GAO-01-1083R Federal Vacancies Reform Act

United States General Accounting Office

Washington, DC 20548

September 6, 2001

The Honorable Patrick Leahy

Chairman, Committee on the Judiciary

United States Senate

The Honorable Fred Thompson

Ranking Minority Member

Committee on Governmental Affairs

United States Senate

Subject: Presidential Appointments: Qualifications of Acting Officials at the

Department of Justice Under the Federal Vacancies Reform Act of 1998

Because of your interest in how the management transition at the Department of

Justice was progressing under the provisions of the Federal Vacancies Reform Act of

1998 (Vacancies Reform Act), you asked us on March 7, 2001, for an accounting of the

vacancies for positions which require Presidential appointment and Senate

confirmation (PAS positions). This request follows the first presidential transition

subject to the Vacancies Reform Act. This act, which took effect on November 21,

1998, established new requirements for the temporary filling of vacant executive

agency PAS positions and is intended to create a clear process and a time limit for the

temporary filling of PAS positions. The act provides specific criteria that must be met

by individuals who temporarily fill vacant positions.

For the PAS positions as of March 7, 2001, at the Department of Justice, we agreed to

provide you: (1) the date each position became vacant, (2) the date each acting

official was appointed, (3) the names of the individuals serving in these positions, and

(4) an assessment of whether the acting officials were eligible to serve in that role

under the Vacancies Reform Act.1

In summary, as of March 7, 2001, of the 35 PAS positions at the headquarters of the

Department of Justice, 19 positions were filled with acting officials, 13 were filled

with individuals confirmed before the start of the Bush administration, and one – the

Attorney General – was confirmed in the new administration. The remaining two

positions, the Associate Attorney General of the Department of Justice and a

Regional Commissioner of the United States Parole Commission were vacant and not

filled with anyone serving in an acting capacity. Of the 19 acting officials, 3 were

acting officials because they were first assistants as defined under the Vacancies

 1

 As agreed with your offices, we did not review the status of the U.S. Attorneys or the U.S. Marshals,

which are PAS positions excepted by the Vacancies Reform Act, 5 U.S.C. § 3347(a)(1).
Page 2 GAO-01-1083R Federal Vacancies Reform Act

Reform Act. The remaining 16 were designated by the President2 to serve in an acting

capacity as prescribed by the act. All 19 acting officials met the qualifications to

serve in an acting capacity as prescribed by the Vacancies Reform Act. Enclosure I

lists the PAS positions and the individuals serving in them as of March 7, 2001 and the

status of the positions on August 3, 2001, the day the Senate went into recess. The

Department of Justice had no comments on this letter.

Background

Under the Vacancies Reform Act, a vacancy occurs if a presidential appointee

covered by the act dies, resigns, or is otherwise unable to perform the functions and

duties of the office. The Vacancies Reform Act, for covered PAS positions, among

other things

• specifies who may serve as an acting officer;

• imposes a time limit on how long vacancies can be filled by acting officers; and

• requires agencies to immediately report to the Senate, the House of

Representatives, and the Comptroller General of the United States (1) any

vacancy and the date it occurs, (2) the name of any person serving in an acting

capacity and the date such service began, (3) the name of any person nominated

to fill a vacancy and the date such nomination is submitted to the Senate, and

(4) the date of any rejection, withdrawal, or return of a nomination.

The Vacancies Reform Act also requires the Comptroller General of the United States

to inform specified congressional committees, the President, and the Office of

Personnel Management if an acting officer serves longer than 210 days, a period

which may be extended through various provisions of the act.

Generally, the Vacancies Reform Act applies to any office within an executive agency

to which appointment is required to be made by the President, by and with the advice

and consent of the Senate. The Vacancies Reform Act, however, excludes from its

coverage certain officers. It does not apply, for example, to any PAS position on a

multimember board, commission, or similar entity that governs an independent

establishment or government corporation. The Vacancies Reform Act also

recognizes that a number of PAS positions are covered by other statutes that

specifically address how those offices are to be filled temporarily.

In a previous letter to Senator Thompson,3

 we provided details on the four ways that

an individual can be eligible to serve as an acting official and types of documentation

that would verify an official’s eligibility to serve in an acting capacity. The two ways4

that applied to the acting officials at the time of our review at the Department of

Justice were (1) eligibility based on service as a first assistant to the vacant position

 2

 Of these 16, President Clinton designated 4 individuals as acting officials. Two of these

designations—for Assistant Attorney General for the Office of Justice Programs and Director, National

Institute of Justice--were made in 2000. The other two—Deputy Attorney General and Solicitor

General—were effective on January 20, 2001. 3

Eligibility Criteria for Individuals to Temporarily Fill Vacant Positions Under the Federal

Vacancies Reform Act of 1998 (GAO-01-468R, February 23, 2001). 4

 The other two ways that an individual may be eligible to serve as an acting official are (1) eligibility

based on service in a presidentially appointed, Senate confirmed position and (2) eligibility based on

reappointment to a term-limited position.
Page 3 GAO-01-1083R Federal Vacancies Reform Act

and (2) eligibility based on service as a senior agency official designated by the

President to serve temporarily.

How We Assessed Eligibility of Acting Officials

Regarding eligibility to serve on an acting basis due to being a “first assistant,” the

Vacancies Reform Act provides that the first assistant to the officer who had vacated

the position may temporarily perform the functions and duties of the PAS position in

an acting capacity subject to the act’s time limitations. Although the act does not

define the term “first assistant,” the legislative history indicates that first assistant

positions may be designated by statute or regulation. Agencies have also designated

first assistants in agency orders, agency directives, and position descriptions.

The following documents are relevant to showing whether a person may serve in an

acting capacity because he or she was a first assistant.

• The statute, regulation, or other dated documents that designate the individual’s

position as first assistant to the vacant position.

• Standard Form(s) (SF) 50-Notification of Personnel Action. These forms, along

with other documents, are useful to demonstrate that an individual held the first

assistant position and the time period an individual served in the first assistant

position.

For each of the three acting officials whose eligibility was supposed to be as first

assistants, we checked these documents and confirmed that they actually met the

criteria.

Regarding eligibility to serve in an acting capacity due to service as a senior agency

official designated by the President, the Vacancies Reform Act places a number of

limitations on which agency employees qualify to be designated as senior agency

officials. First, the senior agency official must be from the same agency in which the

vacancy occurs. Second, the senior agency official must have served within the

agency for not less than 90 days during the 365 days preceding the vacancy. Third,

the senior agency official must have served at the rate of pay of the GS-15, step 1 level

or above.

The following documents are relevant to showing whether a person may serve in an

acting capacity as a senior agency official designated by the President:

• The President’s signed designation of the senior agency official to serve in the

vacant position in an acting capacity.

• SF-50’s-Notification of Personnel Action to demonstrate that the senior agency

official’s rate of pay is at the GS-15, step 1 level or above, and that the official

served in the agency for 90 days or more at that level or higher during the 365 days

preceding the vacancy.

For the 16 acting officials who were cited as being designated by the President to

serve, we checked these documents and found that all of them were eligible under

the Vacancies Reform Act.
Page 4 GAO-01-1083R Federal Vacancies Reform Act

Agency Comments

We asked the Department of Justice for comments on this letter. The department

said it had no comment.

Scope and Methodology

To identify individuals serving in PAS positions as of March 7, 2001, we obtained from

the Assistant Attorney General for Administration a list of the PAS positions in the

Department and the individuals in those positions on that date. We compared the

positions on that list with positions listed in the book entitled, United States

Government Policy and Supporting Positions, published in November 2000, by the

Senate Committee on Governmental Affairs. We requested the official personnel files

of each acting official identified and reviewed the files to obtain the most recent

copies of SF-50’s going back to 1998, so that we could determine if the eligibility

requirements were met under the Vacancies Reform Act. In cases where the acting

official was directed by the President to serve as an acting official, we also obtained a

memorandum signed by the President designating the individual as such. In the case

where the acting official was serving as a first assistant, we obtained agency

documents showing that the acting official was serving as the first assistant to the

position.

We did our work in Washington, D.C., from March 2001 through August 2001 in

accordance with generally accepted government auditing standards.

We are sending copies of this letter to the Chairman, Senate Committee on

Governmental Affairs; the Ranking Minority Member, Senate Committee on the

Judiciary; the Chairman and Ranking Minority Member, House Committee on

Government Reform; the Chairman and Ranking Minority Member, House Committee

on the Judiciary; the Attorney General; and the Counsel to the President. This letter

will also be available on GAO’s home page at http://www.gao.gov. If you have

questions, please contact me or Mr. Thomas Dowdal, Assistant Director, on (202) 512-

6806.

In addition, Terry Draver, Jeffrey Dawson, V. Bruce Goddard, and Michael Volpe

made key contributions to this letter.

Sincerely yours,

Victor S. Rezendes

Managing Director, Strategic Issues
Status of Individuals in PAS Positions in the

Department of Justice as of March 7 and

August 3, 2001

Page 5 GAO-01-1083R Federal Vacancies Reform Act

March 7 August 3

PAS position

Date

position

became

vacant

Date

official

began

service

Name of

official Status

Name of

official Status

Attorney General 1/20/2001 2/1/2001 John Ashcroft Confirmed John Ashcroft Confirmed

Deputy Attorney General 1/20/2001 1/20/2001 Robert S. Mueller

III

Acting Larry D.

Thompson

Confirmed

Associate Attorney General 1/20/2001 — — Vacant — Vacant

Solicitor General 1/20/2001 1/20/2001 Barbara

Underwood

Acting Theodore B.

Olson

Confirmed

Inspector General — — Glenn A. Fine ConfirmedaGlenn A. Fine Confirmed

Assistant Attorney General (Legal

Policy)

1/20/2001 2/9/2001 Kevin R. Jones Acting Viet D. Dinh Confirmed

Assistant Attorney General

(Legal Counsel)

1/20/2001 2/9/2001 Daniel L. Koffsky Acting Daniel L.

Koffsky

Acting

Assistant Attorney General

(Legislative Affairs)

1/20/2001 2/9/2001 Sheryl L. Walter Acting Daniel J. Bryant Confirmed

Assistant Attorney General

(Antitrust Division)

1/20/2001 2/9/2001 John Nannes Acting Charles A.

James

Confirmed

Assistant Attorney General

(Criminal Division)

1/20/2001 1/20/2001 John C. Keeney Acting Michael

Chertoff

Confirmed

Assistant Attorney General

(Civil Division)

1/20/2001 1/20/2001 Stuart E. Schiffer Acting Robert D.

McCallum

Confirmed

Assistant Attorney General

(Civil Rights Division)

1/20/2001 2/9/2001 William R.

Yeomans

Acting Ralph F. Boyd Confirmed

Assistant Attorney General

(Tax Division)

1/20/2001 2/9/2001 Claire Fallon Acting Eileen

O’Conner

Confirmed

Assistant Attorney General

(Environment & Natural Resources

Division)

1/20/2001 2/9/2001 John C. Cruden Acting John C. Cruden Acting

Assistant Attorney General (Office

of Justice Programs)

2/25/2000 2/26/2000 Mary Lou Leary Acting Mary Lou Leary Acting

Special Counsel (Civil DivisionImmigration-Related Unfair

Employment Practices)

— — John D. Trasvina ConfirmedbJohn D.

Trasvina

Confirmed

Director, Federal Bureau of

Investigation

— — Louis J. Freeh ConfirmedcRobert S.

Mueller III

Confirmed

Director, U.S. Marshals Service 1/20/2001 2/9/2001 Louis T. McKinney Acting Louis T.

McKinney

Acting

Administrator,

Drug Enforcement Administration

— — Donnie R.

Marshall

ConfirmedaAsa Hutchinson Confirmed

Deputy Administrator, Drug

Enforcement Administration

1/20/2001 2/22/2001 William B.

Simpkins

Actingd William B.

Simpkins

Acting

Director, Bureau of Justice

Assistance

1/20/2001 2/9/2001 Richard H. Ward,

III

Acting Richard H.

Ward, III

Acting

Director, Bureau of Justice

Statistics

1/20/2001 2/9/2001 Lawrence H.

Greenfield

Acting Lawrence H.

Greenfield

Acting

Director, National Institute of

Justice

4/21/2000 12/15/2000 Julie Samuels Acting Sarah V. Hart Confirmed

Status of Individuals in PAS Positions in the

Department of Justice as of March 7 and

August 3, 2001

Enclosure I
Status of Individuals in PAS Positions in the

Department of Justice as of March 7 and

August 3, 2001

Page 6 GAO-01-1083R Federal Vacancies Reform Act

March 7 August 3

PAS position

Date

position

became

vacant

Date

official

began

service

Name of

official Status

Name of

official Status

Director, Office for Victims of Crime 1/20/2001 4/6/2001 Kathryn Turman Confirmeda Kathryn Turman Confirmed

Administrator, Office of Juvenile

Justice and Delinquency

Prevention

2/28/2000 3/1/2000 John J. Wilson ActingdJohn J. Wilson Acting

Commissioner, Immigration &

Naturalization Service

11/19/2000 11/20/2000 Mary Ann Wyrsch ActingdJames W.

Ziglar

Confirmed

Director, Community Relations

Service

— — Rose Ochi ConfirmedeJonathan

Chace

Acting

Chairman, U.S. Parole

Commission — — Michael J. Gaines Confirmedf

Edward F.

Reilly Confirmedg

Vice Chairman, U.S. Parole

Commission

— — Timothy E. Jones,

Sr.

Recess

Appointmenth

Timothy E.

Jones, Sr.

Recess

Appointment

National Commissioner, U.S.

Parole Commission

— — Edward F. Reilly ConfirmedfMichael J.

Gaines

Confirmed

Regional Commissioner, U.S.

Parole Commission

— — John R. Simpson ConfirmedfJohn R.

Simpson

Confirmed

Regional Commissioner, U.S.

Parole Commission

12/15/2000 __ __ Vacant __ Vacant

Chairman, Foreign Claims

Settlement Commission

— — John R. Lacey Recess

Appointmenth

John R. Lacey Recess

Appointment

Commissioner, Foreign Claims

Settlement Commission

— — Laramie

McNamara

Recess

Appointmenth

Laramie

McNamara

Recess

Appointment

Commissioner, Foreign Claims

Settlement Commission

— — Richard T. White ConfirmedfRichard T.

White

Confirmed

a

Confirmed in previous session of Congress and retained by Bush administration.

b

Confirmed in previous session of Congress in position subject to a 4-year appointment.

c

Confirmed in previous session of Congress in position subject to a 10-year appointment.

d

Eligibility based on service as first assistant.

e

Confirmed in previous session of Congress in position subject to a 4-year appointment which expired

in March 2001.

f

Confirmed in previous session of Congress subject to a term appointment which has expired, but

subject to holdover provisions of the Vacancies Reform Act. The holdover provisions state that the

Vacancies Reform Act shall not be construed to affect any statute that authorizes a person to

continue to serve in any office (1) after the expiration of the term for which such person is appointed;

and (2) until a successor is appointed or a specified period of time has expired. 5 U.S.C. § 3349b.

g

Confirmed in previous session of Congress; designated by President Bush to be Chairman.

h

Recess appointment made by President Clinton.

(450039)