TITLE: B-310780, Federal Vacancies Reform Act of 1998 - Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice, June 13, 2008
BNUMBER: B-310780
DATE: June 13, 2008
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B-310780, Federal Vacancies Reform Act of 1998 - Assistant Attorney General for the Office of Legal Counsel, U.S. Department of Justice, June 13, 2008

   B-310780

   June 13, 2008

   The Honorable Richard J. Durbin
   United States Senate

   The Honorable Russell D. Feingold
   United States Senate

   The Honorable Edward M. Kennedy
   United States Senate

   Subject: Federal Vacancies Reform Act of 1998 - Assistant Attorney General
   for the Office of Legal Counsel, U.S. Department of Justice

   By letter dated April 16, 2008, you 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.[1] For the reasons stated below, we conclude
   that Mr. Bradbury's service has not violated the Federal Vacancies Reform
   Act of 1998.

   BACKGROUND

   The Federal Vacancies Reform Act (hereinafter "Vacancies Act"), enacted on
   October  21, 1998, provides the exclusive means for temporarily
   authorizing an acting official to perform the duties of certain vacant
   positions that require Presidential appointment and Senate
   confirmation.[2] Under the Vacancies Act, an acting official in a covered
   position may serve in a vacant position for a period no longer than 210
   days from the date of the vacancy. 5 U.S.C. sect. 3346(a). An acting
   official may continue (or resume) performing the duties of the office once
   the official's first or second nomination is submitted to the Senate. If a
   first or second nomination is returned to the President, the Act also
   permits the official to continue to serve up to 210 days from the date the
   nomination is returned. 5 U.S.C. sect. 3346(b). After the expiration of an
   acting official's allowed period of duty under the Vacancies Act, the
   position is to remain vacant; the functions and duties of that position
   can only be performed by the head of the agency; and actions taken by the
   acting official in performance of these duties and functions have no force
   or effect.[3] 5 U.S.C. sect. 3348.

   The Vacancies Act requires executive departments and agencies to
   immediately report to the Congress and the Comptroller General when a
   vacancy occurs, the name of any person serving in an acting capacity, the
   name of any person nominated to fill the position, and the date of a
   rejection, withdrawal, or return of any nomination. 5 U.S.C. sect.
   3349(a). The Comptroller General is also to report to the Congress, the
   President, and the Office of Personnel Management if the Comptroller
   General determines that an acting official is serving longer than the
   210-day period (including applicable extensions) established by the
   Vacancies Act. 5 U.S.C. sect. 3349(b).

   A vacancy in the position of Assistant Attorney General, Office of Legal
   Counsel (OLC), U.S. Department of Justice began on July 18, 2004. The
   Department reported that Daniel Levin initially served as Acting Assistant
   Attorney General and that Steven G. Bradbury (as the first assistant to
   the Assistant Attorney General for OLC) automatically assumed this title
   upon Mr. Levin's departure on February 4, 2005. Mr. Bradbury had been
   serving since April 2004 as the Principal Deputy Assistant Attorney
   General, a position which under Department regulations is the first
   assistant to the Assistant Attorney General for purposes of the Federal
   Vacancies Act. 28 C.F.R. sect. 0.137(b). Mr. Bradbury was nominated by the
   President on June 23, 2005, and this nomination was returned on December
   21, 2005. [4] The President submitted Mr. Bradbury's nomination a second
   time on January 25, 2006, which was returned on September 29, 2006. Since
   that time, the President has nominated Mr. Bradbury on two subsequent
   occasions. [5]

   In response to our request for their views,[6] the Department of Justice
   advises that Mr. Bradbury did not serve as the Acting Assistant Attorney
   General during the period from February 15, 2005 (the expiration of 210
   days after the vacancy began) to June 23, 2005 (prior to his first
   nomination) and has not served as the Acting Assistant Attorney General
   since April 27, 2007. In fact, the Department advises that no one (Mr.
   Bradbury or anyone else) may serve as the Acting Assistant Attorney
   General for the Office of Legal Counsel for the remainder of this
   Administration. Letter of April 29, 2008. Rather, Mr. Bradbury is serving
   as the Principal Deputy Assistant Attorney General, a position he has held
   continuously since April 2004. The Department advises that this is the
   position Mr. Bradbury occupied under the previous Assistant Attorney
   General, Jack L. Goldsmith, and under the Acting Assistant Attorney
   General, Daniel Levin. The Department concludes that Mr. Bradbury is
   performing the duties of his position and that there are no duties that
   only the Assistant Attorney General for OLC may perform.

   DISCUSSION

   Pursuant to the Vacancies Act, the office of the Assistant Attorney
   General for OLC should have been vacant between February 15, 2005 (the end
   of the 210-day period) and June 23, 2005 (when the President submitted Mr.
   Bradbury's nomination to the Senate) and since April 27, 2007 (which was
   the end of the 210-day period following the return of Mr. Bradbury's
   second nomination). As noted above, in its response to our inquiry
   concerning Mr. Bradbury's service as Acting Assistant Attorney General,
   the Department states that Mr. Bradbury has not served as Acting Assistant
   Attorney General for OLC during these periods. Rather, during these
   periods, Mr. Bradbury served (and continues to serve) in his regular
   position as Principal Deputy Assistant Attorney General, the senior
   administratively appointed official in OLC. As such the Department
   contends that the office has been vacant, in accordance with the Vacancies
   Act. To date we have found no evidence to suggest that Mr. Bradbury has
   used the title of Acting Assistant Attorney General for OLC during any
   period of time in which the position was to be vacant.[7] Therefore, in
   this sense, we consider the Department to be in compliance with the
   requirement under the Vacancies Act that the office remain vacant during
   these periods. [8]

   The issue remaining is whether Mr. Bradbury, as Principal Deputy Assistant
   Attorney General during the timeframe in which the office has been vacant,
   performed any functions or duties which under the Vacancies Act may be
   performed only by the Attorney General as head of the Department.
   According to the Department, Mr. Bradbury's service during the relevant
   time period has been in accordance with the Vacancies Act, since the
   position of Assistant Attorney General for OLC does not have any duties or
   functions which are exclusive to the position.

   Under the Vacancies Act, the functions and duties of a position are
   defined as those functions or duties "established by statute . . . and . .
   . required by statute to be performed by the applicable officer (and only
   that officer) . . . or . . . established by regulation . . . and . . .
   required by such regulation to be performed by the applicable officer (and
   only that officer) . . ." 5 U.S.C. sect. 3348(a)(2). These functions and
   duties are described as non-delegable.[9] Non-delegable functions and
   duties may only be performed by an agency head during those times when an
   office is vacant. 5 U.S.C. sect. 3348(b)(2).

   In the first instance, there are no statutory functions or duties for the
   position of Assistant Attorney General for OLC, either non-delegable or
   delegable. Statutory authority for this and all the Assistant Attorney
   General positions is found at 28 U.S.C. sect. 506 which authorizes the
   appointment of a specified number of Assistant Attorneys General "to
   assist the Attorney General in the performance of his duties." Other than
   this general reference, there are no statutory references to the functions
   or duties of the Assistant Attorney General for OLC.[10]

   The position does have functions and duties established by Department
   regulations that set forth the general functions of the Office of Legal
   Counsel. 28 C.F.R. sect. 0.25. These regulations provide a listing of
   matters which "are assigned to, and shall be conducted, handled, or
   supervised by, the Assistant Attorney General, Office of Legal Counsel."
   Id. This listing includes the preparation of formal Attorney General
   opinions, rendering legal advice to agencies and internally on
   departmental administrative matters, assisting the Attorney General in his
   function as legal advisor to the President, and preparing, reviewing, or
   revising proposed Executive Orders, proclamations, regulations and other
   similar matters which require the approval of the President or the
   Attorney General.[11] Id. In its response, the Department describes these
   as delegable regulatory functions and duties. The Department adds that
   since becoming the Principal Deputy Assistant Attorney General for OLC
   prior to the occurrence of the vacancy, Mr. Bradbury has at all times
   supervised all OLC staff. Moreover, the Department states that Deputy
   Assistant Attorneys General in OLC are responsible for supervising their
   staff and, as demonstrated by published opinions of the Attorney General,
   can sign and have signed opinions of the office.

   We find that the Department regulations are not sufficiently prescriptive
   for us to conclude that they assign non-delegable duties to the Assistant
   Attorney General for OLC. While the regulations clearly assign a variety
   of matters to the Assistant Attorney General for OLC, the Assistant
   Attorney General's duty is to conduct, handle, or supervise the enumerated
   matters. As we read the departmental regulations, the Assistant Attorney
   General may personally and exclusively conduct a matter, personally handle
   a matter with the assistance of staff, or supervise others in the conduct
   of a matter. The regulation's general vesting of supervisory
   responsibility, however, cannot be considered a non-delegable duty.

   In limiting the performance of certain duties to an agency head during a
   vacancy, the Vacancies Act focus is on specified duties and functions
   which under statutory or regulatory language must be performed exclusively
   by the incumbent of the office. See, 5 U.S.C. sect. 3348(a)(2) (". . .
   required . . . to be performed by the applicable officer (and only that
   officer) . . ."). This requires language that clearly signals duties or
   functions that cannot be delegated, such as providing final approval or
   final decisionmaking authority in a particular position.[12]

   In contrast, the departmental regulations at issue here provide for
   supervisory responsibility of the Assistant Attorney General but contain
   no language indicating that this responsibility (or any of the other
   enumerated responsibilities) may not be delegated. Moreover, the
   Department's practice of delegating various duties assigned to the
   Assistant Attorney General, including the supervision of OLC by the
   Principal Deputy Assistant Attorney General and the signing of opinions by
   lower level OLC officials, indicates that the Department's interpretation
   of this regulatory provision has permitted such delegation in the regular
   course, not simply under the circumstance of a vacant office. Accordingly,
   we do not interpret the vesting of supervisory responsibility with the
   Assistant Attorney General in the Department's regulations to be the
   assignment of a non-delegable duty.

   Therefore, since the position of Assistant Attorney General for OLC has no
   non-delegable duties or functions, we do not find Mr. Bradbury's service
   as Principal Deputy Assistant Attorney General for OLC to be a violation
   of the Vacancies Act.

   Sincerely yours,

   Gary L. Kepplinger's signature

   Gary L. Kepplinger
   General Counsel

   ------------------------

   [1] As discussed below in footnote 6, we had already solicited and
   received the views of the Department of Justice concerning Mr. Bradbury's
   service pursuant to our responsibilities under the Federal Vacancies
   Reform Act. See 5 U.S.C. sect. 3349. Upon receipt of your request,
   however, we provided the Department with an additional opportunity to
   comment. The Department provided a supplemental response on April 29,
   2008.

   [2] Pub. L. No. 105-277, Div. C, Title I, Oct 21, 1998, as amended, 5
   U.S.C. sections 3345-3349d. The Vacancies Act applies to all
   Presidentially-appointed, Senate-confirmed nominees, except for the
   Comptroller and Deputy Comptroller General (GAO), Article I judges,
   members of the Federal Energy Regulatory Commission and the Surface
   Transportation Board, and any appointment to a multimember board or
   commission that governs an independent establishment or a government
   corporation. 5 U.S.C. sections 3345(a) and 3349c.

   [3] Under the Vacancies Act, "actions" include the whole or a part of an
   agency rule, order, license, sanction, relief (or the equivalent or denial
   thereof, or failure to act). 5 U.S.C. sect. 3348(a)(1) (defining "action"
   to include "any agency action as defined under [5 U.S.C.] section
   551(13)").

   [4] A nomination which has not been confirmed or rejected can be returned
   to the President pursuant to paragraph 6 of Rule XXXI of the Standing
   Rules of the Senate.

   [5] The President's third nomination of Mr. Bradbury on January 9, 2007,
   was returned on December 19, 2007, and the President's fourth nomination
   of Mr. Bradbury was made on January 23, 2008.

   [6] Based on information reported to us by the Department, we began a
   review of whether Mr. Bradbury's service as Acting Assistant Attorney
   General for OLC was in accordance with the Vacancies Act. As is our
   practice, GAO, Procedures and Practices for Legal Decisions and Opinions,
   GAO-06-1064SP (Washington, D.C.: Sept. 2006), available at
   www.gao.gov/legal/resources.html, we solicited the views and comments of
   the Department, and received their response by letter dated March 6, 2008.
   As noted above in footnote 1, we received a supplemental response by
   letter dated April 29, 2008. Both letters were signed by Brian A.
   Benczkowski, Principal Deputy Assistant Attorney General, Office of
   Legislative Affairs, Department of Justice.

   [7] For example, Mr. Bradbury recently testified before the Subcommittee
   on the Constitution, Civil Rights, and Civil Liberties of the House
   Judiciary Committee, using the title of Principal Deputy Assistant
   Attorney General, Office of Legal Counsel (February 14, 2008).

   [8] In accordance with the Vacancies Act, the office should continue to
   remain vacant until a nominee is confirmed by the Senate (or a recess
   appointment is made). 5 U.S.C. sect. 3348(b)(1).

   [9] S. Rep. No. 105-250, at 18 (1998).

   [10] During the deliberation over the proposed Federal Vacancies Reform
   Act, the Senate Committee on Governmental Affairs acknowledged that many
   agency positions, including Assistant Attorneys General, lack specified
   statutory duties. The Committee suggested that authorizing committees
   consider whether specific statutory duties should be given to assistant
   secretaries and assistant attorneys general. S. Rep. No. 105-250, at 10.

   [11] Under the Vacancies Act, functions and duties "established by
   regulation" refer to applicable regulations in effect at any time during
   the 180-day period preceding the date on which the vacancy occurs. 5
   U.S.C. sect. 3348(a)(2)(B)(ii). This provision was to prevent agencies
   from re-issuing regulations providing that an office has no exclusive
   duties. Senate Report No. 105-250 (to accompany S. 2176), 105^th Cong.
   2^nd Sess., July 15, 1998, p. 18. The Department's regulatory provision
   was last modified in 1988.

   [12] See, e.g., 38 C.F.R. sect. 2.6(e)(4)(iv) relating to the Department
   of Veterans Affairs administration of the Federal Claims Collection Act of
   1966, which specifies that certain cases "will be considered by the
   General Counsel, who will make the determination in all instances as to
   whether the case warrants referral to the Department of Justice."