Reforming Federal Vacancies

• Publication year: 2019

Reforming Federal Vacancies

Justin C. Van Orsdol

REFORMING FEDERAL VACANCIES

Justin C. Van Orsdol^*

[Page 297]

The Federal Vacancies Reform Act (FVRA) is a powerful but complicated and overlooked statute. At its best, it is a pragmatic mechanism designed to fill vacancies in executive agencies. But the complicated nature of the FVRA has paved the way for Presidents to manipulate its numerous loopholes in effect bypassing Senate approval when appointing federal officers. These loopholes raise several issues that threaten the existence of the FVRA—including invalidation under the Constitution. Further, regulated entities and citizens should also be concerned about invalid rule promulgation and enforcement actions, increased procurement costs, lack of agency transparency, increased risk of agency capture, and lack of judicial remedies. But invalidation of the FVRA would create chaos and disruption—negating a useful and necessary mechanism—meant to keep administrative agencies running when vacancies occur. Thus, this Note argues that these loopholes should be closed to save the FVRA from invalidation and offers potential legislative solutions to accomplish this task.

[Page 298]

Table of Contents

I. Introduction..........................................................................299

II. Federal Vacancies Reform Act of 1998 Background .... 304

A. PURPOSE AND HISTORY OF THE FVRA.............................. 304
B. SCOPE AND APPLICATION OF THE FVRA...........................305

III. Analyzing FVRA Loopholes and Recommended Changes ..................................................................................................... 308

A. SUMMARY OF LOOPHOLES AND POTENTIAL RAMIFICATIONS ..................................................................................... 308

1. Creating Vacancies Through Terminations and Forced Resignations...........................................................308
2. Subdelegation and the Definition of Functions or Duties..................................................................... 311
3. Lack of Meaningful Enforcement Provisions.........313

B. RECOMMENDATIONS FOR CLOSING THE FVRA LOOPHOLES .....................................................................................316

1. Clarifying and Prioritizing the Types of Vacancies Covered by the FVRA.............................................316
2. Restricting Subdelegations and Defining "Functions or Duties."...................................................................322
3. Giving the FVRA Enforcement Teeth......................324

a. Removing Incentives to Stay Past the Statutory Tolling Period..................................................325
b. Broadening Standing, Relaxing Issue Exhausation, and Introducing a Quo Warranto Provision... 327

IV. Conclusion..........................................................................330

[Page 299]

"Temporary solutions often become permanent problems."¹ —Craig Bruce

I. Introduction

After 500 days of the Trump Administration, over 200 key executive branch positions requiring presidential nomination and Senate confirmation sit vacant.² Which leads one to wonder, who is running the show at the approximately 115 administrative agencies?³ The answer: "acting officers."⁴ Acting officers can fill these vacancies on a "temporary" basis because of an obscure statute,⁵ known as the Federal Vacancies Reform Act of 1998 (FVRA or the Act).⁶

According to Professor Anne Joseph O'Connell, the leading authority on the FVRA, the Act serves three primary functions.⁷ First, it "identif[ies] a set of positions that can be filled

[Page 300]

temporarily."⁸ Second, it identifies who can fill these vacancies.⁹ And third, it sets the time limitation on how long acting officers can serve.¹⁰

The FVRA, however, has numerous loopholes that allow Presidents to manipulate the filling of vacant positions.¹¹ For example, under certain conditions, an acting officer can serve for much of a President's term.¹² And acting officers who serve past the statutory time limitation face minimal consequences.¹³ Which leads to the question, are these individuals truly "acting" officers?

Both Democratic and Republican Presidents either have violated or have been accused of violating the FVRA.¹⁴ For instance, take the concerns over President Clinton's appointment of Bill Lann Lee as Acting Assistant Attorney General for Civil Rights,¹⁵ President Obama's appointment of Vanita Gupta to the same office,¹⁶ Beth

[Page 301]

Cobert as Acting Office of Personnel Management (OPM) Director,¹⁷ and Lafe Solomon as Acting General Counsel to the National Labor Relations Board (NLRB).¹⁸ More recently, a growing number of accusations and lawsuits allege that the Trump Administration violated the FVRA by appointing Mick Mulvaney as Consumer Financial Protection Bureau (CFPB) Acting Director,¹⁹ Robert Wilkie as Department of Veterans Affairs (VA) Acting Secretary,²⁰ and Brian Steed as Bureau of Land Management (BLM) Acting Director.²¹ Perhaps the recent Attorney General vacancy has finally brought the FVRA at least close to public consciousness.²² Whatever

[Page 302]

the cause of increased attention, the time is ripe to examine this statute further.

Though myriad FVRA loopholes merit discussion,²³ this Note focuses on three of the most significant loopholes due to space constraints: (1) self-created vacancies through terminations and forced resignations; (2) subdelegation of "functions or duties"; and (3) lack of meaningful enforcement provisions.

On the one hand, these loopholes raise several issues that threaten the existence of the FVRA, including invalidation under the U.S. Constitution, as Justice Thomas opined in his concurrence in NLRB v. SW General, Inc.²⁴ Specifically, the FVRA raises separation-of-powers and Appointments Clause concerns.²⁵ Moreover, regulated entities and citizens should be concerned about

[Page 303]

invalid rule promulgation and enforcement actions,²⁶ increased procurement costs,²⁷ lack of agency transparency,²⁸ increased risk of agency capture,²⁹ and lack of judicial remedies.³⁰ On the other hand, invalidation of the FVRA would create chaos and disruption, negating a useful and necessary mechanism meant to keep administrative agencies running when vacancies occur.

To balance these concerns, this Note argues that these loopholes should be closed in order to save the FVRA. First, this Note contends that self-created vacancies via termination violate the Appointments Clause and that, for clarity, the FVRA should be amended to explicitly prohibit this practice. Second, this Note advocates for greater restrictions on subdelegation of duties to increase transparency in administrative agencies, fend off agency capture, and place pressure on the President and Senate to appoint permanent officers more quickly. Last, this Note argues that the FVRA needs meaningful enforcement provisions to give teeth to the FVRA by broadening standing and adding removal provisions to deter future violations.

This Note proceeds as follows. Section II.A discusses the purpose and history of the FVRA. Section II.B outlines the Act's scope by examining the application of relevant provisions. Section III.A

[Page 304]

examines the three selected loopholes and analyzes their possible ramifications if left uncorrected. Section III.B proposes solutions and addresses potential questions that could be raised as a result. Part IV concludes that without action the FVRA may be doomed, converting a temporary solution into a permanent problem.

II. Federal Vacancies Reform Act of 1998 Background

The FVRA is a complicated and ambiguous statute that affects multiple federal agencies. This Part first outlines the purpose and history of the FVRA and its predecessor. It then turns to the scope of the FVRA by explaining how its various provisions operate.

A. PURPOSE AND HISTORY OF THE FVRA

The Appointments Clause of the U.S. Constitution requires that principal officers be appointed through nomination by the President with the advice and consent of the Senate.³¹ These positions are colloquially referred to as President and Senate confirmed (PAS) positions.³² Inevitably, vacancies in PAS positions occur, so Congress enacted the FVRA as a mechanism to appoint acting officers to temporarily perform PAS functions and duties.³³

Under the original Vacancies Act, enacted in 1868, temporary appointments were limited to 10 days, but this was later amended in 1988 to 120 days.³⁴ It also provided for automatic succession by the "first assistant" to the officer.³⁵ The Act went relatively

[Page 305]

unnoticed until President Clinton appointed Bill Lann Lee to Acting Assistant Attorney General for Civil Rights in 1997.³⁶ Republicans and scholars believed that because Lee served past the statutory deadline his appointment was illegal, but nothing in the original Vacancies Act voided his actions.³⁷ In response, Congress enacted the FVRA in an effort to "bring[] to an end a quarter century of obfuscation, bureaucratic intransigence, and outright circumvention."³⁸

As lofty as the FVRA drafters' goals were, the resulting statute is nothing more than a paper tiger.³⁹ The FVRA was a step in the right direction, but at its core the changes appear to be superficial—with two notable exceptions. First, the FVRA added a third category of eligible individuals who may serve as acting officers: senior federal employees.⁴⁰ Second, the FVRA depersonalized the term "first assistant," broadening the pool of eligible individuals by tying the position to an office, rather than to an officer.⁴¹ This allows the President to fill vacancies more easily because an office has a permanent existence, whereas an officer may come and go—thereby preventing an appointment due to their departure.

B. SCOPE AND APPLICATION OF THE FVRA

The FVRA retains the three primary functions of the original Act: (1) to define which positions can be filled temporarily, (2) to define who is...