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The CHAIRMAN. The Chair also wishes to place in the record at this time a letter dated May 28, 1952, from Hon. F. J. Lawton, Director of the Bureau of the Budget, addressed to him as chairman of the committee, transmitting a copy of a letter from the Assistant Attorney General to Mr. Lawton, dated May 28, 1952, together with a memorandum opinion prepared by the Department of Justice with reference to the legal aspects of plans 2, 3, and 4. (The matter referred to is as follows:)

EXECUTIVE OFFICE OF THE PRESIDENT,

BUREAU OF THE BUDGET,

Washington 25, D. C., May 28, 1952. Hon. John L. MCCLELLAN, Chairman, Senate Committee on Government Operations,

Senate Office Building, Washington 25, D. C. MY DEAR SENATOR MCCLELLAN: I am forwarding herewith four copies of a communication I have received from the Assistant Attorney General, Executive Adjudications Division, in clarification of certain questions relating to reorganization plans Nos. 2, 3, and 4 of 1952.

This material is furnished in accordance with the request expressed May 14 when I testified before the Senate Committee on Goverment Operations relative to these reorganization plans. Sincerely yours,

F. J. LAWTON, Director.

DEPARTMENT OF JUSTICE,

Washington, May 28, 1952. Hon. F. J. LAWTON, Director, Bureau of the Budget,

Washington 25, D.C. DEAR MR. LAWTON: This will reply to your letter of May 15, 1952, to the Acting Attorney General, concerning certain questions which were raised in the course of your testimony on May 14, 1952, before the Senate Committee on Government Operations, on reorganization plans Nos. 2, 3, and 4 of 1952, relating to postmasters, customs officials, and marshals, respectively. It is noted that the chairman of the committee requested of you that the committee be furnished an expression of the views of the Acting Attorney General with respect to the following:

1. Do the three reorganization plans properly come within the authority of the Reorganization Act of 1949? The comments made at the hearing appeared to suggest that the essential effect of the reorganization plans is to change methods of appointment and that the reorganization plans are not “reorganizations” in the usual or proper sense.

2. Do plans 3 and 4 have the effect of increasing terms of office in contravention of the Reorganization Act of 1949 ?

3. Will present residence requirements respecting postmasters and marshals prevail in connection with the new offices of postmaster and marshal? May postmasters and marshals, after appointment, be transferred from one

area or jurisdiction to another? You will, of course, recall the letters dated April 10, 1952, by which the Acting Attorney General transmitted reorganization plans Nos. 2, 3, and 4 of 1952 through you to the President. In each instance he certified the proposed plan to be "in accordance with the provisions of the Reorganization Act of 1949." He accordingly approved them “as to form and legality."

The enclosed memorandum of comment reflects the study given the questions enumerated in your letter by members of the staff of this Department. I hope that it will prove helpful. It should not be construed as a modification in any respect of the advice given the President in the above-mentioned letters of April 10, 1952. Sincerely yours,

JOSEPH C. DUGGAN, Assistant Attorney General, Executive Adjudications Division.

MEMORANDUM

In connection with the inquiry directed to him by the chairman of the Senate Committee on Government Operations during hearings held hy that committee on May 14, 1952, concerning reorganization plans 2, 3, and 4 of 1952, the Director of the Bureau of the Budget has asked the Acting Attorney General for a clarification with respect to the following:

1. Do the three reorganization plans properly come within the authority of the Reorganization Act of 1949? The comments made at the hearing appeared to suggest that the essential effect of the reorganization plans is to change methods of appointment and that the reorganization plans are not "reorganizations” in the usual or proper sense.

2. Do plans 3 and 4 have the effect of increasing terms of office in contravention of the Reorganization Act of 1949?

3. Will present residence requirements respecting postmasters and marshals prevail in connection with the new offices of postmaster and marshal? May postmasters and marshals, after appointment, be transferred from one

area or jurisdiction to another? 1. First for consideration with reference to question No. 1 are the letters, dated April 10, 1952, by which the Acting Attorney General transmitted plans 2, 3, and 4 of 1952 to the President. As stated in those letters, the Acting Attorney General certified each proposed plan to be “in accordance with the provisions of the Reorganization Act of 1949" and accordingly approved them was to form and legality.”

Without modifying in any respect the afore-mentioned advice to the President, the following is submitted by way of clarification.

Although limited in scope, the three plans in question are plainly reorganization plans within the meaning of the Reorganization Act of 1949. As the President found and declared in his meassage accompanying each plan, the reorganizations in plans Nos. 2, 3 and 4 of 1952 are necessary in order to accomplish one or more of the purposes set forth in section 2 (a) of the Reorganization Act of 1949 and the particular actions involved in each reorganization, such as the abolition of existing offices, the establishment of new offices, the transfer of functions and the provision for effective date of the provisions of the plan are specifically authorized by the provisions of sections 3, 4 and 6 of the Reorganization Act of 1949 and do not fall within any of the limitations of section 5 of the act. It should be noted, moreover, that there is no substantial difference between the action taken by the President in Reorganization Plan No. 1 of 1952, providing for reorganization in the Bureau of Internal Revenue of the Department of the Treasury, and the actions taken in the three plans in question. Plan No. 1 berame effective on March 15, 1952.

2. The second question is concerned with the limitations placed upon the powers of the President with respect to reorganizations. Section 5 of the Reorganization Act of 1949 lists six such linitations of which the fifth is as follows:

"SEC. 5. (a) No reorganization plan shall provide for, and no reorganization under this act shall have the effect of

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“(5) increasing the term of any office beyond that provided by law for such office; or Provision for the reorganization of the offices in the Bureau of Customs and in the Department of Justice under the proposed plans from offices of fixed term into offices for appointment under the classified civil service cannot reasonably be construed to have the effect of "increasing the term of any office” in contravention of section 5 (a) (5).

The offices to be established under these plans are under the classified civil service and are of indefinite duration, that is, for no fixed term. The limitation upon the authority of the President under section 5 (a) (5) of the Reorganization Act should be read as a limitation upon increasing the fixed term of any office and has no relation to the system of appointment under the classified civil service to positions of no fixed term.

3. Distinct questions concerning postmasters and marshals are embodied in question No. 3. The questions and the answer respecting each plan will be treated separately.

Question 1. Will present residence requirements respecting postmasters prevail in the new office of postmaster? May postmasters after appointment be transferred from one area or jurisdiction to another?

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Answer. Section 2 of reorganization plan No. 2 of 1952 expressly preserves and makes applicable to the new offices established therein the preappointment residence requirements applicable under present law (39 U. S. C. 31b) to the offices of postmaster at post offices of the first, second, and third class. The language of 31b is, in pertinent part:

No person shall be eligible for appointment under this section unless such person has actually resided within the delivery of the office to which he is appointed, or within the city or town where the same is situated for one year next preceding the date of such appointment, if the appointment is made without competitive examination; or for one year preceding the date fixed for the close of receipt of applications for examination, if the appointment is made after competitive examination: Provided, That residence within the delivery of the post office or within the city or town where the same is situated shall be essential to the examination, appointment, reappointment, or promotion of applicants for postmaster at offices unless the Civil Service Commission finds that peculiar local conditions preclude or render impossible the application of such requirements. In such cases the Commission may examine and certify for appointment, reappointment, or promotion persons who reside in such area adjacent to, or surrounding, the delivery zone of the post office as may be fixed by the Civil Service Commission."

There can be no question, therefore, that in order to be eligible for an office established by plan No. 2, an applicant must comply with the preappointment residence requirements.

The residence during tenure requirement for postmasters provided in 30 United States Code 32 is not expressly preserved in plan No. 2. However, in his message transmitting plan No. 2 to the Congress, the President stated :

"The abolition of offices by Reorganization Plan No. 2 of 1952 will not abolish any rights, privileges, powers, duties, immunities, liabilities, obligations, or other attributes of those offices except as they relate to matters of appointment and tenure inconsistent with that reorganization plan. Under the Reorganization Act of 1949, all of these attributes of office will attach to the new offices of postmaster, either automatically or upon the occurrence of an appropriate delegation of functions to such new offices by the Postmaster General." [Italics supplied.]

The application of the residence during tenure requirement is not “inconsistent” with “matters of appointment and tenure" dealt with in the plan and may therefore be said to be carried forward. (See also sec. 9 (a) of the Reorganization Act of 1949.)

The question concerning transfer of postmasters does not constitute an independent question. A transfer would not differ in substance from a new appointment inasmuch as the same preresidence requirements would have to be fulfilled before an applicant could fill a postmastership at another city.

Question 2. Will present residence requirements respecting marshals prevail in connection with the new office of marshal? May marshals after appointment be transferred from one area or jurisdiction to another?

Answer. The President's message transmitting Plan No. 4 to the Congress contained a statement similar to that contained in Plan No. 2:

“The abolition of offices by Reorganization Plan No. 4 of 1952 will not abolish any rights, privileges, powers, duties, immunities, liabilities, obligations, or other attributes of those offices except as they relate to matters of appointment, tenure, and compensation inconsistent with that reorganization plan. Under he Reorganization Act of 1949 all of these attributes of office will attach to the new offices of United States marshal, either automatically or upon the occurrence of an appropriate delegation of functions to such new offices by the Attorney General."

There is no specific provision in Plan No. 4 which preserves the residence during tenure of office requirement for United States marshals (see 8 U. S. C. 541), but the provision is contained in applicable law and does not relate to “matters of appointment [and] tenure--inconsistent” with the provisions of the plan and may therefore be said to be carried forward.' (See also sec. 9 (a) of the Reorganization Act of 1949.)

With reference to the transfer of marshals under the plan, there is provision under existing law for appointment by the President of a United States marshal "for each judicial district” (28 U. S. C. 541). A marshal's appointment designates him as the marshal of a particular judicial district, e. g., “United States Marshal

1 The same may be said of the requirement for residence preceding appointment as marshal for the district of Hawaii. 28 U. S. C. 541 (d).

for the judicial district of Rhode Island.” Under Plan No. 4 the function of appointing a marshal will be exercised by the Attorney General instead of the President, the difference being that the appointment will be "under the classified civil service.” Appointment under section 2 of the plan will presumably continue to be for "each judicial district.” If this practice is continued, a United States marshal appointed for the judicial district of Rhode Island would require a new appointment by the Attorney General to serve as the United States marshal for the judicial district in any other locality.

Accordingly, the answer to the first question respecting marshals should be in the affirmative. The answer to the second question with respect to transfer should be in the negative. It should be understood, however, that the inability to transfer a marshal from one district to another would not prevent a marshal from becoming the marshal in another district provided the Attorney General gave him another appointment and provided he met the residence requirement.

If a system should be followed, however, of appointing marshals to the office of United States marshal without limitation as to judicial district, then it is entirely possible that a marshall may be transferred from one judicial district to another judicial district without the necessity of a new appointment.?

(NOTE.—Upon receipt of the foregoing memorandum from the Department of Justice, the entire legal problem involved was resubmitted to the American Law Section for further analysis and comments, which are as follows:)

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THE LIBRARY OF CONGRESS,
LEGISLATIVE REFERENCE SERVICE,

AMERICAN LAW SECTION,

Washington 25, D. C., June 5, 1952. To: The Senate Committee on Government Operations. Subject: Reorganization Plans Nos. 2, 3, and 4 of 1952.

By letter of June 2, 1952 and pursuant to our earlier telephone conversation you have transmitted to this section a copy of the memorandum transmitted to your committee by a letter from F. J. Lawton, Director of the Bureau of the Budget, and a letter from Joseph C. Duggan, Assistant Attorney General, Executive Adjudications Division. In addition, you enclosed Staff Memoranda No. 82–2–28 and 82–2–29 relating to these plans.

Both the letter from the Assistant Attorney General and the memorandum assert that the Acting Attorney General has certified the plans to be in accordance with the provisions of the Reorganization Act of 1949 (63 Stat. 203; U. S. C. (1946 ed., Supp. IV) 5:133z et seq.) and that he has approved them as to form and legality. Further, in the message transmitting each plan, the President states that he finds and declares each reorganization included in those plans to be necessary to accomplish one or more purposes set forth in section 2 (a) of the act. These assertions do not, however, necessarily establish conclusively the proposition that the plans do accord with the act and are legal. That is for Congress to decide.

In the memorandum it is stated that, although limited in scope, the three plans are plainly reorganization plans within the meaning of the act. But “reorganization” as used in the act means any transfer, consolidation, coordination, authorization, or abolishment, referred to in section 3. See section 8. Further, reorganization is subject to the requirements of section 4 and the limitations of section 5. One of the limitations in section 5 prohibits the increasing of a term of any office beyond that provided by law.

It is stated that there is no substantial difference between the action taken in Reorganization Plan No. 1 of 1952 and the actions taken in Plans Nos. 2, 3, and 4. Cursory inspection of the plans will refute that statement. Plan No. 1 provided for the outright abolishment, not later than December 1, 1952, of the offices of assistant commissioner, special deputy commissioner, deputy commissioner, assistant general counsel for the Bureau of Internal Revenue, collector, and deputy collector, as provided in the specified sections of the Internal Revenue Code. A definite provision was made for winding up the affairs of these offices. Further, in the place of these offices there were created three

2 A “transfer" to Hawaii would, of course, be limited hy the 3-year preappointment residence requirement.

offices of Assistant Commissioner of Internal Revenue, not to exceed 25 offices of district commissioner of internal revenue, and not to exceed 70 auxiliary offices. An additional office of Assistant General Counsel was created. Appointment to the new offices by the Secretary of the Treasury under the provisions of the Civil Service and Classification Act was provided.

The effect of Reorganization Plan No. 2 is stated by the President in the first sentence of the second paragraph of his message, as follows: “This reorganization plan provides for the gradual elimination of Presidential appointment and Senate confirmation of postmasters at post offices of the first, second, and third class and the institution of appointment by the Postmaster General under the Classified Civil Service.” The complete transition to the new method of appointment, he states, is expected to require a period of several years. That is all that Reorganization Plan No. 2 does. Stripped of the formal pronouncements and excess verbiage, the plan merely removes the advice and consent requirement and the 4-year term of office and it substitutes a civil-service appointment with its attendant indefinite term. This is merely a change in status, the practical effect of which is to increase the term of the office now forbidden in section 5 (a) (5). More than the catch-all transfer in section 3 of the plan should be required to make this “reorganization” within the spirit and the terms of the act.

While section 3 of Plan No. 3 is more detailed and specific with reference to the abolition and transfer of the functions, we believe the objections noted with respect to Plan No. 2 can be applied. Referring in this instance also to the transmittal of the President, we find that he states, in paragraph 2, that the plan provides for the abolition of all offices of collector of customs, comptroller of customs, supervisor of customs, and appraiser of merchandise, to which ap-? pointments are now required to be made by the President by and with the advice and consent of the Senate. The abolition of these offices would occur gradually for provision is made whereby the incumbents may serve out their present termsof office.

Reorganization Plan No. 4 merely establishes a change of status for United States marshals, reserving to the incumbents the right to serve out their present terms of office.

With respect to section 5 (a) (5) of the Reorganization Act of 1949, supra, the memorandum transmitted by the Assistant Attorneys General says it cannot reasonably be construed to have the effect of " 'increasing the term of office in contravention of section 5 (a) (5).” Why does he say “in contravention”? Either the plan does increase the term or it does not increase the term. If it increases the term, it contravenes the plain wording of the law. If the term is for 4 years, for example, that does not mean the incumbent has an unqualified right to remain in the office for that entire period. He might be removed for cause in less time. See Myers v. U. S. ((1926) 272 U. S. 52, 164). See also Humphrey's Executor ((1935) 295 U. S. 602). Civil service status assures an indefinie continuation in the oflice which may extend for the life of a particular individual or until retirement after prolonged years of service without the necessity of a reappointment every 4 years. Removal for cause would apply here also. How can it be argued that this does not increase the term of office? Further, your staff memoranda enumerate the official disavowals of offices in the executive branch of claims of power to accomplish this type of change other than by specific legislation. We believe you have covered the point adequately.

We do not believe it necessary to discuss the residence requirements because we feel they are immaterial in view of the failure of the plans to meet the plain requirements of the law. We would suggest, however, that any plan contemplating the retention of these requirements should specifically make that reservation. It should be unnecessary to rely on outside assurances which would not be published in the Statutes at Large as required by section 11 of the act.

Congress was requested to grant reorganization powers comprehensive in scope, and to rely on the authority to reject any unwise plan by a simple majority vote. See Senate Report No. 232, and House Report No. 23, Eighty-first Congress. This was the “appropriate safeguard” to be used against undesirable changes and changes which, in fact, require positive legislation.

FRANK B, HORNE. Enclosures.

The CHAIRMAN. Dr. Flemming, will you come forward, please, sir?

I am sorry, Doctor, that we do not have the full attendance of the committee this morning, but I am sure you can make allowances for

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