B-249730 September 2,1992

B-249730: Sep 2, 1992

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Blakey's nomination was transmitted to the Senate on August 4. We are of the opinion she may continue to serve until the Senate concludes its confirmation process. Whose Appointments are not herein otherwise provided for. Permanent vacancies are those created by the death or resignation of the incumbent. Are generally subject to the Vacancies Act. If a timely nomination is sent to the Senate. The nomination was made well within the 120-day period specified in the act. Until her nomination is either confirmed. We trust this information is helpful to you. This opinion will be available to the public 30 days from its issue date.

B-249730 September 2,1992

CIVILIAN PERSONNEL Compensation Executive Branch Appointment Congressional recommendations CIVILIAN PERSONNEL Compensation Presidential appointment Temporary appointment Time restrictions MILITARY PERSONNEL Federal Administrative/Legislative Matters Executive branch personnel Vacancies Temporary appointment Durations To fill a position covered by the Vacancies Act, the President may appoint an executive branch official to perform duties on a temporary basis for 120 days. During that time period, the President must also forward to the Senate his nomination of an individual to fill the position permanently. Meanwhile, the officer serving in an acting capacity may continue until the Senate concludes its deliberations on the pending nomination. 5 U.S.C. Secs. 3345 - 49. 65 Comp.Gen. 626 (1989).

The Honorable John D. Dingell Chairman, Committee on Energy and Commerce House of Representatives

Dear Mr. Chairman:

Your letter of July 23, 1992, to the Secretary of Transportation raised several concerns about the appointment of Ms. Marion C. Blakey as Acting Administrator of the National Highway Traffic Safety Administration (NHTSA). You also asked for the General Accounting Office's views on the length of time Ms. Blakey would be permitted to occupy that position in an acting capacity. Ms. Blakey's nomination was transmitted to the Senate on August 4, 1992, and we are of the opinion she may continue to serve until the Senate concludes its confirmation process.

As you know, the Appointments Clause of the Constitution, Article II, section 2, clause 2, provides that:

"[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

To prevent unreasonable delays in communicating proposed appointments to the Senate, thereby ensuring the opportunity for the Senate to exercise its constitutional function meaningfully, Congress passed the so-called Vacancies Act in 1868. Now codified at 5 U.S.C. Secs. 3345 - 49, the act sets up the exclusive procedure to be followed in filling both short term and permanent vacancies. Permanent vacancies are those created by the death or resignation of the incumbent.

Positions requiring Senate confirmation, including the Administrator of NHTSA, are generally subject to the Vacancies Act. B-202893, June 17, 1981. For positions to which the act applies, the President must make a nomination to fill a permanent vacancy within 120 days. 5 U.S.C. Sec. 3348. If a timely nomination is sent to the Senate, the temporary appointee may continue to serve for as long as it takes the Senate to dispose of the pending nomination. Id. and 65 Comp.Gen. 626, 631 (1986).

Here, on July 9, 1992, the Secretary of Transportation, acting on behalf of the President, detailed Ms. Blakey to the acting Administrator position. Until her temporary appointment, Ms. Blakey held the position of Assistant Secretary of Transportation for Public Affairs. Later, on August 4, 1992, the President forwarded Ms. Blakey's nomination to the Senate for confirmation as Administrator. 138 Cong. Rec. S11484 (daily ed. August 4, 1992). The nomination was made well within the 120-day period specified in the act. Accordingly, Ms. Blakey may continue as acting Administrator for an indefinite period, until her nomination is either confirmed, rejected or withdrawn.

We trust this information is helpful to you. In accordance with our usual procedures, this opinion will be available to the public 30 days from its issue date.