J

626

.

DECISIONS OF THE COMPTROLLER GENERAL

[a

Camp.

test had not explained in detail why the amendment was material.
In contrast, the GSA report contained detailed legal and factual
support for GSA’s conclusion that Chemray’s bid was properly rejected as nonresponsive. In addition, the report alleged a procedural deficiency for which the protest could be dismissed. Thus, Chemray’s response to GSA’s decision clearly does not take issue with
GSA’s position set forth in the report, and cannot be considered
comments on the agency report.
Because of this, and our notice to Chemray as to the consequences of its failure to respond in some manner to the GSA
report-for example, by advising us to consider ita comments on
the GSA decision as its comments on the GSA protest report-the
prior dismissal is f l i e d .

4

DECISIONS OF THE COMPTROLLER GENERAL

Interim Appointee

,

Position

Don M.Newman............. Acting Under Secretary..,,..,.....
Lawrence J. DeNardis ... Acting Assistant Secretary
for Legislation.
Robert B. Helms
Acting Assistant Secretary
for Planning and Evaluation.
CarobFraser Fisk ...._... Acting Commissioner on
Aging.
Henry R. Desmarais,’ Acting
Administrator,
M.D.
Health Care Financing Administration.
Donald I. Macdonald,
Acting Assistant Secretary
M.D.
for Health.
Martha A. McSteen........ Acting Commissioner of
Social Security.

..............

[B-220522 J

VacancierVacanciee Act-Applicability
Proviaions of the Vacancies Act, 6 U.S.C.334549 (1982!, govern the filling of vacanc i a in those offices which require Senate confirmation rn the Department of Health
and Human Services, except where there is specific statutory authority to fdl such
vacanciee. The Vacancies Act applies to the position of Under Secretary, and various Aseietant Secretary positions, and the positions of Deputy Inspector General,
Commiegianer on Aging, Administrator of the Health Care Financing Administration, and Commissioner of Social Security. The Vacanciw Act limits acting appointmenta b fill such positions to 3O-daye duration.

3

Appointmente-Preeidential-LLVacancies Act” Restrictione
Actiona by individuale occupying offices pursuant to the Vacancies Act which are
taken subsequent to expiratioh of today time limitation set forth in 5 U.S.C. 3348
are of ~ m r t a i nvalidity. Accordingly, at the end of the 3Oday period, such individuals ehould refrain from taking any further action in an acting capacity.

To the Honorable William Proxmire, United Statee Senate,
June 9,1986
This is in partial respom to your letter dated September 25,
1986, in which you asked,among other things, to what extent the
Vacancies Act applies to various officers of the Department of
Health and Human Servicw serving in an acting capacity without
Senate confirmation. As shown below, we conclude that the Vacanciea Act is applicable to all of the positions in question and that
thcme officers who serve more than 30 days in an acting status in
such positions are in violation of the Act.
BACKGROUND

f i e following persons continue to serve in an acting status in positions that require conijrmation by the Senate.

Osn.]

i

I.
I

627
Effective
Date of
Acting
status
12/16/85
1/ 29/ 85
4/23/84
12/18/84
2/02/86
12/02/85
9/14/83

The following information has been provided our Office by the
Department of Health and Human Services concerning the officers
presently serving,in acting capacities. All of the persons named
abov% were appointed..by the Secretary to serve in their present
“acting” capacities.
Mr. Newman, the Acting Under Secretary, was nominated by the
President to serve as Under Secretary on February 12, 1986, Additionally, Assistant Secretary for Human Development Services
Dorcas R. Hardy has been nominated by the President to serve as
Commissioner of Social Security and William R. Roper has been
nominated to serve as Administrator, Health Care Financing Administration. We understand that the Senate Finance Committee
has conducted hearings on these nominations.
No other naminations have been made for the above positions.
With the exception of Dr. Donald I. Macdonald, who wae confirmed
as the Administrator of the.Alcoho1, Drug Abuse, and Mental
Health Administration, none of the above named individuals has
ever been confirmed by 4he Senate in any capacity. In addition, the
Department has Wormed our Office that the position of Deputy Inspector Genenalzhas remained vacant since January 22,1981.
The positions of Under Secretary and two Assistant Secretaries
were established by section 2 of the Reorganization Plan No. 1 of
1 C. McClain Haddow served aa Actin Administrator of the Health Care Financing Administration from August 12, 19g5, to February 2, 1986, before the designation of Dr Desmarais.

 628

DECISIONS OF THE C O ~ O L L @ R
GENERAL

,

.

[a

Camp. Cen.]

1963, effective April 11, 1953, 67 Stat. 631, 42 U.S.C. 83501 note
(1982). This section provides:

E

The position of Commissioner of Social Security was established
pursuant to &ion 4 of Reorganization Plan No. 1 of 1953, supna,
which provides as follows:
There shall be in the Department a Commissioner of Social Security who shall be
appointed by the M i d e n t by and with the advice and consent of the Senate, shall
perform such functions concerning Bocial security and public welfare as the Secretary ma p&be,
and shall receive compensation at the rate now or hereafter
tixed b y Lw for grade GS18 of the general schedule
*.

The other positions referred to above were established later.
They all require appointment by the President and confirmation by
the senate, and the Chgress has made no special provision for filling a vacancy in any of them.2
Appointment of Officers of the United S t a b
The Appointments Clause of the Constitution, Article 11, section
2, c l a w 2, provides as follows with regard to the appointmenta of
0ffiCe8:

me

President] shall nominate, and by and with $he Advice and Consent of the
Senate, shall appoint Ambaasadom, other ublic
and Consuls, Judges of
the Supreme.court, and all other officers ofthe U s @ , whose A pomtmente
am not herem othemm p m d e d for, and which shall be.&abhhed gy Law: but
the Cmgrem may by Law v a t the Appomtment of such mfenor Wicers, as they
thing proper, in the President alone, m the courte of Law, or in the Heads of DeW b .

Thus, the Constitution provides that officers of the United States
must be appointed with the advice and consent of the Senate,

except when the Congress clearly vests the fidl appointment power
for a particular position or class of positions by law “in the President alone, in the Courts of Law, or in the Heads of Departments.”
See SCUZZY v. United States, 193 F. 185,187(C.C.D. Nev. 1910).

* Under section 4(a) of Pub. L.89-115, 79 Stat. 449 (1965)! 42 U.S.C. #*3501a(19821,
00provided for three additional Asswtant fkmetanm. The position of Commkioner on
was egtablished by section 201 of title II, Pub. L.89-73 (1965), 42
U.S.C.8 3011
The poeition of Administrator of the Health Care Financing Admiuimtration was made subject to Senate confirmation by section 2332(a) of Pub. L.
98469 (1984),98 Stat. 1089, tp be codifidat 42 U.S.C. 1317. The poeition of De u
r General was eatabhhed by d o n 202, htle !
I
,
of Pub. L.94-605 (191&,8
m
S
S
m
b
,
(1982).

a.

629

The Vacancies Act

There shall be in the Deperhnent an Under Secretary of Health, Education, and
Welfare and two +idant, Secretmje~of Health, Education, .and Welfare, each of
whom shall be ap mted by the h d e n t by and wth the adwce and consent of the
Senate, shall p e & m such Functione as the Secretmy may rermibe, and shall re
wive compensation at the rate now or hereafter pTwded bylaw for under secretariea and aesistant secretaries, respectively, of executive de
menta. The Under Secretary (or, during the absence or dimbfity of the Under
retary or in the event of
a vacancy in the oEce of Under Secre
Ass&ant Secretary determined according to such order as the Secretary
rdbe)
shall act as k e y during
the absence or disabaity of the Secretary or in the event of a vacancy in t e office
of Secretary.

a

DECISIONS OF THE COMPTROLLER GENERAL

c

d

The so-called Vacancies Act, 5 U.S.C.583345-3349 (19821,provides methods for the temporary fillingo f vacancies created by the
death, resignation, sickness or absence of+he head of an Executive
department or military department or the head of a bureau thereof
whose appointment is not vested in the head of the department or
in the President alone. Section 3345 provides that when the head of
an Executive department or military department dies, resigns, or is
sick or absent, unless otherwise directed by the President under
section 3347, his first assistant shall perform the duties of the
office until a successor is appointed or the absence or sickness
stops. Section 3346 provides that when an officer of a bureau of an
Executive department or military department whose appointment
is not vested in the head of the department dies, resigns, or is sick
or absent, unless otherwise directed by the President under section
3347,his first assistant shall perform the duties of the office until a
successor is appointed or the absence or sickness stops.
Section 3347 provides that, instead of a detail under section 3345
or 3346, the President may direct the head or another officer of an
Executive department or military department, whose appointment
is vested in the President, by and with the advice and consent of
the Senate, to perform the duties of the office until a successor is
appointed or the absence or sickness stops. Section 3349 makes the
methods described in the preceding sections the sole means for filling the vacancies described therein, except in the case of a vacancy
occurring during a recess of the Senate.
Section 3348 of title 5, United States Code, provides that a vacancy caused by death or resignation may be filled temporarily under
sections 3345,3346,and 3347 for not more then 30 days.
The current provisions of the Vacancies Act are derived from the
Act of July 23, 1868, ch. 227, 15 Stat. 168. The time limit now set
forth in section 3348 was originally 10 days and was increased to 30
days by the Act of February 6,1891,ch. 113,26 Stat. 733.
Department of Health and Human Services Position
The Department of Health and Human Services does not view
the Vacancies Act as being applicable to any of the appointments
enumerated and discussed above. The Department’s position is that
each of the temporary appointments discussed above was made by
the Secretary pursuant to section 6 of Reorganization Plan No. 1of
1953,supra, which provides as follows:
The Secretary may from time to time make such provisions as the Secretary
deems appropriate authorizing the performance of any of the functions of the Secre@ry by any other officer, or by any agency or‘employee, of the Department.

Although recognizing that the vacancies discussed above are aubject to the Appointments Clause of the Constitution, it is the De-

 630

DECISIONS OF THE COMPTROLLEB GENERAL

I&

partment’s position that the authority granted by section 6 of Reorganization Plan No. 1of 1963, set forth above, allows for the Secretary’s actions in one of two ways as explained below:
First, the Secretary has pmmylgatad a series of organizational lam and poeit!on
deacriptions that n o d pmvlde that If a vacancy occurs, the okcer’s first am.&
ant (or other designated dleputy) will act for the principal until the vacanc is filled.
Hem * six of the eight ad interim a pointees are currently so-called A t assiet.
anta (e& Deputy &unm@eioner, Social kcurity Administration) and aesumed their
ad in+rim atatus by w t u e of the Department’s oqpizational plan, authority
pested m such deputies by virtue of those depuhes pomtion descriptions, or designation from am0 multiple deputies. Second, in certain instances where it was not
feaaible~for thenffret assistant to assume the duti? of the oficer, the Secretary has
made a special delegation of atthtnq to a particular mdmdual to carry out the
functions of the vacant office.
p.rJhla method was ueed in two mtanw:
Acting Aeaietant Secretary for Health and Acting Commissioner on Aging. In both
cmea, the ad interim ap intee had occupied a significant position within the p m
grammatic unit prior to R
t oe ad interim appointment.3

Additionally, it is HHS’s position that the 3Way limitation on
tenure of temporary appointees found in 5 U.S.C.9 3348 is not a p
plicable to any of the vacancies discussed above for the following
reasom:
* Fket, the proscriptive p m v i s i o ~of the [vacaqcias] Act do not restrict the

authority of the Secretary to make ad rnterim designations where, as here, the Searetary is veated with independent statutory authori [section 6, Reo
Plan No. 1 of 19531 to fill vacanuea on an ad interim%&. Second, hte==:
Act restrictions do not apply where, as here, each of the vacancies in question 00mvred during a Senate recees. Finally, since the 3O.day restriction on lnterim a
pointmenta was not intended to apply to first assistants, even if the A$ were a p g
cable it should not be read as precluding the continued orderly functiomng opthe
Department.

OPINION
The congressional intent in passing the 1868 act is indicated by
debate recorded in the Congressional Globe of February 14, 1868

e.

h b u l l . The intention of the bill
to limit the time within which the
-dent
mrght 8upply a wcancy tempmnly rn the ca8e of the detrth or mzgnutwn
o the had of any of the &partmen& or of any o f a r apporntal by hzm by and wrth
tLe advice .and corqent of the Senate in any ?/the epartments.. As the law now
StaaQl he ISa u t h o d to supply thaw vac~llclesfor SUKmontha mthout subrmttlng
the w e of a penron for that purpoee to the Senate, and it was thought b the committee to an upreaeonable l e v of time, and hence they have limited it$ this bd
to thirty days,” [ V e d a m r amendment to 10 day.]39 Congressional Globe
1163, February 14,18 [I c eupplied.1

It has long been held by the Attorney General that after a
vacant poeition has been temporarily filled under the Vacancies
Act the power conferred by the Act is exhausted and the President
doea not have the authority to appoint either the same or another
offiwr to temporarily fill the office for an additional period. 16 Op.
Ai&. Gen. 596 (1880); 18 Op. Atty. Gen. 50 (1884); Id. at 58; 20 Op.
Atty. Gen. 8 (1891).
a The

Department’s position, as described here and elsewhere in this letter, was

vided in a memorandum dated November 27,1986, Mr. Robert E.Roberteon, the

&artment,s General counsel.

Comp.

Oen.]

DECISIONS OF THE COMPTROLLER GENERAL

631

As the intent of the Vacancies Act is to preclude unreasonable
delays in submitting nominations for offices subject to Senate confirmation, we have adopted the view that the 3Oday limitation contained in 5 U.S.C. $3348 runs only during the period that there is
no name before the Senate for confirmation by the body. See 56
Comp. Gen. 761 (1977). Also see Williams v. Phillips, 482 F. 2d 669
(D.C. Cir. 1973). But see United States v. Lucido, 373 F. Supp. 1142
(E.D. Michigan, 19741, wherein the court in effect stated that, notwithstanding that a name has been submitted to the Senate for
confirmation, an appointment under the Vacancies Act would terminate at the end of the 30day period set forth in 5 U.S.C. $ 3348.
Accord, 32 Op. Atty. Gen. 139 (1920).
The 30-day limitation placed on temporary appointments by 5
U.S.C. 0 3348 applies by its express terms only to appointments or
designations made under the Vacancies Act. Accordingly, the limitation contained in section 3348 is not applicable where vacancies
are filled pursuant to authority other than the Vacancies Act.
By its express terms the Vacancies Act is applicable to the Executive departments and military departments. Section 101 of title 5,
United States Code (19821, sets forth the Executive departments.
The Executive departments include the Department of Health and
Human Services, of which the Administration on Aging, the
Health Care Financing Administration, and the Social Security Administration are a part.
The positions filled by the seven acting officials under consideration here all require appointment by the President by and with
the advice and consent of the Senate, and are, in our opinion, sub
ject to the Vacancies Act. With the exception of Mr. Newman, none
of the seven officials has been nominated for the position in which
they are serving. Thus, the 3Oday limitation set forth in 5 U.S.C.
$ 3348 is applicable to all such appointments except Mr.Newman’s.
In addition, we note that, from the list furnished US by the Department of the persons acting in the various positi6ns, several
were apparently neither “the first assistant” to the 6ffice in which
they are acting nor are they officera whose regular appointments
were made by the President “by and with the advice and conlrent of
the Senate,” as is required by the Vacancies Act. 5 U.S.C. $9 3346,
3347. Therefore, it does not appear that they were eligible for appointment to the acting positions under the Vacancies Act.
The Department, however, argues that section 6 of the Reorganization Plan provides the necessary authority for these temporary
appointments, thereby making the Vacancies Act inapplicable.
Under section 6, Reorganization Plan No. 1 of 1953, the Secretary
of Health and Human Services may authorize any other officer or
employee of the Department of Health and Human Services to perform any function of the Secretary.
The provisions of section 6 of the Reorganization Plan are virtually the same as those contained in 28 U.S.C. $510 under which the

 632

DECISIONS OB “HE C O ~ O L L E BGENERAL

Attorney General may authorize any other officer or employee of
the Department of Justice to perform any function of the Attorney
General. In our decision B-150136, February 19, 1976, we held that
28 U.S.C. 8 510 does not supersede the provisions of the Vacancies
Act. As diecussed below, we believe that the same conclusion
should pertain with regard to section 6 of the Reorganization Plan
No. 1of 1953.
It is clear that the primary intent of Reorganization Plan No. 1
of 1953 was to establish the Department of Health, Education, and
Welfare (now Health and Human Services); to provide clear and
direct lines of authority and responsibility for the management of
the Department; and to make the Secretary clearly responsible for
the effectiveness and economy of administration of the Department. The wording in Reorganization Plan No. 1 is similar to the
wording of other reorganization plans approved in that time period.
In fad, nearly all executive agencies were reorganized under similarly worded reorganization plans to effectuate the recommendations of the Hoover Commission by establishing clear and direct
lines of authority within each agency. See B-150136, February 22,
1973.. Therefore, the position of the Department of Health and
Human Services based on section 6 of Reorganization Plan No. 1
would, in effect, virtually nullify the statutory provisions contained
in sections 3345-49 of title 5, United States Code. It is clear that
such result was not intended.
The Department argues that the proscriptive provisions of the
Vacancies Act, including the 3Oday limitation imposed by 5 U.S.C.
83348, do not apply where the vacancies in question a r m while
the Senate was in recess. As indicated above, section 3349 makes
the methods described in the preceding sections the sole means for
fillinn the vacancies described therein, “except to fill a vacancy occurring during a receas of the Senate.” What the quoted language
in section 3349 recognizee is that the Vacancies Act is not the exclusive authority given to the President to make temporary a p
pointments necessaTy “to fill a vacancy occurring during a recess of
the Senate,” thereby acknowledging the President’s recess appointment authority found in Article 11, section 2, clause 3 of the Conatitution aa follows: “The President shall have Power to fill up all Vacancia that may happen during the Recess of the Senate, by granb
ing Commissions which shall expire at the End of their next Seaeion.” Clearly, when the President elects to exercise his constitutional authority to make appointments during a recess of the
Senate, the 3 W y limitation found in the Vacancies Act does not
apply. Instead, such an appointee would be eligible to serve until
the end of the Senate’s next sesaion.
This is clearly not the case with the Department’s interim a p
pointments, however, as none was made by the President. We do
not agree with the Department’s broad reading of section 3349 as
enabling the Secretary of Health and Human Services to fill all va-

Cornp. Gen.]

633

DECISIONS OF THE COMPTROLLER GENEF&U

cancies occurring during a recess of the Senate without time limitation. We believe that section 3349 provides a limited exception
for only temporary appointments made by the President.
The Department also argues that the legislative history of the
Vacancies Act can be read to support the notion that the time limitation in the Vacancies Act “originally was not intended to apply
to vacancies filled in the natural course by the first misWts.”
The Department suggests that the compilers of the ‘‘Revised Stab
utes,” acting pursuant to authority found in 19 Stat. 268 (1877),
“erroneously broadened the limitation to encompass all temporary
office holders, even the first assistants.” However, as the Deparb
ment acknowledged in its report to our Office, the Revised Stab
utes, being an Act of Congress, had the full force and effect of law.
The Department also recognizes that the Congress has enacted subsequent amendments to the Vacancies Act and has enacted nuyerous recodifications of the United States Code without changing the
Vacancies Act from its current form. Therefore, we conclude that
the present wording of the Act represents the intent of the Congress on this matter and, in any event, is legally effective.
Finally, we note that some of the enumerated positions have
been without a nominee for two years and longer. This appears to
be precisely the sort of “unreasonable” delay the Vacancies Act
was enacted to prevent. In the absence of any other statutory authority to fill the positions on a temporary basis outside the Vacancies Act, we conclude that the 3Oday limit is applicable.
Effect of Vacancies on Actions Taken by Temporary Appointees
The legal status of actions taken by temporary appointees under
the Vacancies Act who continue to serve in an acting capacity
beyond the 3Oday time limitation is uncertain.
Those actions may possibly be viewed as acts performed by a de
facto officer. A de facto officer or employee is one who performs the
duties of an office or position with apparent right and under color
of appointment and claim to title of such office or position. William
A. Keel, Jr., €3-188424, March 22, 1977, and decisions cited. la general we have held that acts performed while a person is serving in
a de facto status are valid and effectual insofar as concerns the
public and the rights of third persons. 42 a m p . Gen. 495 (1963); see
also 63 Am. Jur.2d Public Officers and Employees 0 518.
With regard to defective or invalid appointments, the general
rule is stated in 63 Am. Jur.2d Public Officers and Employees 8 504
(1972)as follows:
* the general rule is that when an official person or body has apparent authority to appoint to public office, and apparently exercises such authont ,and the
person so appointed enters on such office, and performs ita dutiee he w i l l an officer de facto, notwithstandin that there waa want of power to appoint in the body
or person who professed to so, or although the power waa e x e d in an irrepUlar manner.

&

&

 634

DECISIONS OF THE COMPTROLLER GENERAL

Comp. Cen.]

1%

facto doctrine where a statute specifically precluded the continued

occupancy of the position. In 32 Op. Atty. Gen. 139 (1920), the Attorney General advised the Undersecretary of State, who inquired
as to what action he and the officers of the Department of State
should take upon the end of his 3Oday period of service as Acting
Secretary of State pursuant to the Vacancies Ad.
It ie pmbabl safer to spy tha! you should n?t take action in any case out of
which legal rig& mwht anse whch would be subject to review by the courts.

In‘56 Cqmp. Gen. 761 (19771, we considered the effect of actions
taken by the Acting Insurance Administrator, Department of Housing and Urban Development, who had continued to serve beyond
the SOday time limitation set forth at 5 U.S.C. 83348. We stated
that ,when$ is too late to offer the advice set forth by the Attorney
General in,32 Op. Atty. Gen. 139, the secretary of the department
should consider. ratification of thoae actions and decisions already
taken which she agreed vyith to avoid any further confusion as to
their binding effect.

[B-2215851
Appropriations-Augment ation-Det aiLImproper
Proposed transfer of 15 to 20 National Labor Relations Board administrative law
judges to Department of Labor on nonreimbursable basis under the authority in section 3344 of title 5, which provides for transfers, but does not indicate whether the
transferring or receiving agency is to pay for the judges, is impro r. Where a detail
is authorized by statute, but the statute does not specifically autEorize the detail to
be carried out on a nonreimbursable basis, the detail cannot be done on that basis.
Nonreimbursable details contravene the law that a propriations be spent only on
the objects for which appropriated, 31 U.S.C. 1301(af and unlawfully augment the
appropriation of the receiving agency. 64 a m p . Gen. 370 (1985)affirmed

I ,

t i

~ o i n Enforcement
g
Problem Under the Vacancies Act

Since your original request of June 21, 1972, to our Office con-

Detail-Between Agencies-Non-Reimbursable Details

cerning the applicability of 5 U.S.C. 83348 to the temporary a p

pohtment of Mr. L. Patrick Gray III as Acting Director of the Federal Bureau of Investigation, we have been called upon by member~of the Congress to issue !many decisions concerning other officiala in the various Executive Branch departments and agencies.
Although our decision holding that Mr. Gray’s continued services
as Acting Director was prohibited by law4 resulted in the President’s contemporaneous action in nominating Mr. Gray to be the
permanent Director, our more recent decisions finding various Executive Branch officers serving in violation of the Vacancies Act
have had less than the desired salutory effect. In fact, there now
seems to be a discernible pattern for Executive Branch agencies to
take exception to our decisions on Vacancies Act questions and,
supported by the Department of Justice, to ignore the holdings of
these decisions. Our interpretation of the Act has consistently recognized that its application can only be superseded in the case of
statutes that provide specifically for an alternate means of filing a
particular office. The Executive agencies take the view that the Act
can be overcome by the general authority of a cabinet secretary to
assign functions and delegate authority within a department.
You have also asked what enforcement authority exists in the
Vacancies Act itself and what is the most appropriate remedy for
appointments in violation of the Act. The Vacancies Act does not
contain any specific enforcement authority or remedy for viola4

B-160136, February 22,1973.

635

tions. In other situations we have recognized that we have the authority to disallow salary payments from appropriated funds for
purposes that are contrary to law. See 53 Comp. Gen. 600 (1974).
However, the “acting” official in Vacancies Act cases is usually one
who is otherwise entitled to the salary of his or her permanent p e
sition. Hence, we have not to date exercised this authority in such
cases.
We trust that the above information serves the purpose of your’
inquiry concerning the applicability of the Vacancies Act to the
enumerated positions within the Department of Health and
Human Services. The other issues raised in your September 25
letter will be answered in a separate report.

It is not clear, however, whether the courts would apply the de

~

DECISIONS OF THE COMPTROLLER GENERAL

3

I

I

c /r

P r o p o d detail of 15 of 20 administrative law ju es (ALJs) from the National
Labor Relations Board (Board) to the De artment $Labor on a nonreimbursable
baeh for the remainder of fmal year 198i does not conform to either of the excep
tions in 64 a m p . Gen. 370 (1985) in which we generally found nonreimbursable details to be improper. The exception where the detail has a negligible fmal impact is
a de minimus exception for administrative convenience where the detail is for a
brief period and the number of person^ and costa involved are minimal. The detail
of 15 to 20 ALJs and the related amount of salary expenses far exceeds the de minim w standard we intended to establish. Furthermore, the detail is not particularly
related to the p u ~ s for
e which the Board’s appropriations are provided. Thus the
p r o p nonreim ursable detail does not fall within the other exception set forth
III 4 Comp. Gen. 370.

Matter of: Nonreimbursable Transfer of Administrative Law
Judges, June 9,1986:
The Department of Labor asks whether it may utilize on a nonreimbursable basis the equivalent of 10 judge years from the administrative law judge corps of the National Labor Relations Board
(Board) during the remainder of fiscal year 1986. At this point in
fucal year 1986, the Department’s request for the equivalent of 10
judge years means 15 to 20 judges. For the reasons given below, we
find that the proposed transfer of administrative law judges ( U s )
is improper.
The Department informs us *that it needs additional ALJs to
assist in adjudicating a backlog of some 20,000 black lung cases,’
1 The number of black lung cases appealed‘to the Department’s
co
increased from 484.at the end of Tical year 1979 to 20,450 at the end of f 2 y e a r

.