Justice Department: Compliance with Vacancies Act

Published by the Government Accountability Office on 1997-11-14.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States
GAO   General Accounting Office
      Washington, DE. 20548

      General Government Division


      November 14, 1997

      The Honorable Bob Barr
      House of Representatives

      Subject: Justice Department: Compliance with Vacancies Act

      Dear Mr. Barr:

      During a hearing of the House Committee on the Judiciary on September 30,
      1997, at which I testified on the Justice Department’s strategic plan, you asked
      about the GAO position regarding the applicability of the Vacancies Act (5
      USC. 6s 33453349) to the Justice Department.

      The Vacancies Act provides methods for the temporary filling of vacancies
      created by the death, resignation, sickness, or absence of the head of an
      Executive department 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 but requires con&nation by the Senate. Appointments under
      the Vacancies Act are subject to a 120-day limitation. The intent of the
      Vacancies Act was to preclude the extended filling of an office subject to
      Senate confirmation without submission of a nomination to the Senate.

      At issue is the application of the Vacancies Act to the Justice Department. It
      has been the Justice Department’s long-held position that the Attorney General
      has authority under 28 USC. 0 509-5101to make temporary assignments of the
      duties and powers of offices in the Department, outside the limits of the
      Vacancies Act. Most recently, a letter dated May 2, 1997, from the Assistant
      Attorney General for the Office of Legislative Affairs asserted that because the
      Attorney General’s powers in this area are so broad and flexible, and because
      28 USC. 5 510 addresses the assignment of duties at the Department more
      specifically than the Vacancies Act, the Attorney General has ample authority,
      outside the Vacancies Act, to provide for the temporary discharge of the duties
      of Department officers when their positions become vacant.

      ‘Section 509 places virtually all functions of the Department of Justice in the
      Attorney General. Under section 510 the Attorney General may authorize any
      other officer or employee of the Department of Justice to perform any function
      of the Attorney General.
                                                       GAO/GGD-98-32RVacancies Act
GAO’s long-held position has been that the provisions of the Vacancies Act are
generally applicable to the Justice Department. GAO believes that the Act can
only be superseded by statutes that provide specifically for an alternate means
of filling a particular office.” Previous GAO decisions dis&$eeing with the
Justice Department’s interpretation have, in general, concluded that 28 U.S.C.
8 510, while permitting the Attorney General to delegate her functions, does not
supersede the provisions of the Vacancies Act3

Despite the Justice Department’s most recent assertion of its long-held position,
GAO’s view continues to be that the provisions of the Vacancies Act are
Generally applicable to the Justice Department and govern the filling of such
Vacancies which require Senate conkrnation, except where there is specific
statutory authority to fill such vacancies.

I hope this clarifies our position. Please call me on (202) 512-8777,if you have
further questions.

Sincerely yours,

Norman Rabkin
Director, Administration of
 Justice Issues

‘See Opinion B-254491, September 28, 1993 (Vacancies Act not applicable to
position of United States Attorney due to specific statutory provision found at
28 U.S.C. 0 546 prescribing the manner in which vacancies are to be filled). See
also Opinion B-231697,June 28, 1988; Opinion B-150136,April 11, 1973.
“See Opinion B-150136, February 22, 1973 (holding Vacancies Act applicable to
the Department of Justice and in turn to the position of Director of the FBI);
Opinion B-150136, February 19, 1976 (holding Vacancies Act applicable to the
Department of Justice and in turn to the position of Acting Assistant Attorney
General). See also 65 Comp. Gen. 626 (1986); Opinion B-220522,October 17,

2                                                 GAO/GGD-9%32RVacancies Act
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