ELIGIBILITY OF A RETIRED MILITARY OFFICER FOR APPOINTMENT AS
   ADMINISTRATOR OF THE NATIONAL AERONAUTICS AND SPACE
                        ADMINISRATION

        A retired military officer—and certainly one who has engaged in civilian pursuits after his
retirement—is eligible for appointment as Administrator of the National Aeronautics and Space
Administration.

                                                                             July 8, 2009

            MEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT

         You have asked for our opinion whether a retired military officer is eligible for
appointment as Administrator of the National Aeronautics and Space Administration (“NASA”).
Section 202 of the National Aeronautics and Space Act of 1958, Pub. L. No. 85-568, 72 Stat. 426
(“Space Act”) (codified as amended at 42 U.S.C. § 2472(a) (2006)), creates NASA and provides
that it “shall be headed by an Administrator, who shall be appointed from civilian life by the
President by and with the advice and consent of the Senate.” 42 U.S.C. § 2472(a) (emphasis
added). The Space Act does not define the phrase “appointed from civilian life,” nor does it
expressly address whether a retired military officer is eligible to be appointed as NASA
Administrator.

       On June 22, 2009, the President nominated Charles F. Bolden, Jr., a retired General in the
United States Marine Corps, to be Administrator of NASA. See 155 Cong. Rec. S6898 (daily ed.
June 22, 2009). General Bolden retired from the Marine Corps in 2003. He is at present the
Chief Executive Officer of a private consulting firm.

        We believe that a retired military officer—and certainly one who has engaged in civilian
pursuits after his retirement—is eligible for appointment as Administrator of NASA. This
conclusion is supported by the ordinary meaning of the phrase “from civilian life,” use of the
phrase in other statutes, practice under such statutes, and longstanding Executive Branch
precedent interpreting the phrase and similar words. We recognize that there are possible
arguments to the contrary, but in our view these arguments, in the end, are unconvincing. *

                                                                 I.

        The Space Act establishes NASA as a “civilian agency,” whose activities “should be
devoted to peaceful purposes for the benefit of all mankind.” Pub. L. No. 85-568, §§ 101,
102(b). The statute requires the Administrator to come from “civilian life.” See id. § 202.
It does not specifically address whether a retired military officer, who continues to hold a
commission, would meet this qualification. Several arguments, however, support the conclusion
that a retired military officer is eligible for appointment as Administrator of NASA.

       First, the usual definition of “civilian” includes retired military personnel who are
not on active duty. See American Heritage Dictionary (2009), available at

*
    This opinion is identical to one issued July 6, 2009, except that the earlier version inadvertently omitted one word.
                        Opinions of the Office of Legal Counsel in Volume 33

http://education.yahoo.com/reference/dictionary/entry/civilian (defining “civilian” as “[a] person
following the pursuits of civil life, especially one who is not an active member of the military”);
Merriam-Webster Online Dictionary (2009), available at http://www.merriam-
webster.com/dictionary/civilian (defining “civilian” as “one not on active duty in the armed
services”); Webster’s Seventh New Collegiate Dictionary 152 (7th ed. 1963) (defining “civilian”
as “one not on active duty in a military, police, or fire-fighting force”). In its ordinary meaning,
therefore, the phrase “appointed from civilian life” refers to a person who is not on active
military duty at the time of appointment. A retired military officer who has ceased active
military service falls within this class of persons. Thus, by the literal terms of the statute,
Congress did not bar all retired military personnel from appointment.

        Second, although Congress did not define in the Space Act which persons are considered
to be in “civilian life,” the use of the phrase “appointed from civilian life” in other statutes
supports the conclusion that the phrase generally does not disqualify retired military officers.
In some statutes, as in the Space Act, Congress has limited eligibility for appointment to persons
“from civilian life,” without specifying whether retired military officers are deemed in “civilian
life.” See, e.g., 10 U.S.C.A. § 133(a) (West Supp. 2009) (requiring Under Secretary of Defense
for Acquisition, Technology, and Logistics to be “appointed from civilian life”); 15 U.S.C.
§ 633(b)(1) (2006) (requiring Administrator of Small Business Administration to be “appointed
from civilian life”); 42 U.S.C. § 2286(b)(1) (2006) (requiring members of Defense Nuclear
Facilities Safety Board to be “appointed from civilian life”). In other statutes, however,
Congress not only has directed that the appointee be “from civilian life,” but also has explicitly
disqualified all retired military officers from appointment during a specified cooling-off period.
These statutes support the conclusion that the phrase “from civilian life,” standing on its own,
encompasses retired military officers.

         For example, 10 U.S.C. § 113(a) (2006) requires that the Secretary of Defense be
“appointed from civilian life,” but excludes from eligibility any person “within seven years after
relief from active duty as a commissioned officer of a regular component of an armed force.”
See also 10 U.S.C.A. § 134(a) (West Supp. 2009) (limiting appointment eligibility for Under
Secretary of Defense for Policy to persons “appointed from civilian life” who are “within seven
years after relief from active duty as a commissioned officer of a regular component of an armed
force”); 10 U.S.C. § 3013(a) (2006) (limiting appointment eligibility for Secretary of the Army
to persons “appointed from civilian life” who are “within five years after relief from active duty
as a commissioned officer of a regular component of an armed force”); 10 U.S.C. § 5013(a)
(2006) (same for Secretary of the Navy); 10 U.S.C. § 8013(a) (2006) (same for Secretary of the
Air Force); 42 U.S.C. § 5812(a) (2006) (limiting appointment eligibility for Administrator of
Energy Research and Development to persons “appointed from civilian life” who are “within
two years after release from active duty as a commissioned officer of a regular component of an
armed force”). The statutory exclusion of retired military officers from appointment to certain
offices for a specified time period necessarily implies that such persons are eligible for
appointment to those same offices once the cooling-off period has ended. Because persons
appointed to those offices must be “from civilian life,” it follows that retired military persons
are considered to be “from civilian life.” When Congress intends to make some retired military
officers ineligible for appointment, it has done so expressly.




                                                 2
           Eligibility of a Retired Military Officer for Appointment as Administrator of NASA

         Similarly, when Congress has barred certain retired military personnel, for all time,
from appointment to an office having a “civilian life” requirement, it has explicitly stated the
prohibition. Congress, for example, has directed that judges of the United States Court of
Appeals for the Armed Forces (“CAAF”) “be appointed from civilian life,” but, “[f]or purposes
of appointment of judges to the court,” has provided that “a person retired from the armed forces
after 20 or more years of active service (whether or not such person is on the retired list) shall
not be considered to be in civilian life.” 10 U.S.C. § 942(b)(1) & (4) (2006). See also 49 U.S.C.
§ 106(b)-(d) (2006) (requiring Administrator of Federal Aviation Administration to “be a
civilian,” but imposing the condition that where “the Administrator is a former regular officer of
an armed force, the Deputy Administrator may not be an officer on active duty in an armed
force, a retired regular officer of an armed force, or a former regular officer of an armed force”).
Congress’s exclusion of certain retired military personnel from appointment to the CAAF would
have no purpose unless they would otherwise be “from civilian life.” Furthermore, under the
statute, retired military personnel with less than twenty years of active service necessarily are
considered to be “from civilian life.”

        All of these statutes support the view that when Congress limits appointments to persons
“from civilian life,” it treats retired military officers as coming “from civilian life.” Under these
statutes, when Congress intends to exclude retired military officers from appointment, it
explicitly states that exclusion. The Space Act uses the phrase “from civilian life” without any
further condition. The text of the statute, therefore, gives no indication that Congress, which has
used the same “civilian life” requirement in many other acts, excluded retired military officers
from appointment.

        Third, there is practice—established by Presidents and the Senate acting together—in
which retired military officers have been nominated, confirmed, and appointed to serve in
positions covered by a “from civilian life” qualification. The Under Secretary of the Navy, for
example, must be appointed “from civilian life.” 10 U.S.C. § 5015(a) (2006). The current Under
Secretary, Robert O. Work, who was confirmed May 18, 2009, is a retired military officer.
The Under Secretary of Defense for Intelligence also must be “appointed from civilian life,”
10 U.S.C. § 137(a) (2006), and the current occupant of that position, James R. Clapper, who was
confirmed April 11, 2007, is a retired officer. These current examples are only part of a longer
and more extensive practice. See Memorandum for William J. Haynes II, General Counsel,
Department of Defense, from C. Kevin Marshall, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: Eligibility of a Retired Army Officer to be Appointed Inspector General of
the Department of Defense at 4-5 (May 18, 2007).

        Fourth, longstanding Executive Branch precedent supports an interpretation of the phrase
“from civilian life” that would extend to retired military officers. Our office previously
concluded that retired military officers were not automatically disqualified from appointment to
several positions that were, by statute, confined to persons “appointed from civilian life.” See
Memorandum for Cyrus R. Vance, General Counsel, Department of Defense, from Harold F.
Reis, Acting Assistant Attorney General, Office of Legal Counsel, Re: Eligibility of a Retired
Regular Officer of the Armed Forces to be Appointed to the Position of Under Secretary or
Assistant Secretary of one of the Military Departments (Feb. 3, 1961) (“Eligibility of a Retired
Regular Officer”). We relied, in part, on “considerations [] relevant to the interpretation of the
requirement that these officials shall be appointed from civilian life” that apply equally here—

                                                   3
                         Opinions of the Office of Legal Counsel in Volume 33

“the traditional meaning of the term” and “the fact that when Congress seeks to disqualify retired
regular officers it does so in unmistakable language” Id. at 3. We noted the possibility that,
under some sets of facts, particular retired officers might not be “from civilian life,” and said in
particular that it would accord with “the spirit” of the requirement if a retired officer had been
engaged in civilian pursuits. See id. at 7. Whatever the possible facts that might call into
question a particular retired officer’s status in “civilian life” under some statutes having a
“civilian life” qualification, a retired officer’s eligibility is clear when he has been engaged in
civilian pursuits at the time of appointment.

       A 1930 Attorney General opinion similarly held that a retired Army officer could be
appointed to an office that called for an appointee “from civil life.” See Eligibility of Retired
Army Officer to Hold the Position of Commissioner of the District of Columbia, 36 Op. Att’y
Gen. 389 (1930) (“1930 Opinion”). After canvassing the legal backdrop against which the
relevant legislation had been passed, the opinion concluded:

       In using the term “civil life” Congress referred to the activity in life of the
       appointee. It is the taking of a person from one of two classes of society, military
       or civil. Military life is led when a person is in the active military service of the
       Army and is doing duty in his daily life in carrying out military functions. If he is
       carrying on military work and that is his life’s activity at the time, he is not from
       civil life, but if he has retired from that activity and his pursuits are civil, then he
       is from civil life.

Id. at 398-99; see id. at 398 (“It seems reasonably clear, therefore, that in using the phrase
‘civil life’ . . . Congress was referring to those engaged in civil life, whether or not retired Army
officers, as distinguished from the military life of an officer in active service.”); id. at 402
(“Retired officers who have ceased to engage in military service and have entered civil life and
civil pursuits . . . are in civil life within the meaning of the [statute] and eligible to appointment
. . . .”). Congress, we believe, can be understood to have legislated against the background of
this published Executive Branch interpretation of a term (“from civil life”) that is virtually the
same as the one in the Space Act (“from civilian life”), and that understanding accords with the
ordinary meaning of the phrase “from civilian life,” use of express language in other statutes to
exclude some retired military officers who would otherwise fall within that category, and
practice of the Government. We therefore conclude that a retired military officer can qualify
for appointment as Administrator of NASA.

                                                  II.

        Although we believe that this conclusion is well supported, there are possible arguments
for the view that the Space Act bars retired military personnel from appointment. We believe,
however, that these arguments are ultimately unconvincing.

        First, the legislative history of the Space Act arguably could be read to indicate that
Congress intended the phrase “from civilian life,” as used in that statute, to exclude retired
military personnel. An earlier version of the bill may have assumed that the “civilian life”
requirement barred appointment of a retired officer. That version would have prohibited the
Administrator from employing retired commissioned officers under certain pay provisions unless

                                                   4
             Eligibility of a Retired Military Officer for Appointment as Administrator of NASA

sufficient numbers of qualified individuals “from civilian life” were unavailable. A House
committee report explained the provision as follows:

        Paragraph (10) authorizes the Administrator to employ retired commissioned
        officers [under certain compensation provisions]; but this authority could be
        exercised only when sufficient numbers of qualified individuals from civilian life
        are not available . . . .

H.R. Rep. No. 1770, at 20 (1958). Although the provision allowing the Administrator to employ
retired commissioned officers was enacted, the condition that “sufficient numbers of qualified
individuals from civilian life are not available” was omitted from the final bill. See Pub. L. No.
85-568, § 203(b)(11); see H.R. Conf. Rep. No. 85-2166, at 20 (1958) (noting omission during the
conference). The legislative history does not explain why the provision was omitted, but the
omission is consistent with the view that retired military officers could be considered to be in
“civilian life,” since that view is reflected in the phrase’s ordinary meaning, prior usage by
Congress, and Executive Branch precedent.

        We have not found any other significant materials in the legislative history of the Space
Act that bear on the interpretation of the phrase. In the end, therefore, this murky legislative
history about an unenacted version of the statute does not justify the conclusion that the phrase
“from civilian life” in the version ultimately enacted bars the appointment of retired military
officers—particularly in light of the ordinary meaning of the phrase and the ways in which
Congress has used it in other statutes.

        Second, it might be argued that our interpretation is mistaken because, on at least five
occasions in recent times (and once under the Space Act itself), Congress has enacted separate
legislation authorizing the appointment of a particular retired military officer to a position for
which eligibility was limited to those “from civilian life.” In 1989, Congress passed a bill
authorizing the President to appoint Rear Admiral Richard Truly as NASA Administrator. See
Act of June 30, 1989, Pub. L. No. 101-48, 103 Stat. 136. Admiral Truly was in active service at
the time that the legislation was introduced, but he had expressed his intention to retire from
active military duty before being sworn in as Administrator. See 135 Cong. Rec. 11,719 (1989).
On the same day that Congress authorized the President to appoint Admiral Truly, it passed
identical legislation authorizing the appointment of retired Admiral James Busey as
Administrator of the Federal Aviation Administration (“FAA”). See Pub. L. No. 101-47, 103
Stat. 134 (1989). Similarly, in 1984, 1991, and 1992, Congress passed legislation authorizing the
President to appoint a retired military officer as FAA Administrator. See Pub. L. No. 102-308,
106 Stat. 273 (1992); Pub. L. No. 102-223, 105 Stat. 1678 (1991); Pub. L. No. 98-256, 98 Stat.
125 (1984). 1

        The authorization for Admiral Truly’s appointment apparently rested on the view that the
“civilian life” qualification otherwise would have forbidden the appointment, unless Admiral
Truly surrendered his commission and thus gave up his retired pay and benefits. The

        1
           Essentially the same statutory structure and language have also been used to authorize the appointment of
an active duty military officer. See Pub. L. No. 81-788, 64 Stat. 853 (1950) (authorizing appointment of General
George C. Marshall to serve as Secretary of Defense, an office with a “civilian life” condition).

                                                         5
                              Opinions of the Office of Legal Counsel in Volume 33

authorization declared that, with the Senate’s advice and consent, the President could make the
appointment, “[n]otwithstanding the provisions of section 202(a) of the [Space Act] [which sets
out the “civilian life” qualification], or any other provision of law.” Pub. L. No. 101-48, § 1, 103
Stat. 136; see also id. § 3 (providing, “[n]othing in this Act shall be construed as approval by the
Congress of any future appointments of military persons to the Offices of Administrator and
Deputy Administrator of [NASA].”). The Senate committee report stated that “a review of the
legislative history of the term ‘from civilian’ life indicates that this term excludes active duty
military personnel and retired military personnel” and that “[t]o meet the strict interpretation of
the term, a person would have to resign his commission and give up military benefits and
pension to be considered ‘civilian.’” S. Rep. No. 101-57, at 2 (1989). 2 The floor debates also
revealed the view that, without a “waiver,” Admiral Truly could not be appointed. See 135
Cong. Rec. 12,927 (June 22, 1989). To be sure, Admiral Truly disputed this conclusion.
He took the view that retired military officers “do come from ‘civilian life,’” although he
acknowledged that the question would be “interpretable by lawyers I guess on all sides of the
issue.” Nominations-May-June: Hearings Before the S. Comm. on Commerce, Science, and
Transp., 101st Cong. 264, 279 (1989) (statement of Adm. Truly). In any event, Congress
evidently acted on the view that a “waiver” was necessary. 3

        To the extent the proponents of the authorization, in the committee report and on the
floor, offered a construction of the Space Act, their construction is subsequent legislative history
of that statute and thus is entitled to little weight. See Pension Benefit Guaranty Corp. v. LTV
Corp., 496 U.S. 633, 650 (1990) (later history is “a hazardous basis for inferring the intent of
an earlier Congress” (internal quotations omitted)). A more substantial issue is that “the
implications of a statute may be altered by the implications of a later statute,” United States v.
Fausto, 484 U.S. 439, 453 (1988), so that the later legislation here, while not an authoritative
construction of the Space Act, might be argued to have “shape[d] or focus[ed]” that statute’s
“range of possible meanings,” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 143
(2000).

         We do not believe, however, that the legislation enacted for Admiral Truly’s appointment
is sufficient to alter the interpretation of the Space Act that would otherwise prevail. In Fausto,
the leading case on the interpretive principle, the Court held that after enactment of the Civil
Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111 (“CSRA”), the Back Pay Act


         2
            According to the committee report, “the President made reference to the requirement for a legislative
waiver when he announced the nomination of Admiral Truly.” S. Rep. No. 101-57, at 2. At the time of the
President’s statement, however, Admiral Truly was still on active duty, and the President said that “because Dick
Truly is an active duty naval officer . . . I will need the assent and cooperation of the Congress to make this
appointment.” 1 Pub. Papers of George Bush 399 (1989). See also Pub. L. No. 107-117, § 307, 115 Stat. 2230,
2301 (2002) (allowing appointment of an active duty officer as Deputy Administrator of NASA). The President,
therefore, did not suggest that he could not appoint a retired military officer unless Congress enacted legislation.
         3
            Admiral Busey requested legislation so that he could maintain his retirement benefits. See S. Rep. No.
101-56, at 1 (1989) (“Admiral Busey has requested a legislative waiver of this prohibition in order that he may
retain his status as a retired military officer while serving as Administrator, thus allowing him to retain eligibility
under his retirement plan and an opportunity to participate in the Survivors’ Benefit Plan.”). As in the case of
Admiral Truly, the Senate committee report stated that the purpose of the legislation authorizing the appointment
was “to allow Admiral Busey to retain his status as a retired officer in the U.S. Navy.” Id.

                                                            6
             Eligibility of a Retired Military Officer for Appointment as Administrator of NASA

(5 U.S.C. § 5596) should no longer be interpreted to enable a federal employee to obtain review
in the Court of Claims of certain personnel decisions. The Court found that such review would
“turn . . . upside down” and “seriously undermine” elements of the CSRA’s structure. Fausto,
484 U.S. at 449. Here, there is no need to reinterpret the Space Act in order to give full effect to
the legislation authorizing Admiral Truly’s appointment or to achieve the goal of “getting [those
statutes] to ‘make sense’ in combination.” Id. at 453. Even if the Space Act’s “civilian life”
requirement posed no obstacle, a targeted authorization for the President to make the
appointment of a particular retired military officer “[n]otwithstanding the provisions of section
202(a) of the [Space Act], or any other provision of law,” 103 Stat. at 136, would make sense—
whatever the motivation of the Congress that enacted it—as a prudential measure, covering any
possible statute that might endanger the officer’s retired pay and benefits. Furthermore, other
appointments could be made under the Space Act without creating any conflict with a statute
authorizing the appointment of a single, named individual.

         The Court’s most recent extended application of the principle set forth in Fausto is also
consistent with the conclusion that the targeted statute authorizing Admiral Truly’s appointment
does not alter the meaning of the Space Act itself. In Brown & Williamson, the Court read the
Food, Drug, and Cosmetic Act, 52 Stat. 1040 (1938) (“FDCA”), to preclude the Food and Drug
Administration (“FDA”) from regulating tobacco. It interpreted the FDCA in the light of a string
of later statutes that had presumed a lack of authority and had been enacted “against the
backdrop of the FDA’s consistent and repeated statements that it lacked authority under the
FDCA to regulate tobacco.” 529 U.S. at 144. The authorization for Admiral Truly’s
appointment, however, was not part of a succession of statutes under the Space Act following an
Executive Branch legal interpretation that our current interpretation would disturb. Indeed, the
Executive Branch legal interpretation of the relevant phrase, as explained above, has been that
retired officers are “from civilian life.” We therefore would not read the authorization for
Admiral Truly’s appointment as altering the ordinary meaning of “civilian life.”

        Third, it might be argued that the interpretation that retired officers may be “from civilian
life” means that the enactment of the “civilian life” qualification served no function, in light of
another, preexisting statute. When Congress passed the Space Act, another statute, see 70A Stat.
203 (1956), already prohibited active duty officers from appointment to a civil office. According
to the argument, the “civilian life” requirement could not have been intended to exclude only
persons already barred by another law. In Eligibility of a Retired Regular Officer, however, we
noted that the general statute was on the books, while concluding that the phrase “civilian life”
does encompass retired military officers. Our analysis there points to one possible reason that
the “civilian life” qualification had an effect beyond the general bar against appointment of
active duty officers. We concluded that a retired officer was not “automatically disqualified”
from appointment, Eligibility of a Retired Regular Officer at 1, but that a particular retired
officer might still be disqualified under specific facts. We suggested, for example, that “the
spirit” of the qualification might call for an officer to “‘have ceased to engage in military service
and entered civil life and civil pursuits.’” Eligibility of a Retired Regular Officer at 7 (quoting
1930 Opinion, 36 Op. Att’y Gen. at 402). 4 We need not resolve here the precise relationship of


         4
           Moreover, the “civilian life” requirement goes beyond the current version of the general prohibition
against service by a retired officer, 10 U.S.C. § 973 (2006), because some retired officers—in particular, reservists

                                                          7
                              Opinions of the Office of Legal Counsel in Volume 33

the “civilian life” qualification and the current version of the preexisting statute, 10 U.S.C. § 973,
except to note that there can be little doubt about the eligibility of a retired officer who has
engaged in civilian pursuits (whether or not such an engagement is essential), even if there might
be a prudential reason for enacting a statute (which might be unnecessary) to remove any
possible question in the case of an officer who retired immediately before appointment. 5

         Finally, although no court has considered whether a retired military officer is eligible to
be appointed to an office with a “from civilian life” qualification, there might be an argument
that attempts to draw some significance from the conclusions of courts, in contexts other than
appointments, that officers on the retired list remain members of the military and are deemed to
be in military service. As the courts note, these retired officers are subject to the Uniform Code
of Military Justice, to court-martial, and to recall to active duty by the Secretary of Defense.
The Supreme Court explained in United States v. Tyler, 105 U.S. 244 (1882), for example,
that persons whose names are on the retired list remain in “military service”:

         It is impossible to hold that men who are by statute declared to be a part of the
         army, who may wear its uniform, whose names shall be borne upon its register,
         who may be assigned by their superior officers to specified duties by detail as
         other officers are, who are subject to the rules and articles of war, and may be
         tried, not by a jury, as other citizens are, but by a military court-martial, for any
         breach of those rules, and who may finally be dismissed on such trial from the
         service in disgrace, are still not in the military service.

Id. at 246.

        This precedent, however, does not bear significantly on the current issue. Although the
Court’s opinion in Tyler concluded that “retired officers are in the military service of the
government,” id., the Court was not asked to decide whether such officers are in “civilian life”
or military life. A retired military officer could be in military service as a result of continuing to
hold a commission, but insofar as his daily pursuits are civil, he would live a civilian life. As the
Attorney General recognized in the 1930 Opinion, the “fact that a man has a definite connection
with the Military Establishment . . . does not prevent him from being properly treated as in civil
life.” 36 Op. Att’y Gen. at 400.



who are on active duty for 270 days or less—could serve in Senate-confirmed positions under section 973 but would
not meet the “civilian life” restriction.
         5
           Under a line of cases in the Court of Claims, a provision giving additional service credit to officers
“appointed from civil life” might have been unavailable to an officer who resigned with the purpose of rejoining the
military and who then claimed he had come from “civil life.” Compare Guilmette v. United States, 49 Ct. Cl. 188,
192 (1914) (holding that an officer “was in fact and in law completely separated from the public service” during a
17-day period and was entitled to the credit), with Barber v. United States, 50 Ct. Cl. 250, 256 (1915) (holding that
where an officer “never intended to enter civil life if he could remain in the service,” a break of several weeks did
not amount to entry into “civil life”). An opinion of our Office, Federal Election Commission—Appointment of
Members (2 U.S.C. § 437), 2 Op. O.L.C. 359 (1977), read Guilmette and the 1930 Opinion as calling for an
appointee “from civilian life” to have gone through more than an “immediate break” from military duty. We need
not address here whether there is such a limit or whether it is sufficient that the officer, upon retiring, does not seek
a quick return to active duty.

                                                            8
          Eligibility of a Retired Military Officer for Appointment as Administrator of NASA

                                                 III.

         We therefore conclude that a retired military officer—and certainly one who has engaged
in civilian pursuits—qualifies for appointment as Administrator of NASA. Although there are
possible arguments on the other side, we believe that these arguments are ultimately
unpersuasive.


                                                                       /s/

                                                            DANIEL L. KOFFSKY
                                                        Deputy Assistant Attorney General




                                                  9