Amicus Curiae Brief — Barry Michaels, Petitioner v. Matthew G. Whitaker, Acting Attorney General, et al.

No. 18-496

In the Supreme Court of the United States

________________

BARRY MICHAELS,

v.

Petitioner,

JEFFERSON B. SESSIONS III, ATTORNEY

GENERAL OF THE UNITED STATES, AND

THOMAS E. BRANDON, AS DEPUTY DIRECTOR,

HEAD OF THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES,

Respondents.

________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

________________

MOTION FOR LEAVE TO FILE AMICUS CURIAE

BRIEF AND BRIEF OF MORTON ROSENBERG AS

AMICUS CURIAE IN SUPPORT OF PETITIONER’S

MOTION TO SUBSTITUTE

________________

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amicus Curiae

November 29, 2018

In the Supreme Court of the United States

________________________

No. 18-496

BARRY MICHAELS,

Petitioner,

v.

JEFFERSON B. SESSIONS III, ATTORNEY

GENERAL OF THE UNITED STATES, AND

THOMAS E. BRANDON, AS DEPUTY DIRECTOR, HEAD OF

THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND

EXPLOSIVES,

________________________

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________________

MOTION FOR LEAVE TO FILE AMICUS BRIEF

________________________

Pursuant to Supreme Court Rule 37.2(b), Amicus Curiae Morton Rosenberg respectfully requests leave to file

the following brief in support of Petitioner’s Motion to

Substitute filed in the above-captioned matter. In support

of that motion, amicus would show the following:

1. On November 7, 2018, Attorney General Jefferson

B. Sessions III submitted his resignation as Attorney

General to President Trump. See Letter from Jefferson

(1)

2

B. Sessions III to President Donald J. Trump (Nov. 7,

2018), https://cnn.it/2SVkdaQ. Shortly thereafter, President Trump appointed Matthew G. Whitaker as the Acting Attorney General. See Donald J. Trump

(@realDonaldTrump), Twitter (Nov. 7, 2018, 11:44AM),

https://bit.ly/2STEopE. The Government contends that

this appointment was permissible under the Federal Vacancies Reform Act,

2. On November 16, Petitioner filed a motion to substitute Deputy Attorney General Rod Rosenstein as Acting Attorney General in Whitaker’s stead. Petitioner contends that the appointment of Whitaker as Acting Attorney General rather than Deputy Attorney General

Rosenstein violates the Attorney General Succession Act,

28 U.S.C. § 508, as well as the Appointments Clause of

the Constitution, U.S. Const. art. II, § 2, cl.

3. Amicus has special expertise in these matters as a

former attorney with the Congressional Research Service, and he has an interest in sharing that expertise with

the Court as it considers Petitioner’s Motion to Substitute.

2. Both Petitioner and Respondents have consented to

the filing of this brief.

Accordingly, Amicus respectfully requests leave to file

the enclosed amicus curiae brief in support of Petitioner’s

Motion to substitute.

3

Respectfully submitted,

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amicus Curiae

November 29, 2018

TABLE OF CONTENTS

Motion for Leave to File Amicus Brief ............................. 1

Brief of Morton Rosenberg as Amicus Curiae in

Support of Petitioner’s Motion to Substitute ............... 1

Table of Contents.................................................................. i

Table of Authorities ............................................................. ii

Interest of Amicus Curiae .................................................. 2

Introduction and Summary of Argument ......................... 3

Argument ............................................................................. 5

Congress has provided only one mechanism for

designating an Acting Attorney General:

Section 508 of the Attorney General Succession

Act. ................................................................................ 5

A.

Enactment of the Federal Vacancies

Reform Act did not provide the President

any alternative means for designating the

Acting Attorney General..................................... 6

B.

The Government’s contrary position lacks

support in text, history, or precedent. ............. 13

Conclusion .......................................................................... 21

(i)

TABLE OF AUTHORITIES

Cases:

English v. Trump,

279 F. Supp. 3d 307 (D.D.C. 2018) ........................... 22, 23

Hooks v. Kitsap Tenant Support Servs.,

816 F.3d 550 (9th Cir. 2016) ................................ 22, 24, 25

N.L.R.B. v. SW General, Inc.,

137 S. Ct. 929 (2017) ..................................................... 3, 9

See Air Line Pilots Ass’n, Int’l v. U.S. Airways

Grp., Inc.,

609 F.3d 338 (4th Cir. 2010) ............................................ 18

Statutes:

Vacancies Reform Act of 1998, Pub. L. No. 105277, div. C, tit. I, 112 Stat. 2681-611 ................................ 4

§ 151(b), 112 Stat. 2681, 2681-611 ................................. 10

5 U.S.C. §

3345 ........................................................................ 6, 12, 15

3345(a)................................................................................ 4

3345(a)(2) ........................................................................... 6

3345(a)(3) ....................................................................... 4, 6

3346 .................................................................................. 15

3347 (1998) ....................................................................... 15

3347(a)(1) ......................................................................... 16

3347(a)(1)(A)...................................................................... 9

3347(a)(1)(B)...................................................................... 9

3348(b) ............................................................................. 15

12 U.S.C. § 5491(b)(5)........................................................ 18

(ii)

iii

Statutes—continued:

Attorney General Succession Act,

28 U.S.C. §

508 ............................................................................ passim

508(a)................................................................................ 15

508(b) ............................................................................... 14

29 U.S.C. § 153(d)). ............................................................ 19

S. Rep. 105-250 (1998) ............................................... passim

S.2176, 105th Cong. (1998) ................................................ 12

144 Cong. Rec. S11022-S11023 (Sept. 28, 1998) ............... 9

144 Cong. Rec. S12823 (Oct. 21, 1998) (Sen.

Johnson). ......................................................................... 13

Other Authorities:

Democrat Wants New Hearing for Embattled

Nominee, AP, Nov. 8, 1997, available in 1997

WL 4891645 ....................................................................... 8

Oversight of the Implementation of the

Vacancies Act, Hearings Before the Senate

Committee on Governmental Affairs, Mar. 18,

1998 (Statement of Morton Rosenberg,

Specialist in American Public Law,

Congressional Research Service), available at

1998 WL 8993467 .............................................................. 2

Naftali Bendavid, Democrats Delay Panel's Vote

on Civil Rights Nominee, Chi. Trib., Nov. 7,

1997, § 1, at 3 ..................................................................... 8

Comptroller General’s Decision B-220522, 9,

1986, 65 Comp. Gen. 626 (1986) ....................................... 8

iv

Other Authorities—continued:

Brannon P. Denning, Article II, the Vacancies

Act and the Appointment of “Acting”

Executive Branch Officials, 76 Wash. U. L.Q.

1039 (1998) ......................................................................... 7

Acting Attorneys General, 8 Op. O.L.C. 39 (Mar.

30, 1984) ............................................................................. 4

Memorandum for Emmet T. Flood, Counsel to

the President, Re: Designating an Acting

Attorney General, -- Op. O.L.C. -- (Nov. 14,

2018) ......................................................................... passim

Stewart M. Powell, Lee Wins Civil Rights Job

Despite GOP Block: President Dodges Senate

Opposition and Names L.A. Lawyer to Post

on an Acting Basis, S.F. Examiner, Dec. 15,

1997, at A1 ......................................................................... 8

Morton Rosenberg, Cong. Research Serv.,

Validity of Designation of Bill Lann Lee as

Acting Assistant Attorney General for Civil

Rights (Jan. 1998) ................................................... passim

Morton Rosenberg, Congressional Research

Service Report for Congress, The New

Vacancies Act: Congress Acts to Protect the

Senate’s Confirmation Prerogative (Nov.

1998) ........................................................................... 3, 7, 8

In the Supreme Court of the United States

________________________

No. 18-496

BARRY MICHAELS,

Petitioner,

v.

JEFFERSON B. SESSIONS III, ATTORNEY

GENERAL OF THE UNITED STATES, AND

THOMAS E. BRANDON, AS DEPUTY DIRECTOR, HEAD OF

THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND

EXPLOSIVES,

________________________

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Ninth Circuit

________________________

BRIEF OF MORTON ROSENBERG AS AMICUS

CURIAE IN SUPPORT OF PETITIONER’S

MOTION TO SUBSTITUTE

________________________

(1)

2

INTEREST OF AMICUS CURIAE1

Before his retirement in 2008, amicus Morton Rosenberg served as an analyst in the American Law Division

of the Congressional Research Service for over three

decades. In that capacity, he advised Congress on numerous issues of constitutional law, administrative law,

and congressional practice and procedure, with a special

emphasis on Executive appointments. He is considered a

leading authority on the Federal Vacancies Reform Act,

having been intimately involved with its enactment. He

wrote a report for Congress detailing the problems with

prior legislation that lead directly to the Vacancy Reform

Act’s legislative overhaul. Morton Rosenberg, Cong. Research Serv., Validity of Designation of Bill Lann Lee as

Acting Assistant Attorney General for Civil Rights (Jan.

1998) (Rosenberg Memo I). He testified before Congress

during debate over the resulting legislation. Oversight of

the Implementation of the Vacancies Act, Hearings Before the Senate Committee on Governmental Affairs,

Mar. 18, 1998 (Statement of Morton Rosenberg, Specialist in American Public Law, Congressional Research

Service), available at 1998 WL 8993467. And after the

Act’s passage, he wrote another report for Congress that

explored the Act’s implementation. Morton Rosenberg,

Cong. Research Serv., Report for Congress, The New

Vacancies Act: Congress Acts to Protect the Senate’s

1

No counsel for any party authored this brief in whole or in

part, and no person or entity other than the amicus, its members, or

its counsel made a monetary contribution intended to fund the

brief ’s preparation or submission. All parties have consented to the

filing of this brief.

3

Confirmation Prerogative (Nov. 1998) (Rosenberg Memo

II). Both of his CRS reports were cited by this Court in

N.L.R.B. v. Southwest General, Inc., 137 S. Ct. 929, 935

(2017).

Mr. Rosenberg writes to provide the Court with his

considered expertise on the Vacancies Reform Act, its

impact on the rules for designating officials to serve in

the office of Acting Attorney General, and the reasons

why the President’s appointment of Matthew Whitaker

to serve in that position violates these rules.

INTRODUCTION AND SUMMARY OF ARGUMENT

The position that the Government offers to justify

Whitaker’s appointment as Acting Attorney General

rests on extraordinary claims about the President’s power to designate temporary holders of that office. That position is set forth in an opinion issued by the Office of Legal Counsel. Memorandum for Emmet T. Flood, Counsel

to the President, Re: Designating an Acting Attorney

General, -- Op. O.L.C. -- (Nov. 14, 2018) (Flood Memo).

There, the Government acknowledges that Congress has

enacted a careful scheme in the Attorney General Succession Act, 28 U.S.C. § 508, which provides an automatic

“chain of succession” to fill vacancies in the office of the

Attorney General. Flood Memo 4. The Government nowhere contests the vital importance of that scheme,

which limits the list of potential temporary occupants to

those the Senate has previously vetted for senior positions within the Justice Department, thus ensuring that

only those familiar with the Department’s operations and

loyal to its proper mission will wield the office’s extraordinary powers, as chief law-enforcement officer and chief

legal counsel to the nation, and boss to the Department’s

110,000 employees. The Government has likewise

4

acknowledged that for as long as the Department of Justice has existed, and until enactment of the Vacancies Reform Act at issue in this case, the Attorney General Succession Act’s scheme provided the exclusive method for

determining the person who would be entitled to temporarily lead it. Acting Attorneys General, 8 Op. O.L.C. 39

(Mar. 30, 1984); see also Rosenberg Memo I at 14-17. Finally, the Government acknowledges that if that scheme

was followed in this case, it would unambiguously yield a

single answer to the question of who the rightful holder

of that office is: the Deputy Attorney General, Rod

Rosenstein. Flood Memo 4 n.2.

The Government nonetheless contends that Congress

overturned its previous 150 years of practice in designating Acting Attorneys General with the enactment of the

Vacancies Reform Act of 1998, Pub. L. No. 105-277, div.

C, tit. I, 112 Stat. 2681-611. It claims this law gave the

President the “option” to side-step the exclusive, congressionally mandated succession scheme specific to the

office of the Attorney General in 28 U.S.C. § 508, and instead use the Vacancies Act’s default statutory scheme

pertaining to temporary appointments generally in 5

U.S.C. § 3345(a). Flood Memo 4. And under this alternative scheme, the Government claims the President may

nominate any of thousands of senior employees within

the Department to lead the DOJ—even someone who

had never been Senate-confirmed to any position within

the federal government. Id. § 3345(a)(3)

But the circumstances surrounding the Vacancies Reform Act’s enactment readily show the Government’s options-creating position to be antithetical to the Act’s

whole reason for being. The Vacancies Reform Act was

enacted during another period in which the Office of Le-

5

gal Counsel sought to create “options” allowing for temporary appointments of lower-level DOJ employees (and

others) outside of a congressionally mandated scheme,

through creative readings of agencies’ enabling legislation. That last OLC effort resulted in administrative chaos and routine disregard of congressionally mandated

restrictions. The Vacancies Reform Act was a response to

that chaos, meant to close down those outside options and

limit the Executive’s appointment discretion. It makes no

sense to believe that Congress would find such intervention necessary to take away the President’s “option” to

appoint lower-level DOJ employees, and yet invite many

times the chaos by creating a new “option” for the President to do so for the Attorney General, the most important and powerful Senate-confirmed employee in the

Department. Indeed, that illogical premise finds no support in the statute, its legislative history, or prior case

law. Instead, each of these sources confirms that the Vacancies Reform Act did nothing to break Congress’s 150year practice regarding the succession of the Attorney

General.

Rod Rosenstein is the Acting Attorney General.

ARGUMENT

Congress has provided only one mechanism for

designating an Acting Attorney General: Section 508

of the Attorney General Succession Act.

The Government’s position boils down to the contention that the Vacancies Reform Act gave the President a

ready means to evade a scheme Congress mandated for

designating an Acting Attorney General in 28 U.S.C.

§ 508 that had prevailed for over 150 years—one specifying that only certain Senate-confirmed officers within the

6

Department could temporarily occupy the office of Attorney General. In its stead, the Government contends,

Congress gave the President two potential paths to designate an Acting Attorney General. The President could

allow the designee specified in section 508 to take office.

Or the President could choose a successor himself, so

long as the replacement met the qualifications of 5 U.S.C.

§ 3345(a)(2) or (a)(3)—the latter of which would leave him

free to appoint a non-Senate-confirmed officer.

But nothing in the Vacancy Reform Act’s text or the

circumstances of its drafting suggests it was meant to

provide the President with this sea-changing, dual-option

appointment process with respect to the Attorney General. Rather, the Vacancies Reform Act requires that vacancy appointments follow a path that puts the options in

Congress’s hands. Either Congress provides a statute

setting forth a method by which a particular vacancy is to

be filled, or Congress allows the President to fill the office through the default provisions in 5 U.S.C. § 3345.

And because 28 U.S.C. § 508 is of the former variety, designating a particular officer to fill the role the Acting Attorney General, it, not the Vacancies Act’s default provisions, is controlling.

A.

Enactment of the Federal Vacancies Reform Act

did not provide the President any alternative

means for designating the Acting Attorney

General.

1. The Federal Vacancies Reform Act of 1998

emerged out of fires from the Watergate scandal that had

smoldered for decades. The conflicts between President

Nixon and the Justice Department that led to the Saturday Night Massacre decimated the Department’s ranks

7

and brought renewed attention to the need for principal

officers within the federal government to be accountable

to the people, not just the President. Brannon P. Denning, Article II, the Vacancies Act and the Appointment

of “Acting” Executive Branch Officials, 76 Wash. U. L.Q.

1039, 1061 (1998). That made the “vetting process for potential officeholders * * * more complex, difficult and

protracted” (Rosenberg Memo II at 8), and left the federal government with far more Senate-confirmable offices than acceptable candidates to fill them. To prevent

these offices from becoming inoperative for lack of an

agency head, the Office of Legal Counsel in 1973 began

seeking ways to stretch temporary acting appointments

past the Vacancies Act’s strict time limits. It claimed to

found a solution in the enabling statutes governing many

agencies, like the Justice Department’s, which was located in 28 U.S.C. §§ 509-10. Rosenberg Memo II at 1. The

DOJ argued that these provisions, which empowered

agency heads to delegate functions to subordinates, gave

“the head of an executive agency *** independent authority apart from the Vacancies Act” to fill vacant offices. N.L.R.B. v. SW General, Inc., 137 S. Ct. 929, 935

(2017).

The result was a scandal. Providing presidents with

“options” outside of the Vacancies Act’s mandatory

scheme for temporary appointments routinized the evasion of specific conditions Congress had set on those appointments. And the situation only worsened over time.

By 1998, 20% of the 320 positions requiring Senateconfirmed appointees (and 25% of such positions within

the Justice Department) were staffed by temporary appointees, most of whom had served beyond the then-120day limitation period set in the Vacancies Act. Rosenberg

8

Memo II at 1. The situation also created interbranch conflict between the Justice Department and the Comptroller General, who objected that that agency enabling statutes lacked the requisite specificity to allow appointments beyond the Vacancies Act’s temporal limits. Comptroller General’s Decision B-220522, June 9, 1986, 65

Comp. Gen. 626 (1986); See also Rosenberg Memo I at 45, 19.

2. Things came to a head in 1997, when the Senate

Judiciary Committee refused to refer Bill Lann Lee,

President Clinton’s nominee to head the Office of Civil

Rights, to a floor vote.2 The President decided instead to

appoint Mr. Lee as “Acting” Assistant Attorney General

for Civil Rights by delegating those responsibilities to

him, with plans that he would serve beyond the Vacancies

Act’s time limits, producing public outcry and calls to

have the Vacancies Act amended to prohibit such presidential end-arounds. Stewart M. Powell, Lee Wins Civil

Rights Job Despite GOP Block: President Dodges Senate

Opposition and Names L.A. Lawyer to Post on an Acting Basis, S.F. Examiner, Dec. 15, 1997, at A1. Congress

requested that CRS provide a report on the issue, and

the Service recommended legislation to make clear that

the Vacancies Act “is meant to be the exclusive vehicle

for temporarily filling advice and consent positions in all

departments and agencies in the government” (Rosenberg Memo I at 33), and “cannot be overcome by the gen2

See Democrat Wants New Hearing for Embattled Nominee,

AP, Nov. 8, 1997, available in 1997 WL 4891645; Naftali Bendavid,

Democrats Delay Panel’s Vote on Civil Rights Nominee, Chi. Trib.,

Nov. 7, 1997, § 1, at 3.

9

eral authority of an agency head to assign functions * * *

within an agency” (id. at 34-35). Instead, the Vacancies

Act should control unless Congress provided in “express[] and specific statutory language” (id. at 3) that

another statute would control the temporary appointment process for a particular office (id. at 27).

3. Congress responded to these calls with the Vacancies Reform Act. Adopting CRS’s recommendation, the

Vacancies Reform Act specifies that it is to provide “the

exclusive means for temporarily authorizing an acting

official to perform the functions and duties” of any Senate-confirmable office in any “Executive agency” unless

some other “statutory provision” empowers the President to make the appointment himself or “designates an

officer or employee to perform the functions and duties

of a specified office temporarily in an acting capacity.” 5

U.S.C. § 3347(a)(1)(A) & (B). Indeed, the word “exclusive” is taken directly from the CRS Report. Rosenberg

Memo I at 33 (providing that the Vacancies Act “is meant

to be the exclusive vehicle for temporarily filling advice

and consent positions”) (emphasis added). The Act also

specifically adopts the Comptroller General’s argument

(and CRS’s recommendation) that agency enabling statutes should not displace the Vacancies Act’s requirements on temporary appointments. Id. § 3347(b). As

Senator Thompson, the Vacancy Reform Act’s original

sponsor, put it, these reforms were meant to “extend the

provisions of the Vacancies Act to cover all advice and

consent positions in executive Agencies except those that

are covered by express specific statute that provide for

acting officers to carry out the functions and duties of the

office.” 144 Cong. Rec. S11022-S11023 (Sept. 28, 1998)

(emphasis added). The flip-side of that observation is that

10

when a specific statute exists that provides for acting officers to carry out the functions of the office, the Vacancies Act cedes entirely. See also S. Rep. 105-250, at 2

(1998) (providing that the Vacancies Reform Act would

“appl[y] to all vacancies in Senate-confirmed positions in

executive agencies with a few express exceptions,” including “statutes that themselves stipulate who shall

serve in a specific office in an acting capacity”) (emphasis

added); id. at 15 (describing office-specific statutes as

“exceptions” to the Vacancies Reform Act).

4. These reforms did not deal with the process of appointments to the position of Acting Attorney General

specifically. But Congress was nevertheless forced to

deal with that process during drafting of the Vacancies

Reform Act because its legislative overhaul completely

replaced the prior version of the Vacancies Act. Pub. L.

No. 105-277, div. C, tit. I, § 151(b), 112 Stat. 2681, 2681611 (noting that the Vacancies Reform Act “str[uck] sections 3345 through 3349” of title 5). That wiped out a specific carve-out stating that the Vacancies Act “d[id] not

apply to a vacancy in the office of Attorney General.” 5

U.S.C. § 3357 (1988). This meant to capture that the process for designating Acting Attorneys General was handled outside the Vacancies Act, in the Attorney General

Succession Act, and had been for as long as the Justice

Department had existed. This was because the Department was created out of a chaos of its own, during a time

when the Attorney General had few real responsibilities,

many U.S. attorneys were contract employees, and there

was no central authority to ensure that the Government

maintained coherent legal interpretations across all

agencies. Rosenberg Memo I at 9-15. Instead, interpretive responsibilities were parsed out among individual

11

agencies, leading to conflicting interpretations between

attorneys beholden to their agencies’ interests rather

than the national good. Id. at 15. When those responsibilities were brought within the auspices of a single office, it

became immediately apparent that its occupant could not

be subject to the conventional process of the thenapplicable Vacancies Act. Ibid. Instead, Congress provided a special succession scheme for the office, providing

that if a vacancy in the Office of the Attorney General

arose, the Senate-confirmed deputy (originally, the Solicitor General) would be automatically elevated to the position of Acting Attorney General. Ibid. Congress chose

this specific succession method outside the Vacancies

Act’s default provisions because it felt Senate vetting

necessary to ensure that the candidate possessed the

qualifications and independent judgment to lead the office, and experience within the Department would be

needed to ensure that the candidate would understand

the office’s sprawling responsibilities and possess undivided allegiance to the Department’s mission, devoid of

allegiances to other agencies and conflicts of interest.

Ibid. Over time, this procedure became the succession

scheme in 28 U.S.C. § 508.

The Senate Committee Report accompanying Senate

Bill 2176 (1998), the bill that would become the Vacancies

Reform Act, specifically stated Congress’s intention that

section 508, and its 150-year old practice for designating

an Acting Attorney General, would survive the 1998 legislative overhaul, thus ensuring “that Senate confirmed

Justice Department officials will be the only persons eligible to serve as Acting Attorney General.” S. Rep. No.

105-250, at 13.

12

At first, the Senate tried to accomplish this object of

preserving the Attorney General Succession Act’s exclusivity by tucking a provision into 5 U.S.C. § 3345 stating

that “[w]ith respect to the office of the Attorney General

of the United States, the provisions of section 508 of title

28 shall be applicable.” See S.2176, 105th Cong., § 3345(c)

(1998). But that attempted solution created a different

problem. By creating a specific reference to section 508,

Senate Bill 2176 seemed to suggest that section 508

would be the only office-specific statute to which the Vacancies Act would cede. That allowed the inference that

the Vacancies Act would provide an option for appointments alongside office-specific statutes—a problem that

was not aided by the fact that the original bill language

made the Vacancies Reform Act “available” rather than

“exclusive.” S.2176, § 3347. That was obviously not Congress’s intent, when the Senate Report accompanying

the bill listed some 39 of these other statutes, alongside

508(a) & (b), and indicated that the practices in all of

these statutes were to be “retain[ed].” S. Rep. No. 105250, at 15-17.

Congress eventually fixed this problem in the version

of the Vacancies Reform Act that became law. That version more clearly retained the exclusive character of office-specific statutes by hewing more closely to CRS’s

original proposal. 5 U.S.C. § 3345 removed the reference

to section 508 that had appeared in Senate Bill 2176, and

changed the word “applicable” to “exclusive” 5 U.S.C. §

3347 (as CRS had originally recommended [Rosenberg

Memo I at 33]). That change ensured that “the Vacancies

act provides the sole means by which temporary officers

may be appointed unless contrary statutory language * *

* creates an explicit exception.” 144 Cong. Rec. S12823

13

(Oct. 21, 1998) (Sen. Johnson). Accordingly, the officespecific statutes that provided the exclusive path for designating an acting official before the Vacancies Reform

Act remained exclusive thereafter. Because section 508

was just as exclusive as the other retained office-specific

statutes, this more general phrasing eliminated any need

for a specific reference to section 508 while still making

good on Congress’s explicit aim of ensuring that Congress’s 150-year practice for designating an Acting Attorney General would be retained.

B. The Government’s contrary position lacks

support in text, history, or precedent.

1. The Government’s arguments to the contrary turn

the Vacancies Reform Act on its head. The Vacancies Reform Act was enacted to eliminate the Justice Department’s position that DOJ’s enabling statutes provided

alternatives to the Vacancies Act’s appointment provisions. Congress rejected that argument and made the

Vacancies Act exclusive where it applies. And it did so to

constrain the President’s temporary appointment powers

for all appointees—including even for run-of-the mill

sub-Cabinet positions and underling DOJ officers. It

would be odd to read that same statute to produce the

exact opposite result with respect to the Attorney General personally—the head of the federal government’s

most powerful and consequential agency. It would likewise be odd to assume that Congress would observe the

mischief resulting when the President had options to

evade Congress’s mandated scheme for filling vacancies,

decide to take away those options for lower positions

within the Justice Department, yet turn around and provide the President with an option to evade the mandatory

scheme for appointment of an Acting Attorney General,

14

magnifying the potential for Presidential mischief in

temporary appointments many times over. Odder still to

assume that Congress would silently disregard a 150year practice in temporary Attorney General appointments—a practice that provided a separate layer of protection against candidate incompetence and presidential

interference. Yet the Government’s argument demands

that the Court indulge each of these fictions.

2. In addition to subverting Congress’s manifest purpose, the Government’s argument also draws impermissible inferences from the statutory text. The Government

claims support from two provisions within 28 U.S.C.

§ 508. But while it may be true that section 508(a) provides “that the Deputy Attorney General ‘may’ serve as

Acting Attorney General, not that he ‘must,’” that does

not suggest “that the Vacancies Reform Act remains an

alternative means of appointment,” as the Government

suggests. Flood Memo 5. The use of the permissive

“may” merely accounts for the prospect that there might

not be a Senate-confirmed Deputy Attorney General

available to assume the role of Acting Attorney General.

What makes section 508’s succession scheme mandatory

is subsection (b), which says the Acting Attorney General

“shall” take up the role of Attorney General if the Deputy

is not available—clearly implying that the Deputy must

take up the rule if he is available. Indeed, if the statute

were optional, it would be an option belonging only to the

Deputy Attorney General, allowing him to decide whether to assume the office. See Air Line Pilots Ass’n, Int’l v.

U.S. Airways Grp., Inc., 609 F.3d 338, 342 (4th Cir. 2010)

(defining “may” as providing authorization without obligation). If the Deputy declined, it would then fall to the

Assistant Attorney General or other available officer in

15

section 508’s line of succession to take up the role. But

this permissive language provides no option for the President to disregard the Attorney General Succession Act’s

provisions, and thus it does not expand his authority in

appointing an Acting Attorney General.

Likewise, the fact that section 508(a) makes the Deputy Attorney General the “‘first assistant to the Attorney

General’ ‘for the purpose of Section 3345 of title 5’” does

not make vacancies in the Office of the Attorney General

subject to the Vacancies Act. Flood Memo 5. If it did,

then it would make section 508(b)’s chain of succession—

which automatically transfers power from the Attorney

General to Deputy or to the Associate Attorney General—impossible. That chain of succession is incompatible with the requirement in 5 U.S.C. § 3348(b) that the

office be filled by holders appointed under “sections 3345,

3346, and 3347” of the Vacancies Act or remain vacant.

Further, if section 508 was subject to the Vacancies Act,

then the Deputy Attorney General could never serve beyond the Vacancies Reform Act’s time limits (see 5

U.S.C. § 3346), which is why even the Government does

not seriously contend that this language makes the Vacancies Act controlling.

Congress instead adopted the “first assistant” language in an early version of the Attorney General Succession Act to conform that statute with the predecessor

Vacancies Act. The latter statute specified that the “first

assistant” was the successor to an absent officer and that

the President’s authority to override that default rule

was not applicable to the Attorney General. 5 U.S.C. §§

3345, 3347 (1998). As noted, the Vacancies Reform Act

replaces that specific exemption with a broader—but no

less applicable—provision stating that the Vacancies Re-

16

form Act is not exclusive when any statute designates a

specific successor. See 5 U.S.C. § 3347(a)(1). In enacting

the Vacancies Reform Act, Congress simply neglected to

delete the no-longer-necessary reference to the Deputy

Attorney General as the “first assistant.”

Finally, the fact that section 3349c “is used to exclude

certain offices together” is meaningless. Flood Memo 4

n.3. Those exclusions are limited to multi-member bodies

that had “always” historically been considered separate

from the Vacancies Act. S. Rep. No. 105-250. This is because, in such multi-member bodies, it is unnecessary for

the President to make an interim appointment for the

body to continue working. Nothing about that provision

suggests that Congress intended it to exclude by implication single-member offices that are subject to specific

succession statutes. Accordingly, none of the provisions

that the Government invokes can minimize the force of

section 508’s absolute succession commands, and certainly should not be thought clear enough to break unbroken

congressional practice dating back 150 years.

3. Nor for that matter, does the Government’s position have any support in Vacancies Reform Act’s legislative history. The Office of Legal Counsel claims support

from a single sentence in S. Rep. 105-250 that stated

“‘the Vacancies Act will continue to provide an alternative

procedure for temporarily occupying the office’” in certain circumstances. Flood Memo 4 (quoting S. Rep. 105250, at 16). But this sentence was not meant to suggest

that the Vacancies Act was an “alternative” to all officespecific statutes. Rather, this passage can only be understood in the context of the paragraph in which it appears,

which deals with a different possibility altogether: that

the office-specific statutes would be repealed or amend-

17

ed. In the Report, the Committee on Government Affairs

explained that it anticipated other “authorizing committees” might choose to change certain office-specific designation procedures within their areas of authority in response to the Vacancies Reform Act. S. Rep. 105-250, at

17. It figured that some committees might opt to repeal

their existing procedures entirely “in favor of the procedures contained in the Vacancies Reform Act.” Ibid. In

that event—and only in that event—“the Vacancies Act

would continue to provide an alternative procedure for

temporarily occupying the office” that the committees

might utilize if they wished to tinker with the existing

procedure. Ibid.

The sentence in question thus does not say the Vacancies Reform Act as adopted definitively “will serve” as an

alternative procedure to the office-specific statute. It

says instead that that the Vacancies Act conditionally

“would”—thus anticipating some future legislative

change, not the changes provided in the Senate Bill itself.

Furthermore, the Government’s reading cannot be reconciled with the Report’s express statement that appointments to the office of Acting Attorney General

would always be pulled from Senate-confirmed positions

within the Justice Department. Id. at 13. Congress could

not make that statement if the Vacancies Act was an option. In any event, that legislative history dealt with a bill

whose language did not make it into law. Accordingly, if

the Senate Report’s lone statement suggesting the Vacancies Act might serve as an “alternative” was really

was meant to make the Act optional for any office, that

option thus did not survive the lawmaking process.

4. Case law likewise does not dictate that the Attorney General Succession Act and the Vacancies Act be

18

treated as dual-track, non-excusive options for presidential appointments of the Acting Attorney General. The

Office of Legal Counsel relies on two cases, English v.

Trump, 279 F. Supp. 3d 307 (D.D.C. 2018) and Hooks v.

Kitsap Tenant Support Services, 816 F.3d 550 (9th Cir.

2016), see Flood Memo 6, but neither dealt with the Attorney General Succession Act, and each is readily distinguishable.

In English, the district court held that the President

could invoke the Vacancies Reform Act to appoint an Acting Director of the Consumer Financial Protection Board

(“CFPB”) despite the availability of a provision of the

Dodd-Frank Act specifically addressing succession. In

that case, the Director of the CFPB named an individual

as his Deputy, then immediately resigned. English, 279 F.

Supp. 3d at 313-16. The Deputy argued that she became

Acting Director under a provision of the Dodd-Frank Act

stating that the Deputy shall “serve as acting Director in

the absence or unavailability of the Director.” 12 U.S.C. §

5491(b)(5). She then argued that her succession to that

role precluded the President from naming a different

Acting Director. English, 279 F. Supp. 3d at 317.

But the potential availability of the Vacancies Act as

an option in English says nothing about its availability as

an option in this case. For one thing, as the district court

stressed, Dodd-Frank’s officer-specific provision applies

only to the Director’s “absence or unavailability,” 12

U.S.C. § 5491(b)(5), and thus did not displace the Vacancies Reform Act in the event of a resignation, 279 F.

Supp. 3d at 322-23. And the court specifically identified

the Attorney General Succession Act as a statute that

would have displaced the Vacancies Reform act in similar

circumstances. Ibid.

19

Further, the court placed significant weight on the

fact that Dodd-Frank specifically incorporates preexisting federal statutory law, which includes the Vacancies Reform Act. Id. at 322-27. The Attorney General

Succession Act contains no such provision.

Finally, the court reasoned that the plaintiff ’s position

would impinge on the President’s appointments power,

because the Director of the CFPB—rather than the

President—selects the Deputy Director. Id. at 327-28. By

contrast, the President selects all of the Justice Department officials who are in the Attorney General Succession Act’s order of succession. It is instead the Department of Justice’s position here that contravenes Congress’s power under the Appointments Clause by evading

Congress’s authority to confirm the Attorney General as

a principal officer. See Mot. to Substitute at 21-26.

In Hooks v. Kitsap Tenant Support Services, 816 F.3d

550 (9th Cir. 2016), the court of appeals stated that the

Vacancies Reform Act might provide an alternative to an

officer-specific provision for appointing an Acting General Counsel for the National Labor Relations Board

(“NLRB”). But the applicability of the Vacancies Reform

Act was purely theoretical in that case. The parties

agreed that the appointment at issue was too lengthy to

be authorized by the officer-specific provision in the National Labor Relations Act (“NLRA”, 816 F.3d at 555 (citing 29 U.S.C. § 153(d)). The Ninth Circuit then held that

the appointment was also invalid under the Vacancies Reform Act. 816 F. 3d at 557-64.

Thus, when the court of appeals briefly noted that the

Vacancies Reform Act might an alternative means of appointing an Acting General Counsel, that was purely dicta, and misguided dicta at that. 816 F.3d at 556. The court

20

relied upon the same misinterpretation of the sentence in

the Senate Report about the Vacancies Act serving as an

“alternative” that the Government offers here. see supra

at 15-16, and thus its mistaken reading of a bill that was

not passed should not be persuasive.

Furthermore, the reasoning of Hooks’ dicta is inapplicable. The Ninth Circuit did not address any of the arguments against reading the Vacancies Reform Act to

override a statute such as the Attorney General Succession Act. Nor did it need to. Because both the NLRA and

the Vacancies Reform Act call for the President to appoint an interim official, they involve a much less stark

conflict than arises here. The Attorney General Succession Act specifies a particular successor to the Attorney

General and does not permit a presidential appointment.

Moreover, Hooks did not present any issue under the

Appointments Clause, as the General Counsel of the

NLRB is better viewed as an inferior officer who is not

constitutionally required to be confirmed by the Senate.

Accordingly, neither English nor Hooks stands for the

proposition that the Vacancies Act is an alternative to all

officer-specific statutes. At best, they suggest the Vacancies Act might provide an alternative in some cases—

where the officer-specific statute specifically provides

that the Vacancies Act is an alternative.

The Government’s reading of the Vacancies Reform

Act thus lacks any foothold in text, history, or precedent,

and runs counter to the 150-year history of the rules of

succession for the temporary occupants of the nation’s

top law-enforcement position. It should therefore be rejected.

21

CONCLUSION

The Court should grant Petitioner’s motion to substitute.

Respectfully submitted,

J. Carl Cecere

Counsel of Record

CECERE PC

6035 McCommas Blvd.

Dallas, TX 75206

(469) 600-9455

ccecere@cecerepc.com

Counsel for Amicus Curiae

November 29, 2018