Presidential Appointments: Qualifications of Acting Officials at 
the Department of Justice Under the Federal Vacancies Reform Act 
of 1998 (06-SEP-01, GAO-01-1083R).				 
								 
The Federal Vacancies Reform Act of 1998 established new	 
requirements for the temporary filling of vacant executive agency
positions that require Presidential appointment and Senate	 
confirmation (PAS). The act is intended to create a clear process
and a time limit for the temporary filling of PAS positions. It  
provides specific criteria that must be met by individuals who	 
temporarily fill vacant positions. As of March 7, 2001, 19 of the
35 PAS positions at the Department of Justice headquarters 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.
All 19 acting officials met the qualifications to serve in an	 
acting capacity as prescribed by the Vacancies Reform Act.	 
-------------------------Indexing Terms------------------------- 
REPORTNUM:   GAO-01-1083R					        
    ACCNO:   A01748						        
  TITLE:     Presidential Appointments: Qualifications of Acting      
             Officials at the Department of Justice Under the Federal         
             Vacancies Reform Act of 1998                                     
     DATE:   09/06/2001 
  SUBJECT:   Congressional/executive relations			 
	     Eligibility criteria				 
	     Presidential appointments				 
	     Public officials					 
	     Temporary promotions				 

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GAO-01-1083R
     
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. sect. 3347( a)( 1).

GAO- 01- 1083R Federal Vacancies Reform Act Page 2

Reform Act. The remaining 16 were designated by the President 2 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 ways 4 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.

GAO- 01- 1083R Federal Vacancies Reform Act Page 3

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.

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

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

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 Confirmed a Glenn 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 Division
Immigration- Related Unfair Employment Practices)

- - John D. Trasvina Confirmed b John D. Trasvina Confirmed

Director, Federal Bureau of Investigation - - Louis J. Freeh Confirmed c
Robert 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 Confirmed a Asa Hutchinson Confirmed Deputy
Administrator, Drug Enforcement Administration 1/ 20/ 2001 2/ 22/ 2001
William B.

Simpkins Acting d 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

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

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
Confirmed a Kathryn Turman Confirmed Administrator, Office of Juvenile
Justice and Delinquency Prevention

2/ 28/ 2000 3/ 1/ 2000 John J. Wilson Acting d John J. Wilson Acting
Commissioner, Immigration & Naturalization Service 11/ 19/ 2000 11/ 20/ 2000
Mary Ann Wyrsch Acting d James W.

Ziglar Confirmed Director, Community Relations Service - - Rose Ochi
Confirmed e Jonathan

Chace Acting Chairman, U. S. Parole Commission - - Michael J. Gaines
Confirmed f Edward F.

Reilly Confirmed g Vice Chairman, U. S. Parole Commission - - Timothy E.
Jones,

Sr. Recess Appointment h Timothy E.

Jones, Sr. Recess Appointment National Commissioner, U. S. Parole Commission
- - Edward F. Reilly Confirmed f Michael J.

Gaines Confirmed Regional Commissioner, U. S. Parole Commission - - John R.
Simpson Confirmed f John R.

Simpson Confirmed Regional Commissioner, U. S. Parole Commission 12/ 15/
2000 __ __ Vacant __ Vacant Chairman, Foreign Claims Settlement Commission -
- John R. Lacey Recess

Appointment h John R. Lacey Recess Appointment Commissioner, Foreign Claims
Settlement Commission - - Laramie

McNamara Recess Appointment h Laramie

McNamara Recess Appointment Commissioner, Foreign Claims Settlement
Commission - - Richard T. White Confirmed f Richard 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. sect. 3349b. g Confirmed in previous session of
Congress; designated by President Bush to be Chairman.

h Recess appointment made by President Clinton.

(450039)
*** End of document. ***