Notice & Comment

A Good Student Question on the Appointments Clause—And a Judge’s Answer, by Jeffrey Lubbers

Sometimes a student question leads to an interesting discovery. In my Administrative Law class, I was covering the issue of appointment of officers and discussing the important Appointments Clause cases of Morrison v. Olson, 487 U.S. 654 (1988) (appointment of the independent counsel (“IC)” under the Ethics in Government Act) and Lucia v. SEC, 138 S. Ct. 2044 (2018) (appointment of SEC administrative law judges).  In each case the Court held that the positions in question were “inferior officers” under the Appointments Clause.  This was important because it meant that they didn’t have to be nominated by the President and confirmed by the Senate, but that Congress could otherwise only vest their appointment “in the President alone, in the Courts of Law, or in the Heads of Departments.” Art. II, § 2, cl.2.

In Morrison, one of the reasons the Court found that the IC was an inferior officer, but not a principal officer, was that the “office is limited in tenure.”  The Court explained, “There is concededly no time limit on the appointment of a particular counsel. Nonetheless, the office of independent counsel is ‘temporary’ in the sense that an independent counsel is appointed essentially to accomplish a single task, and when that task is over the office is terminated, either by the counsel herself or by action of the Special Division.”  Morrison at 672.  Because the IC was an inferior officer, the Court found her appointment by a special court created by statute to make such appointments (i.e., a “court of law”) to be constitutional

In Lucia, the main question was whether the SEC ALJs were “officers” at all or whether they were simply employees that could be constitutionally appointed by anyone.  In deciding that question the Court combined the test used in two earlier cases, United States v. Germaine, 99 U.S. 508, 511–12 (1879), which held that doctors hired by the government to perform various physical exams were mere employees because their duties were “occasional or temporary” rather than “continuing and permanent.” and Buckley v. Valeo, 424 U.S. 1, 126 (1976), which determined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” Lucia at 2051. The Court held that the SEC ALJs met this test, were therefore officers who had to be appointed by the Commission itself as Head of a Department.

After we finished discussing these and some other cases, one of my students (Ryan Scheidt) raised his hand and asked why the IC in Morrison was an officer at all if she didn’t occupy a “continuing” office but instead occupied a “temporary office.”  After hemming and hawing about that for a few seconds I told him he had put his finger on a seeming contradiction and that I would try to have an answer for him in the next class.

As I pondered his question afterwards, it occurred to me that the recent unsuccessful challenge to Robert Mueller’s appointment as Special Counsel (SC) might have addressed these issues, even though Mueller had been appointed by the (Acting) Attorney General under DOJ regulations, not under the now-expired provisions of the Independent Counsel statute.

Sure enough, the opinion by Chief Judge Beryl Howell in that case, In re Grand Jury Investigation, 315 F.Supp.3d 602 (D.D.C. 2018) addressed this issue squarely. She concluded that the temporary/permanent test in Morrison is used to draw a distinction between principal and inferior officers, but that is a different formulation than the continuing/episodic test used in part to determine whether an employee is an officer at all.  According to Judge Howell, Germaine and the other main case that followed it, Freytag v. C.I.R., 501 U.S. 868 (1991) (holding that Special Trial Judges of the Tax Court were “officers”), make clear that for the latter question “continuing” simply means more than “occasional,” “intermittent,” “temporary,” or “episodic.

In her opinion upholding the Mueller appointment, Judge Howell first finds that, like the IC in Morrison, the SC’s position is temporary in the sense of being “limited in tenure.”

But then she confronts Ryan’s question:

To conclude that the Special Counsel’s office is “temporary” in the sense that the Special Counsel’s “office is limited in tenure,” does not conflict with recognizing the Special Counsel as an officer of the United States, who “must occupy a continuing position.” Lucia suggested that one holding a “temporary” position may not qualify as an officer at all, but only as an employee. “Temporary” has a somewhat different meaning in the context of Morrison’s principal-inferior officer test than in the context of Lucia’s officer-employee test, however; indeed, if the term “temporary” meant the same thing in both contexts, Morrison’s “limited in tenure” factor would always weigh toward principal officer status, as a determination that one is an officer in the first place requires a determination that one’s position is not “temporary.” Instead, for purposes of determining whether an officer is principal or inferior, a position is “temporary” if limited in duration, i.e., the position eventually will be “terminated.” Morrison. For purposes of determining whether one is an officer of any kind, however, a position is “temporary” if the position’s “duties” are “occasional,” “intermittent” Germaine (equating “temporary” with “intermittent”), “or “episodic,” Freytag.  Germaine, for example, held that a surgeon who was “only to act when called on by the Commissioner of Pensions in some special case, as when some pensioner or claimant of a pension presents himself for examination,” was a mere employee rather than an officer. The Special Counsel’s position is “temporary” in the sense that it eventually will terminate when his “task is over,” Morrison, but it is not occasional, intermittent, or episodic, as the Special Counsel’s work remains ongoing and regular until complete.

315 F.Supp.3d at 644 (internal citations removed).

This was just one paragraph from a 65-page opinion, but it provided the answer that I needed.  So thank you, Ryan, for the question, and thank you, Judge Howell, for the answer.

Jeffrey S. Lubbers is Professor of Practice in Administrative Law at American University’s Washington College of Law.