He’s selected on the unique situation
Id
He has zero general qualities, neither one a job with any duration as to date, otherwise and that offers more than any situation further than as he try chose to behave for the reason that types of instance . . . . He’s no claim otherwise to feel designated, or perhaps to act but as he could be appointed . . . . His updates is versus tenure, cycle, proceeded emolument, otherwise continuous responsibilities . . . . Therefore, he is maybe not an ‘officer,’ in the concept of the brand new clause.
at 326-27. Not only does Auffmordt compel our conclusion, the contrary position — that an independent contractor or non-federal employee who exercises significant governmental authority must be appointed pursuant to the Appointments Clause — would be inconsistent with the Germaine and Hartwell cases discussed above.22
22 ENRD roads Auffmordt and Germaine as limited to ‘judgments of experts on areas within their expertise, as opposed to policy or legal judgments.» ENRD memorandum at 3. Apparently, ENRD’s position is that the negative inference from the Appointments Clause is to be drawn except where an expert acts within the scope of his or her expertise. In other words, the Appointments Clause prohibits any private actor from exercising significant authority, unless the private actor is an expert who exercises significant authority within the scope of his or her expertise. While there may be strong policy reasons for wishing to restrict Auffmordt and Germaine in this way, there is no basis in the Constitution for doing so. The text of the Appointments Clause makes no reference to, let alone an exception for, expert action. Furthermore, there is nothing in the Auffmordt or Germaine opinions themselves that supports narrowing them in this way.
Our conclusion is consistent with the Supreme Court’s classification of the independent counsel as an inferior officer in Morrison v. Olson, 487 U.S. 654 (1988). There the Court observed that «[i]t is clear that appellant is an ‘officer’ of the United States, not an ’employee. ‘» at 671 n. 12. Significantly, the lone authority the Court cited for this proposition was «Buckley, 424 U.S., at 126, and n. 162.» At the page cited, the Buckley Court quoted and reaffirmed Germaine, and in the footnote cited the Court affirmed both Germaine and Auffmordt. Buckley, 424 U.S. at 126 n. 162. This coupled with Morrison‘s express approval of Germaine, 487 U.S. at 670, strongly counsel against interpreting Morrison to have scuttled the Auffmordt and Germaine definition of office, which treats tenure, duration, emoluments, and continuing duties as necessary conditions.
S.C
We believe that the factors that make it «clear» that an independent counsel is an officer of the United States demonstrate that an arbitrator is not. The office of independent counsel is created by statute. Come across 28 U. § 591 et seq. The independent counsel’s compensation is fixed specifically by statute at the rate set forth at 5 U. § 5315 for level IV of the Senior Executive Service. § 594(b). All of the others listed as receiving this compensation are in the full-time employment of the federal government and, insofar as we are aware