Director Michelle Lee: A Rough Start

By Dennis Crouch

First, let me give my endorsement: I admire Director Michelle Lee and believe that she will be an excellent Deputy Director of the USPTO as well as Acting Director. She is extremely well qualified both in terms of education and experience; she is well respected in the highest levels of governments as well as by business leaders and on-the-ground innovators; and she is ready to work hard to improve the Patent Office and the US Patent System.

That said, Director Lee has not begun her tenure well – seemingly because of her willingness to go along with plans set forth by those in the White House in terms of both (1) the questionable process of her appointment and (2) an initial secret and private roundtable discussion.

Improper Appointment: Yesterday, we discussed the appointment of Director Lee as Deputy Director without proper statutory authority. In particular, the statute is fairly clear that no Deputy Director can be appointed in the absence of a Director. 35 U.S.C. § 3(b)(1). Further, an odd feature of the appointment was the caveat that she will not be titled “Acting Director” of the Agency even though she will be “Acting as Director” and even though the same statute provides that the Deputy Director should fill that role in the absence or incapacity of a Director.

The limits on the Directorship appointments are not merely statutory. Rather, they are in place to maintain an important check on executive authority. Special authority flows from the PTO Director because the Director is appointed by the President and approved by the Senate. See U.S. Constitution Article II, Section 2, Clause 2 (requiring “Advice and Consent of the Senate”).

Now, the reality here is that these critiques are largely academic in that: (1) if put up for a vote in the Senate, Director Lee would very likely be approved based upon her qualifications that I discussed above; (2) any legal challenge to her nomination will likely be moot because a Senate-Approved Director is likely to be in office within a few months – well before pleadings would be complete on any challenge to Director Lee’s legal authority. However, the comparisons to Dwight Schrute and his role as assistant to the regional manager.

Secret Exclusionary Meeting: Within hours of her announcement as Deputy Director, Director Lee and White House Patent Reform Coordinator Colleen Chien spearheaded a roundtable discussion with a select group of invited guests put forward by the heavily Democratic leaning “Business Forward” community. Business Forward does not lobby, but instead “mak[es] it easier for … business leaders from across America to advise Washington on how to create jobs and accelerate our economic recovery.” The meeting was designated as “off the record” by the PTO and barred press (including Patently-O) from attending as well as leaders from the IPO and the AIPLA. USPTO Spokesman indicated that the meeting was a “normal” and usual event: “Yesterday’s meeting with a group of seasoned patent litigators was part of a normal series of discussions USPTO has facilitated to solicit views on patent reform proposals from various segments of our user community. As legislation moves on to the Senate, we expect to continue to host such normal meetings with various parts of the IP community.

Now, I do not have a problem with the PTO Director and White House having private meetings, but it does look bad that Director Lee’s first information-gathering discussion is with a private hand-selected group of operatives whose result will likely work to set her vision for patent reforms in ways that cannot be rebutted. Directors Kappos and Rea both pushed strongly for public discussion and my hope is that Director Lee will continue that important trend.

40 thoughts on “Director Michelle Lee: A Rough Start

  1. Prof. Crouch:Do you have any actual examples of her being “well respected in the highest levels of governments as well as by business leaders and on-the-ground innovators”?Are you aware of any successes from her work experience?Do you find it telling that Kappos has not publicly endorsed her in any form?

  2. Sounds like the big-corp anti-patent fix is in. The reality is that openness and education lead to a strong patent system whereas secrecy and smoke lead to the crippling of our patent system.You know, is this new director going to cripple the system and then take a big exec job at Google? Isn’t that the pattern in DC? You do the dirty deed and then collect $50 million from big corp.Think about Google. They say do no evil, but what have they been up to? Google gets amazingly good press considering they have almost single handedly taken all the advertising money from the print media. I don’t have a quick reference but there is a chart showing the rise of Google’s advertising dollars with the decline of print media’s advertising. Moreover, for all you Romans, think about Obama. Him standing up and saying that what they did on Wall Street wasn’t criminal. Well, guess what, go watch Front Line on that subject. You will see that yes about 10,000 Wall Streeters could pretty easily be disgourged and put in prison, but the head of the criminal division of DOJ says he doesn’t want to do it as counter parties may get spooked.That my tiny brained friends is the world we live in. Obama is paid off. And, a world where a soon to be Google executive with $50,000,000 in stock options is appointed to burn down the PTO fits right in with everything else that goes on in DC.Another thing to consider is reality. What are the big players doing right now? Come my tiny brained friends think. They are all creating vertical monopolies. They are all betting that the DOJ won’t enforce the Sherman anti-trust act and that patents will be burnt to the ground. Of course, they are also hedging their bets, but they are all placing big bets right now on no Sherman anti-trust act enforcement and no patents.I can hear the howl of the APEs (anti-patent entrepreneurs) from my post.Irony: the APEs argue that patents inhibit freedom, but imagine a world where every tech company locks up their employees with non-disclosure agreements and no competition agreements. That is what we are headed for. I signed such an agreement as a young computer programmer for perhaps one of the most advanced start-ups of its time in the early 1980′s. They basically say if you tell anyone how the software works that you can become responsible for all the profit loss (basically your life is gone.) And, that you can’t design/build etc a product that is close to theirs for like 3 to 5 years after leaving their employment. Now my tiny brained friends, listen to the APEs and realize that they are selling you a false future. The one with the locked employment agreements is where we are headed without patents. You know, you have to think to understand this. And you have to understand that this will be a process that will take years. And, you have to understand that what will happen is technology will advance in silos. Imagine if object oriented programming only developed say at Apple and that all the disclosure of objected oriented programming wasn’t shared. Imagine that and you will start to understand the world we are headed for without patents.As a quick follow up: software/hardware/firmware cannot just be built by a specification of the UI in general. The only reason that is the case now is that there is disclosure and the people that specify the UI understand the state of the art. The fact is that in the early 1980′s people would figure out how to do something and there would be a scramble by other to try and figure it out. They would not share and they would do everything possible to hide what they did.The ignorance (and intentionally misinformation) of the information processing (EE/CS) field is appalling.

  3. The truley unacademic thing about the secret meetings are the grossley untransparant nature of the meetings and the lack of representation of top inventors such as myself being included in the meetings. Obviously a top work of corruption at its finest of the Oboma administration .

  4. Dennis, thank you for the mention about the meeting. I’m happy to give her/them the benefit of the doubt on it being behind closed doors. But like you, I hope that the PTO continues its openness to allowing the media (the patent-razzi) into its workings–that has lead to a much better relationship between the USPTO and its customers.

  5. Obama overstepping his authority to make an appointment of someone who then holds closed-door meetings with a group of deep-pocketed players? Say it ain’t so! I am shocked, shocked I tell you. And this from the man who told us, “If you like your patent, you can keep it.”

      1. Oh hah, I just realized something, I already met Lee. She was at the office a few years ago at some meeting on behalf of google. I didn’t even put two and two together.

    1. The legislation will hurt independent inventors by making patent assertion next to impossible for those who are not blessed with the billions of dollars needed to launch software inventions.It doesn’t cost “billions of dollars” to “launch” “software inventions”. At least, not on planet Earth.I just launched a software invention five minutes ago. Cost me nothing.Oh wait — what you really mean is that it will make it difficult for “small inventors” (commonly known as “patent trolls”, due to some unfortunate but common behavioral issues) to sit at a computer and type up some new “function” or “improvement” for an existing system which cost another person (more likely hundreds or thousands of people, including taxpayers) a lot of money and risk to launch, and then sue that other person. Or better yet, you can just threaten to sue them because then you don’t have to do hardly any work at all except maybe type up a letter, and work is really the worst thing ever for the typical “small inventor” that we’re talking about. They can’t even be bothered to write and submit working code that performs the claimed function in numerous different operating systems. Nope. That would be so unfair!

    2. Leahy nominated the patent strategist from IBM, David “IBM” Kappos to this same influential post. Why? To implement that dastardly legislationto put the screws to small inventors and make patents a big business bonanza not accessible to small inventors.Not accessible? Huh? The US patent system is more accessible to more people now than it has been in any point in its history, Bruce.One of the big complaints is that these patent-killing reforms will just result in sending to Asia the American jobs that might have been created were American inventors given a fair shake. There we go again. “Patent reform” is going to result in jobs being sent to Asia? That’s funny. News flash: even if it were true that if we made it easier for people to obtain patents on, say, new functionalities for robots, that would cause those robots to be created more quickly, that’s not exactly a brilliant plan for “job creation.” Think about it, Bruce.I’m still waiting for someone to put together the data that shows the average net worth of the typical “small inventor” that guys like Bruce are always crying about. Likewise, I’d like some estimates of the non-prosecution costs for the development of the typical computer-implemented invention. People like Bruce throw out these huge numbers when it’s clear that the costs (and associated risks) with conceptualizing a new computer functionality (all that’s needed for a patent claim under the current broken system) are close to zero. Maybe that guy who “invented” the “improved” Netflix email alert function can tell us how many hundreds of thousands of dollars of his uncle’s money was invested in building the prototype.Oh yeah and this: “[Bruce] runs one of the world’s best intellectual property websites”. Thats pretty funny.

    3. Bruce: I am operating under the assumption that her motto will be a warning to small American inventors and patent aggregators “Whatcha gonna do when they come for you? Bad Boys, Bad Boys. Whatcha gonna do when they come for you?” You can’t make this stuff up.

  6. Considering the mootness of any challenge to Lee’s authority, we may need to wait for a decision in NLRB v. Noel Canning to know just how moot it is.

    1. It will be moot regardless of what happens at DC’s lesser appeals court because a new director will be confirmed before any challenge can make it through pleadings.Remember that filibusters for presidential appointments can never, ever happen anymore.

  7. n particular, the statute is fairly clear that no Deputy Director can be appointed in the absence of a Director. 35 U.S.C. § 3(b)(1).She was apppointed a deputy director (of the Silicon Valley Office) under Kappos when Kappos was a director. That, too, is “fairly clear.”the reality here is that these critiques are largely academicAt the very least they are “academic.” The way some people are reacting you’d think she was picked to the head the PTO by some company while Obama was on vacation. Her “willingness” to accept the appointment? Good lord.it does look bad that Director Lee’s first information-gathering discussion is with a private hand-selected group of operatives It doesn’t look bad at all to me. It looks just fine. You acknowledge that Kappos had plenty of private meetings. And I’m sure he had some very early on in his tenure or even before he actually took on his role. And then he proceeded to turn the PTO into a junk-spewing joke. And then when he left the PTO he trumpeted the awesomeness of the worst joke of all: design patents.whose result will likely work to set her vision for patent reforms in ways that cannot be rebutted.Ways that “can’t be rebutted”? Rest assured, Dennis: any attempts by Lee (or anyone else) to reign in the insanity at the PTO will be “rebutted” by the usual suspects. Whether those rebuttals actually succeed will depend on the usual factors (among them, public support for those usual suspects, which I’m inclined to believe is at an all-time low).

      1. LOL. Then it’s sarcasm? If so, the joke’s on me.It did occur to me that this “rough start” was about as manufactured as a “rough start” gets. Next we’ll find out that her brother-in-law was involved in some dubious beer brewing venture.

      2. Yes I was kind of feeling that as well. And yet while you’re penning these articles on the birther movement as applied to patents In re Packard moves forward without mention on PO. Potentially cementing one of either the Miyazaki standard being applied in prosecution for 112 2nds or else the office’s inability to address ambiguously worded claims subject to multiple substantially different interpretations.

          1. I can write up a full essay sometime maybe this weekend. But for now, In re Packard is a pro se case that was hit with 112 1st and 2nd as well as some art (the art was on all but one claim iirc). The board, iirc, let the art rejections go, but upheld at least some of the 112 1st rejections along with the 112 2nd rejections. They did so under the normal insolubly ambiguous standard. The pro se applicant hired a law firm to handle an appeal. The law firm now argues that the PTO applied the Miyazaki standard in the 112 2nd rejections and argues against the 112 1st rejections as well. It has been suggested by someone that this was done just to get a chance to challenge Miyazaki. They make all the usual arguments against Miyazaki that we normally see around here. The office of course makes all the usual arguments for the Miyazaki standard being ok for the office to use, and also argues that the office did not apply that standard in this instant case. Since the standard wasn’t applied they of course don’t think that it should be reviewed at this time. The CAFC seems bent on reviewing it, so it looks like they will. Ryan Alley will likely forward you the briefs if you ask him over at his site. If you need the app no. and it is publicly available I can get you that too. Oral arguments were linked in the other thread a few days ago, but you can look them up at the CAFC website.

            1. “The board, iirc,…did so under the normal insolubly ambiguous standard.”Check again. Had they used that standard counsel would not be asking the CAFC to review the case and use that standard.add: (sigh) I said standard, 6 not grounds.Try again.2nd add: – 6 – the only thing I will concede is that you have convinced yourself that you are right no matter what. Try reading what you wrote and use just a little logic. Thanks – the pigsty is all yours on this point. Let me know when you want to pull your fingers out of your ears and stop chanting na-na-na-na6,You have to try really really hard to be so dense and off-point.You attempt five counterpoints, each of which is a complete Fail in this instance.Your first point is of course not in contention. When the discussion is distinguishing grounds and standards WITHIN the existing grounds, and there is no new standards being advanced by the Office, but rather the discussion being on the standard allegedly being misapplied, there is not room to say that a new ground is being raised. Do you see anywhere in the record where the Offfice is claiming to raise a new ground of rejection?Your second through fifth points ALL rely on some type of notion that the Office has this somehow mystical and varied 112 standard and that they can apply different (unstated) versions whenever they want ((your self-defeating “(or may be using) two different standards”)). Obviously, if the Office has multiple versions of the 112 test with different standards, such would fail your own “Miyazaki” understanding of a rational (read that as non-arbitrary) test to be applied. You would fail even if (or more likely especially because) if you ‘succeed’ on this point. In your fifth attempt, you think a solicitor can change the standard to be used (or had been used prior by the examiner. Complete nonsense. So even if in the oral arguments the solicitor asserts that the claim would fail under the insolubly ambiguous standard, that simply is not the issue at point that the court is deciding – it is not a decision that the appeal court would likely make in the first instance.As for “straw grounds of rejection” – the irony that you call for that to stop is beyond humorous. Although, I think you did not mean to lampoon yourself so badly like that.

            2. Um I don’t need to check that part again. They did. And furthermore, we all know what the PTO argues that the PTO’s position is. If the PTO ain’t argin’ fer it, then that grounds isn’t being maintained. So even if the board did so hold, the solicitor can in the end decide whether such a grounds would be maintained or not on appeal. The solicitor explicitly notes that no such grounds of rejection are present. Furthermore, the examiner himself did not issue a Miyazaki 112, and if the board made one it would be a new grounds of rejection. Go d some of you lawlta rds are such ta rds. Just making up straw rejections and obliging the PTO to back them. ” Had they used that standard counsel would not be asking the CAFC to review the case and use that standard.”You assert that without basis. What makes you think they’re such boyscouts? Did you hear their re tar dation at oral args? These are no boyscouts, they’re just your everyday avg lawlta rd.

            3. “I said standard, 6 not grounds”First I’d say the standard is part of the grounds esp in the instance where the office may use (or may be using) two different standards. If any change to the rationale of the rejection is changed then it is a new grounds. Certainly the standard that the office thinks it is applying is part of its rationale for making a rejection. And second, again, neither the board or the examiner anywhere relied on the standard in Miyazaki to make their determination. If you think they did you may feel free to cite where they did in the action/decision and then show the corresponding standard being announced in the Miyazaki decision and I will happily concede the issue. Third if the board relied on the Miyazaki standard when the examiner did not switching the standard would certainly be a new grounds of rejection. The thrust of the rejection would be entirely different. Fourth if the solicitor is not backing that standard being used in making his determination to further pursue the case at the CAFC then it is not being used by the office at the current time in this case. Finally, even if it was used by the board (which it wasn’t), but the solicitor makes clear that he no longer relies on it then the CAFC would at most simply need to say that they do not affirm based on the insoluably ambiguous standard, then the solicitor would be happy to send it back to the examiner for whatever remains of prosecution. And what you must realize is that the reason these lawyers are trying to erect this straw grounds of rejection is because it is apparently very rare for someone to take a 112 2nd to the CAFC from the board in the last decade. If the solicitor is to be believed it’s been nigh on a decade since the court last got a 112 2nd indefiniteness case from the board to review. So they’re jumping on this chance. Down with straw grounds of rejection!

            4. Why do you keep adding to your post? post button broken? “Your first point is of course not in contention.”Then I win. If the standard is part of the grounds, and if, as here, the office has not announced any deviation from the insoluably ambiguous standard applied before Miyazaki in the office and in litigation in a given case AND makes clear time and again that they are not using any different standard in the instant case then ffs w t f would make you think they’re using a different standard in this case? Thanks for the concession though. “but rather the discussion being on the standard allegedly being misapplied, there is not room to say that a new ground is being raised.”Sure there is. The appellant most certainly could argue that if he wanted. And in fact that is all he is really arguing now. That the board switcheroed the standard in their decision from that which the examiner used. ” Do you see anywhere in the record where the Offfice is claiming to raise a new ground of rejection?”No, which is exactly my point. The office used the same standard all throughout prosecution, at the board and as they are before the CAFC. The board didn’t change the standard being applied in the case from that which the examiner used. The examiner himself undoubtably found the claim invalid under 112 2nd under the insoluably ambiguous standard. Read his action read his answer. It has zip to do with the miyazaki standard and has everything to do with him saying he can’t make heads or tails of the claims. The appellant cannot then say, after the board rendered a decision, that, based on their quote mining from the board decision, that the board up and applied a different standard than the examiner utilized. Because all they’d really be saying is that a new grounds of rejection was made. And of course no new grounds was raised. “Your second through fifth points ALL rely on some type of notion that the Office has this somehow mystical and varied 112 standard and that they can apply different (unstated) versions whenever they want”No. When we make a normal 112 we’re doing it under the insoluably ambiguous standard. When we state that we just plain ol can’t understand the metes and bounds of the claim, or anything like that, it’s the insoluably ambiguous standard. When, on rather rare occasion, we apply the miyazaki standard in the LIMITED CIRCUMSTANCE of the claims being amenable to two or more reasonable interpretations (in light of the spec no less) we call out the standard specifically (and usually by name). You will know when the miyazaki standard is being applied. Because you will either see Miyazaki cited and/or you will see two+ different constructions placed on the record alongside a statement of the standard with a statement stating the claim is amenable to those constructions.The office doesn’t remain mum on it’s grounds of rejection. When there is some question by the applicant about what is happening the PTO will tell the applicant. Here, the solicitor has gone out of his way to clarify things for the applicant, TIME AND AGAIN. To be clear, he reps the PTO in this matter. “Obviously, if the Office has multiple versions of the 112 test with different standards, such would fail your own “Miyazaki” understanding of a rational (read that as non-arbitrary) test to be applied. You would fail even if (or more likely especially because) if you ‘succeed’ on this point. “You’re welcome to say why. “In your fifth attempt, you think a solicitor can change the standard to be used (or had been used prior by the examiner.”No, I think he CANNOT do so. And so when he is stating for the record that is the standard that we used at the office then that is in fact the PTO’s position. If the court finds that this be not in accord with the record below then they can state that HE is raising a new grounds. “So even if in the oral arguments the solicitor asserts that the claim would fail under the insolubly ambiguous standard, that simply is not the issue at point that the court is deciding “Which is exactly my point re straw grounds of rejection. The solicitor not only asserts that they would fail under the insoluably ambiguous standard, he asserts that they did in fact fail under the insoluably ambiguous standard in the proceedings below. But now the applicant has grown himself a straw grounds to argue against and the court seems to buy it np like usual. ” it is not a decision that the appeal court would likely make in the first instance.”Of course not. They would summarily reverse because the office is relying on a new grounds of rejection if they found that the solicitor was asserting that standard for the first time just now before them. “As for “straw grounds of rejection” – the irony that you call for that to stop is beyond humorous.”Really how so? Because let’s be clear, it’s a real problem when applicants can grow their own rejection to argue against. This is far from the first case where it has happened and it happens routinely at the board. It leads to the situation where the actual rejection never gets reviewed.

      1. is a Director of a branch office legally a “deputy director” within the meaning of the statutes?You tell me, Ned. Or you can just launch into an attack on Lee’s “decision-making ability” because she “willingly” gave up her position as a “Director” and “willingly” accepted a position as … a Deputy Director.Here’s a better question: is a “Director of a branch office” legally a “Director” within the meaning of the statutes? Because blow me down but I don’t remember a peep from Hal Wegner or anyone else when Lee was nominated to be Director of the Silicon Valley Office by … the Director. Do you?

        1. Malcolm, I thought you made an excellent point when you mentioned that being a director of a branch office is the same thing as being a deputy director of the entire office. I think the courts would agree. What made you think of that?

          1. you mentioned that being a director of a branch office is the same thing as being a deputy director of the entire officeI didn’t say that. Is there a limit on the number of deputy directors in the statute? Is just one deputy allowed?

            1. M, 35 USC 3: 1 Deputy; 2 commissioners, one patent, one trademark. Other officers with titles and powers as delegated.The Deputy acts as Director in the absence of…From the above, ML is one of the “others.” There currently is no Director nor Deputy.There is no statutory person to do anything requiring the power of the Director.Patents issuing under ML signature are not properly issued by the letter of the statutes. I see Wegner’s and Crouch’s point.You may not know this, but Sec. of State Haig assumed control of the government when Reagan was shot. VP Bush was not in Washington. Haig was heavily criticized for being a usurper.

            2. From the above, ML is one of the “others.” There currently is no Director nor Deputy.Okay. So tell everyone exactly how that happened and tell everyone exactly who is responsible. Shall we prosecute them? Under what law?There is no statutory person to do anything requiring the power of the Director.Oh, so I guess that means that nobody can do anything. It’s over. Shut the whole thing down.Patents issuing under ML signature are not properly issued by the letter of the statutes.You’re kidding! Really? The PTO is issuing patents that it has no right to be issuing? I’ve been pointing that out for years. Let me know when more such patents have been issued under this “directorless” regime than were issued under Kappos “direction.” That’ll take a while.You may not know this, but Sec. of State Haig assumed control of the government when Reagan was shot. I remember that well. It was bizarre, to say the least. I was going to bring that up earlier as an example of a real issue that merited attention as opposed to this feeble attempt to create some “constitutional crisis” out of nothing. But maybe I shouldn’t be surprised. The same folks probably think that the Federal Circuit should never be able to determine that a claim is obvious as a matter of law. Because why? Something about England common law? Things must be getting desperate indeed.

            3. What appears to have happened here is that without a statutory director or deputy, the powers devolved to the secretary of commerce. In that capacity, she “appointed” Michelle Lee as the “next Director.” That is an illegal act. See below.I was just reading Marbury v. Madison that discussed the difference between appointments and commissions. Officers can be commissioned by department heads, but only through a act of congress. Otherwise, officers must be appointed, and approved congress before they may be commissioned.Thus, as I see it, the Sec. of Commerce has no power to appoint or commission a Director. Only the president may commission the Director and only after approval by congress.Now as I understand it, officers appointed by the president can act in an official capacity for time pending approval by congress. But there still needs to be a presidential appointment.What is going on here appears to be unlawful if not unprecedented. I would not be shocked to find somebody challenging documents signed by ML as without authority. I would also not be shocked to find that she may not be confirmed by reason of her participation in this apparently illegal conduct.

            4. One small problem (well, in addition to the other problems), Ned is that the Secretary of Commerce Penny Pritzker was not involved. Per Prof. Crouch’s previous post on this topic, it was Focarino, not Pritzker that acted.Focarino is far down the power totem pole…add: I’ve checked other sources and it appears that Pritzker was the one that made the appointment – but Ned, devolve? Does power named per explicit position devolve?nice summary: link to managingip.com

            5. anon, I’m sorry could you please explain this? I you suggesting that Focarino appoint Michele Lee Director?

            6. More from Hal:”It is undisputed that under the White House Guidelines [...] the appointment by the Secretary of Ms. Lee is null and void. Beyond that, there is a failure to report:The Vacancies Reform Act requires each Executive agency to report any vacancy covered by the Act, as well as “the name of any person serving in an acting capacity . . . immediately upon designation [of such person].” 5 USC 3349(a). According to the White House Guidelines, “This information is provided to GAO [Government Accountability Office] to permit GAO to supervise compliance with the Act.” The GAO website shows that Director Kappos’ vacancy was reported to GAO on February 7, 2013 and was assigned Vacancy Identification Number: Obama 911. Failure to Report the Departure of Ms. Rea nearly one (1) full month ago: The website shows that Teresa Rea was the acting official with a “Scheduled End” date of August 30, 2013. However, Ms. Rea’s “Actual End” date on the GAO website remains blank, despite the fact that Ms. Rea left the agency on November 21, 2013.

            7. Uh, huh. Then I suppose the appointment of Custer, fresh from the Point, to Major General was void? His permanent rank at Little Big Horn was Lt. Col. I think superior officers are entitled to make temporary appointments of junior officers who serve pending the emergency or the appointment of a replacement. My own Dad had a permanent rank of 1st Lt. in the US Army, but the temporary rank of Captain in the Army of the United States. The permanent rank was that given by presidential appointment and approval by congress. The temporary rank was a battlefield promotion.

            8. Completely disregards the actual law that governs the situation Ned.When they pass a law that expressly governs the appointment , you cannot act like that law isn’t there.add: Ned, it is not so much “that” as it is “do so by X number of days”note, see Second add belowI suggest that you contact Hal Wegner who continues to cover this story and has provided the actual law.Ned, I also repeat my suggestion that you write to Hal and be put on his email distribution list. This morning he published an update to his coverage on this issue (generally available at link to laipla.net… although the update is not yet there).The update stands at 22 pages of legal reasoning and possible consequences.Someone(s) needs to wake up over at the top levels of the Executive Agency.Second add: Ned, Hal’s update is now linked at link to laipla.net… Also, Prof. Duffy has provided his view on a new thread. While indeed substantive, I believe Prof. Duffy’s view to be flawed and Hal has this right.

            9. On further consideration, I think the power of the Director still devolves upward to the Sec. of Commerce in absence of a Director or Deputy. As such, the Sec. of Commerce would have the authority to appoint a deputy, and that she has done.

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