In March, the U.S. District Court for the District of Columbia invalidated the appointment of Ken Cuccinelli as acting director of the U.S. Citizenship and Immigration Services. In early September, the U.S. District Court for the District of Maryland invalidated the appointment of Chad Wolf as acting secretary of the U.S. Department of Homeland Security. And, in late September, the U.S. District Court for the District of Montana invalidated the appointment of William Perry Pendley as acting director of the Bureau of Land Management.
Beyond grabbing headlines, these decisions have important implications for the functioning of federal agencies, especially in times of transition, and preserving the Senate's power to advise and consent on the appointment of senior agency officials.
The Federal Vacancies Reform Act
All of these cases involve the application of the Federal Vacancies Reform Act, or FVRA.
The U.S. Supreme Court discussed the genesis of this statute several years ago. It noted that, "[s]ince President [George] Washington's first term, Congress has given the President limited authority to appoint acting officials to temporarily perform the functions of a vacant PAS office [i.e., an office requiring presidential appointment and Senate confirmation] without first obtaining Senate approval."
There has long been controversy between the executive and legislative branches about these temporary appointments. By 1998, approximately 20% of presidentially appointed, Senate-confirmed, or PAS, offices in executive agencies were occupied by temporary designees, most of whom had served beyond the then-extant 120-day limitation period without presidential submissions of nominations. In response, Congress enacted the FVRA to provide a general regime for temporarily filling PAS vacancies.
The default rule under the FVRA is that the "first assistant" to the vacant office automatically serves as the acting official when a vacancy arises. But the president may instead appoint (1) a person who has been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the agency in question, who has worked for that agency in a senior position for at least 90 of the 365 days preceding the vacancy.
The FVRA forbids the president from appointing a new nominee for a vacant PAS office on an acting basis pending confirmation unless the nominee satisfies one of the foregoing requirements. In most cases, the statute permits acting service for 210 days beginning on the date the vacancy occurs, tolls that time limit while a nomination is pending, and starts a new 210-day clock if the nomination is rejected, withdrawn or returned.
The FVRA ensures compliance by providing that, in general, "any function or duty of a vacant office" performed by a person not properly serving under the statute shall have no force or effect. This provision creates an incentive for those who believe they have been harmed by the action of an improperly appointed acting official to challenge the legality of his appointment. It also highlights the importance of defining what constitutes a function or duty of a particular PAS office.
The Cuccinelli Decision
The D.C. federal court addressed the function or duty issue in the Cuccinelli case. Having concluded that Cuccinelli was improperly designated to serve as the acting director of the USCIS in violation of the FVRA, it focused on the issue of remedy and just which actions by Cuccinelli should be invalidated.
The government argued that the phrase "function or duty" includes only nondelegable duties — that is, only those duties that are assigned to a single official and that may not be reassigned. The court rejected this narrow construction, which would limit the FVRA to "those rare circumstances in which the function at issue is not only assigned to a single office but also may not be reassigned."
The court instead adopted a broader construction of which functions and duties are covered, based on the legislative history and the structure of the act.
Congress recognized that few PAS positions have any meaningful statutory duties; rather, the duties of these offices are defined by internal departmental regulations that can be changed at will without undergoing the notice and comment process. To avoid circumvention of the FVRA vacant-office provision, Congress added a lookback provision that defines the functions or duties of a vacant office to include those that are established by regulation and were in effect at any time during the 180-day period preceding the date on which the vacancy occurs.
The court concluded that where a statute assigns a function to a single PAS office, and where the department head did not reassign or delegate that function at least 180 days before the vacancy occurred, that function must be performed either by a properly serving acting official or by the department head. This led the court to vacate certain removal orders because of Cuccinelli's involvement.
The same judge, U.S. District Judge Randolph D. Moss, reinforced these points in a subsequent decision that also involved the USCIS. In Northwest Immigrant Rights Project v. USCIS, he noted that "the vacant office provision of the FVRA does not void all actions taken by those serving without authority — it nullifies only actions taken 'in the performance of any function or duty of a vacant office' that is subject to the FVRA."
He dismissed the FVRA claim in that case because the secretarial authority at issue had been delegated to subordinate officials in 2003. Therefore, this function was not vested exclusively in the secretary, and its exercise was not voided by the FVRA even if the vacant secretary's position had been filled improperly.
The Wolf Decision
The Wolf case sheds further light on the limits of the FVRA. There, the Maryland federal court concluded that the FVRA was inapplicable to Wolf's ascension to the position of acting DHS secretary because the issue instead was governed by an agency-specific succession statute. Citing the legislative history of the FVRA, it found that Congress never intended to displace agency-specific succession statutes even if, as there, the agency-specific provision placed no time limit on an acting appointment.
"Simply put, Congress envisioned the FVRA operating alongside agency-specific statutes but not engrafting the FVRA's requirements onto selections made pursuant to such statutes," the court noted. However, it went on to find that Wolf's installation was likely invalid under the agency's own order of succession provision and so violated the Administrative Procedure Act. On that alternative basis, the court granted a preliminary injunction.
The Pendley Decision
The Pendley case reinforces these points in the course of analyzing the leadership of the BLM, which has operated without a Senate-confirmed director since January 2017.
When the Obama administration departed, the outgoing secretary of the interior issued an order delegating temporarily the functions, duties and responsibilities of the BLM director and nine other positions. The next day, the new acting secretary amended this order to change select designations.
Since then, secretaries — both acting and Senate-confirmed — have amended the order 32 times, expanding and contracting the number of delegated positions covered, delaying the expiration for delegated authority, and altering who wields delegated authority. Pursuant to this order, five different people have temporarily exercised the duties of BLM director, most recently Pendley.
Pendley was initially delegated the functions, duties and responsibilities of the BLM director in July 2019, but nominally was not assigned any functions or duties required by statute or regulation to be performed only by a Senate-confirmed official occupying the position. As the court noted, "[t]his boilerplate limitation appears to be an attempt to avoid running afoul of the FVRA."
Additional amendments to the secretarial order extended Pendley's tenure four times until June 2020. At that point, Pendley issued a memorandum purporting to designate himself as the first assistant for purposes of the FVRA and delegate to himself the authority to perform all duties and responsibilities of the BLM director without any limitation.
This succession memo was approved by another official "exercising the delegated authority" of the assistant secretary of land and minerals management. President Donald Trump then nominated Pendley for the position of BLM director on July 30, but withdrew the nomination when it looked like the confirmation process would become contentious.
The Montana federal court opined that "[t]he President cannot shelter unconstitutional 'temporary' appointments for the duration of his presidency through a matryoshka doll of delegated authorities." The court found no statutory authority for the secretary to fill the vacant position of BLM director by a secretarial order. Nor did the court find authority for Pendley's "self-delegation of authority" via the succession memo.
The court concluded that Pendley had indeed operated as the acting BLM director and had made decisions reserved to the director. It cataloged a series of FVRA violations in Pendley's service: (1) he is not eligible under the FVRA to serve in an acting capacity in a PAS office; (2) he held the acting position beyond the 210-day maximum allowed by the FVRA; and (3) he served as acting BLM director after he was nominated for the permanent position.
The court announced that it would set aside any function or duty of the BLM director that has been performed by Pendley and directed the parties to provide further briefing to delineate which of his actions must fall.
These decisions have clarified the operation and reach of the FVRA, but it is debatable how effective the act has proven at safeguarding the Senate's authority to advise and consent on the staffing of senior agency positions within an administration. The FVRA has not forestalled the installation of acting officials who do not satisfy the requirements of the act. Nor have the courts' rulings applying the FVRA had much evident impact on staffing the positions at issue.
Wolf remains the acting DHS secretary. Cuccinelli continues to run USCIS — although he is no longer the acting director, he performs the duties of that position as the senior official performing the duties of the DHS deputy secretary. And Pendley is still the deputy director for policy and programs for the U.S. Department of the Interior, in which role he "provides leadership in managing the [BLM]" but does not perform specific actions reserved for its director.
A change in administration will sweep these individuals out of office but it will not resolve the underlying issue which, as history shows, has persisted through various administrations. Indeed, the issue could become more acute in a situation where the presidency and the Senate are controlled by different political parties.
The effectiveness of the FVRA is limited for several reasons.
First, it only voids the relatively few actions taken by ineligible officials that are reserved exclusively to the offices they improperly occupy.
Second, because the actual scope of this sanction is often controlled by relatively obscure internal departmental delegations of authority, the deterrent effect of the FVRA is further muted.
Third, any actions that are vacated as a result of a successful FVRA challenge can be restored if they are ratified by a properly appointed official.
Accordingly, it will not be surprising to see Congress, at some point, tinker with the FVRA in an effort to enhance its effectiveness. But when the political stars will align to permit the enactment of such legislation is more difficult to predict.
Steven D. Gordon is a partner at Holland & Knight LLP.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
 L.M.-M. v. Cuccinelli , 442 F.Supp.3d 1 (D.D.C. 2020).
 Casa de Maryland Inc. v. Wolf , No. ––– F.Supp.3d ––––, 2020 WL 5500165 (D. Md. Sept. 11, 2020).
 Bullock v. U.S. Bureau of Land Mgmt. , --- F.Supp.3d ----, 2020 WL 5746836 (D. Mont. Sept. 25, 2020).
 5 U.S.C. § 3345 et seq.
 N.L.R.B. v. SW General, Inc. , 137 S.Ct. 929, 935 (2017).
 Id. at 936.
 5 U.S.C. § 3348(d).
 L.M.-M. v. Cuccinelli, 442 F.Supp.3d at 31-32.
 Id. at 32-33 (citing 5 U.S.C. § 3348(a)(2)(B)(ii)).
 Id. at 34.
 Northwest Immigrant Rights Project v. U.S. Citizenship & Immigration Services , No. 19-3283 (RDM), 2020 WL 5995206, at *16 (D.D.C. Oct. 8, 2020).
 Casa de Maryland Inc. v. Wolf, 2020 WL 5500165, at *19.
 Id. at *23.
 Bullock v. U.S. Bureau of Land Mgmt., 2020 WL 5746836, at *8.
 Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives , 920 F.3d 1, 13 (D.C. Cir. 2019).
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