Eligibility of a Retired Army Officer to Be Appointed Inspector General of the Department of Defense

Eligibility of a Retired Army Officer to Be Appointed

Inspector General of the Department of Defense

A retired officer of the Regular Army, not on active duty, is not a “member of the Armed Forces, active

or reserve,” under section 8 of the Inspector General Act of 1978 and therefore is not disqualified

from being appointed as Inspector General of the Department of Defense.

May 18, 2007

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

DEPARTMENT OF DEFENSE

Section 8 of the Inspector General Act of 1978 (“IG Act”) provides that “[n]o

member of the Armed Forces, active or reserve, shall be appointed Inspector

General of the Department of Defense.” 5 U.S.C. app., IG Act § 8(a) (2006). You

have asked whether a retired officer of the Regular Army, not on active duty, is a

“member of the Armed Forces, active or reserve” under this provision and thus is

disqualified from being appointed as Inspector General (“IG”) of the Department

of Defense. We conclude that this exclusion does not apply to such a person,

because he is neither an “active” nor a “reserve” member of the Armed Forces

within the meaning of section 8.

Neither the IG Act nor title 10 of the United States Code clearly defines the

phrase “member of the Armed Forces” in the context of section 8 of the IG Act,

but it is clear that mere retirement does not remove an officer from membership in

the Armed Forces. Section 3075 of title 10 describes “the retired officers . . . of the

Regular Army” as part of the “Regular Army.” 10 U.S.C. § 3075(b)(3) (2006).

And section 688 lists among the “members of the armed forces” who “may be

ordered to active duty” a “retired member of the Regular Army, Regular Navy,

Regular Air Force, or Regular Marine Corps.” Id. § 688(a), (b)(1). That is, officers

who retire from active duty in the Army remain part of the Regular Army, and

members of the Regular Army are “members of the armed forces.” Other statutes

similarly refer to a “retired member of the Armed Forces.” See, e.g., 5 U.S.C.

§ 2108(5) (2006); id. § 3326; see generally Memorandum for George P. Williams,

Associate Counsel to the President, from Robert G. Dixon, Jr., Assistant Attorney

General, Office of Legal Counsel, Re: Appointment of Retired Reserve Officers to

the National Selective Service Appeal Board at 2 (July 25, 1974) (concluding that

“a retired member of a reserve component of the armed forces” is a member of the

Armed Forces). Your office shares the view, based in part on common usage in the

military establishment, that an officer who merely retires from the Regular Army

remains a “member of the Armed Forces.” Thus, if section 8 of the IG Act simply

barred appointment of a “member of the Armed Forces,” without the additional

phrase “active or reserve,” it likely would bar appointment of a retired Regular

Army officer. The use of the additional phrase “active or reserve” therefore

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Eligibility of Retired Army Officer to Be Inspector General of Department of Defense

suggests some sort of limitation; otherwise it would not clearly add any meaning

to the statute.

The reference in section 8’s additional phrase to “reserve” members is not

directly relevant here. We understand that the prospective nominee is retired from

the Regular Army rather than the Army Reserve. The reserve consists of three

categories, and the prospective nominee is not in any of them. See 10 U.S.C.

§ 10141(a) (2006) (providing that “[e]ach Reserve shall be placed in one of [the

following] categories”—“a Ready Reserve, a Standby Reserve, and a Retired

Reserve”); id. § 10154 (defining “Retired Reserve” to include “Reserves who are

or have been retired under” various sections of the U.S. Code and “Reserves who

have been transferred to the Retired Reserve”). He thus is not a “reserve” “member

of the Armed Forces.” The applicability of section 8’s prohibition therefore turns

on whether he remains an “active” “member of the Armed Forces.”

Neither section 8 nor title 10 defines the term “active” in the military context. It

does not appear to be a term of art; rather, it has two plausible meanings in this

context, both of which make it equivalent to more precise terms. “Active” can be

shorthand for “active duty,” which title 10 defines as “full-time duty in the active

military service of the United States.” Id. § 101(d)(1). “Active” also may, you

have explained, be used to mean “regular,” in contrast to “reserve,” see generally

id. § 101(b)(12) (“The term ‘regular,’ with respect to an enlistment, appointment,

grade, or office, means enlistment, appointment, grade, or office in a regular

component of an armed force.”), although this latter usage is colloquial and

considered imprecise in the Department of Defense. If the former meaning applied

in section 8, then that section’s prohibition would extend only to active-duty and

reserve members. A retired regular officer of the Army not on active duty is

neither. If, however, the term “active” were understood to mean “regular” in

section 8, then a retired officer of the Army would be subject to the prohibition,

because, as explained, he remains a member of a regular component of the Armed

Forces—the Regular Army.

Although the answer is not beyond dispute, the evidence is stronger in favor of

the former meaning of “active.” This reading finds support in the 1982 act that

added section 8 to the IG Act, in much of the relevant usage in title 10; in the

general approach of Congress to appointments of retired and reserve offices to

non-military positions in the Department of Defense, and in the traditional and

constitutionally-based presumption that the President has broad discretion in

selecting persons for appointment as federal officers.

First, Public Law 97-252, which added section 8 to the IG Act as part of a

broader statute concerning the military, repeatedly uses the word “active” as part

of the phrase “active duty.” Department of Defense Authorization Act, 1983, Pub.

L. No. 97-252, §§ 401, 402(b), 501(b), 502, 1116, 96 Stat. 718, 725–26, 750

(1982). Only twice does the statute use the term “active” by itself—the first in

adding the provision at issue, id. § 1117(b), 96 Stat. at 751, and the second in

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“find[ing] that . . . the National Guard and Reserve Forces of the United States are

an integral part of the total force policy of the United States for national defense

and need to be ready to respond, on short notice, to augment the active military

forces in time of national emergency,” id. § 1130(a)(1), 96 Stat. at 759 (emphasis

added). The latter usage might suggest that the term means “regular” forces, as

contrasted to “the National Guard and Reserve Forces,” but seems better read as

referring more narrowly to those forces that are on active duty and thus presently

“ready to respond” should an emergency arise. Retired officers, even if they too

might be called upon in time of national emergency by being “ordered to active

duty,” 10 U.S.C. § 688(a), (b)(1); see also id. § 973(b)(1)(B) (referring to retired

regular officer being called to active duty), presumably would not be presently

ready to respond in such a situation. The usage in section 1130 of the 1982 act

thus, although not conclusively, suggests that Congress used “active” as shorthand

for “active duty.” It is reasonable to apply the same sense to the other use of the

same term in the 1982 statute. 1

Second, uses of the phrase “active and reserve” and the term “active service” in

title 10 indicate, on the whole, that “active” more commonly has the sense of

“active duty.” As to the phrase “active and reserve,” which is the most relevant to

the usage in section 8 of the IG Act, section 167 of title 10, for example, speaks of

the “active and reserve special operations forces of the armed forces stationed in

the United States” and says that they should be “assigned to the special operations

command.” 10 U.S.C. § 167(b) (2006). And section 487 requires that certain

reports include a description “identify[ing] the active and reserve component units

of the armed forces participating at the battalion, squadron, or an equivalent level

(or a higher level) in contingency operations, major training events, and other

exercises and contingencies of such a scale that the exercises and contingencies

receive an official designation.” Id. § 487(b)(4). The references to “special

operations forces” being “stationed” and “assigned” to a command, and to units

“participating” in various “operations,” suggest that the “active” forces and

component units being discussed are those on “active duty.” Similarly, in the term

“active service” in title 10, “active” has the sense of “active duty” rather than

referring to anyone who is a member of the regular Armed Forces. Section 1175,

1

The legislative history is largely inconclusive. The House Conference Report accompanying the

final bill simply echoes the bill’s terms: “Both the House and Senate provisions would prohibit the

appointment of a member of the Armed Forces, active or reserve, as Inspector General of the

Department of Defense.” H.R. Conf. Rep. No. 97-749, at 176, reprinted in 1982 U.S.C.C.A.N. 1569,

1581. The sponsor of the legislation in the Senate, Senator Roth, stated that his “amendment would

provide for a civilian Inspector General in the Defense Department and would not permit any military

personnel to assume the Inspector General position.” 128 Cong. Rec. 9678 (May 12, 1982) (emphases

added). As we explain below, a retired Regular Army officer commonly would be understood as

“civilian” for purposes of appointment in the Department of Defense. But it is not clear in what sense

Senator Roth was using the phrase “any military personnel.”

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Eligibility of Retired Army Officer to Be Inspector General of Department of Defense

for example, provides that a “member entitled to voluntary separation incentive

payments who is also entitled to basic pay for active or reserve service, or

compensation for inactive duty training, may elect to have a reduction in the

voluntary separation incentive payable for the same period in an amount not to

exceed the amount of the basic pay or compensation received for that period.” Id.

§ 1175(e)(2). The references to basic pay and separation, as well as the contrast

between “active . . . service” and “inactive duty training,” suggest that “active”

was intended to mean the equivalent of “active duty.” And section 942 speaks of

“a person retired from the armed forces after 20 or more years of active service,”

indicating that retirement and “active service” are distinct. Id. § 942(b)(4).

Some provisions in title 10 are more ambiguous, particularly those referring to

“active and reserve components” of the various Armed Forces. Usage of “active”

in this phrase is the one where “active” might most readily be an equivalent of the

more precise term “regular” discussed above: But even in this context, usage often

suggests a sense of “active duty,” or at least that, even if the phrase “active

component” technically includes persons retired from a regular component

(because they remain members of the Armed Forces and are not in a reserve

component), its focus is on the active-duty members of that component. Section

118, for example, refers to the “discharge” of particular “missions,” id.

§ 118(d)(16) (requiring that a report submitted by the Secretary of Defense include

“[t]he homeland defense and support to civil authority missions of the active and

reserve components, including the organization and capabilities required for the

active and reserve components to discharge each such mission”); section 153

refers to the ability of active and reserve components to “execute” a military

strategy, id. § 153(d)(2)(G) (requiring an “[a]ssessment of the capabilities and

adequacy of United States forces (including both active and reserve components)

to successfully execute the national military strategy”), and to “the readiness” of

those components, id. § 153(d)(3)(B) (providing that “the Chairman should make

assumptions pertaining to the readiness of United States forces (in both the active

and reserve components)”); and section 2815 refers to the “joint use” of a

construction project by active and reserve components, id. § 2815(a) (defining

“joint use military construction project” to mean a construction project intended to

be used by “both the active and a reserve component of a single armed force” or

“two or more components (whether active or reserve components) of the armed

forces”). On balance, then, the weight of the statutory evidence of usage seems to

be that Congress has used “active” in the context of the Armed Forces either

ambiguously or as the equivalent of “active duty,” and that, as “active” is used in

section 8 of the IG Act, the better reading is that it is equivalent to “active duty.”

Third, other provisions governing the appointment of persons to non-military

offices within the Department of Defense typically permit the appointment of both

retired and reserve officers of the Armed Forces, establishing a background rule

for positions requiring presidential appointment and Senate confirmation that

“active duty” officers are the only ones excluded. Congress reasonably can be

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taken to have legislated in light of this background rule. And reading the ambigu-

ous reference to “active” in section 8 of the IG Act as meaning “active duty”

conforms the prohibition to this background rule as far as the text allows.

Numerous sections in title 10 require that presidentially appointed, Senate-

confirmed officers in the Department be “appointed from civilian life.” See, e.g.,

10 U.S.C. §§ 113(a) (2006) (Secretary), 132(a) (Deputy Secretary), 133(a) (Under

Secretary for Acquisition, Technology, and Logistics), 134(a) (Under Secretary for

Policy), 135(a) (Under Secretary (Comptroller)), 136(a) (Under Secretary for

Personnel and Readiness), 137(a) (Under Secretary for Intelligence), 138(a)

(Assistant Secretaries), 140(a) (General Counsel), 3013(a) (Secretary of the

Army), 5013(a) (Secretary of the Navy), 8013(a) (Secretary of the Air Force).

Your office has informed us that the Department of Defense long has understood

that language to permit the appointment of retired and reserve officers not on

active duty. This understanding is supported by, and may well be based on, a 1961

memorandum of this office for your department, in which we concluded that a

retired regular officer is not automatically disqualified from appointment to such

positions, and that whether he is “in civilian life” depends on whether he has in

fact “ceased to engage in military service and ha[s] entered civil life and civil

pursuits.” Memorandum for Cyrus R. Vance, General Counsel, Department of

Defense, from Harold F. Reis, Acting Assistant Attorney General, Office of Legal

Counsel, Re: Eligibility of a Retired Regular Officer of the Armed Forces to be

Appointed to the Position of Under Secretary or Assistant Secretary of One of the

Military Departments at 3 (Feb. 3, 1961) (internal quotation marks omitted). We

added that, when Congress does seek categorically to exclude retired regular

officers from appointment to an office, it does so “in unmistakable language,” id.,

and “expressly,” id. at 4.

This background rule is not unqualified, but typically there is only a brief wait-

ing period immediately following retirement, or an exception for reserve or retired

officers called to extended active duty. Thus, consistent with this agency under-

standing, 5 U.S.C. § 3326(b) provides that a “retired member of the armed forces

may be appointed to a position in the civil service in or under the Department of

Defense . . . during the period of 180 days immediately after his retirement” only

under specific circumstances, including a “state of national emergency.” Section

973 of title 10 similarly prohibits an “active duty” officer from “hold[ing] . . . or

exercis[ing] the functions of” a presidentially appointed and Senate-confirmed

“civil office in the Government of the United States,” 10 U.S.C. § 973(b)(2)(A)

(2006), and includes within the prohibition a retired or reserve officer who is

“under a call or order to active duty for a period in excess of 270 days,” id.

§ 973(b)(1)(B) & (C).

Taken together, these provisions indicate that Congress has broadly allowed

retired as well as reserve members of the Armed Forces to hold Senate-confirmed

civilian positions in the Department of Defense, and in particular that both retired

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and reserve members of the Armed Forces are in “civilian life” so long as they are

not called to active duty. The IG for the Defense Department also holds a Senate-

confirmed position. It is appropriate to read the prohibition in section 8 of the IG

Act to be as consistent with this background rule as the text allows. To the extent

that section 8 unambiguously applies to “reserve” members of the Armed Forces,

it clearly overrides the background rule; but given the ambiguity of the use of

“active” in section 8, it is appropriate to read that term as consistent with the

background rule, excluding “active duty” members but not members retired from

active duty. (We need not here consider the application of section 8 or of 10

U.S.C. § 973 if a retired member serving as IG were called to active duty.)

Reading section 8 in light of this background rule also answers any conflict of

interest concerns that one might see in the appointment of a retired member of the

Armed Forces to be IG for the Defense Department. For example, an IG who is

retired from the Regular Army may have occasion to audit the Army’s retirement

program or, in the course of an audit, recommendation, or other analysis, to apply

aspects of the Uniform Code of Military Justice. But the same sorts of issues could

arise if such a person filled one of the myriad senior positions cited above, yet

Congress has not deemed such attenuated potential “conflicts” to be disqualifying.

Thus, such concerns provide no ground for us to question our interpretation.

Finally, the term “active” as used in section 8 of the IG Act should, to the ex-

tent it is ambiguous, be read narrowly to protect the President’s discretion under

the Constitution’s Appointments Clause in selecting “Officers of the United

States.” Congress may, as an incident of establishing an office, prescribe “reason-

able and relevant qualifications and rules of eligibility of appointees.” Myers v.

United States, 272 U.S. 52, 129 (1926). The Attorney General has held this same

view since well before the Court decided Myers. See Civil-Service Commission, 13

Op. Att’y Gen. 516, 520–21 (1871). But the discretion in selecting and appointing

the best person to fill the office is the President’s alone. See The Federalist No. 76,

at 512 (Alexander Hamilton) (Jacob E. Cooke ed., 1961) (“In the act of nomina-

tion his judgment alone would be exercised; and as it would be his sole duty to

point out the man, who with the approbation of the Senate should fill an office, his

responsibility would be as complete as if he were to make the final appointment.”).

As a result, qualifications imposed by Congress may “not so limit selection and so

trench upon executive choice as to be in effect legislative designation,” Myers, 272

U.S. at 128, and Congress’s “right to prescribe qualifications is limited by the

necessity of leaving scope for the judgment and will” of the appointing authority,

Civil-Service Commission, 13 Op. Att’y Gen. at 520. Thus, “[c]ongressional

attempts to limit the class of persons from whom the President may appoint the

highest officers of the government . . . raise serious constitutional concerns.”

Application of 28 U.S.C. § 458 to Presidential Appointments of Federal Judges, 19

Op. O.L.C. 350, 357 (1995); see FEC v. NRA Political Victory Fund, 6 F.3d 821,

824 (D.C. Cir. 1993) (“Congressional limitations—even the placement of bur-

dens—on the President’s appointment power may raise serious constitutional

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questions. . . . Presidents have often viewed restrictions on their appointment

power not to be legally binding.”). In this case, to read “active” as equivalent to

“regular” would exclude from the President’s consideration for appointment all

retired regular military personnel—in addition to all of the active duty and reserve

members, whom section 8 plainly excludes. To expand the exclusion according to

such a reading would presumably bar a large additional number of persons from

consideration, and Congress has not clearly indicated why it is relevant to

faithfully performing the duties of Defense Department IG that one be entirely

divorced from the regular Armed Forces. Indeed, that group may well contain

some of the candidates whose experience and special competence best qualify

them to perform those duties. By resolving the ambiguity in section 8 in favor of

reading the word “active” to mean “active duty” rather than “regular,” we avoid

unnecessarily constricting the President’s discretion in appointing the candidate he

determines to be best for the job.

Our analysis does lead to one interpretive oddity: A retired regular officer could

be appointed as IG (so long as he had not been called to active duty), but a retired

reserve officer could not (because he would still be a “reserve” member of the

Armed Forces, see 10 U.S.C. §§ 10141 & 10154 (2006)). If Congress’s desire was

to bar from the position of IG persons who had “too much” connection to the

military, this result may seem counterintuitive, as one assumes that a person

retired from a regular rather than reserve component would have the greater

connection. This result is a consequence of the fact that “reserve” has a clear

statutory meaning whereas “active” does not. Congress’s decision to use language

barring any “member of the Armed Forces, active or reserve,” rather than the more

common language requiring that the appointee be “from civilian life,” does

suggest an intention to exclude more persons than the latter, ordinary requirement

does, but our reading of “reserve” gives effect to that intention: Persons on active

duty are excluded, per the usual background rule, and, beyond that, persons who

are reserve members also are excluded. In addition, if we were to read “active” as

equivalent to “regular,” then, as suggested above, the phrase “active or reserve” in

section 8, which is added to the phrase “member of the Armed Forces,” would

serve no clear purpose, contrary to normal rules of construction.

For these reasons, we conclude that section 8 of the IG Act does not preclude

appointment of a retired Regular Army officer not on active duty as IG for the

Department of Defense.

C. KEVIN MARSHALL

Deputy Assistant Attorney General

Office of Legal Counsel

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