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federal vacancies reform act 210 days

If a second nomination is rejected, then an officer may serve one more 210-day period. There is also a $725 application fee. We have found that, during the last administration, the acting Director of the Institute of Museum and Library Services (Institute) had served longer than the 210-day period allowed under the Act. 2681-611 (Oct. 21... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "Act") at the Department of Defense (DOD) with respect to the Assistant Secretary of Defense (ASD) for International Security Affairs position. The act replaces the prior Vacancies Act, and provides new rules for the temporary filling of vacant executive agency positions that require presidential appointment with Senate confirmation. Thanks To The Trump Administration, It’s Unclear, New Rule Limiting U.S. The time limit begins to run on the date the vacancy occurs. "(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes. " Mar 30, 2015, Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998--Department of Justice, Office of Victims of Crime, B-323944: Indeed, this appointment appears planned to accomplish that goal,” said Whitehouse. We reviewed the period covering January 20, 2017, to December 31,... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "Act") at the Department of the Air Force (the Department) with respect to the General Counsel position. In this circumstance, the last day of the period is deemed to be the second day the Senate is next in session and … Aug 6, 2019, Agency Compliance with the Federal Vacancies Reform Act for Positions Subject to the Jurisdiction of Senate Finance Committee, B-329903: They also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result. For example, your legislation would require a “first assistant” to have served in that position prior to a vacancy to be eligible to serve as the acting official and would clarify that the FVRA is superseded by agency-specific statutes that prescribe different procedures in the event of a vacancy. Congress created the U nonimmigrant visa with the passage of the Victims of Trafficking and Violence Protection Act (including the Battered Immigrant Women’s Protection Act) in October 2000. Dec 22, 2005, Vacancy Act Violation Letter-Department of Transportation, July 20, 2005, B-305187: Who Runs The Department Of Homeland Security? The Senate wanted to leave some positions vacant. We are working to reassert the FVRA in the following cases that have arisen during this period, and have also proposed reforms to strengthen Congress’s capacity to fulfill its Constitutional role. The Act generall... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 at the Department of the Army. 60, 66–70 (1999) (Questions and Answers Nos. Because presidents have sought ways to circumvent or have outright ignored the FVRA and the Appointments Clause, a core check that Congress has on executive agencies has been severely weakened. Senators Richard Blumenthal (D-CT), Sheldon Whitehouse (D-RI), and Mazie K. Hirono (D-HI)  in the U.S. District Court for the District of Columbia challenging the constitutionality of President Donald Trump’s appointment of Matthew Whitaker as the Acting Attorney General. The law revises provisions regarding the filling of Federal vacancies to authorize the President, if an appointed officer of an executive agency (defined to include the Executive Office of the President and exclude the GAO) dies, resigns, or is otherwise unable to perform office functions, to direct a person who serves in an office for which appointment is required to perform such functions temporarily in an acting capacity, subject to specified time limitations. The new rules would have made it much harder to qualify for a fee waiver, and would have severely curtailed naturalization applications, particularly from low-income applicants. Jul 24, 2006, Vacancy Act Violation Letter-Department of Commerce, July 12, 2006, B-307351: The Act generally li... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (Vacancies Reform Act). Section 3346 of the law provides that person may serve “for no longer than 210 days beginning on the date the vacancy occurs” or, “once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.” To do this, Congress must: The FVRA establishes the procedure for the President to temporarily fill certain vacancies within the executive branch while the President pursues a permanent appointment through the advice-and-consent process with the Senate. We are particularly concerned that the leadership vacuum in key positions has stymied the government’s ability to effectively address the crisis caused by COVID-19. 5 U.S.C. "(B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned. The prospect that the Attorney General might seek to serve the President, rather than the American people, reaffirms the importance of a confirmation process that follows the Constitution.”, “President Trump has shown utter disregard for the bedrock constitutional plan for top executive branch officials to receive the advice and consent of the Senate before taking office,” added Elizabeth Wydra, President of Constitutional Accountability Center, a public interest think tank and law firm dedicated to promoting the progressive promise of the Constitution’s text, history, and values. The Accountability for Acting Officials Act would take major strides in solving long-standing problems with the Federal Vacancies Reform Act of 1998 by closing problematic loopholes. Without exception for President Trump’s allies, principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate,”, “President Trump has shown utter disregard for the bedrock constitutional plan for top executive branch officials to receive the advice and consent of the Senate before taking office,”, Complaint for Declaratory and Injunctive Relief, Defendants’ Motion for a Stay of Proceedings, Plaintiffs’ Opposition to Defendants’ Motion for a Stay, Defendants’ Reply in Support of Motion for a Stay, Democratic Senators Challenge Whitaker Appointment in Court, Senate Democrats sue to block Trump’s acting attorney general, Matt Whitaker, , The Washington Post (November 19, 2018), A critical lawsuit over the acting attorney general, The legal challenges to Matthew Whitaker’s appointment mount, Dem. The act requires executive departments and agencies to report to the Congress and to the Comptroller General certain information about a vacancy immediately upon the occurrence of events specified in the act. As of August 2020, 136 Senate-confirmed positions have no nominee. As you know, the Vacancies Reform Act establishes requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate conf... By letter dated April 16, 2008, Congress requested our opinion whether the service of Steven G. Bradbury as the senior official in the Office of Legal Counsel, U.S. Department of Justice, is in violation of the Federal Vacancies Reform Act of 1998. On approximately July 4, 2020, federal agents from the Department of Homeland Security (DHS) and the U.S. The President The White House . In response to a request from Senator Ron Wyden, GAO issued a legal opinion regarding compliance with the Federal Vacancies Reform Act (FVRA) by agencies and departments with respect to positions that require Presidential appointment and Senate Confirmation (PAS positions) subject to the jurisdiction of the Senate Finance Committee. This is to report, pursuant to section 3349(b) of title 5 of the United States Code, as added by the Federal Vacancies Reform Act of 1998 (Vacancies Reform Act), that we have found three instances in which acting executive branch officers have served longer than the 210-day period allowed under the Act. C, title I, 112 Stat. 105 -277, Div. § 3345. Under the Vacancies Act, an acting secretary can serve 210 days from when the position was made vacant (or 300 days if it’s the administration’s first year). Video footage showed the officers gassing, beating, and kidnapping peaceful protesters while wearing no badges or name tags and driving unmarked vehicles. The Federal Vacancies Reform Act (FVRA) of 1998 was enacted to provide a process for filling vacancies on a temporary basis. Please do not complete the form by hand. Lack of enforcement for FVRA. The Federal Vacancies Reform Act defines who can fulfill the duties of an “acting” official. Get Email Updates. The Director of the Office of Science is a Presidential appointment subject to Senate confirmation, and thus is s... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 at the Centers for Medicare & Medicaid Services (CMS), within the Department of Health and Human Services, with respect to the Administrator position. 2681-611 (Oct. 21, 1998), as amended, 5 U.S.C. Amend the FVRA to make explicit that in the event a Senate-confirmed official is fired, a career official should fill the vacancy until a new confirmation. Sign up to receive updates that will keep us all informed about the threats we face and how we can fight to protect our democracy together. Below is a listing of violation letters GAO has issued after determining that a violation of the act has occurred. In a number of cases, the President tried to bypass Congress to fill open slots, including at NLRB, DOJ, and Treasury, in addition to Inspector General roles across the government. The law also specifies how long the vacant position can be filled by an acting official. The Vacancies Reform Act provides a complex set of rules for the time during which an acting official may serve, 5 U.S.C. The last Senate-confirmed Director resigned on January 20, 2017. We want the court to make clear that the Senate must confirm Matthew Whitaker’s appointment as Acting Attorney General—otherwise this temporary appointment violates the Constitution’s Appointments Clause. 3345 et seq., to designate individuals to perform the functions and duties of a vacant office temporarily in an acting capacity. The Constitution’s Appointments Clause requires that the Senate confirm high-level federal government officials, including the Attorney General, before they exercise the duties of the office. Further, acting officials may not feel empowered to make big but necessary decisions, potentially crippling agency operations. E-mail your comments or requests to GAO In August 2019, ICE, at the direction of Albence, altered the standard for granting stays of removal, making it more difficult for applicants to fight deportation during the years-long wait for visa approval. “Donald Trump cannot subvert the Constitution to protect himself and evade accountability. Some authorizing statutes have succession plans that conflict with the FVRA, creating uncertainty about what discretionary appointment authority the President has in these situations. They also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result. History has shown that the best way to protect democracy is by standing united in its defense. 2681–612 .) Excessive use of acting or non-confirmed leadership unconstitutionally circumvents the Senate’s Advice and Consent mandate, leaving these officials less accountable to both Congress and the American people. The new policy significantly increased the burden on applicants who wished to apply for a fee waiver, and made it impossible for some poor lawful permanent residents to apply at all. Dec 15, 2020, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: President of the Government National Mortgage Association, B-331539: The Act generally limits the... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 at the Department of Transportation. Generally, designation or appointment under one of these methods confers upon the official the legal authority to carry out the duties of the office. This may incentivize a president to rely more heavily on the use of acting leadership, as it permits a president to appoint someone based on their loyalty to the president, rather than based on his or her qualifications and ability to do the job. President Trump’s violation of the Constitution’s Appointments Clause, unilaterally preventing members of the Senate from voting on whether or not to consent to Matthew Whitaker serving as a principal Officer, leaves Senators no choice but to seek a remedy through the courts. Thus, the FVRA was designed to bridge reasonable gaps in the appointment process, not to supplant the Senate confirmation process entirely. This directory connects the people helping to plan and design our next federal government with information and resources related to that effort Read More > Key Activities and Resources. until the pending lawsuit is resolved. C, title I, § 151(b) , Oct. 21, 1998 , 112 Stat. As Congress may know, the Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. There is currently no enforcement mechanism for the law. Read the full letter below. Plaintiffs are the City of Seattle and five naturalization legal service providers who serve low-income, citizenship-eligible legal permanent residents: Catholic Legal Immigration Network, Inc. (CLINIC), Central American Resource Center of California (CARECEN), Immigrant Legal Resource Center (ILRC), OneAmerica, and Self-Help for the Elderly. “President Trump is denying Senators our constitutional obligation and opportunity to do our job: scrutinizing the nomination of our nation’s top law enforcement official. Jul 12, 2006, Vacancy Act Violation Letter-Food and Drug Administration, March 17, 2006, B-305939: We are particularly concerned that the leadership vacuum in key positions has stymied the government’s ability to effectively address the crisis caused by COVID-19. The Vacancies Reform Act provides for the time period to be extended when the last day of any 210-day period is "a day on which the Senate is not in session." On December 9, 2019, Judge Maxine Chesney of the Northern District of California issued a nationwide preliminary injunction barring USCIS from implementing changes that would limit access to citizenship for lawful permanent residents (green card holders). Under the Act, Whitaker can carry out those functions without confirmation for 210 days and then gain another 210 days if the nominee fails to secure confirmation. 3504, and thus... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (Vacancies Reform Act), at the Department of Housing and Urban Development (HUD). Because President Trump has denied the Senate the opportunity to consider whether Matthew Whitaker is fit to serve as a principal Officer of the United States, the full scope of concerns about Acting Attorney General Whitaker is unknown. The Appointments Clause is also meant to prevent the President, in the words of Alexander Hamilton in Federalist 76, from appointing officers with “no other merit than that of…possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.”, “Installing Matthew Whitaker so flagrantly defies constitutional law that any viewer of School House Rock would recognize it. May 9, 2018, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, Department of Housing and Urban Development, B-329918: § 3346, see Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. The Federal Vacancies Reform Act of 1998 seeks to prevent vacancies that stretch beyond 210 days. 2681-611-16, codified at 5 U.S.C.§§3345-3349d.) Without exception for President Trump’s allies, principal officers who report directly to the President must be subject to a hearing and confirmed by the Senate,” said Hirono. Donate to help us to scale up our efforts to educate, advocate, organize, and litigate on behalf of the values we all hold dear. In some cases, temporary filling of vacancies in a particular position is specifically provided for in statute. This leaves these critical agencies lacking effective leadership during a time of national crisis. C, tit. Feb 7, 2019, Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: General Counsel, Department of the Air Force, B-329939: In selecting a so-called “constitutional nobody” and thwarting every Senator’s constitutional duty, Trump leaves us no choice but to seek recourse through the courts.”. On July 31, 2020, Matthew Albence announced that he was retiring from federal service. “That an unconfirmed Acting Director of ICE is dismantling an effective, congressionally-designed program underscores their wisdom.”, “It is deeply disturbing that ICE has been without a confirmed head for more than three years,” continued Brianne Gorod, Chief Counsel for the Constitutional Accountability Center. The VACANT Inspectors General Act puts teeth behind this law. Thus, the position of Commissioner should have been vacant beginning November 17, 2017. Finally, the Congressional Research Service has identified more technical concerns, where clarifications could be useful. On November 19, 2018, Protect Democracy and the Constitutional Accountability Center filed a complaint on behalf of U.S. Protect Democracy, Debevoise & Plimpton LLP, and Perkins Coie LLP filed a lawsuit on July 27, 2020 on behalf of Don’t Shoot Portland, an organization founded by Black Lives Matter activist Teressa Raiford; Wall of Moms and its organizer, Bev Barnum; and protesters Demetria Hester, Danialle James, Sabrina Cerquera, and Lisa Kipersztok. Thanks To The Trump Administration, It’s Unclear.”, , Talking Points Memo (November 20, 2019), Protect Democracy and a cross-partisan group of good-government organizations sent a letter in strong support of Rep. Katie Porter’s (CA-45). The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive means by which a government employee may temporarily perform the nondelegable functions and duties of a vacant advice-and-consent position in an executive agency. As Congress may know, the Vacancies Reform Act established new requirements for the temporary filling of vacant executive agency positions that require Presidential appointment and Senate confirmation. According to original research by Restore Public Trust, there are currently at least 12 potential violations of the Federal Vacancies Reform Act of 1998 (Vacancies Act), which mandates that an acting official can only remain in that position for 210 days before the office must be vacated. Read a summary below and download the full paper as a PDF. 1, §151, 112 Stat. Congress enacted the FVRA under the assumption that the President and Congress would be substantially aligned in wanting to fill vacant executive branch positions that require Senate confirmation, while understanding that the natural process would take time. One of the claims brought forth by the lawsuit is that Department of Homeland Security (DHS) Acting Secretary Chad Wolf, who was neither nominated by the president nor confirmed by the Senate, is unlawfully serving in his role, making his orders regarding the Portland deployment void. Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Chief Financial Officer, U.S. Environmental Protection Agency, B-332619: According to a national survey conducted in 2011 by the National Immigrant Women’s Advocacy Project at American University, more than 75 percent of the U visa cases filed nationally were based on domestic violence, sexual assault, or human trafficking. Note: Each position has a unique Vacancy Identification Number which may be used to match vacancies with acting officials and nominees. Jul 18, 2016, Violation of the 210-day Limit Imposed by the Federal Vacancies Reform Act of 1998--Department of Health and Human Services, Office of the Assistant Secretary for Health, B-326794: When Congress revamped the vacancies regime in the Federal Vacancies Reform Act of 1998 (FVRA), it prioritized flexibility over constraints, and worried more about the specter of a hostile Senate than an indifferent one. This is to report, pursuant to section 3349(b) of title 5 of the United States Code, as added by the Federal Vacancies Reform Act of 1998 (Vacancies Reform Act), that we have found three instances in which acting executive branch officers have served longer than the 210-day period allowed under the Act. Pub. As my Post colleague Aaron Blake notes: “The Federal Vacancies Reform Act only allows acting officials to serve for 210 days after a vacancy is declared or … The Federal Vacancies Reform Act of 1998 (Vacancies Reform Act) provides for temporarily filling vacant executive agency positions that require presidential appointment with Senate confirmation. Aug 21, 2020, Department of Homeland Security—Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of Deputy Secretary of Homeland Security, B-331650: For Congress to fulfill its role as a co-equal branch, it must reassert its authority over the appointments process. For this reason, the results may not be complete or the most up-to-date information regarding those vacancies. Thanks To The Trump Administration, It’s Unclear.”, Talking Points Memo (November 20, 2019). from Stanford University’s Immigration Policy Lab suggests that the new rules could have reduced the number of naturalization applications filed each year by as much as 10 percent. Plaintiffs’ Supplemental Summary Judgment Brief, Government’s Supplemental Summary Judgment Brief, announces plans to challenge rules change proposal, How we've been fighting these threats to our democracy, The Associated Press Election Transparency Project, VoteShield: Protecting Voter Registration Databases, Recruiting Poll Workers to Power Elections, Wisconsin: Protecting Voters and Democracy During the Pandemic, Ensuring Eligible WV Voters Are Not Disenfranchised, Re-Enfranchising South Carolina's Republican Primary Voters, Preventing and Deterring Election Manipulation by Elected Officials, Fighting the Wisconsin Legislature’s Power Grab, Defending Voters’ Right to Receive Information about Voting, North Carolina Citizens Sue for Their Right to Vote, LULAC v. Public Interest Legal Foundation, FOIA Lawsuit on Intelligence Community Politicization, Protecting Our Democracy Amid Coronavirus, Preventing and Deterring Unlawful Pardons, Preventing Militarization of Law Enforcement, Trump Campaign’s Illegal Non-Disclosure Agreements, How we're rebuilding our democracy for our future, Building a Stronger More Inclusive Democracy, Restoring the Balance of National Security Powers. Congresswoman Porter’s Accountability For Acting Officials Act would help restore functional leadership to federal agencies; it would discourage the president from bypassing the constitutionally mandated confirmation process while preserving the president’s ability to temporarily fill vacant positions with qualified individuals. In the meantime, a federal agency is being run by someone without confirmation (Whitaker’s earlier confirmation for U.S. Attorney would not count). The reason is simple: Whitaker would never pass the advice and consent test. 105-277, div. Presidents of both parties have increasingly exploited loopholes or violated the current vacancies law. Cuccinelli was placed in the role of acting director in violation of the Federal Vacancies Reform Act (FVRA), which governs the process for filling a vacant executive branch position that is subject to Senate confirmation. There is currently no enforcement mechanism for the law. In a number of cases, the President tried to bypass Congress to fill open slots, including at NLRB, DOJ, and Treasury, in addition to Inspector General roles across the government. explaining the legal context in which Wolf’s tenure violates the law and the Constitution; boiled down to the following four propositions: Wolf is not the acting secretary of homeland security under the DHS succession statute. Pub. Specifically, we are reporting that the service of Helen Albert as Acting Inspector General at HUD after Novemb... Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (herein "the Vacancies Reform Act" or "Act") at the U.S. Social Security Administration (SSA) with respect to the Commissioner position. 1998 was enacted to provide a process for filling Vacancies on a bipartisan basis put... The 2012 Presidential appointment and Senate confirmation detailed vacancy information that federal departments and agencies have actually submitted to.! Most up-to-date information regarding those Vacancies in introducing the Accountability for acting officials and for how long may. “ the language of the Senate confirmation press a President to use the vacancy occurs after! This reason, the Congressional Research Service has identified more technical concerns, where clarifications be... It ’ s dictatorial appointment betrays, ” Blumenthal said Act, B-287720, may 18, 2001 of! 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