b'(Slip Opinion)\n\nDesignating an Acting Director of the\nBureau of Consumer Financial Protection\nThe statute providing that the Deputy Director of the Bureau of Consumer Financial\nProtection shall \xe2\x80\x9cserve as acting Director in the absence or unavailability of the Director\xe2\x80\x9d authorizes the Deputy Director to serve as the Acting Director when the position\nof Director is vacant.\nBoth the Federal Vacancies Reform Act of 1998 and the statute specific to the office of\nDirector are available to fill a vacancy in the office of Director on an acting basis; the\noffice-specific statute does not displace the President\xe2\x80\x99s authority to designate an acting\nofficer under 5 U.S.C. \xc2\xa7 3345(a)(2) or (3).\nNovember 25, 2017\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether the President may designate an Acting Director of the Bureau of Consumer Financial Protection (\xe2\x80\x9cCFPB\xe2\x80\x9d) upon the\nresignation of the Director. This opinion confirms the oral advice that we\ngave you before the Director\xe2\x80\x99s resignation took effect at the end of November 24, 2017. See Letter for the President, from Richard Cordray,\nDirector, CFPB (Nov. 24, 2017) (communicating resignation).\nThe CFPB Director is an office filled by presidential appointment, by\nand with the advice and consent of the Senate. 12 U.S.C. \xc2\xa7 5491(b)(2).\nThe Federal Vacancies Reform Act of 1998, 5 U.S.C. \xc2\xa7\xc2\xa7 3345\xe2\x80\x933349d,\nprovides the President with authority \xe2\x80\x9cfor temporarily authorizing an\nacting official to perform the functions and duties\xe2\x80\x9d of an officer of an\n\xe2\x80\x9cExecutive agency\xe2\x80\x9d whose appointment \xe2\x80\x9cis required to be made by the\nPresident, by and with the advice and consent of the Senate,\xe2\x80\x9d and it is the\n\xe2\x80\x9cexclusive means\xe2\x80\x9d for authorizing acting service \xe2\x80\x9cunless\xe2\x80\x9d another statute\nexpressly designates an officer to serve in an acting capacity or provides\nan alternative means for a designation as an acting officer. 5 U.S.C.\n\xc2\xa7 3347(a).\nThe CFPB has such a statute. Specifically, 12 U.S.C. \xc2\xa7 5491(b)(5) provides that the CFPB\xe2\x80\x99s Deputy Director shall \xe2\x80\x9cserve as acting Director in\nthe absence or unavailability of the Director.\xe2\x80\x9d While the statute is unusual\nin failing expressly to reference temporary service in the case of a vacancy in the office, we believe that the resignation of the Director would\nsatisfy the requirement of \xe2\x80\x9cabsence or unavailability.\xe2\x80\x9d Therefore, the\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nstatute would permit a properly appointed Deputy Director to serve as the\nActing Director during a vacancy. 1\nThe fact that the Deputy Director may serve as Acting Director by operation of the statute, however, does not displace the President\xe2\x80\x99s authority\nunder the Vacancies Reform Act. As we have advised in our prior opinions, even when the Vacancies Reform Act is not the \xe2\x80\x9cexclusive\xe2\x80\x9d means\nfor filling a vacancy, the statute remains an available option, and the\nPresident may rely upon it in designating an acting official in a manner\nthat differs from the order of succession otherwise provided by an officespecific statute. This interpretation of the Vacancies Reform Act is in\naccord with the only federal court of appeals to address the issue. See\nHooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 555\xe2\x80\x9356 (9th\nCir. 2016). The President therefore may designate an Acting Director of\nthe CFPB under the Vacancies Reform Act. See 5 U.S.C. \xc2\xa7 3345(a)(2),\n(3).\nI.\nBecause the Vacancies Reform Act specifies that it constitutes the \xe2\x80\x9cexclusive means\xe2\x80\x9d for temporarily authorizing an acting official absent\nanother statutory provision, 5 U.S.C. \xc2\xa7 3347(a), we first consider whether\n12 U.S.C. \xc2\xa7 5491(b)(5) authorizes the Deputy Director to serve as the\nCFPB\xe2\x80\x99s Acting Director when the Director has resigned his office.\nSection 5491(b)(5) refers to the \xe2\x80\x9cabsence or unavailability of the Director,\xe2\x80\x9d but does not expressly state that it applies when the office is vacant.\nThis phrasing is unusual. The Report of the Senate Committee on Gov1\n\nWe understand that the CFPB had not had a Deputy Director since August 2015, and\nso, for over two years, the CFPB functioned with an Acting Deputy Director. On November 24, 2017, the CFPB Director\xe2\x80\x99s last day in office, he stated that he had appointed a\nDeputy Director in order to take advantage of the succession provision of 12 U.S.C.\n\xc2\xa7 5491(b)(5) upon his resignation. Because we have no other details about this appointment, we express no view about its validity. Even if the Deputy Director were properly\nappointed, she did not become Acting Director; the President designated the Director of\nthe Office of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d) to perform the functions and duties of\nthe Director of the CFPB, effective upon the CFPB Director\xe2\x80\x99s resignation. As someone\nwho already \xe2\x80\x9cserves in an office for which appointment is required to be made by the\nPresident, by and with the advice and consent of the Senate,\xe2\x80\x9d the Director of OMB is\namong the persons the President could select under 5 U.S.C. \xc2\xa7 3345(a)(2) to \xe2\x80\x9cperform the\nfunctions and duties of the vacant office temporarily in an acting capacity.\xe2\x80\x9d\n\n2\n\n\x0cDesignating an Acting Director of the CFPB\n\nernmental Affairs on the Vacancies Reform Act identified forty officespecific statutes that the committee believed would continue to provide\nalternative mechanisms for acting service. S. Rep. No. 105-250, at 16\xe2\x80\x9317\n(1998). Each of these statutes refers to either a vacancy or a resignation.\nWe have, for instance, construed the succession provisions of the Department of Justice and the Office of the Management and Budget. See Authority of the President to Name an Acting Attorney General, 31 Op.\nO.L.C. 208 (2007) (\xe2\x80\x9cActing Attorney General\xe2\x80\x9d); Acting Director of the\nOffice of Management and Budget, 27 Op. O.L.C. 121, 121 n.1 (2003)\n(\xe2\x80\x9cActing Director of OMB\xe2\x80\x9d). The Department of Justice\xe2\x80\x99s statute speaks\nof service as Acting Attorney General by \xe2\x80\x9creason of absence, disability, or\nvacancy\xe2\x80\x9d in the offices of the Attorney General and the Deputy Attorney\nGeneral. 28 U.S.C. \xc2\xa7 508(b) (emphasis added). Similarly, the Office of\nManagement and Budget\xe2\x80\x99s succession statute speaks of the Director\xe2\x80\x99s\nbeing \xe2\x80\x9cabsent or unable to serve or when the office of the Director is\nvacant.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 502(b)(2) (emphasis added). Accordingly, it could\nbe argued that section 5491(b)(5) applies only in cases of the Director\xe2\x80\x99s\ntransient \xe2\x80\x9cabsence or unavailability,\xe2\x80\x9d and does not apply in the case of a\nvacancy or a resignation.\nThis Office distinguished between an \xe2\x80\x9cabsence\xe2\x80\x9d and a \xe2\x80\x9cvacancy\xe2\x80\x9d when\nconsidering whether the Vice Chairman of the Federal Reserve Board\nwould automatically assume the duties of the Chairman upon the expiration of his term. Status of the Vice Chairman of the Federal Reserve\nBoard, 2 Op. O.L.C. 394, 395 (1978). There, the statute provided that the\nVice Chairman would preside at meetings of the Federal Reserve Board in\nthe Chairman\xe2\x80\x99s \xe2\x80\x9cabsence,\xe2\x80\x9d but was otherwise silent on succession following the end of the Chairman\xe2\x80\x99s term. We advised that \xe2\x80\x9c[t]he term \xe2\x80\x98absence\xe2\x80\x99\nnormally connotes a failure to be present that is temporary in contradistinction to the term \xe2\x80\x98vacancy\xe2\x80\x99 caused, for example, by death of the\nincumbent or his resignation.\xe2\x80\x9d Id. Accordingly, the Vice Chairman\xe2\x80\x99s\nauthority to preside in the \xe2\x80\x9cabsence\xe2\x80\x9d of the Chairman did not mean that he\nwould automatically assume the duties of the chairmanship upon a vacancy. Rather, we determined that the President would need to designate an\nacting Chairman. Id. at 396. If section 5491(b)(5) were limited to service\nwhen the Director is \xe2\x80\x9cabsent,\xe2\x80\x9d we might similarly conclude that the CFPB\nstatutory provision would not apply in the case of a \xe2\x80\x9cvacancy\xe2\x80\x9d in the\noffice of the Director.\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nSection 5491(b)(5), however, speaks not only of the Director\xe2\x80\x99s \xe2\x80\x9cabsence,\xe2\x80\x9d but also of his \xe2\x80\x9cunavailability.\xe2\x80\x9d While the question is not free\nfrom doubt, we believe that the provision\xe2\x80\x99s reference to \xe2\x80\x9cunavailability\xe2\x80\x9d is\nbest read to refer both to a temporary unavailability (such as the Director\xe2\x80\x99s recusal from a particular matter) and to the Director\xe2\x80\x99s being unavailable because of a resignation or other vacancy in office. See Acting\nAttorney General, 31 Op. O.L.C. at 209 n.1 (referring to officials who\n\xe2\x80\x9chave died, resigned, or otherwise become unavailable\xe2\x80\x9d) (emphasis added); Designation of Acting Solicitor of Labor, 26 Op. O.L.C. 211, 214\n(2002) (describing provisions of the Vacancies Reform Act as contemplating \xe2\x80\x9cthat a \xe2\x80\x98vacancy\xe2\x80\x99 occurs when the occupant dies or resigns or is\notherwise unavailable\xe2\x80\x9d) (emphasis added). Cf. TCF Film Corp. v. Gourley, 240 F.2d 711, 714 (3d Cir. 1957) (observing, for purposes of law-ofthe-case doctrine, that a judge who \xe2\x80\x9cdies or resigns from the court . . .\nobviously is no longer available\xe2\x80\x9d) (footnote omitted). This broader reading of \xe2\x80\x9cunavailability\xe2\x80\x9d is consistent with how this Office has interpreted\nthe Vacancies Reform Act\xe2\x80\x99s reference to when an officer \xe2\x80\x9cdies, resigns, or\nis otherwise unable to perform the functions and duties of the office.\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 3345(a). In our view, an officer is \xe2\x80\x9cunable to perform the\nfunctions and duties of the office\xe2\x80\x9d during both short periods of unavailability, such as a period of sickness, and potentially longer ones, such as\none resulting from the officer\xe2\x80\x99s removal (which would arguably not be\ncovered by the reference to \xe2\x80\x9cresign[ation]\xe2\x80\x9d). See Guidance on Application\nof Federal Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 61 (1999)\n(\xe2\x80\x9cIn floor debate, Senators said, by way of example, that an officer would\nbe \xe2\x80\x98otherwise unable to perform the functions and duties of the office\xe2\x80\x99 if\nhe or she were fired, imprisoned, or sick.\xe2\x80\x9d) (citing statements by Senators\nThompson and Byrd). We think that \xe2\x80\x9cunavailability\xe2\x80\x9d should be similarly\nconstrued, and thus that 12 U.S.C. \xc2\xa7 5491(b)(5) would authorize a properly appointed Deputy Director of the CFPB to serve as its Acting Director during a true vacancy in the Director position.\nII.\nWe next consider whether 12 U.S.C. \xc2\xa7 5491(b)(5), by authorizing the\nCFPB\xe2\x80\x99s Deputy Director to serve as its Acting Director, eliminates the\nPresident\xe2\x80\x99s authority under the Vacancies Reform Act to fill a vacancy in\nthe Director position on an acting basis. We have addressed this question\n4\n\n\x0cDesignating an Acting Director of the CFPB\n\nbefore in connection with similar statutes, and our answer is straightforward. The Vacancies Reform Act is not the \xe2\x80\x9cexclusive means\xe2\x80\x9d for the\ntemporary designation of an Acting Director, but it remains available to\nthe President as one means for filling a vacancy in the Director position.\nThe Vacancies Reform Act expressly addresses how it interacts with\nstatutes that deal with who shall act when specific offices are vacant. It\nprovides that its mechanisms for designating an acting officer (5 U.S.C.\n\xc2\xa7 3345) and the accompanying time limitations (id. \xc2\xa7 3346) are\nthe exclusive means for temporarily authorizing an acting official\nto perform the functions and duties of any office of an Executive\nagency . . . for which appointment is required to be made by the\nPresident, by and with the advice and consent of the Senate, unless\xe2\x80\x94\n(1) a statutory provision expressly\xe2\x80\x94\n(A) authorizes the President, a court, or the head of an Executive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily\nin an acting capacity; or\n(B) designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting\ncapacity; or\n(2) the President makes an appointment to fill a vacancy in such\noffice during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution.\nId. \xc2\xa7 3347(a); see also 12 U.S.C. \xc2\xa7 5491(a) (specifying that the CFPB\n\xe2\x80\x9cshall be considered an Executive agency\xe2\x80\x9d).\nBy its terms, section 3347(a) provides that the Vacancies Reform Act\nshall be the \xe2\x80\x9cexclusive means\xe2\x80\x9d of filling vacancies on an acting basis\nunless another statute \xe2\x80\x9cexpressly\xe2\x80\x9d provides a mechanism for acting service. It does not follow, however, that when another statute applies, the\nVacancies Reform Act ceases to be available. To the contrary, in calling\nthe Vacancies Reform Act the \xe2\x80\x9cexclusive means\xe2\x80\x9d for designations \xe2\x80\x9cunless\xe2\x80\x9d there is another applicable statute, Congress has recognized that\nthere will be cases where the Vacancies Reform Act is non-exclusive, i.e.,\none available option, together with the office-specific statute. If Congress\nhad intended to make the Vacancies Reform Act unavailable whenever\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nanother statute provided an alternative mechanism for acting service, then\nit would have said so. It would not have provided that the Vacancies\nReform Act ceases to be the \xe2\x80\x9cexclusive means\xe2\x80\x9d when another statute\napplies.\nThis Office has consistently adhered to this reading of section 3347.\nIn 2007, we concluded that the President has the authority to designate an\nActing Attorney General under the Vacancies Reform Act, even though a\nseparate statute specific to the position of Attorney General, 28 U.S.C.\n\xc2\xa7 508, also provides a mechanism by which other designated officials in\nthe Department of Justice may \xe2\x80\x9cact as Attorney General\xe2\x80\x9d during the\n\xe2\x80\x9cvacancy,\xe2\x80\x9d \xe2\x80\x9cabsence,\xe2\x80\x9d or \xe2\x80\x9cdisability\xe2\x80\x9d of the Attorney General. Acting\nAttorney General, 31 Op. O.L.C. at 209\xe2\x80\x9311. We observed that \xe2\x80\x9c[t]he\nVacancies Reform Act nowhere says that, if another statute [for naming\nan acting officer] remains in effect, the Vacancies Reform Act may not be\nused.\xe2\x80\x9d Id. at 209. We reached the same conclusion in 2003, when we\nexamined the availability of the Vacancies Reform Act in light of a separate statute that identified several officers who could be designated as\nActing Director of the Office of Management and Budget in the event of a\nvacancy in that office. Notwithstanding that office-specific alternative\nmechanism, we concluded that \xe2\x80\x9cthe Vacancies Reform Act may still be\nused.\xe2\x80\x9d Acting Director of OMB, 27 Op. O.L.C. at 121 n.1.\nA federal court of appeals adopted the same reading of section 3347.\nIn Hooks, an employer challenged the service of an individual designated\nunder the Vacancies Reform Act as Acting General Counsel of the National Labor Relations Board. 816 F.3d at 554. The employer argued,\namong other things, that the Vacancies Reform Act was not available\nbecause a provision of the National Labor Relations Act specifically\nprovided for the temporary designation of an Acting General Counsel. Id.\nat 555\xe2\x80\x9356. The Ninth Circuit rejected that contention, concluding that,\nunder section 3347, \xe2\x80\x9cneither the [Vacancies Reform Act] nor the [National Labor Relations Act] is the exclusive means of appointing an Acting General Counsel\xe2\x80\x9d and that \xe2\x80\x9cthe President is permitted to elect between\nthese two statutory alternatives to designate an Acting General Counsel.\xe2\x80\x9d\nId. at 556.\nOur past opinions have recognized that the legislative history confirms\nthis reading of the Vacancies Reform Act. Acting Attorney General, 31\nOp. O.L.C. at 209; Acting Director of OMB, 27 Op. O.L.C. at 121 n.1.\n6\n\n\x0cDesignating an Acting Director of the CFPB\n\nDiscussing an earlier draft of the bill, the Senate committee noted that,\n\xe2\x80\x9cwith respect to the specific positions in which temporary officers may\nserve under the specific statutes this bill retains, the Vacancies [Reform]\nAct would continue to provide an alternative procedure for temporarily\noccupying the office.\xe2\x80\x9d S. Rep. No. 105-250, at 17. The enacted version of\nthe statute differs from the version discussed in the Senate Report, but it\ndoes so in ways that reinforce the conclusion that both the Vacancies\nReform Act and an office-specific statute are available to fill a vacancy on\nan acting basis. The earlier version of section 3347 discussed in the Senate Report would have provided that \xe2\x80\x9c[s]ections 3345 and 3346 are applicable\xe2\x80\x9d to offices to be filled by appointment of the President, by and with\nthe advice and consent of the Senate, \xe2\x80\x9cunless\xe2\x80\x94(1) another statutory\nprovision expressly provides that . . . such provision supersedes sections\n3345 and 3346; [or] (2) a statutory provision in effect on the date of\nenactment of the Federal Vacancies Reform Act of 1998 expressly\xe2\x80\x9d designates or authorizes the designation of an acting officer. Id. at 26. That\nphrasing could well have been susceptible to a reading that the Vacancies\nReform Act would cease to apply when another statute provided a mechanism for filling a vacancy, notwithstanding the committee\xe2\x80\x99s explanation\nto the contrary. But the enacted version of section 3347(a) has removed\nall doubt, both by striking the language contemplating that another provision might expressly supersede the Vacancies Reform Act and by adopting the formulation that the latter is to be \xe2\x80\x9cexclusive\xe2\x80\x9d when no other\nstatute is available. 2\nThe CFPB-specific statute does state that the Deputy Director \xe2\x80\x9cshall\xe2\x80\x9d\nserve as Acting Director where the Director is unavailable. 12 U.S.C.\n\xc2\xa7 5491(b)(5). However, the Vacancies Reform Act itself, like the CFPBspecific statute, similarly uses mandatory terms, providing that the first\nassistant to a vacant office \xe2\x80\x9cshall perform the functions and duties\xe2\x80\x9d of that\noffice unless the President invokes his authority under the statute to direct\nanother official to do so. 5 U.S.C. \xc2\xa7 3345(a)(1). Accordingly, we cannot\nview either statute as more mandatory than the other. Rather, they should\nbe construed in parallel. Furthermore, the Senate Report lists forty office-\n\n2\n\nThe enacted version also removed the requirement that a statutory provision be in\neffect on the date of the Vacancies Reform Act\xe2\x80\x99s enactment in order to be available for\nfilling a vacancy. As a result, the fact that section 5491(b)(5) was enacted after 1998 does\nnot affect our analysis.\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nspecific statutes to which the Vacancies Reform Act is an alternative, see\nS. Rep. No. 105-250, at 16\xe2\x80\x9317, and a number of those statutes similarly\nemploy mandatory language that, like the CFPB-specific statute, provides\nthat the first assistant to the vacant office \xe2\x80\x9cshall\xe2\x80\x9d serve in an acting capacity. 3 Nevertheless, Congress plainly intended in those cases that the President could invoke the Vacancies Reform Act as \xe2\x80\x9can alternative procedure\xe2\x80\x9d and depart from the statutory order of succession. S. Rep. No. 105250, at 17.\nThe canon of statutory interpretation that \xe2\x80\x9c[a] specific provision controls one of more general application,\xe2\x80\x9d Gozlon-Peretz v. United States,\n498 U.S. 395, 407 (1991), does not prevent the Vacancies Reform Act\nfrom being available here. While the CFPB-specific statute arguably is\nmore specific than the Vacancies Reform Act in the sense that it applies\nonly to the position of Director, the same is true with all of the officespecific statutes retained by section 3347(a). Yet in the text and the legislative history, Congress expressly recognized that both the Vacancies\nReform Act and office-specific statutes would be available as separate\nmeans of temporarily authorizing individuals to serve in an acting capacity. In view of executive practice before the CFPB statute was enacted,\nas reflected in Acting Attorney General and Acting Director of OMB, and\nin the absence of some clearer statement in the CFPB\xe2\x80\x99s statute altering the\napplicability of the Vacancies Reform Act, there is no reason to conclude\nthat Congress expected 12 U.S.C. \xc2\xa7 5491(b)(5) to operate any differently\nthan any of the other office-specific statutes.\nThe CFPB-specific statute providing that the Deputy Director \xe2\x80\x9cshall . . .\nserve as acting Director in the absence or unavailability of the Director,\xe2\x80\x9d\n\n3\n\nSee, e.g., 15 U.S.C. \xc2\xa7 633(b)(1) (\xe2\x80\x9cThe Deputy Administrator shall be Acting Administrator of the [Small Business] Administration during the absence or disability of the\nAdministrator or in the event of a vacancy in the office of Administrator.\xe2\x80\x9d); 20 U.S.C.\n\xc2\xa7 3412(a)(1) (\xe2\x80\x9cDuring the absence or disability of the Secretary [of Education], or in the\nevent of a vacancy in the office of the Secretary, the Deputy Secretary shall act as Secretary.\xe2\x80\x9d); 29 U.S.C. \xc2\xa7 552 (\xe2\x80\x9cThe Deputy Secretary [of Labor] shall (1) in case of the death,\nresignation, or removal from office of the Secretary, perform the duties of the Secretary\nuntil a successor is appointed[.]\xe2\x80\x9d); 31 U.S.C. \xc2\xa7 301(c) (\xe2\x80\x9cThe Deputy Secretary [of the Treasury] shall carry out . . . (2) the duties and powers of the Secretary when the Secretary is\nabsent or unable to serve or when the office of Secretary is vacant.\xe2\x80\x9d); 44 U.S.C. \xc2\xa7 2103(c)\n(\xe2\x80\x9cIn the event of a vacancy in the office of the Archivist, the Deputy Archivist shall act\nas Archivist until an Archivist is appointed[.]\xe2\x80\x9d).\n\n8\n\n\x0cDesignating an Acting Director of the CFPB\n\n12 U.S.C. \xc2\xa7 5491(b)(5), satisfies section 3347(a)\xe2\x80\x99s reference to \xe2\x80\x9ca statutory provision\xe2\x80\x9d that \xe2\x80\x9cexpressly . . . designates an officer or employee to\nperform the functions and duties of a specified office temporarily in an\nacting capacity.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3347(a)(1)(B). It therefore should interact\nwith the Vacancies Reform Act in the same way as other, similar statutes\nproviding an office-specific mechanism for an individual to act in a vacant position. See Acting Attorney General, 31 Op. O.L.C. at 209\xe2\x80\x9311;\nActing Director of OMB, 27 Op. O.L.C. at 121 n.1. Both the Vacancies\nReform Act and section 5491(b)(5) are available for filling on an acting\nbasis a vacancy that results from the resignation of the CFPB\xe2\x80\x99s Director.\nAnd, as with other office-specific statutes, when the President designates\nan individual under the Vacancies Reform Act outside the ordinary order\nof succession, the President\xe2\x80\x99s designation necessarily controls. Otherwise,\nthe Vacancies Reform Act would not remain available as an actual alternative in instances where the office-specific statute identifies an order of\nsuccession, contrary to Congress\xe2\x80\x99s stated intent.\nIII.\nNothing about the CFPB\xe2\x80\x99s statutory structure changes our analysis.\nCongress has characterized the CFPB as \xe2\x80\x9cindependent,\xe2\x80\x9d 12 U.S.C.\n\xc2\xa7 5491(a), and has purported to make the Director removable only \xe2\x80\x9cfor\ninefficiency, neglect of duty, or malfeasance in office,\xe2\x80\x9d id. \xc2\xa7 5491(c)(3). 4\nBut those indications of independence do not prevent the President from\nusing the Vacancies Reform Act, because Congress has specified that the\nCFPB \xe2\x80\x9cshall be considered an Executive agency,\xe2\x80\x9d id. \xc2\xa7 5491(a), which\nbrings it within section 3347(a), and because the CFPB\xe2\x80\x99s Director does\nnot fall within the category of officers whom Congress has excluded from\ncoverage under the Vacancies Reform Act.\n4 In pending litigation, the Department of Justice is contending that Congress may not\nimpose a for-cause restriction on the President\xe2\x80\x99s power to remove the CFPB\xe2\x80\x99s Director,\nbecause he is a single-member head of an agency. See Brief for the United States as\nAmicus Curiae, PHH Corp. v. Consumer Fin. Prot. Bureau, No. 15-1177 (D.C. Cir. Mar.\n17, 2017). That conclusion is consistent with the panel\xe2\x80\x99s decision in PHH Corp. v.\nConsumer Fin. Prot. Bureau, 839 F.3d 1 (D.C. Cir. 2016), judgment vacated upon grant\nof reh\xe2\x80\x99g en banc (Feb. 16, 2017), as well as with earlier advice from this Office, as\nreflected in, for instance, a 1994 signing statement of President Clinton. See Statement\non Signing the Social Security Independence and Program Improvement Act of 1994\n(Aug. 15, 1994), 2 Pub. Papers of Pres. William J. Clinton 1471, 1472 (1994).\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nIn 5 U.S.C. \xc2\xa7 3349c, Congress specified that the Vacancies Reform Act\n\xe2\x80\x9cshall not apply\xe2\x80\x9d to the following officers:\n(1) any member who is appointed by the President, by and with\nthe advice and consent of the Senate to any board, commission, or\nsimilar entity that\xe2\x80\x94\n(A) is composed of multiple members; and\n(B) governs an independent establishment or Government corporation;\n(2) any commissioner of the Federal Energy Regulatory Commission;\n(3) any member of the Surface Transportation Board; or\n(4) any judge appointed by the President, by and with the advice\nand consent of the Senate, to a court constituted under article I of the\nUnited States Constitution.\nAs that provision illustrates, Congress has indeed determined that some\npositions with hallmarks of independence should not be filled on an acting\nbasis through the Vacancies Reform Act. But section 3349c does not\nexclude the Director of the CFPB, because the CFPB is not governed by\nany \xe2\x80\x9centity that . . . is composed of multiple members,\xe2\x80\x9d id. \xc2\xa7 3349c(1)\n(emphasis added), and the Director does not appear among the other\nspecifically enumerated positions. 5\nEven apart from the Director\xe2\x80\x99s absence from section 3349c\xe2\x80\x99s list of\ncarve-outs, the removal protections for the Director would not insulate an\nActing Director from displacement by the President under the Vacancies\nReform Act. In Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996), the court\nconsidered whether members of the Board of the National Credit Union\nAdministration, whom the court assumed to have tenure protection during\n5 The fact that the Director\xe2\x80\x99s position did not exist when the Vacancies Reform Act\nwas enacted does not change the analysis. See supra note 2. To the contrary, it reinforces\nthe proposition that Congress could have excluded the Director of the CFPB from coverage upon creating the office, but did not do so. In fact, the Senate Report on the Vacancies\nReform Act expressly noted that both the Vacancies Reform Act and an office-specific\nstatute would be available to fill a vacancy in the office of the Commissioner of the Social\nSecurity Administration, another single-member agency head with certain statutory tenure\nprotections. See S. Rep. No. 105-250, at 16\xe2\x80\x9317; see also 42 U.S.C. \xc2\xa7 902(a)(3), (b)(4).\nThus, the exclusion for an \xe2\x80\x9cindependent establishment\xe2\x80\x9d headed by a multiple-member\nentity, but not by a single member, cannot be ignored.\n\n10\n\n\x0cDesignating an Acting Director of the CFPB\n\ntheir statutory terms of office, continued to have tenure protection while\nserving in a holdover capacity following the expiration of their terms.\nId. at 983. It concluded that, \xe2\x80\x9ceven if the [relevant] statute were interpreted to grant removal protection to Board members during their appointed\nterms . . . , this protection does not extend to holdover members.\xe2\x80\x9d Id. at\n988. To the extent that a designation under the Vacancies Reform Act\nmight be regarded as comparable to a \xe2\x80\x9cremoval\xe2\x80\x9d of an Acting Director of\nthe CFPB, a similar analysis would apply. Congress does not, by purporting to give tenure protection to a Senate-confirmed officer, afford\nsimilar protection to an individual who temporarily performs the functions\nand duties of that office when it is vacant.\nNor is our conclusion affected by the drafting history of section 5491.\nThe version of that provision that passed the House of Representatives\nwould have provided that, \xe2\x80\x9c[i]n the event of vacancy or during the absence of the Director . . . an Acting Director shall be appointed in\nthe manner provided in [the Vacancies Reform Act].\xe2\x80\x9d Wall Street Reform and Consumer Protection Act of 2009, H.R. 4173, 111th Cong.\n\xc2\xa7 4102(b)(6)(B)(i) (as passed by House of Representatives, Dec. 11,\n2009). That version of the bill would not have established a position of\nDeputy Director. See id. \xc2\xa7 4106(a) (providing for the Director\xe2\x80\x99s appointment of other officials). Although the enacted version of the provision\ndealing with a vacancy in the Director position does not expressly refer\nto the Vacancies Reform Act, there is no reason to infer that Congress\ndeemed the Vacancies Reform Act inapplicable. Such an inference from\nthe failure to enact the House-passed version \xe2\x80\x9clacks persuasive significance because several equally tenable inferences may be drawn from such\ninaction, including the inference that\xe2\x80\x9d the enacted version of the provision\n\xe2\x80\x9calready incorporated the offered change.\xe2\x80\x9d Pension Benefit Guar. Corp. v.\nLTV Corp., 496 U.S. 633, 650 (1990) (internal quotation marks omitted).\nIn fact, that is the most plausible inference, given that the statutory backdrop at the time included the Vacancies Reform Act. Because the enacted\nprovision makes the Deputy Director available to act as Director, the\nVacancies Reform Act is not the \xe2\x80\x9cexclusive means\xe2\x80\x9d for designating an\nActing Director, as indicated by the text of section 3347(a) and this\nOffice\xe2\x80\x99s 2003 and 2007 opinions. Yet the Vacancies Reform Act continues to provide an available mechanism for the President to designate an\nActing Director of the CFPB.\n\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nIV.\nFor the reasons set forth above, we conclude that the President may\ndesignate an Acting Director of the CFPB under 5 U.S.C. \xc2\xa7 3345(a)(2) or\n(3), because both the Vacancies Reform Act and the office-specific statute\nare available to fill a vacancy in that office on an acting basis.\nSTEVEN A. ENGEL\nAssistant Attorney General\nOffice of Legal Counsel\n\n12\n\n\x0c'


b'Access to Classiied Imfforinmatnoini\nThis m em orandum provides an opinion on various legal questions posed by a panel appointed by\nthe Director o f Central Intelligence to m ake a recommendation on whether an official at the Depart\xc2\xad\nm ent o f State, Richard Nuccio, should be granted access to Sensitive Compartmented Information.\n\nNovember 26, 1996\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nC e n t r a l In t e l l ig e n c e A g e n c y\n\nThis memorandum responds to your request for our opinion on various legal\nquestions posed by a panel appointed by the Director of Central Intelligence to\nmake a recommendation on whether an official at the Department of State, Richard\nNuccio, should be granted access to Sensitive Compartmented Information\n(\xe2\x80\x9c SCI\xe2\x80\x9d ) . 1 The panel has stated that \xe2\x80\x9c [it is] not asking that OLC take any position\non the facts presented by Mr. Nuccio in his statement.\xe2\x80\x9d Panel Memorandum at\n1. Accordingly, we limit our role to providing our opinion on only the specific\nlegal questions presented, and make no attempt to apply our legal conclusions\nto the facts in this matter. Nor, of course, do we express any opinion on the\nultimate question of whether Mr. Nuccio should retain his SCI security clearance.\nWe have organized the legal questions posed by the panel into three categories:\n(1) the application of executive branch rules and practices on disclosure of classi\xc2\xad\nfied information to Members of Congress, in light of relevant congressional enact\xc2\xad\nments; (2) the applicability of the Whistleblower Protection Act, 5 U.S.C. \xc2\xa7 2302;\nand (3) the applicability of Executive Order 12674, 3 C.F.R. 215 (1990).\n1. D isclosure o f Classified Inform ation to M em bers o f Congress\nTwo questions posed by the panel address the relationship between, on the one\nhand, Executive Order 12356, N ational Security Information, 3 C.F.R. 166 (1983),\nwhich governs the handling of classified information in the executive branch,\nalong with the applicable nondisclosure agreement signed by individuals having\naccess to SCI information, and, on the other hand, two congressional enactments\nconcerning the rights of federal employees to provide information to Congress.2\n1 See Letter for Richard L. Shiffrin, Deputy Assistant A ttorney General, O ffice of Legal Counsel, from Michael\nJ. O \'N e il, G eneral Counsel, Central Intelligence Agency (Nov. 13, 1996), enclosing Memorandum for Michael J.\nO \'N e il from Kenneth W . Dam, John Podesta, and Terrence O \xe2\x80\x99Donnell (N ov. 12, 1996) ( \xe2\x80\x9c Panel M emorandum\xe2\x80\x9d ).\nT he Panel M emorandum attached a submission from Mr. N uccio\xe2\x80\x99s attorney setting forth various legal positions.\nSee Letter for Terrence O \xe2\x80\x99Donnell, from R onald W. K leinman (Oct. 25, 1996), enclosing Statement o f Richard\nA . N uccio Subm itted to the Review Panel in Response to Proposed W ithdrawal o f SCI Clearance (\xe2\x80\x9c Nuccio State\xc2\xad\nm ent\xe2\x80\x9d ). The Panel M emorandum set foith questions (a) through (g) for us to address, but the panel subsequently\nw ithdrew questions (d) and (g).\n\xe2\x80\x99 Q uestion (c) asks that we address \xe2\x80\x9c 5 U .S.C . \xc2\xa77211 (\xe2\x80\x98Lloyd La Follette A ct\xe2\x80\x99) including the legitimacy o f non\xc2\xad\ndisclosure agreem ents for those having access to SCI information and the issues raised in National Federation o f\nFederal Employees v. U.S., 695 F. Supp. 1196 (D.D.C. 1988).\xe2\x80\x9d Panel Memorandum at 1. Question ( 0 asks\n\n402\n\n\x0cAccess to Classified Information\n\nThe congressional enactments identified by the panel are 5 U.S.C. \xc2\xa77211 and\nthe provision of the Treasury, Postal Service and General Government Appropria\xc2\xad\ntions Act, 1997, Pub. L. No. 104-208, 110 Stat. 3009-314 (1996), relating to\nclassified information nondisclosure agreements, a version of which has been en\xc2\xad\nacted annually since 1987. Section 7211, entitled Em ployees\xe2\x80\x99 right to petition Con\xc2\xad\ngress, provides (in its entirety) that \xe2\x80\x9c [t]he right of employees, individually or\ncollectively, to petition Congress or a Member of Congress, or to furnish informa\xc2\xad\ntion to either House of Congress, or to a committee or Member thereof, may\nnot be interfered with or denied.\xe2\x80\x9d\nThe current version of the nondisclosure agreements appropriations provision\nprovides (in pertinent part) that:\nNo funds appropriated in this or any other Act for fiscal year 1997\nmay be used to implement or enforce the agreements in Standard\nForms 312 and 4355 of the Government or any other nondisclosure\npolicy, form, or agreement if such policy, form, or agreement does\nnot contain the following provisions: \xe2\x80\x9c These restrictions are con\xc2\xad\nsistent with and do not supersede, conflict with, or otherwise alter\nthe employee obligations, rights, or liabilities created by . . . sec\xc2\xad\ntion 7211 of title 5, United States Code (governing disclosures to\nCongress). . . .\xe2\x80\x9d\nTreasury, Postal Service and General Government Appropriations Act, 1997,\n\xc2\xa7 625, 110 Stat. at 3009-359.3\na. E ffect o f Congressional Enactm ents\nThe longstanding position of the executive branch concerning the relationship\nbetween, on the one hand, these congressional enactments and, on the other hand,\nExecutive Order 12356 and the classified information nondisclosure agreements\nis set forth in the brief that the Acting Solicitor General submitted to the Supreme\nCourt in 1989 in the litigation cited in question (c).4 See Brief for the Appellees,\n\xe2\x80\x9c [w]hether the annual provision o f the Treasury, Postal Service and General Government Appropriations A ct (for\nFY97, see Section 625) authorizes disclosure [of] another agency\xe2\x80\x99s classified information to a m ember of C ongress\nnotwithstanding Sections 4.1(d) o f Executive order 12356 and 4.2(b) o f Executive O rder 12958." Id. at 2.\n3 We have not included in the quotation the provision\'s listing o f the W histleblower Protection Act because o f\nour conclusion in section 2 o f this opinion that the W histleblower Protection Act is inapplicable in this situation.\n4 The litigation concerned the then-applicable appropriations provision addressed to the classified information non\xc2\xad\ndisclosure agreements. As with the current version, the appropriations provision at issue in the litigation contained\nlanguage implicitly referring to the right o f government employees to petition Congress that is the subject o f 5\nU.S.C. \xc2\xa77211:\nNo funds appropriated . . . may be used to implement or enforce the agreements in Standard Forms 189\nor 4193 o f the Government or any other nondisclosure policy, form or agreement if such policy, form\nor agreement . . . (3) directly or indirectly obstructs, by requirement o f prior written authorization, limitaContinued\n\n403\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nAmerican Foreign Serv. Ass\xe2\x80\x99n v. Garfinkel, 488 U.S. 923 (1988) (No. 87-2127)\n(\xe2\x80\x9c AFSE Brief\xe2\x80\x9d ) .5 We view that brief as the controlling statement of the views\n\nof the Department of Justice (\xe2\x80\x9c Department\xe2\x80\x9d ) on the issues presented by the pan\xc2\xad\nel\xe2\x80\x99s questions (c) and (f). Accordingly, we will cite to that brief in this opinion\nin the same manner as we would cite an opinion of this Office.\nThe Department\xe2\x80\x99s AFSE Brief stated our view that a congressional enactment\nwould be unconstitutional if it were interpreted \xe2\x80\x9c to divest the President of his\ncontrol over national security information in the Executive Branch by vesting\nlower-ranking personnel in that Branch with a \xe2\x80\x98right\xe2\x80\x99 to furnish such information\nto a Member of Congress without receiving official authorization to do so.\xe2\x80\x9d AFSE\nBrief at 48; see also id. at 16-17. This position is based on the following separa\xc2\xad\ntion of powers rationale:\n[T]he President\xe2\x80\x99s roles as Commander in Chief, head of the Execu\xc2\xad\ntive Branch, and sole organ of the Nation in its external relations\nrequire that he have ultimate and unimpeded authority over the col\xc2\xad\nlection, retention and dissemination of intelligence and other na\xc2\xad\ntional security information in the Executive Branch. There is no\nexception to this principle for those disseminations that would be\nmade to Congress or its Members. In that context, as in all others,\nthe decision whether to grant access to the information must be\nmade by someone who is acting in an official capacity on behalf\nof the President and who is ultimately responsible, perhaps through\nintermediaries, to the President. The Constitution does not permit\nCongress to circumvent these orderly procedures and chain of com\xc2\xad\nm and\xe2\x80\x94 and to erect an obstacle to the President\xe2\x80\x99s exercise of all\nexecutive powers relating to the Nation\xe2\x80\x99s security\xe2\x80\x94 by vesting\nlower-level employees in the Executive Branch with a supposed\n\xe2\x80\x9c right\xe2\x80\x9d to disclose national security information to Members of\ntion o f authorized disclosure, or otherwise, the right o f any individual to petition or communicate with\nM embers o f Congress in a secure manner as provided by the rules and procedures o f the Congress . . . .\nTreasury, Postal Service and General Appropriations Act, 1988, Pub. L. No. 100-202, \xc2\xa7630, 101 Stat. 1329-391,\n1329-432 (1987). The difference between the current and form er provisions is that the reference to section 7211\nin the current version is explicit while the reference in the form er version is implicit. W e do not believe that this\ndifference is m eaningful for current purposes.\n5 The district court had held section 630 to be unconstitutional, concluding that it \xe2\x80\x9c impennissibl[y] restricted]\nthe President\xe2\x80\x99s pow er to fulfill obligations imposed upon him by his express constitutional powers and the role\no f the Executive in foreign relations.\xe2\x80\x9d National Fed\xe2\x80\x99n o f Fed. Employees v. United Stales, 688 F. Supp. 671, 685\n(D.D.C. 1988). O n appeal, the Supreme C ourt concluded that the case had become partially moot and therefore\nvacated the district court judgm ent and remanded the case to the district court for further proceedings on the non\xc2\xad\nmoot aspects o f the case, including the dispute over subsection (3) o f section 630. See American Foreign Serv.\nAss\xe2\x80\x99n v. Garfinkel, 490 U.S. 153, 160-61 (1989). In doing so, the Court \xe2\x80\x9c emphasize[d] that the District Court\nshould not pronounce upon the relative constitutional authority o f Congress and the Executive Branch unless it finds\nit imperative to do so .\xe2\x80\x9d Id. at 161. On rem and, the district court dismissed the amended complaint on statutory\nconstruction grounds, avoiding the constitutional issues. See American Foreign Serv. Ass\xe2\x80\x99n v. Garfinkel, 732 F. Supp.\n13 (D.D.C. 1990).\n\n404\n\n\x0cAccess to Classified Information\n\nCongress (or anyone else) without the authorization of Executive\nBranch personnel who derive their authority from the President.\nId. at 42.\n\nIn light of this constitutional position, the Department did not interpret the con\xc2\xad\ngressional enactments.at issue in the AFSE litigation as vesting in executive branch\nemployees a right to provide classified information to Members of Congress with\xc2\xad\nout official authorization. See id. (appropriations provision does not confer such\na right); id. at 50 n.43 (5 U.S.C. \xc2\xa77211 \xe2\x80\x9c does not confer a right to furnish national\nsecurity information to Congress.\xe2\x80\x9d ). Based on the same separation of powers anal\xc2\xad\nysis, we do not give such an interpretation to the currently applicable provisions.\nAccordingly, we conclude that the classified information nondisclosure agreements\nmay validly be applied to a disclosure to a Member of Congress and that section\n625 of the Treasury, Postal Service and General Government Appropriations Act\ndoes not authorize any disclosure to a Member of Congress that is not permitted\nunder Executive Order 12356.6\nb. Interpretation o f Executive O rder 12356\nWe turn now to question (e), which concerns the interpretation of Executive\nOrder 12356. We stress that this question also implicates issues of policy, practice\nand precedent with respect to which the panel may wish to consult others in the\nexecutive branch.\nQuestion (e) asks \xe2\x80\x9c [wjhether Executive Order 12356 can be read to permit a\ncleared employee of the Executive Branch to disclose classified information to\na cleared member of Congress based on the employee\xe2\x80\x99s determination of the mem\xc2\xad\nber\xe2\x80\x99s need to know.\xe2\x80\x9d Panel Memorandum at 2. The Department\xe2\x80\x99s brief in the\nAFSE litigation summarizes the executive branch framework\xe2\x80\x94 consisting of Ex\xc2\xad\necutive Order 12356 and related directives and nondisclosure agreements \xe2\x80\x94 for\nthe protection of classified information. See generally, AFSE Brief at 2-7. The\nfirst pertinent part of that framework is Executive Order 12356\xe2\x80\x99s two-part require\xc2\xad\nment of trustworthiness and \xe2\x80\x9c need to know\xe2\x80\x9d :\nExecutive Order No. 12,356 provides that access must be limited\nas a general matter to those individuals who have been determined\nto be trustworthy, and that access to any particular item of informa\xc2\xad\ntion may be granted only where it \xe2\x80\x9c is essential to the accomplish6 The panel\'s question ( 0 also refers to the currently applicable classified information executive order. Executive\nOrder 12958, 3 C.F.R. 333 (1996), but our discussion will refer only to Executive Order 12356, because that was\nthe order applicable at the tim e o f Mr. N uccio\xe2\x80\x99s disclosure to a Member of Congress. In any event, we do not\nfind the differences in wording between the two executive orders to be relevant for purposes o f the questions posed\nby the panel.\n\n405\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nment of lawful and authorized Government purposes\xe2\x80\x9d (\xc2\xa74.1(a)) \xe2\x80\x94\ni.e., where the individual has a \xe2\x80\x9c need to know\xe2\x80\x9d that information.\nAFSE Brief at 3. The brief notes that in addition to the provisions of Executive\n\nOrder 12356, reference should be made to the requirement imposed by the Direc\xc2\xad\ntor of Central Intelligence, on the basis of his statutory authority to protect intel\xc2\xad\nligence sources and methods, that all individuals with access to SCI and other\nCentral Intelligence Agency information sign nondisclosure agreements (see id.\nat 4-6) and to the govemmentwide requirement, based on National Security Deci\xc2\xad\nsion Directive 84, Safeguarding N ational Security Information (issued by President\nReagan on Mar. 11, 1983), that all individuals with access to classified information\n(at any level) sign nondisclosure agreements (see id. at 6-7). We would add to\nthis listing the relevant directives issued by the Director of Central Intelligence.\nSee, e.g., Director of Central Intelligence Directives 1/7, Security Controls on the\nD issem ination o f Intelligence Information (1987), and 1/19, Security P olicy fo r\nSensitive C om partm ented Information (1995).\nMembers of Congress, as constitutionally elected officers, do not receive secu\xc2\xad\nrity clearances as such, but are instead presumed to be trustworthy. See Informa\xc2\xad\ntion Security Oversight Office, Classified Information Nondisclosure Agreement\n(Standard Form 3 12) Briefing B ooklet (\xe2\x80\x9c ISOO Briefing Booklet\xe2\x80\x9d ) at 66. \xe2\x80\x9c Mem\xc2\xad\nbers of Congress are not exempt, however, from fulfilling the \xe2\x80\x98need-to-know\xe2\x80\x99 re\xc2\xad\nquirement.\xe2\x80\x9d Id. Thus, the issue presented by question (e) is whether, under the\nexisting executive branch rules and practices, individual employees are free to\nmake a disclosure to Members o f Congress based on their own determination on\nthe need-to-know question.\nThe answer to that question is most assuredly \xe2\x80\x9c no.\xe2\x80\x9d The Department\xe2\x80\x99s brief\nin the AFSE litigation stated that it would be unconstitutional for Congress to\n\xe2\x80\x9c removfe] decisionmaking about congressional access [to classified information]\nfrom the usual channels in the Executive Branch and allow[ ] lower-ranking em\xc2\xad\nployees to decide for themselves whether to divulge such information to Congress\nor its Members.\xe2\x80\x9d AFSE Brief at 41-42. In making this statement, the Department\nwas obviously indicating that the existing regime under Executive Order 12356\ndid not afford individual employees such discretion. With respect to \xe2\x80\x9c dissemina\xc2\xad\ntions that would be made to Congress or its Members . . ., the decision whether\nto grant access to the information must be made by someone who is acting in\nan official capacity on behalf of the President and who is ultimately responsible,\nperhaps through intermediaries, to the President.\xe2\x80\x9d Id. at 42. \xe2\x80\x9c Both the Executive\nBranch and Congress have recognized that [disclosure of classified information]\nmust be conducted through the secure channels established by the Branches work\xc2\xad\ning in cooperation.\xe2\x80\x9d Id. at 45.\nThus, the longstanding practice under Executive Order 12356 (and its successor)\nhas been that the \xe2\x80\x9c need to know\xe2\x80\x9d determination for disclosures of classified infor\xc2\xad\n406\n\n\x0cAccess to Classified Information\n\nmation to Congress is made through established decisionmaking channels at each\nagency. We believe that it would be antithetical to the existing system for an\nagency to permit individual employees to decide unilaterally to disclose classified\ninformation to a Member of Congress\xe2\x80\x94 and we are unaware of any agency that\ndoes so.7 In this regard, we suggest that the panel may wish to review what\nprocedures were in place at the Department of State for such decisions at the\ntime of Mr. Nuccio\xe2\x80\x99s disclosure of classified information to a Member of Con\xc2\xad\ngress.\n2. W histleblower Protection A ct\nThe panel\xe2\x80\x99s question (b) asks whether denial or revocation of a SCI security\nclearance is a \xe2\x80\x9c personnel action\xe2\x80\x9d within the meaning of the Whistleblower Pro\xc2\xad\ntection Act (\xe2\x80\x9c WPA\xe2\x80\x9d ), 5 U.S.C. \xc2\xa72302. See Panel Memorandum at 1. A recent\ndecision of the United States Court of Appeals for the Federal Circuit has settled\nthis question. See M cCabe v. D epartment o f the A ir Force, No. 94-3463, 1995\nWL 469464 (Fed. Cir. 1995). Affirming a decision of the Merit Systems Protection\nBoard, the Federal Circuit held in M cCabe that the revocation of a security clear\xc2\xad\nance is not a personnel action within the meaning of the WPA. The court\xe2\x80\x99s rea\xc2\xad\nsoning was as follows:\nUnder Egan v. Departm ent o f Navy, 484 U.S. 518, 98 L. Ed. 2d\n918, 108 S. Ct. 818 (1988), an agency\xe2\x80\x99s decision to grant or deny\na security clearance is not judicially reviewable, except to the extent\nthat an agency must follow any applicable procedures. \xe2\x80\x9c It should\nbe obvious that no one has a \xe2\x80\x98right\xe2\x80\x99 to a security clearance. The\ngrant of a clearance requires an affirmative act of discretion on the\npart of the granting official.\xe2\x80\x9d Egan, 484 U.S. at 528. Given the\nhigh degree of discretion involved in matters of national security,\nwe are convinced that Congress did not intend that agency decisions\nregarding security clearance status be encompassed within the defi\xc2\xad\nnition of \xe2\x80\x9c personnel action\xe2\x80\x9d under the WPA.\nId. at **2. We believe that the Federal Circuit\xe2\x80\x99s decision was clearly a correct\napplication of the Supreme Court\xe2\x80\x99s decision in Egan . 8\n7 We do not doubt that som e agencies may have in place procedures whereby very senior officials are vested\nwith this authority. However, we understand question (e) to be inquiring about procedures with respect to the broad\ncategory of \xe2\x80\x9c cleared em ployees,\xe2\x80\x9d not this much narrower categoiy o f very senior officials.\n8 In addition, even if revocation o f a security clearance were to be viewed as a personnel action under the W PA,\nrevoking a security clearance because o f an unauthorized disclosure o f classified information w ould not be a \xe2\x80\x9c prohib\xc2\xad\nited personnel action" under the WPA. The W PA \'s prohibition against taking a personnel action because o f a disclo\xc2\xad\nsure by an employee contains an express exception for disclosure o f classified information. See 5 U.S.C.\n\xc2\xa7 2302(bX8)(A); see also ISOO Briefing Booklet at 72 ( \xe2\x80\x9c The [classified information nondisclosure form] does not\nContinued\n\n407\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nMr. Nuccio\xe2\x80\x99s attorney argues that \xe2\x80\x9c Congress expressed its intent that the defini\xc2\xad\ntion of \xe2\x80\x98prohibited personnel practices\xe2\x80\x99 would include \xe2\x80\x98any personnel action\nagainst an employee who discloses information to Congress.\xe2\x80\x99\xe2\x80\x9d Nuccio Statement\nat 7, quoting 5 U.S.C. \xc2\xa7 2302(b). The Department rejected this argument in the\nAFSE litigation. After citing the express exception for disclosure of classified in\xc2\xad\nformation contained in subsection 2302(b)(8)(A), see supra note 8, the Department\nnoted that:\nby not including the exception for classified information in sub\xc2\xad\nsection 2302(b)(8)(B), which provides for disclosures to Inspectors\nGeneral or the Office of Special Counsel of the Merit Systems Pro\xc2\xad\ntection Board, Congress evidenced an intent to limit disclosures of\nclassified information to particular Executive Branch officials with\na designated need-to-know. Although Congress also stated in the\nwhistleblower statute that \xe2\x80\x9c [tjhis subsection shall not be construed\nto authorize the withholding of information from the Congress or\nthe taking of any personnel action against an employee who dis\xc2\xad\ncloses information to the Congress\xe2\x80\x9d (5 U.S.C. \xc2\xa7 2302(b)), that pro\xc2\xad\nvision does not confer an affirmative right to make such disclosures.\nAFSE Brief at 50 n.43.\n\n3. E xecu tive O rd er 12674\nThe panel\xe2\x80\x99s question (a), see Panel Memorandum at 1, seeks our views on an\nargument that Mr. Nuccio\xe2\x80\x99s attorney makes in a footnote:\nMr. Nuccio was acting consistently with the directives of the Office\nof the President as expressed and documented in Executive Order\nNo. 123674 [sic], which require every federal employee to \xe2\x80\x9c dis\xc2\xad\nclose waste, fraud, abuse and corruption to appropriate officials\n[sic].\xe2\x80\x9d While the term \xe2\x80\x9c appropriate officials\xe2\x80\x9d is undefined in the\nExecutive Order, there is no suggestion therein that it does not in\xc2\xad\nclude members of Congress, and in particular members of oversight\ncommittees with direct interest in such abuse and corruption.\nNuccio Statement at 6 n.6.\nThe reference here is to section 101(k) of Executive Order 12674, Principles\no f Ethical Conduct f o r Government Officers and Employees, 3 C.F.R. 215, 215\n(1990) as amended by Executive Order 12731, 3 C.F.R. 306, 307 (1991), which\nconflict w ith the \xe2\x80\x98w histleblow er\xe2\x80\x99 statute (5 U.S.C. \xc2\xa72302). The statute does not protect employees who disclose\nclassified inform ation without authority.").\n\n408\n\n\x0cAccess to Classified Information\n\nprovides that \xe2\x80\x9c [e]mployees shall disclose waste, fraud, abuse, and corruption to\nappropriate authorities.\xe2\x80\x9d 9 Mr. Nuccio\xe2\x80\x99s attorney correctly states that the term\n\xe2\x80\x9c appropriate authorities\xe2\x80\x9d is not defined in Executive Order 12674. We do not\nquestion that in certain circumstances that term could include a member of a con\xc2\xad\ngressional oversight committee. However, we believe\xe2\x80\x94 for the reasons set forth\nin the prior sections of this opinion\xe2\x80\x94 that the question of who is an \xe2\x80\x9c appropriate\nauthority\xe2\x80\x9d to receive classified information is governed by Executive Order 12356\nand the related directives and practices. Put another way, there should be no con\xc2\xad\nflict in these circumstances between the ethical conduct executive order and the\nclassified information executive order. The latter executive order should control\nbecause it more directly and specifically addresses the subject at issue, the disclo\xc2\xad\nsure of classified information.\nCHRISTOPHER H. SCHROEDER\nActing A ssistant Attorney General\nOffice o f Legal Counsel\n\n9\nMr. N uccio\xe2\x80\x99s attorney employs the term \xe2\x80\x98 \xe2\x80\x98appropriate officials,\xe2\x80\x99* but we will refer to the term actually used\nin the executive o rd e r 44appropriate au th o rities/\'\n\n\x0c'