Judiciary HomepageMr. Chairman and Members of the Subcommittee:
My name is Morton Rosenberg. I am a Specialist in American Public Law in the American Law Division of the Congressional Research Service. In January of this year I prepared a general distribution memorandum in which I concluded that the designation of Mr. Bill Lann Lee as Acting Assistant Attorney General for Civil Rights in the Department of Justice failed to comply with the provisions of the Vacancies Act, a statute that supplies the exclusive means for temporarily filling advice and consent positions in all executive branch departments and agencies. As a consequence, I concluded that it is likely that a reviewing court would hold that Mr. Lee is unlawfully occupying the Civil Rights position. I am here today at the Subcommittee's request to explain my reasons for that conclusion.
I understand that you all have copies of my rather lengthy study. In my testimony today I will briefly review the specifics of Mr. Lee's designation and describe how it is consistent with the controversial practice of the Justice Department and other Executive Branch departments and agencies in filling vacant advice and consent positions without regard to the Vacancies Act. I will detail the provisions of the Vacancies Act and the Justice Department's legal rationale for ignoring it, and then explain the reasons that I believe supports the conclusion that the Act was intended by Congress to be the exclusive vehicle for temporarily filling vacant advice and consent positions in the Executive Branch, and that the failure to adhere to its requirements and limitations presents a significant threat to the Senate's confirmation prerogative.
I. Background
The circumstances leading to Mr. Lee's designation are as follows. Effective January 20, 1997, the incumbent Assistant Attorney General for Civil Rights, Deval L. Patrick, resigned. He had received Senate confirmation on March 22, 1994. On January 21, 1997, Isabelle Katz Pinzler, who had served since 1994 as Deputy Assistant Attorney General for Civil Rights, a position not subject to Senate advice and consent, was designated by Attorney General Reno "to perform the functions and duties of and to act as Assistant Attorney General in charge of the Civil Rights Division". On July 21, 1997, after Pinzler had served 181 days as acting head of the Division, President Clinton submitted Lee's nomination for Assistant Attorney General for Civil Rights to the Senate. Pinzler continued to serve as the acting Division head. The nomination was referred to the Judiciary Committee but never came before the Committee for an official vote, and pursuant to Senate Rule XXXI the nomination was returned to the President on November 13, 1997 on the imminent adjournment of the first session of the 105th Congress. On December 15, 1997, the President announced the resignation of Pinzler and the naming of "Bill Lann Lee to the post of Acting Assistant Attorney General for Civil Rights and Counselor to the Attorney for Civil Rights Enforcement". In fact, the designation was made by Attorney General Reno by a departmental order dated the same day, following approval of a request by her to the Office of Personnel Management, pursuant to 5 U.S.C. 3134 (1994), for authority to employ Lee as a non-career Senior Executive Service employee with title of "Principal Deputy Assistant Attorney General and Counselor to the Attorney General, Civil Rights Division."
The Constitution directs how officials who will exercise substantial authority under the laws are to be selected. Under the Appointments Clause, Art. II, sec. 2, cl. 2, the President is vested with the authority to appoint all officers of the United States, subject to Senate confirmation , but Congress, by law, may vest the appointment of inferior officers elsewhere, i.e., in the President alone, in the courts of law, or in the heads of departments. The President may also, under certain circumstances, fill vacancies in such offices through "recess appointments" which expire at the end of the next session of the Congress in which they were issued. Art. II, sec. 2, cl. 3. Over the years, Congress has established a legislative scheme to protect the Senate's constitutional role in the confirmation process by limiting the time during which vacant advice and consent positions may be filled by temporary designees before a nomination is forwarded to the Senate; requiring that filling of vacancies by recess appointments be promptly followed by submissions of presidential nominations for such positions; and prohibiting the payment of salary of recess appointees who have been rejected by a vote of the Senate.
II. The Vacancies Act
The Vacancies Act, as amended, 5 U.S.C. 3345-3349 (1994), provides two methods for the temporary filling of vacancies created by the death, resignation, sickness or absence of the head of an Executive agency or military department, or the head of a bureau thereof, whose appointment is not vested in the head of the department or in the President alone. Section 3345 provides that when the head of an Executive agency or military department dies, resigns or is sick or absent, unless otherwise directed by the President under section 3347, his first assistant shall perform the duties of the office until a successor is appointed or the absence or sickness stops. Section 3346 provides that when an officer of a bureau of an Executive or military department whose appointment is not vested in the head of the department dies, resigns, or is sick or absent, unless otherwise directed by the President under section 3347, his first assistant shall perform the duties of the office until a successor is appointed or the absence or sickness stops.
Section 3347 provides that, instead of a detail under sections 3345 or 3346, the President may direct the head or another officer of an executive or military department, whose appointment is vested in the President, subject to Senate confirmation, to perform the duties of the office until a successor is appointed or the absence or sickness stops. But the President is specifically precluded from using the authority of this section as a means for temporarily filling a vacancy in the office of Attorney General.
Section 3348 limits the time during which a vacancy may be temporarily filled under sections 3345, 3346, and 3347 to no more than 120 days. There are two exceptions. If a first or second nomination to fill the position has been submitted, the position may be filled under sections 3345, 3346 or 3347 until the Senate confirms the nomination or until 120 days after the Senate rejects the nomination or it is withdrawn. Second, if the vacancy occurs during an adjournment sine die of the Congress, the 120 period of temporary filling begins when Congress next convenes. Further, a person temporarily filling a position under sections 3345, 3346 or 3347 who is nominated for the position cannot serve more than 120 days after his nomination is either rejected or withdrawn.
Finally, section 3349 makes the methods described in the preceding sections the sole means for filling the vacancies described therein, except in the case of a vacancy occurring during a recess of the Senate.
The clear intent of the Vacancies Act from its outset was to prevent the President from delaying sending forth nominations for advice and consent positions which could thereby evade the Senate confirmation prerogative, and to provide the exclusive means for temporarily filling vacancies in covered positions unless Congress explicitly provided a superseding mechanism. Only two options are available under the statute: either a first assistant or a presidential designee who has previously received Senate confirmation may serve for a strictly defined and limited period. Prior to 1988 the period was 10 days ( until 1891) and then 30 days. An unbroken line of Attorney General and Office of Legal Counsel opinions from 1880 through 1977 reflect the understanding that there could be only one limited period of occupancy per vacancy (a first assistant's and a presidential designee's service could not be piggybacked) and that a pending nomination did not toll the limitation period. Once the time period was exhausted the office had to remain vacant and the powers and duties of the office could not be lawfully exercised. The Act has been understood by DOJ to apply in this rigid manner whether bureau chiefs or the heads of cabinet departments were involved. The only recourse of a President if the Vacancies Act was unavailable was the nomination process or to a recess appointment.
Thus in 1880, upon the resignation of the Secretary of the Navy, the President designated the Secretary of War to act in his stead pursuant to the Act. Upon the expiration of the statutory 10 day period, the Secretary of the Treasury inquired of the Attorney General whether any one could sign requisitions for payments on behalf of the Navy. The Attorney General held that the vacancy having been filled once for the statutory period, the power under the Act is exhausted: "It would not . . . be in the power of the President, after such ten days designate another officer, or the same officer, to act for an additional period of 10 days". The only recourse for the President was "to his constitutional power of appointment". Absent such an appointment, no one could exercise the duties and powers of the office. 16 Op. Atty. Gen. 596, 597 (1880). That opinion was thereafter followed in the cases of the deaths of a Postmaster General, 17 Op. Atty. Gen. 530 (1883), the Sixth Auditor in the Treasury Department, 18 Op. Atty. Gen 50 (1884), and two Treasury secretaries, 18 Op. Atty. Gen. 58 (1884); 20 Op. Atty. Gen. 8 (1891). In the latter opinion, it was argued that the 10 day limitation applied only to presidential designations and not to temporary assignments by operation of law. The Attorney General held that such a reading "would place no limitation upon the time which the `first or sole assistant' might fill the vacancy, which does not seem consistent with the expressed legislative purpose". The Attorney General also rejected the possibility that a 10 day occupation of an office by a first assistant could be followed by a presidential 10 day detail. 20 Op. Atty. Gen. at 10.
This latter conclusion was reconfirmed by Acting Attorney General C.B. Ames in a situation involving a vacancy in the Office of Secretary of State. The Undersecretary of State served as acting Secretary for the 30 day statutory period and inquired whether he could serve further until the completion of the pending confirmation of a successor. The Acting Attorney General concluded that the 30 day limitation applied whether the Undersecretary was acting as a consequence of being a first assistant or by virtue of a presidential designation, and that because of the expiration of the statutory period "[i]t is probably safer to say that you should not take action in any case out of which legal rights might arise which would be subject to review by the courts". 32 Op. Atty. Gen. 139, 141 (1920). See also, Olympic Fed. Sov. & Loan v. Office of Thrift Supervision, 732 F. Supp. 1183, (1197-98), appeal dismissed as moot, 903 F. 2d 837 (D.C. Cir. 1990) ("These opinions show that the Attorney General and other senior government officials have, for the last 100 years, interpreted the Vacancies Act as giving the President authority to make interim appointments only when the express conditions of the Act are satisfied..[and] show that Congress has been on notice for more than a century that the Vacancies Act is generally strictly and narrowly interpreted. If Congress intended the Act to serve a more general purpose--to allow the President to fill any vacancy, however created -- as the government contends, Congress had ample opportunity to amend the statute to give effect to that intent.").
III. The Conflicting Positions of the Department of Justice and the Comptroller General
DOJ has since 1973 taken the position that the Vacancies Act only "provides one [possible] method for filling certain positions on an interim basis", and that some departments and agencies, including DOJ, "have statutory authority to assign duties and powers of positions on a temporary basis outside the Vacancies Act". DOJ asserts that it has such authority under Section 509 of title 28, which provides that "[a]ll functions of other officers of the Department of Justice and all functions of agencies and employees of the Department of Justice are vested in the Attorney General", and under Section 510 which permits the Attorney General "from time to time to make such provisions as he considers appropriate authorizing the performance by any other officer, employee, or agency of the Department of Justice of any function of the Attorney General". It also contends that those "special statutory provisions" also make the time limitations of the Vacancies Act on the filling of vacant positions inapplicable to the Department. This special authority is said to date from the establishment of the Department in 1870.
In the past DOJ has denied the applicability of the Vacancies Act, relying on Sections 509 and 510, with respect to vacancies in the offices of FBI Director and Assistant Attorney General for the Criminal Division, and the Departments of Health and Human Services, Education, and Labor, with the apparent encouragement and support of DOJ, have adopted the same rationale with respect to administrative provisions in their own enabling legislation that similarly vests all powers and functions of the departments in their heads and allows discretionary delegations to subordinate officers and employees.
With an equal degree of persistence and consistency, the Comptroller General of the United States has disputed DOJ's position. The Comptroller argues that the language and history of the Vacancies Act establishes that it is the exclusive authority for the temporary filling of vacant positions which require presidential appointment with the advice and consent of the Senate unless there is specific statutory language providing another means for filling the particular vacancies. Neither the DOJ provisions, nor similar provisions in other department enabling statutes, which have common origins, the Comptroller General argues, have either the requisite specificity or legislative purpose to effect a displacement of the scheme of the Vacancies Act.
In 1973 the Comptroller General had his first occasion to address the applicability of the Vacancies Act to the Department of Justice. At issue was the question whether Acting FBI Director L. Patrick Gray was holding his position contrary to the 30-day limitation period of the Vacancies Act. It will be recalled that upon the death of Director J. Edgar Hoover the provisions of Public Law 90-351, 28 U.S.C. 532 note, took effect. That act made the office of Director subject to Senate confirmation but up to the time of the opinion the President had not forwarded a nomination to the Senate and Mr. Gray had served as acting Director for in excess of nine months.
At that time, the Justice Department, in a letter to the Comptroller General dated January 10, 1973, took the position that Congress intended that vacancies occurring within the Department were to be treated differently from vacancies in executive offices in a general manner, while the Title 28 provisions concerning vacancies speak specifically to the Department of Justice. In particular, the Department pointed to sections 508-510 of Title 28. Section 508 authorizes the Attorney General to designate the order of succession amongst assistant attorneys general and the Solicitor General should the offices of Attorney General and Deputy Attorney General become vacant. As previously discussed, under section 509, virtually all functions of the officers, employees and agencies of the Department are vested in the Attorney General, including the functions of the F.B.I. And under section 510, the Attorney General has the authority to delegate the performance of the functions vested in him to "any other officer, employee, or agency of the Department." Under the authority of these sections the Department promulgated a regulation (28 C.F.R. 0.132(d)) under which the Associate Director of the FBI serves as Acting Director in the event of a vacancy in that position. From these authorities it was argued that Congress meant to exempt the Department from the operation of the Vacancies Act.
The Comptroller General found the argument to be without substance. Opinion B-150136, February 22, 1973. He reasoned as follows: Sections 508-510 were derived from (and codify) previous reorganization plans. Section 508 finds its origin in Reorganization Plan No. 4 of 1953, Sections 509 and 510 in Reorganization Plan No. 2 of 1950. The legislative history of Reorganization Plan No. 2 makes it clear that its primary purpose was to establish clear and direct lines of authority and responsibility for the management of the Department and to make the Attorney General clearly responsible for the effectiveness and economy of administration of the Department. Indeed, Senate Report No. 1683, 81st Cong., 2nd Sess., states specifically that "Plan No. 2 does not give to the Department of Justice any more powers, authority, functions or responsibilities than it now has".
Further, the Comptroller General noted, the wording of Plan No. 2 is similar to the wording of the reorganization plans approved in 1950 and to other Executive agency reorganizations approved by Congress in subsequent years. The Department's argument, the Comptroller reasoned, if carried out to its logical limits, would render nugatory the applicability of the Vacancies Act to virtually all Executive agencies, a result plainly not explicitly intended by the Congress, and certainly not intended to be so by implication. It was also noted that 5 U.S.C. 905(a)(5)(the Reorganization Act of 1949 which provided the authority for promulgating reorganization plans) prohibited any reorganization plan from having the effect of "increasing the term of any office beyond that provided by law for such office," a restriction which, to be meaningful, would have to apply to the 30 day limit put on temporary appointments to positions requiring Senate confirmation.
The Comptroller General concluded that, "our opinion is that the service of Mr. Gray as Acting Director of the Federal Bureau of Investigation is subject to provisions of 5 U.S.C. 3345-3349, and that his continued service in that position is prohibited since he has performed the duties thereof in excess of 30 days."
In 1975 the Comptroller General confronted a similar situation at DOJ, this time involving the designation by the Attorney General of John C. Keeney as acting Assistant Attorney General for the Criminal Division, who held the position in excess of the 30-day limitation. The Comptroller again rejected DOJ's claim that the Vacancies Act was inapplicable, referring to his 1973 ruling in the L. Patrick Gray matter and concluding that "Section 510, while permitting [the Attorney General] to delegate his functions, does not in our opinion supersede the provisions of the Vacancies Act". Opinion B-150136, February 19, 1976.
The next Vacancies Act problem addressed by the Comptroller involved seven advice and consent positions at the Department of Health and Human Services held by acting officials for periods ranging from seven to 33 months. Reorganization Plan No. 1 of 1953, 67 Stat. 631, vested all powers, duties and function of all officers and agencies in the Secretary and provided in Section 6 that "The Secretary may from time to time make such provisions as the Secretary deems appropriate authorizing the performance of any of the functions of the Secretary by any other officer, or by any agency or employee, of the Department." Noting that the provisions of Section 6 were virtually the same as those contained in 28 U.S.C. 510, the Comptroller referenced his 1973 and 1976 DOJ decisions and concluded that the purposes of the reorganization plans in the DOJ cases were no different from the one dealing with HHS ("to provide clear and direct lines of authority and responsibility for management of the Department, and to make the Secretary clearly responsible for the effectiveness and economy of administration of the Departments") and thus provided no basis for a different result. The position of the Department, the Comptroller stated, "would, in effect, virtually nullify the statutory provisions contained in the Vacancies Act." The Comptroller pointedly indicated that some of the positions under review had been without a nominee for two years or more, which "appears to be precisely the sort of `unreasonable' delay the Vacancies Act was enacted to prevent." 65 Op. Comp. Gen. 626, 631-33 (1986). See also Opinion B-220522.2, October 17, 1986 (holding Vacancies Act applicable to temporary appointments at the Departments of Labor and Education).
DOJ has recently stated that the source of the presumed authority of the Attorney General to assign without regard to the limitations of the Vacancies Act the duties and powers of a vacant Department office on an interim basis derives from the original legislation establishing the Department of Justice in 1870. More particularly, it is argued that Sections 509 and 510, which are asserted to derive from Section 14 of the 1870 enabling legislation, are so broad and flexible and address the assignment of duties in the Department so much more specifically than the Vacancies Act, they provide ample authority, outside the Vacancies Act, for the temporary assignment of duties of Department officers when their positions become vacant. See, Letter to the Honorable Strom Thurmond from Andrew Fois, Assistant Attorney General, Office of Legislative Affairs (July 10, 1997).
DOJ's contention, however, does not appear to be substantiated by close scrutiny of the debates on the 1870 bill and the language of the measure as passed, and is inconsistent with the subsequent legislative development of the administrative structure of the Department. The singular purpose of the 1870 legislation was to bring order out of the chaos which fragmentation and dispersal of legal authority throughout the federal government over time had engendered. As succinctly put by Representative Jenckes, the principal sponsor of the bill, "It is for the purpose of having a unity of jurisprudence, if I may use that expression, in the executive law of the United States, that this bill proposes that all the law officers herein provided for shall be subordinate to one head". 42 Cong. Globe 3036 (April 27, 1870).
The debates concerning Section 14 make it evident that it was not a provision designed to override the recently enacted Vacancies Act. Its purpose was purely administrative, to establish a chain of command and to allow the Attorney General flexibility in organizing the new department which would have transferred to it a myriad of new substantive authorities and responsibilities and new personnel from other executive departments, a purpose consonant with the centralization of legal business control in a law department. See 42 Cong. Globe 3065, 3066 (Rep. Lawrence). It is certainly not the type of explicit exemptive provision that would take it out from under general legislation like the Vacancies Act which was itself meant to be preemptive in nature. Further, the presence of the Section 2 provision making the new Solicitor General that Attorney General's chief (or first) assistant with the authority to act in his stead in the event of a vacancy in that office, is an indication of not only a congressional awareness of the Vacancies Act, but of an intent to utilize it to further its purpose of unifying the governmental law functions in one agency, in this instance by protecting the Attorney General's office from potential presidential intrusions in case of a vacancy. By directing that the Solicitor General act as the temporary head of the department in case of a vacancy, it precluded presidential use of the alternative method of filling a vacancy, designation of another advice and consent official from another agency.
IV. The Congressional Response
Following the 1986 challenges by the HHS, Labor and Education Departments, the Comptroller General requested that Congress address the growing compliance problem it was facing. The Senate Governmental Affairs Committee took the lead in the congressional response, proposing two significant amendments. First, the Act would be amended to cover all executive departments and agencies, thereby overruling a 1973 court ruling limiting its coverage to executive and military departments. Second, Section 3348 was re-written to allow 120 days, rather than 30, for a temporary designation to fill a vacancy. The new provision was designed to give the President more time to find a nominee and at the same time emphasize the centrality and importance of the Senate's confirmation prerogative. Thus if a nomination is sent forward, the time limitation is abated during the period during which it is under consideration. Only if the nomination is rejected or withdrawn does the clock start ticking again on the temporary assignee. In its report, the Senate Committee expressed the belief that in this manner it was dealing with the interpretative controversy between DOJ and the Comptroller General. By giving more leeway to the President to find a nominee and tying the time limitation on "actings" to the prompt forwarding of nominations, the Committee believed it made more effective and clear the Section 3349 declaration that the Act's provisions are the sole means for filling vacancies in covered agencies. See Senate Report, No. 100-317, 100th Cong., 2d Sess. 14 (1988).
A 1989 opinion by DOJ's Office of Legal Counsel acknowledged the Senate Committee's disagreement with its "longstanding view that the Vacancy Act does not extinguish other general authorities relating to the appointment of officers", but characterized the Committee's explanation of the statutory changes as an improper and unsuccessful effort to "alter the proper construction of a statute through subsequent legislative history." 13 O.L.C. 173, 175 (1989).
The OLC opinion, however, unduly diminishes the value and weight of the Committee's report. This is not a case of re-enactment of legislation without change in which a subsequent Congress states in a report what it believes an earlier Congress intended. Here, the Senate Committee carefully considered a long-festering problem that affected the body's constitutional prerogatives, proposed changes that would, in the least intrusive but most direct way, address the problem, and explained clearly and without ambiguity what it was attempting to accomplish. The Committee's explanation, including its rejection of the DOJ position, is inextricably linked with the proposed legislation that ultimately become law. The new provisions passed both Houses without objection. The Senate report, issued first in the process, was before both Houses throughout the legislative deliberations. In such circumstances the Supreme Court has repeatedly acknowledged the great weight its places on report language. Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 380-81 (1969)("Subsequent legislation declaring the intent of an earlier statute is entitled to great weight in statutory construction."); Thornburg v. Gingles, 478 U.S. 30, 44 n.7 (1986)("We have repeatedly recognized that the authoritative source for legislative intent lies in the committee reports on the bill".). Committee reports are well-regarded because, in the words of Justice Harlan, they represent the "considered and collective understanding of those Congressmen involved in drafting and studying the proposed legislation." Zuber v. Allen, 396 U.S. 168, 186 (1969), quoted with approval in Garcia v. United States, 469 U.S. 70, 76 (1984).
V. Summary and Conclusions
Congress' historic attention to the protection of the Senate's confirmation prerogative accords with the Supreme Court's view of the high importance the appointments process has in our constitutional scheme of balanced, separated powers. The Court has made it clear that "the principle of separation of powers is embedded in the Appointments Clause", Freytag v. Commissioner of Internal Revenue, 501 U.S. 868, 882 (1991), and most recently emphasized that the Clause "is more than a matter of `etiquette or protocol', it is among the significant structural safeguards of the constitutional scheme". Edmond v. United States, 117 S.Ct. 1573, 1579 (1997). See also, Confederated Tribe of Siletz Indians of Oregon v. United States, 110 F.3d 688, 696 (9th Cir. 1997)("The Appointments Clause serves as a guard against one branch aggrandizing its power at the expense of another".). DOJ's position in the instant situation misconceives the import of the constitutionally mandated appointment process and the carefully circumscribed roles that the President and the Senate play in that process, and unlawfully undermines the Senate's constitutional prerogative.
The Appointments Clause, in directing the President to submit all nominations for officers of the United States for Senate approval, has been held to have preempted presidential discretion with respect to the filling of vacant advice and consent positions. The Supreme Court has consistently ruled that the "Take Care" clause is not a source of presidential power but rather a direction to the Chief Executive to assure the executive bureaucracy is fulfilling Congress' will, and all courts that have addressed the claim that the President has inherent authority under the "Take Care" clause to temporarily fill vacant advice and positions have rejected it. The Vacancies Act is part of a legislative scheme to assure that the Executive does not evade and thereby undermine the Senate's confirmation prerogative. The legislative history of the 1868 Act, as amended, makes it clear that it is meant to be the exclusive vehicle for temporarily filling advice and consent positions in all departments and agencies in the government. It currently provides that such vacant positions may be temporarily filled for 120 days by either the first assistant of a departed incumbent or by the designation by the President of an officer who has received Senate confirmation. The acting individual may serve for only one 120 day period unless the President submits a nomination during that period. In that event the acting may continue to serve until the nominee is confirmed, rejected or withdrawn. In the event of a rejection or withdrawal the allowable acting period is extended for another 120 days. The legislative history of the Vacancies Act and its interpretation and application by Attorneys General and Comptrollers General since its passage establish that the failure of the President to submit a nomination during the statutory period precludes any further temporary filling of the vacancy.
The Department of Justice contends that its authorizing legislation, which vests all powers and functions of the Department in the Attorney General and allows her to delegate these powers and functions to such officers and employees as she deems necessary, supersedes the Vacancies Act and permits her to fill vacant advice and consent positions for an indeterminant period. A review of the legislative history of the provisions asserted to be the basis of the supersession does not provide the necessary explicitness and clarity to support the claim. In fact, the debates on the establishment of the Department in 1870 indicate that the provision said to be the original source of the authority had a wholly different purpose and did not in any way address the problem of vacant advice and consent positions. Moreover, the subsequent development of the relevant Department administrative provisions clearly establishes that Congress intended that the Vacancies Act would apply to DOJ. Further, it is to be noted that DOJ's notion of the nature of superseding legislation would reach thirteen executive departments, in addition to DOJ, which have similar administrative chain of command and delegation provisions, as well as countless independent agencies.
Finally, the effect of the application of DOJ's supersession policy has been, since 1996, the designation of innumerable individuals who have served as "actings" in advice and consent positions well beyond the Vacancies Act's permissible 120 day period without the submission of a nomination by the President. At present, the acting head of the Department's Criminal Division has served in excess of 21 months, a period far in excess of that which he could have served had he received a recess appointment. Similar situations exist at other executive departments. For instance, there are currently 9 vacant advice and consent positions at the Commerce Department that are being filled by actings. Of the 9, 7 have occupied the offices in excess of 120 days. No nominations have been submitted for any of the 9. One of the acting offices has served since March 3, 1995, a period just short of three years.
On the basis of the foregoing, we believe it would likely be found by a reviewing court that the Vacancies Act is exclusive authority for filling vacant positions in the Department of Justice and that the designation of Bill Lann Lee to be Acting Assistant Attorney General for Civil Rights violates the Act since the allowable 120 period to serve as an acting under the Vacancies Act was exhausted by the 181 days served by his predecessor acting, Isabelle Katz Pinzler, during which time no nomination for the position was submitted to the Senate by the President. As a consequence, it is likely the position would be declared vacant until the appointments process is completed or the President makes a recess appointment.
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