of war, and "functions vested by any provision of law in the Comptroller of the Currency." [Italics added.] Since the function of control of records had not been vested by any provision of law in the Comptroller of the Currency, but had been vested by the express provision of 5 U.S.C. 22 in the Secretary of the Treasury, the exclusion expressed in the italicized phrase does not apply to that function.

While it is true that the Comptroller is one of the relatively few subordinate officials remaining in the executive branch who has powers which are conferred directly upon him by statute, the principles of centralized record control were established at a time when his now somewhat unusual status was relatively commonplace. The significant fact is that none of the numerous cases following Boske-many of which arose prior to the Reorganization Plans of the early 1950's which tended to centralize substantive authorityever so much as hinted that the question of who had substantive authority over the subject matter to which the records pertained operated to limit the statutory authority of the department head over the voluntary disclosure of such records."

The foregoing considerations of plain statutory language, policy, and judicial and administrative precedents-all in unanimous accord-lead me to the conclusion that control over voluntary record disclosure is in your hands, not the Comptroller's. I wish again to emphasize that I do not express or intimate any opinion on the extent to which the substantive powers of the Comptroller are "under the general directions of the Secretary [of the Treasury]" within the meaning of 12 U.S.C. 1; I conclude merely that such a determination is not necessary to resolve the question at hand. Furthermore, I express at this time no opinion on the legal or policy considerations that may govern the exercise of your discretion with respect to record disclosure. This

'I am, of course, aware that certain functions of the Comptroller have been loosely characterized as "quasi-judicial," 29 Op. A.G. 555, 562 (1912); Liberty National Bank v. McIntosh, 16 F. 2d 906, 909 (C.A. 4, 1927). I am unable, however, to read any relevant singularity into his status from this characterization, which may equally be applied to numerous other functions of the executive branch. See 21 Op. A.G. 85, 86 (1894); 1 Davis, Administrative Law Treatise sec. 1.02 (1958).

Department stands ready to cooperate with you and your staff to whatever extent you deem useful in consideration either of specific requests for record disclosure or of further regulations on the point.

Sincerely,

NICHOLAS DEB. KATZENBACH,
Acting Attorney General.

ADMINISTRATIVE PROCEDURE ACT, PROMOTION TO CHIEF HEARING EXAMINER AT INCREASED COMPENSATION

The selection of an incumbent hearing examiner to serve as Chief Hearing Examiner, at an increase in grade, involves more than the fixing of compensation for hearing examiners; it involves the selection of an official to exercise important administrative and management functions. Hence the power to select such an official is not vested in the Civil Service Commission by section 11 of the Administrative Procedure Act (June 11, 1946, c. 324, 60 Stat. 244, (5 U.S.C. 1010)), but is vested in the employing agency. 41 Op. A.G. 74 distinguished.

THE PRESIDENT.

NOVEMBER 24, 1964.

MY DEAR MR. PRESIDENT: I have the honor to comply with your request for an opinion on a question submitted by the Chairman of the Civil Service Commission concerning the extent of the Commission's authority, under section 11 of the Administrative Procedure Act (June 11, 1946, c. 324, 60 Stat. 244, 5 U.S.C. 1010), with respect to the selection of an incumbent hearing examiner to seve as Chief Hearing Examiner at an increase in compensation. Specifically, the question posed by the Commission is: When an agency proposes to fill a Chief Hearing Examiner's position by the promotion of one of its hearing examiners, must the Civil Service Commission select the hearing examiner who is to be promoted?

The Chairman of the Civil Service Commission states that the Commission's General Counsel would answer the question in the affirmative, while a majority of the Commission's Advisory Committee on Hearing Examiners would answer it in the negative. The Civil Service Commission itself does not express an opinion on the question. I have also been furnished with copies of communications from the chairmen of

seven administrative agencies in which the question arises,1 all of whom would answer the question in the negative. Section 11 provides in part as follows:

"Subject to the civil-service and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. *** Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. * * *"

Section 7(b) (2) and (3) of the Classification Act of 1923 (act of Mar. 4, 1923, c. 265, 42 Stat. 1488, as amended by the acts of Aug. 1, 1941, 55 Stat. 613, and June 30, 1945, 59 Stat. 299)—which was made inapplicable to hearing examiners by this provision of the Administrative Procedure Act-provided for in-grade promotions on the basis of employee efficiency ratings made by the employing agency, while section 9 created the system of efficiency ratings.2

In Ramspeck v. Federal Trial Examiners Conference, 345 U.S. 128 (1953), the Supreme Court held, inter alia, that under section 11 of the Administrative Procedure Act the Civil Service Commission was authorized to classify hearing examiner positions into different grades on the basis of the difficulty and importance of the cases in which they are called upon to act as hearing officers.

In an opinion dated February 23, 1951 (41 Op. A.G. 74), the then Acting Attorney General held that, in the case of

1 Civil Aeronautics Board, Federal Communications Commission, Federal Power Commission, Federal Trade Commission, Interstate Commerce Commission, Securities and Exchange Commission, and National Labor Relations Board.

The Classification Act of 1923 has been superseded by the Classification Act of 1949 (act of Oct. 28 1949, c. 782, 63 Stat. 954), which provides (section 1106), "Whenever reference is made in any other law to the Classification Act of 1923, as amended, such reference shall be held and considered to mean this Act." The provisions of the Classification Act of 1949, as amended, which correspond to section 7(b) (2) and (3) and section 9 of the 1923 act, appear in 5 U.S.C. 1121-1123, 2001-2007.

promotions from one such hearing examiner grade to a higher such grade, the selection of the examiner to be promoted should be made by the Civil Service Commission, and not by the agency. This decision was based on the provision of section 11 that "examiners shall receive compensation prescribed by the Commission," and on statements in the legislative history which clearly indicated that Congress regarded the function of fixing compensation as including the selection of individuals for promotion to higher grades of hearing examiner positions. In the Ramspeck case, supra, the Supreme Court approved a rule of the Civil Service Commission promulgated in accordance with this opinion.

Neither the 1951 Attorney General's opinion nor the Ramspeck decision deals with the precise question now presented. They involved increases in compensation for individuals who continued to perform the same type of function-to preside at administrative hearings. The present question involves, rather, the selection of an individual to be entrusted with important administrative responsibilities in addition to his duties as a hearing officer.

Until now, I am informed, the designation of a hearing examiner to serve as Chief Hearing Examiner has been made by the agency, and not by the Civil Service Commission. This is so because that designation has not, until now, involved an increase in compensation. Until February 1963, all Chief Hearing Examiner positions were classified at the same grade as other examiner positions in the agency, and the employing agency made the selection for such positions. In February 1963, the Commission reclassified ninety GS-15 examiner positions to GS-16 and nine GS-15 Chief Examiner positions to GS-17 (Chief Examiner position in each of the agencies which had ten or more examiners at GS-15). All GS-17 grades were assigned to occupied Chief Hearing Examiner positions, and no new appointments to these positions were involved. Now, however, vacancies in the GS-17 Chief Hearing Examiner positions have occurred, and the question of selection of hearing examiners for appointment to these positions, with an increase in grade from GS-16 to GS-17, is presented.

Examination of the Civil Service Commission job description for Chief Hearing Examiner positions indicates that al