Deputy DNI for Mission Integration\ndid not satisfy this requirement, she was ineligible to serve as Acting DNI\nunder section 3345(a)(3).\nD.\nThe next officer on the current order of succession is the NCTC Director. See DNI Order of Succession \xc2\xa7 1(b), 78 Fed. Reg. at 59159. Because\nthe NCTC Director was appointed by the President with the advice and\nconsent of the Senate, 50 U.S.C. \xc2\xa7 3056(b)(1), he was eligible to serve as\nActing DNI under 5 U.S.C. \xc2\xa7 3345(a)(2).\nThe NCTC Director\xe2\x80\x99s service as Acting DNI does involve one statutory\nwrinkle. IRTPA provides that the NCTC Director \xe2\x80\x9cmay not simultaneously serve in any other capacity in the executive branch.\xe2\x80\x9d 50 U.S.C.\n\xc2\xa7 3056(b)(2). We do not, however, read this provision as categorically\nforbidding the NCTC Director from serving as Acting DNI. Instead,\nsection 3056(b)(2) permits the Director of NCTC to serve as Acting DNI,\nand to continue to hold the office of NCTC Director, so long as he does\nnot, while Acting DNI, also perform the functions and duties of the NCTC\nDirector. That conclusion follows from the way section 3056(b)(2) is\nphrased\xe2\x80\x94as a restriction on simultaneously serving in any other capacity.\nIt comports with the apparent purpose of the provision: to ensure that the\nperson performing the functions and duties of the Director of NCTC does\nso with a degree of independence and without competing obligations. And\nit is consistent with the orders of succession for the DNI issued by Presidents George W. Bush and Barack Obama. In his 2011 and 2013 memoranda, President Obama expressly accounted for section 3056(b)(2) by\nspecifying: \xe2\x80\x9cIn the event that the Director of the National CounterterrorThe rate of pay for the ODNI position to which the detailee is separately appointed\nwould also need to be \xe2\x80\x9cequal to or greater than the minimum rate of pay payable for\na position at GS\xe2\x80\x9315 of the General Schedule,\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3345(a)(3)(B), even though, as\na practical matter, the detailee could draw that salary only from the home agency, see id.\n\xc2\xa7\xc2\xa7 5533, 5535.\n8\n\n12\n\n\x0cDesignating an Acting DNI\n\nism Center acts as and performs the functions and duties of the DNI . . . ,\nthat individual shall not simultaneously serve as Director of the National\nCounterterrorism Center during that time, in accordance with 50 U.S.C.\n3056.\xe2\x80\x9d DNI Order of Succession \xc2\xa7 3(d), 78 Fed. Reg. at 59159; Presidential Memorandum for the Director of National Intelligence, Designation of\nOfficers of the Office of the Director of National Intelligence to Act as\nDirector of National Intelligence \xc2\xa7 4(d) (Mar. 8, 2011), 76 Fed. Reg.\n13499, 13499 (Mar. 11, 2011). Although President Bush did not expressly\nacknowledge the prohibition on simultaneous service, he also included the\nNCTC Director in his 2008 order of succession. See Presidential Memorandum for the Director of National Intelligence, Designation of Officers\nof the Office of the Director of National Intelligence to Act as Director of\nNational Intelligence \xc2\xa7 1(e) (Oct. 3, 2008), 73 Fed. Reg. 58869, 58869\n(Oct. 8, 2008).\nIRTPA elsewhere contemplates a conceptually similar arrangement,\nwhereby an officer may continue to hold another office but is legally\ndisabled from exercising some of the duties of that office during service\nwithin the ODNI. Under the statute, a commissioned officer of the Armed\nForces may serve as DNI or Principal Deputy DNI and continue to receive\nmilitary pay and allowances but may not, while so \xe2\x80\x9cserving,\xe2\x80\x9d be supervised or controlled by, or exercise supervision or control over, any officer\nor employee of the Department of Defense. 50 U.S.C. \xc2\xa7 3026(c)(4), (6). In\nthat instance, the commissioned officer will retain his military office but\nwill be disabled from exercising certain duties or responsibilities of that\noffice while serving at the ODNI. We think the same thing is true with\nrespect to the restriction on dual service by the NCTC Director. Section\n3056(b)(2) permits the NCTC Director to continue occupying that office,\neven while disabling him from performing his normal duties during any\nperiod in which he serves as Acting DNI.\nIn support of this conclusion, we again find instructive the 1986 opinion concerning the assignment of Army lawyers to the Department of\nJustice. In that opinion, then\xe2\x80\x93Deputy Assistant Attorney General Samuel\nAlito concluded that the Posse Comitatus Act, which generally precludes\n\xe2\x80\x9cany part of the Army\xe2\x80\x9d from being used for law enforcement, 18 U.S.C.\n\xc2\xa7 1385, \xe2\x80\x9cwould not be implicated\xe2\x80\x9d if military personnel \xe2\x80\x9cwere detailed on\na full-time basis\xe2\x80\x9d to the Department of Justice and they then \xe2\x80\x9cfunctioned\non a day-to-day basis in an entirely civilian capacity under the supervision\nof civilian personnel.\xe2\x80\x9d Assignment of Army Lawyers to the Department of\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nJustice, 10 Op. O.L.C. at 121. The opinion distinguished that situation\nfrom one in which military lawyers would be \xe2\x80\x9cassigned on a part-time\nbasis to perform civilian law enforcement functions along with their\nregularly assigned military duties\xe2\x80\x9d\xe2\x80\x94a situation that would raise \xe2\x80\x9cserious\nquestions\xe2\x80\x9d under the Posse Comitatus Act. Id. For similar reasons, we\nbelieve that the prohibition on \xe2\x80\x9csimultaneous[] serv[ice]\xe2\x80\x9d in section\n3056(b)(2) is not implicated when the President designates the NCTC\nDirector to serve as Acting DNI, so long as, while so serving, the NCTC\nDirector does not perform the functions and duties of that office.\nAccordingly, we advised that, upon the resignations of the DNI and\nPrincipal Deputy DNI, the NCTC Director would become the Acting DNI\nwithout the need for further action by the President, as contemplated by\nthe 2013 order of succession, which was promulgated as an advance\nexercise of the President\xe2\x80\x99s authority under the Vacancies Reform Act.\nUnder section 3056(b)(2), however, he would be unable to exercise the\nfunctions and duties of the NCTC Director while serving as Acting DNI.\nIII.\nWe further considered whether anyone could serve as Acting NCTC\nDirector while the incumbent served as Acting DNI. Because the NCTC\nDirector is legally disabled by section 3056(b)(2) from performing the\nfunctions and duties of his own office while serving as Acting DNI, this\npresents an unusual situation in which the Vacancies Reform Act may be\nused to designate an Acting NCTC Director while there is still an incumbent in that office. We have generally advised that when one official\nserves in an acting capacity under the Vacancies Reform Act, another\nofficial may not be designated under that statute to act in the encumbered\nposition. In other words, the agency may not \xe2\x80\x9cbackfill\xe2\x80\x9d the position. In\nsuch cases, the incumbent officeholder will continue to occupy both\npositions, absent some legal restriction on joint service. That rationale,\nhowever, does not apply when, as with the NCTC Director, the incumbent\nis legally precluded from serving in both capacities at once.\nPrior to the Vacancies Reform Act, we had recognized the general expectation that an acting officer will continue to occupy his own office and\nperform its duties even while he is temporarily acting in another office.\nSee, e.g., Legality of Designation of Certain Acting Officials by the Secretary of Energy, 2 Op. O.L.C. 113, 115 (1978) (noting the practical diffi14\n\n\x0cDesignating an Acting DNI\n\nculties that may arise when an acting official can effectively perform\nthe additional duties only \xe2\x80\x9con a part-time basis\xe2\x80\x9d). Congress has long\nprescribed that someone \xe2\x80\x9cperforming the duties of a vacant office\xe2\x80\x9d generally \xe2\x80\x9cmay not receive pay in addition to the pay for his regular office.\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 5535(a).\nThe 1998 enactment of the Vacancies Reform Act did not alter that understanding. As we have recognized, \xe2\x80\x9cduties arising under the Vacancies\nReform Act can be regarded as part and parcel\xe2\x80\x9d of the underlying office\nthat makes one eligible to be an acting officer. Designation of Acting\nDirector of the Office of Management and Budget, 27 Op. O.L.C. at 122\nn.3. That is especially true when someone is a first assistant or other\ndeputy to the vacant office, where day-to-day tasks often involve delegated functions of the principal and an important duty of the lower position is\nto be ready to stand in for the principal when needed. Thus, we have\ncontinued to read section 3345(a) as resting on the premise that an acting\nofficer will ordinarily perform the duties of both his office and the vacant\noffice. Otherwise, each application of the statute could begin a cascade of\nacting arrangements within an agency, as one official after another temporarily moves into a different position. We have also reasoned that, because\nalmost all officials may delegate a significant portion of their duties, they\ncan typically accommodate, at least for temporary periods, the need to\ncarry out the duties of two positions. Put simply, an acting official remains able to perform the most important duties of each position, and he\nmay be expected to delegate the exercise of the more mundane duties\nunder his supervision. In such circumstances, the acting official may well\nbe busier during the period of joint service, but he still encumbers (and\nreceives the pay of ) only the underlying position, which is not vacant.\nBy contrast, in this instance, the NCTC Director is temporarily precluded from performing the duties of that office, whether or not those\nduties are delegable. The Vacancies Reform Act applies when a Senateconfirmed officer of an Executive agency \xe2\x80\x9cdies, resigns, or is otherwise\nunable to perform the functions and duties of the office.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 3345(a) (emphasis added). While serving as Acting DNI, the NCTC\nDirector is \xe2\x80\x9cunable to perform the functions and duties of [his] office\xe2\x80\x9d\xe2\x80\x94\nnot because he is merely preoccupied or away from his usual desk, but\nbecause section 3056(b)(2) forbids him from doing so. The statutory\nprohibition thus resembles an ethical constraint that necessitates an\nacross-the-board, but temporary, recusal. When an official must recuse,\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 43\n\nsomeone else is typically able to act in his place with respect to the matter\nconcerned. 9 Here, there is no ethical constraint, but a statute mandates\nsomething functionally equivalent to a recusal, as a result of which someone else must perform the NCTC Director\xe2\x80\x99s duties.\nAccordingly, when the NCTC Director became the Acting DNI, the\nVacancies Reform Act permitted the designation of someone else as\nActing NCTC Director. The President could have selected anyone who\nwas eligible under section 3345(a)(2) or the expanded form of section\n3345(a)(3) that applies to most ODNI offices under 50 U.S.C. \xc2\xa7 3025(e).\nInstead, the President allowed the default under the Vacancies Reform\nAct to take effect. Russell Travers, the incumbent Deputy Director of the\nNational Counterterrorism Center, who was the first assistant to the\nNCTC Director, became the Acting NCTC Director\xe2\x80\x94just as he had in the\nperiod before Mr. Maguire was appointed as NCTC Director. See ODNI,\nActing Director, National Counterterrorism Center, www.dni.gov/index.\nphp/nctc-who-we-are/deputy-director-nctc (last visited Nov. 15, 2019).\nWhen Mr. Maguire ceases to serve as Acting DNI, he will be able to\nresume his duties as the NCTC Director (the position he still encumbers\nand for which he is being paid), at which time Mr. Travers will cease to\nbe the Acting NCTC Director.\nIV.\nFor the reasons set forth above, we concluded that, in designating an\nActing DNI, the President could choose anyone who is eligible under the\nVacancies Reform Act. See 5 U.S.C. \xc2\xa7 3345(a)(2), (3). The President\ncould therefore select the Senate-confirmed NCTC Director, who may\nserve as Acting DNI subject to the time limits of the Vacancies Reform\nAct. See id. \xc2\xa7 3346. The President could in turn invoke the Vacancies\nReform Act to authorize someone to serve as Acting NCTC Director\nbecause, while serving as Acting DNI, the NCTC Director is rendered\n9 See, e.g., In re Grand Jury Investigation, 916 F.3d 1047, 1056 (D.C. Cir. 2019) (concluding that the Deputy Attorney General had become \xe2\x80\x9cthe Acting Attorney General\xe2\x80\x9d\nunder 28 U.S.C. \xc2\xa7 508(a) when \xe2\x80\x9cthe Attorney General\xe2\x80\x99s single-issue recusal . . . created a\nvacancy that the Deputy Attorney General was eligible to fill\xe2\x80\x9d); Muffley ex rel. NLRB v.\nSpartan Mining Co., 570 F.3d 534, 539 & n.1 (4th Cir. 2009) (affirming district court\xe2\x80\x99s\nconclusion that, when the General Counsel was recused from a case, a Deputy General\nCounsel properly carried out the General Counsel\xe2\x80\x99s functions under 5 U.S.C. \xc2\xa7 3345(a)(1)).\n\n16\n\n\x0cDesignating an Acting DNI\n\n\xe2\x80\x9cunable to perform the functions and duties of \xe2\x80\x9d NCTC Director. Id.\n\xc2\xa7 3345(a); see 50 U.S.C. \xc2\xa7 3056(b)(2). Here, in the absence of an alternative presidential designation, the NCTC Director\xe2\x80\x99s first assistant would\nautomatically serve in that role. See 5 U.S.C. \xc2\xa7 3345(a)(1).\nCURTIS E. GANNON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n17\n\n\x0c'


b"Constitutionality of Committee Approval Provision in\nDepartment of Housing and Urban Development\nAppropriations Act\nProvision for prior congressional com m ittee approval of an executive officer's exercise of statutory\nauthority is an unconstitutional legislative veto, and is of no legally binding effect. Accordingly,\nsuch a provision in the D epartm ent of H ousing and Urban Developm ent (HUD) appropriations act\ncannot operate to prohibit the Secretary o f HUD from undertaking certain otherw ise authorized\nactions in connection with a planned departm ental reorganization.\n\nOctober 27, 1982\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nDEPARTMENT OF HOUSING AND URBAN DEVELOPMENT\nThis responds to your request for our opinion regarding the legal effect of a\nprovision in the Housing and Urban Development-Independent Agencies Appro\xc2\xad\npriations Act, 1983, Pub. L. No. 97-272, 96 Stat. 1160, 1164 (1982), (HUD\nappropriations bill), which purports to require that no appropriated funds be used\nprior to January 1,1983, \xe2\x80\x9c to plan, design, implement or administer any reorgan\xc2\xad\nization of the Department without the prior approval of the Committees on\nAppropriations.\xe2\x80\x9d\nFor reasons set forth in detail below, we believe that this so-called \xe2\x80\x9c committee\napproval\xe2\x80\x9d provision is unconstitutional, and therefore has no legal effect. Be\xc2\xad\ncause it is attached to the general HUD appropriations bill and not to specific\nauthority conferred on the Secretary, we do not believe that its unconstitutionality\nprevents the Secretary from exercising the substantive powers which this com\xc2\xad\nmittee approval device was apparently intended to control. As several Presidents\nhave stated in similar circumstances, such provisos in general appropriations\nlegislation, because they are unconstitutional, are not to be regarded as control\xc2\xad\nling the actions of executive agencies. We will set forth the constitutional analysis\nthat leads us to this result in part I. In part II, we will apply this analysis to the two\nparticular questions you raised in your October 19 letter.\nI. Constitutional Principles\nThe Executive Branch long has taken the position that \xe2\x80\x9c committee approval\xe2\x80\x9d\nprovisions such as contained in your agency\xe2\x80\x99s appropriations legislation are\nunconstitutional. See, e .g ., 37 Op. Att\xe2\x80\x99yGen. 56 (1933); 41 Op. Att\xe2\x80\x99y Gen. 230\n(1955); 41 Op. Att\xe2\x80\x99y Gen. 300 (1957). Based upon these historic assertions of\n591\n\n\x0cunconstitutionality, Presidents Eisenhower and Johnson, in signing into law bills\ncontaining such provisions, explicitly instructed their subordinates to disregard\nthem. See Pub. Papers cf D wight D . Eisenhower 688-89 (1955); Pub. Papers cf\nLyndon B. Johnson 104-105 (1963-1964).\nThe reasoning underlying this long-held view is the same as that underlying\nthe Executive Branch\xe2\x80\x99s position in pending litigation before the Supreme Court,\nwhich has been accepted unanimously by the full Court of Appeals for the\nDistrict of Columbia Circuit and by the Court of Appeals for the Ninth Circuit.\nSee Consumer Energy Council c f America v. Federal Energy Regulatory Com \xc2\xad\nmission; 673 F.2d 425 (D.C. Cir. 1982), pending before the Supreme Court as\nNos. 81-2008, 81-2020, 81-2151, 81-2171 and 82-209; Consumers Union of\nthe United States v. Federal Trade Commission, 691 F.2d 575 (D.C. Cir. 1982)\n(en banc); Immigration and Naturalization Service v. Chadha, 634 F.2d 408 (9th\nCir. 1980), pending before the Supreme Court as Nos. 80-1832, 80-2170 and\n80-2171.* Congress may not by a resolution of one or two Houses of Congress\nor, in this case, one or more of its committees, impose new legal responsibilities\nor limitations on the Executive Branch unless the resolution is first adopted by\nboth Houses of Congress and presented to the President for approval or veto. See\nArt. I, \xc2\xa7 7, els. 2 & 3. Furthermore, committees of Congress may not, by the\napproval resolution mechanism contemplated by the HUD appropriations statute,\ncontrol the execution of the laws by an executive agency, because such control, if\naccomplished other than by plenary legislation, violates the principle of separa\xc2\xad\ntion of powers. Under that principle, it is for Congress to legislate, and for the\nExecutive to execute the laws.\nIt would be no response to suggest that appropriations acts are in some ways\ndistinguishable from other acts and thus should be treated differently for pur\xc2\xad\nposes of constitutional analysis. As Attorney General William D. Mitchell wrote\nin 1933:\nCongress holds the purse strings, and it may grant or withhold\nappropriations as it chooses, and when making an appropriation\nmay direct the purposes to which the appropriation shall be\ndevoted and impose conditions in respect to its use, provided\nalways that the conditions do not require operation of the Govern\xc2\xad\nment in a way forbidden by the Constitution. Congress may not,\nby conditions attached to appropriations, provide fo r a discharge\nc f the functions of Government in a manner not authorized by the\nConstitution. If such a practice were permissible, Congress could\n\nsubvert the Constitution. It might make appropriations on con\xc2\xad\ndition that the executive department abrogate its functions.\n37 Op. Att\xe2\x80\x99y Gen. at 61 (emphasis added).\n*\nN o te : The Supreme C ourt's opinion in Chadha, affirming the Ninth Circuit, can be found at 462 U.S. 919\n(1983). See also the Supreme C ourt\xe2\x80\x99s affirmance of the D.C Circuit in Process Gas Consumers Group v Consumer\nEnergy Council o f Am erica, 463 U S. 1215 (1983). Ed\n\n592\n\n\x0cSee also United States v. Lovett, 328 U.S. 303 (1946) (establishing the principle\n\nthat exercises of Congress\xe2\x80\x99 spending power must be scrutinized in terms of other\napplicable constitutional requirements); Buckley v. Valeo, 424 U.S. 1, 132\n(1976) (stating that Congress may not exercise its powers \xe2\x80\x9c in such a manner as to\noffend . . . constitutional restrictions stemming from the separation of powers\xe2\x80\x9d ).\nII. Particular Issues\nYou have asked not only for our general views on this \xe2\x80\x9c committee approval\xe2\x80\x9d\nprovision\xe2\x80\x94 which, as we have stated, is in our view unconstitutional and of no\nlegally binding effect\xe2\x80\x94 but also for our response to two particular questions, as\nfollows.\n(1) First, you note that 42 U.S.C. \xc2\xa7 3535(p) provides that a plan for reorgani\xc2\xad\nzation of any regional or field office of the Department may take effect only upon\nthe expiration of 90 days after publication in the Federal Register of a cost-benefit\nanalysis of the plan\xe2\x80\x99s effects. You state that such an analysis has been prepared\nwith respect to certain planned reorganization measures. You also state that\npublication of the cost-benefit analysis in the Federal Register has been deferred\nin deference to the wishes of the chairman of the pertinent subcommittee of the\nHouse Committee on Appropriations. You ask whether the cost-benefit analysis\nmay be published in the Federal Register before January 1, 1983, in view of the\nlimiting language of the \xe2\x80\x9c committee approval\xe2\x80\x9d provision quoted at the outset of\nthis memorandum.\nWe will assume arguendo that the \xe2\x80\x9c committee approval\xe2\x80\x9d provision\xe2\x80\x99s ban on\nspending funds prior to January 1, 1983, to \xe2\x80\x9c plan\xe2\x80\x9d a reorganization would\ncomprehend the publication of a cost-benefit analysis for purposes of 42 U.S.C.\n\xc2\xa7 3535(p). Even so, we do not believe that the \xe2\x80\x9c committee approval\xe2\x80\x9d provision\nhas legal force in this context because of the provision\xe2\x80\x99s constitutional infirmities\nas discussed above. In our view, the provision cannot operate to prohibit publica\xc2\xad\ntion of the cost-benefit analysis prior to January 1, 1983.'\n(2) Second, you state that a limited reduction-in-force (RIF) at the Depart\xc2\xad\nment\xe2\x80\x99s central headquarters has been instituted. You state that although there is\ndoubt that a RIF is a \xe2\x80\x9c reorganization\xe2\x80\x9d as that term is generally understood, there\nis some legislative history that could be interpreted to suggest that this RIF would\nbe subject to the \xe2\x80\x9c committee approval\xe2\x80\x9d provision in your Department\xe2\x80\x99s appro\xc2\xad\npriation statute.2 For present purposes, you have assumed that a RIF would be\ncovered by the plain terms of the \xe2\x80\x9c committee approval\xe2\x80\x9d provision, and on that\nbasis you have asked whether that provision would prohibit the RIF absent\ncommittee approval.\nOnce again, for the same reasons laid out above, we conclude that the\n\xe2\x80\x9ccommittee approval\xe2\x80\x9d provision does not have legally binding effect, and that it\n1 At the same time, we do not believe that the unconstitutionahty of the \xe2\x80\x9c committee approval\xe2\x80\x9d provision would\naffect the legally binding nature of the requirements set forth in 42 U S C \xc2\xa7 3535(p), which, as you have\nrecognized, must be followed before a reorganization covered by that section takes effect.\n2 See H.R. Rep. No. 720. 97th Cong., 2d Sess. 10 (1982)\n\n593\n\n\x0ccannot prevent the Secretary from undertaking action otherwise authorized by\napplicable statutes.\nT\n\nheodore\n\nB. O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n594\n\n\x0c"