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B-220522.2, OCT 17, 1986

B-220522.2 Oct 17, 1986
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EXCEPT WHERE THERE IS SPECIFIC STATUTORY AUTHORITY TO FILL SUCH VACANCIES. ACTIONS BY INDIVIDUALS OCCUPYING OFFICES SUBJECT TO THE VACANCIES ACT WHICH ARE TAKEN SUBSEQUENT TO THE EXPIRATION OF 30-DAY TIME LIMITATION SET FORTH IN 5 U.S.C. SEC. 3348 (1982) ARE OF UNCERTAIN VALIDITY. THE HONORABLE WILLIAM PROXMIRE: THIS IS IN RESPONSE TO YOUR LETTER DATED MARCH 28. WE CONCLUDE THAT THE VACANCIES ACT IS APPLICABLE TO ALL OF THE POSITIONS IN QUESTION AND THAT THOSE OFFICERS WHO SERVE MORE THAN 30 DAYS IN AN ACTING STATUS IN SUCH POSITIONS ARE IN VIOLATION OF THE ACT. AS YOU WILL RECALL. EMERY WAS APPOINTED BY THE SECRETARY TO SERVE IN HER PRESENT CAPACITY AS ACTING DIRECTOR OF THE WOMEN'S BUREAU. /2/ SHE IS THE DEPUTY DIRECTOR.

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B-220522.2, OCT 17, 1986

MISCELLANEOUS TOPICS - FEDERAL ADMINISTRATIVE/LEGISLATIVE MATTERS - EXECUTIVE BRANCH PERSONNEL - VACANCIES - TEMPORARY APPOINTMENT - DURATIONS DIGEST: 1. PROVISIONS OF THE VACANCIES ACT, 5 U.S.C. SECS. 3345-49 (1982), GOVERN THE FILLING OF VACANCIES IN THOSE OFFICES WHICH REQUIRE SENATE CONFIRMATION IN THE DEPARTMENTS OF LABOR AND EDUCATION, EXCEPT WHERE THERE IS SPECIFIC STATUTORY AUTHORITY TO FILL SUCH VACANCIES. THE VACANCIES ACT APPLIES TO THE POSITION OF DIRECTOR OF THE WOMEN'S BUREAU WITHIN THE DEPARTMENT OF LABOR AND TO THE POSITIONS OF ASSISTANT SECRETARY FOR VOCATIONAL AND ADULT EDUCATION AND ASSISTANT SECRETARY FOR CIVIL RIGHTS WITHIN THE DEPARTMENT OF EDUCATION. THE VACANCIES ACT LIMITS ACTING APPOINTMENTS TO FILL SUCH POSITIONS TO 30-DAYS DURATION. 2. ACTIONS BY INDIVIDUALS OCCUPYING OFFICES SUBJECT TO THE VACANCIES ACT WHICH ARE TAKEN SUBSEQUENT TO THE EXPIRATION OF 30-DAY TIME LIMITATION SET FORTH IN 5 U.S.C. SEC. 3348 (1982) ARE OF UNCERTAIN VALIDITY. ACCORDINGLY, AT THE END OF THE 30-DAY PERIOD, SUCH INDIVIDUALS SHOULD REFRAIN FROM TAKING ANY FURTHER ACTION IN AN ACTING CAPACITY.

THE HONORABLE WILLIAM PROXMIRE:

THIS IS IN RESPONSE TO YOUR LETTER DATED MARCH 28, 1986, IN WHICH YOU REQUESTED OUR REVIEW OF THE APPLICABILITY OF THE VACANCIES ACT TO VARIOUS OFFICERS OF THE DEPARTMENTS OF LABOR AND EDUCATION SERVING IN AN ACTING CAPACITY IN POSITIONS REQUIRING SENATE CONFIRMATION. AS SHOWN BELOW, WE CONCLUDE THAT THE VACANCIES ACT IS APPLICABLE TO ALL OF THE POSITIONS IN QUESTION AND THAT THOSE OFFICERS WHO SERVE MORE THAN 30 DAYS IN AN ACTING STATUS IN SUCH POSITIONS ARE IN VIOLATION OF THE ACT. AS YOU WILL RECALL, WE CONCLUDED IN OUR LETTER OF JUNE 9, 1986, THAT THE VACANCIES ACT APPLIED TO VARIOUS SIMILAR POSITIONS IN THE DEPARTMENT OF HEALTH AND HUMAN SERVICES. /1/

BACKGROUND

THE FOLLOWING PERSONS CONTINUE TO SERVE IN AN ACTING STATUS IN POSITIONS THAT REQUIRE CONFIRMATION BY THE SENATE:

(TABLE OMITTED)

THE FOLLOWING INFORMATION HAS BEEN PROVIDED OUR OFFICE BY THE DEPARTMENT OF LABOR CONCERNING THE SERVICE OF JILL H. EMERY IN AN ACTING CAPACITY. MS. EMERY WAS APPOINTED BY THE SECRETARY TO SERVE IN HER PRESENT CAPACITY AS ACTING DIRECTOR OF THE WOMEN'S BUREAU. /2/ SHE IS THE DEPUTY DIRECTOR, A POSITION CONSIDERED THE FIRST ASSISTANT TO THE DIRECTOR. MS. EMERY HAS NEVER BEEN CONFIRMED BY THE SENATE IN ANY CAPACITY. MS. SHIRLEY DENNIS WAS NOMINATED BY THE PRESIDENT ON JULY 12, 1986, TO SERVE AS DIRECTOR OF THE WOMEN'S BUREAU. WE UNDERSTAND THAT THE SENATE HAS NOT CONDUCTED HEARINGS ON THIS NOMINATION.

ON THE DATE OF YOUR REQUEST, MARCH 28, 1986, FOUR ADDITIONAL INTERIM APPOINTEES WERE SERVING IN ACTING CAPACITIES IN THE DEPARTMENT OF LABOR. HOWEVER, SUBSEQUENT TO YOUR REQUEST, THESE POSITIONS HAVE BEEN FILLED BY PERSONS CONFIRMED BY THE SENATE. /3/

THE FOLLOWING INFORMATION HAS BEEN PROVIDED OUR OFFICE BY THE DEPARTMENT OF EDUCATION CONCERNING THE TWO OFFICERS, INDICATED ABOVE, PRESENTLY SERVING IN ACTING CAPACITIES. BOTH OF THESE PERSONS WERE APPOINTED BY THE SECRETARY TO SERVE IN THEIR PRESENT "ACTING" CAPACITIES, AND WERE SERVING AS DEPUTY ASSISTANT SECRETARIES, POSITIONS CONSIDERED FIRST ASSISTANTS TO THE RESPECTIVE OFFICES OF ASSISTANT SECRETARY TO WHICH THEY HAVE BEEN APPOINTED. NEITHER OF THESE INDIVIDUALS HAS EVER BEEN CONFIRMED BY THE SENATE IN ANY CAPACITY. THERE ARE NO NOMINEES PRESENTLY BEFORE THE SENATE FOR EITHER OF THESE POSITIONS. /4/

IN ADDITION, THE DEPARTMENT OF EDUCATION HAS INFORMED OUR OFFICE THAT THE POSITION OF DIRECTOR, NATIONAL INSTITUTE OF EDUCATION, HAS REMAINED VACANT SINCE MARCH 31, 1985. ALSO, ON THE DATE OF YOUR REQUEST, MARCH 28, 1986, THE POSITION OF DIRECTOR, NATIONAL INSTITUTE OF HANDICAPPED RESEARCH, WAS OCCUPIED BY AN INTERIM APPOINTEE SERVING IN AN ACTING CAPACITY. HOWEVER, SUBSEQUENT TO YOUR REQUEST, THAT POSITION HAS BEEN FILLED BY DAVID B. GRAY, WHO WAS CONFIRMED BY THE SENATE ON MARCH 21, 1986, AND APPOINTED ON MARCH 30, 1986. /5/

THE POSITIONS OF ASSISTANT SECRETARIES WERE ESTABLISHED UNDER TITLE II OF THE DEPARTMENT OF EDUCATION ORGANIZATION ACT, EFFECTIVE OCTOBER 17, 1979, 93 STAT. 671, 20 U.S.C. SEC. 3412(B) (1982). THIS SECTION PROVIDES:

"(1) THERE SHALL BE IN THE DEPARTMENT--

"(C) AN ASSISTANT SECRETARY FOR VOCATIONAL AND ADULT EDUCATION;

"(F) AN ASSISTANT SECRETARY FOR CIVIL RIGHTS;

"(2) EACH OF THE ASSISTANT SECRETARIES AND THE GENERAL COUNSEL SHALL BE APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE."

APPOINTMENT OF OFFICERS OF THE UNITED STATES

THE APPOINTMENTS CLAUSE OF THE CONSTITUTION, ARTICLE II, SECTION 2, CLAUSE 2, PROVIDES THAT OFFICERS OF THE UNITED STATES MUST BE APPOINTED WITH THE ADVICE AND CONSENT OF THE SENATE, EXCEPT WHEN THE CONGRESS CLEARLY VESTS THE FULL APPOINTMENT POWER FOR A PARTICULAR POSITION OR CLASS OF POSITIONS BY LAW "IN THE PRESIDENT ALONE, IN THE COURTS OF LAW, OR IN THE HEADS OF DEPARTMENTS." SEE SCULLY V. UNITED STATES, 193 F. 185, 187 (C.C.D. NEV. 1910).

THE VACANCIES ACT

THE SO-CALLED VACANCIES ACT, 5 U.S.C. SECS. 3345-3349 (1982), 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. SECTION 3346 PROVIDES THAT WHEN AN OFFICER OF A BUREAU OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT WHOSE APPOINTMENT IS NOT VESTED IN THE HEAD OF THE DEPARTMENT DIES, RESIGNS, OR IS SICK OR ABSENT, UNLESS OTHERWISE DIRECTED BY THE PRESIDENT UNDER SECTION 3347, HIS FIRST ASSISTANT SHALL PERFORM THE DUTIES OF THE OFFICE UNTIL A SUCCESSOR IS APPOINTED OR THE ABSENCE OR SICKNESS STOPS.

SECTION 3347 PROVIDES THAT, INSTEAD OF A DETAIL UNDER SECTION 3345 OR 3346, THE PRESIDENT MAY DIRECT THE HEAD OR ANOTHER OFFICER OF AN EXECUTIVE DEPARTMENT OR MILITARY DEPARTMENT, WHOSE APPOINTMENT IS VESTED IN THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, TO PERFORM THE DUTIES OF THE OFFICE UNTIL A SUCCESSOR IS APPOINTED OR THE ABSENCE OR SICKNESS STOPS. SECTION 3349 MAKES THE METHODS DESCRIBED IN THE PRECEDING SECTIONS THE SOLE MEANS FOR FILLING THE VACANCIES DESCRIBED THEREIN, EXCEPT IN THE CASE OF A VACANCY OCCURRING DURING A RECESS OF THE SENATE.

SECTION 3348 OF TITLE 5, U.S.C. PROVIDES THAT A VACANCY CAUSED BY DEATH OR RESIGNATION MAY BE FILLED TEMPORARILY UNDER SECTION 3345, 3346, AND 3347 FOR NOT MORE THAN 30 DAYS.

THE CURRENT PROVISIONS OF THE VACANCIES ACT ARE DERIVED FROM THE ACT OF JULY 23, 1868, CH. 227, 15 STAT. 168. THE TIME LIMIT NOW SET FORTH IN SECTION 3348 WAS ORIGINALLY 10 DAYS AND WAS INCREASED TO 30 DAYS BY THE ACT OF FEBRUARY 6, 1891, CH. 113, 26 STAT. 733.

OPINION

IT HAS LONG BEEN HELD BY THE ATTORNEY GENERAL THAT AFTER A VACANT POSITION HAS BEEN TEMPORARILY FILLED UNDER THE VACANCIES ACT THE POWER CONFERRED BY THE ACT IS EXHAUSTED AND THE PRESIDENT DOES NOT HAVE THE AUTHORITY TO APPOINT EITHER THE SAME OR ANOTHER OFFICER TO TEMPORARILY FILL THE OFFICE FOR AN ADDITIONAL PERIOD. 16 OP.ATTY.GEN. 596 (1880); 18 OP.TTY.GEN. 50 (1884); ID. AT 58; 20 OP.ATTY.GEN. 8 (1891).

AS THE INTENT OF THE VACANCIES ACT IS TO PRECLUDE UNREASONABLE DELAYS IN SUBMITTING NOMINATIONS FOR OFFICES SUBJECT TO SENATE CONFIRMATION, WE HAVE ADOPTED THE VIEW THAT THE 30-DAY LIMITATION CONTAINED IN 5 U.S.C. SEC. 3348 RUNS ONLY DURING THE PERIOD THAT THERE IS NO NAME BEFORE THE SENATE FOR CONFIRMATION BY THAT BODY. SEE 56 COMP.GEN. 761 (1977). ALSO SEE WILLIAMS V. PHILLIPS, 482 F.2D 669 (D.C. CIR. 1973). BUT SEE UNITED STATES V. LUCIDO, 373 F.SUPP. 1142 (E.D. MICHIGAN, 1974), WHEREIN THE COURT IN EFFECT STATED THAT, NOTWITHSTANDING THAT A NAME HAD BEEN SUBMITTED TO THE SENATE FOR CONFIRMATION, AN APPOINTMENT UNDER THE VACANCIES ACT WOULD TERMINATE AT THE END OF THE 30-DAY PERIOD SET FORTH IN 5 U.S.C. SEC. 3348. ACCORD, 32 OP.ATTY.GEN. 139 (1920).

THE 30-DAY LIMITATION PLACED ON TEMPORARY APPOINTMENTS BY 5 U.S.C. SEC. 3348 APPLIES BY ITS EXPRESS TERMS ONLY TO APPOINTMENTS OR DESIGNATIONS MADE UNDER THE VACANCIES ACT. ACCORDINGLY, THE LIMITATION CONTAINED IN SECTION 3348 IS NOT APPLICABLE WHERE VACANCIES ARE FILLED PURSUANT TO AUTHORITY OTHER THAN THE VACANCIES ACT.

BY ITS EXPRESS TERMS THE VACANCIES ACT IS APPLICABLE TO THE EXECUTIVE DEPARTMENTS AND MILITARY DEPARTMENTS. SECTION 101 OF TITLE 5, U.S.C. (1982), SETS FORTH THE EXECUTIVE DEPARTMENTS. THE EXECUTIVE DEPARTMENTS INCLUDE THE DEPARTMENTS OF LABOR AND EDUCATION.

THE POSITIONS FILLED BY THE THREE ACTING OFFICIALS UNDER CONSIDERATION HERE ALL REQUIRE APPOINTMENT BY THE PRESIDENT BY AND WITH THE ADVICE AND CONSENT OF THE SENATE, AND ARE, THEREFORE, SUBJECT TO THE VACANCIES ACT. NONE OF THE THREE OFFICIALS HAS BEEN NOMINATED FOR THE POSITION IN WHICH THEY ARE SERVING. THUS, THE 30-DAY LIMITATION SET FORTH IN 5 U.S.C. SEC. 3348 IS APPLICABLE TO ALL SUCH APPOINTMENTS. ADDITIONALLY, WE NOTE THAT ALTHOUGH THE PRESIDENT SUBMITTED THE NOMINATION OF MS. SHIRLEY DENNIS ON JULY 12, 1986, AS INDICATED ABOVE, TO SERVE AS DIRECTOR OF THE WOMEN'S BUREAU, DEPARTMENT OF LABOR, THIS NOMINATION CAME MORE THAN 4 MONTHS INTO THE TENURE OF MS. JILL H. EMERY AS ACTING DIRECTOR. THEREFORE, IT IS CLEAR THAT SUCH A NOMINATION ON JULY 12, 1986, COULD NOT CURE SERVICE THAT HAD BECOME INVALID ON MARCH 31, 1986, UNDER THE 30-DAY LIMITATION PERIOD IMPOSED BY OPERATION OF THE VACANCIES ACT AS EXPLAINED ABOVE. HAD A NOMINATION BEEN MADE PRIOR TO THE EXPIRATION OF THE 30-DAY PERIOD, THE VIEW ADOPTED BY OUR OFFICE, AS EXPLAINED ABOVE, WOULD HAVE TOLLED THE LIMITATION PERIOD FOR AS LONG AS THE NOMINATION WAS UNDER CONSIDERATION BY THE SENATE. SEE WILLIAMS V. PHILLIPS, SUPRA. HOWEVER, ONCE THE LIMITATION PERIOD HAS RUN, THERE IS NO BASIS FOR CONTINUED SERVICE OF AN "ACTING" APPOINTEE.

FINALLY, WE NOTE THAT THE POSITION OF ASSISTANT SECRETARY FOR VOCATIONAL AND ADULT EDUCATION IN THE DEPARTMENT OF EDUCATION HAS BEEN WITHOUT A NOMINEE FOR MORE THAN A YEAR. THIS APPEARS TO BE PRECISELY THE SORT OF "UNREASONABLE" DELAY THE VACANCIES ACT WAS ENACTED TO PREVENT. IN THE ABSENCE OF ANY OTHER STATUTORY AUTHORITY TO FILL THE THREE POSITIONS ENUMERATED ABOVE ON A TEMPORARY BASIS OUTSIDE THE VACANCIES ACT, WE CONCLUDE THAT THE 30-DAY LIMIT IS APPLICABLE.

EFFECT OF VACANCIES ON ACTIONS TAKEN BY TEMPORARY APPOINTEES

AS WE INDICATED TO YOU IN OUR LETTER DATED JUNE 9, 1986, CONCERNING THE APPLICABILITY OF THE VACANCIES ACT TO VARIOUS OFFICERS OF THE DEPARTMENT OF HEALTH AND HUMAN SERVICES, THE LEGAL STATUS OF ACTIONS TAKEN BY TEMPORARY APPOINTEES UNDER THE VACANCIES ACT WHO CONTINUE TO SERVE IN AN ACTING CAPACITY BEYOND THE 30-DAY TIME LIMITATION IS UNCERTAIN.

THOSE ACTIONS MAY POSSIBLY BE VIEWED AS ACTS PERFORMED BY A DE FACTO OFFICER. A DE FACTO OFFICER OR EMPLOYEE IS ONE WHO PERFORMS THE DUTIES OF AN OFFICE OR POSITION WITH APPARENT RIGHT AND UNDER COLOR OF APPOINTMENT AND CLAIM TO TITLE OF SUCH OFFICE OR POSITION. WILLIAM A. KEEL, JR., B-188424, MARCH 22, 1977, AND DECISIONS CITED. IN GENERAL WE HAVE HELD THAT ACTS PERFORMED WHILE A PERSON IS SERVING IN A DE FACTO STATUS ARE VALID AND EFFECTUAL INSOFAR AS CONCERNS THE PUBLIC AND THE RIGHTS OF THIRD PERSONS. 42 COMP.GEN. 495 (1963); SEE ALSO 63 AM. JR.2D PUBLIC OFFICERS AND EMPLOYEES SEC. 518.

WITH REGARD TO DEFECTIVE OR INVALID APPOINTMENTS, THE GENERAL RULE IS STATED IN 63 AM. JUR2D PUBLIC OFFICERS AND EMPLOYEES SEC. 504 (1972) AS FOLLOWS:

"*** THE GENERAL RULE IS THAT WHEN AN OFFICIAL PERSON OR BODY HAS APPARENT AUTHORITY TO APPOINT TO PUBLIC OFFICE, AND APPARENTLY EXERCISES SUCH AUTHORITY, AND THE PERSON SO APPOINTED ENTERS ON SUCH OFFICE, AND PERFORMS ITS DUTIES HE WILL BE AN OFFICER DE FACTO, NOTWITHSTANDING THAT THERE WAS WANT OF POWER TO APPOINT IN THE BODY OR PERSON WHO PROFESSED TO DO SO, OR ALTHOUGH THE POWER WAS EXERCISED IN AN IRREGULAR MANNER."

IT IS NOT CLEAR, HOWEVER, WHETHER THE COURTS WOULD APPLY THE DE FACTO DOCTRINE WHERE A STATUTE SPECIFICALLY PRECLUDED THE CONTINUED OCCUPANCY OF THE POSITION. IN 32 OP.ATTY.GEN. 139 (1920), THE ATTORNEY GENERAL ADVISED THE UNDERSECRETARY OF STATE, WHO INQUIRED AS TO WHAT ACTION HE AND THE OFFICERS OF THE DEPARTMENT OF STATE SHOULD TAKE UPON THE END OF HIS 30 -DAY PERIOD OF SERVICE AS ACTING SECRETARY OF STATE PURSUANT TO THE VACANCIES ACT:

"IT IS PROBABLY SAFER TO SAY THAT YOU SHOULD NOT TAKE ACTION IN ANY CASE OUT OF WHICH LEGAL RIGHTS MIGHT ARISE WHICH WOULD BE SUBJECT TO REVIEW BY THE COURTS."

IN 56 COMP.GEN. 761 (1977), WE CONSIDERED THE EFFECT OF ACTIONS TAKEN BY THE ACTING INSURANCE ADMINISTRATOR, DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, WHO HAD CONTINUED TO SERVE BEYOND THE 30-DAY TIME LIMITATION SET FORTH AT 5 U.S.C. SEC. 3348. WE STATED THAT WHEN IT IS TOO LATE TO OFFER THE ADVICE SET FORTH BY THE ATTORNEY GENERAL IN 32 OP.ATTY.GEN. 139, THE SECRETARY OF THE DEPARTMENT SHOULD CONSIDER RATIFICATION OF THOSE ACTIONS AND DECISIONS ALREADY TAKEN WHICH SHE AGREED WITH TO AVOID ANY FURTHER CONFUSION AS TO THEIR BINDING EFFECT.

ONGOING ENFORCEMENT PROBLEM UNDER THE VACANCIES ACT

AS WE FURTHER NOTED IN OUR LETTER TO YOU DATED JUNE 9, 1986, SINCE YOUR ORIGINAL REQUEST OF JUNE 21, 1972, TO OUR OFFICE CONCERNING THE APPLICABILITY OF 5 U.S.C. SEC. 3348 TO THE TEMPORARY APPOINTMENT OF MR. L. PATRICK GRAY III AS ACTING DIRECTOR OF THE FEDERAL BUREAU OF INVESTIGATION, WE HAVE BEEN CALLED UPON BY MEMBERS OF THE CONGRESS TO ISSUE MANY DECISIONS CONCERNING OTHER OFFICIALS IN THE VARIOUS EXECUTIVE BRANCH DEPARTMENTS AND AGENCIES. ALTHOUGH OUR DECISION HOLDING THAT MR. GRAY'S CONTINUED SERVICE AS ACTING DIRECTOR WAS PROHIBITED BY LAW /6/ RESULTED IN THE PRESIDENT'S CONTEMPORANEOUS ACTION IN NOMINATING MR. GRAY TO BE THE PERMANENT DIRECTOR, OUR MORE RECENT DECISIONS FINDING VARIOUS EXECUTIVE BRANCH OFFICERS SERVING IN VIOLATION OF THE VACANCIES ACT HAVE HAD LESS THAN THE DESIRED SALUTORY EFFECT. IN FACT, THERE NOW SEEMS TO BE A DISCERNIBLE PATTERN FOR EXECUTIVE BRANCH AGENCIES TO TAKE EXCEPTION TO OUR DECISIONS ON VACANCIES ACT QUESTIONS AND, SUPPORTED BY THE DEPARTMENT OF JUSTICE, TO IGNORE THE HOLDINGS OF THESE DECISIONS. OUR INTERPRETATION OF THE ACT HAS CONSISTENTLY RECOGNIZED THAT ITS APPLICATION CAN ONLY BE SUPERSEDED IN THE CASE OF STATUTES THAT PROVIDE SPECIFICALLY FOR AN ALTERNATE MEANS OF FILLING A PARTICULAR OFFICE. THE EXECUTIVE AGENCIES TAKE THE VIEW THAT THE ACT CAN BE OVERCOME BY THE GENERAL AUTHORITY OF A CABINET SECRETARY TO ASSIGN FUNCTIONS AND DELEGATE AUTHORITY WITHIN A DEPARTMENT. YOU HAVE ALSO ASKED WHAT ENFORCEMENT AUTHORITY EXISTS IN THE VACANCIES ACT ITSELF AND WHAT IS THE MOST APPROPRIATE REMEDY FOR APPOINTMENTS IN VIOLATION OF THE ACT. THE VACANCIES ACT DOES NOT CONTAIN ANY SPECIFIC ENFORCEMENT AUTHORITY OR REMEDY FOR VIOLATIONS. IN OTHER SITUATIONS WE HAVE RECOGNIZED THAT WE HAVE THE AUTHORITY TO DISALLOW SALARY PAYMENTS FROM APPROPRIATED FUNDS FOR PURPOSES THAT ARE CONTRARY TO LAW. SEE 53 COMP.GEN.600 (1974). HOWEVER, THE "ACTING" OFFICIAL IN VACANCIES ACT CASES IS USUALLY ONE WHO IS OTHERWISE ENTITLED TO THE SALARY OF HIS OR HER PERMANENT POSITION. HENCE, WE HAVE NOT TO DATE EXERCISED THIS AUTHORITY IN SUCH CASES.

WE TRUST THAT THE ABOVE INFORMATION SERVES THE PURPOSE OF YOUR INQUIRY CONCERNING THE APPLICABILITY OF THE VACANCIES ACT TO THE ENUMERATED POSITIONS WITHIN THE DEPARTMENTS OF LABOR AND EDUCATION.

/1/ B-220522, PUBLISHED AT 65 COMP.GEN. *** (1986).

/2/ THE POSITION OF DIRECTOR OF THE WOMEN'S BUREAU WAS ESTABLISHED BY PUBLIC LAW 66-259, EFFECTIVE JUNE 5, 1920, 41 STAT. 987, 29 U.S.C. SEC. 12 (1982). THIS SECTION PROVIDES THAT THE DIRECTOR SHALL BE "APPOINTED BY THE PRESIDENT, BY AND WITH THE ADVICE AND CONSENT OF THE SENATE."

/3/ GEORGE R. SALEM WAS CONFIRMED AS SOLICITOR OF LABOR ON AUGUST 1, 1986, AND WAS APPOINTED AUGUST 4, 1986; SALVATORE R. MARTOCHE WAS CONFIRMED AS ASSISTANT SECRETARY OF LABOR FOR LABOR MANAGEMENT STANDARDS ON MAY 21, 1986, AND WAS APPOINTED JUNE 22, 1986; JOHN A. PENDERGRASS WAS CONFIRMED AS ASSISTANT SECRETARY OF LABOR FOR OCCUPATIONAL SAFETY AND HEALTH, ON MAY 21, 1986, AND WAS APPOINTED ON MAY 22, 1986; AND PAULA V. SMITH WAS CONFIRMED AS WAGE AND HOUR ADMINISTRATOR ON MAY 21, 1986, AND WAS APPOINTED JUNE 2, 1986.

/4/ ON FEBRUARY 11, 1986, THE PRESIDENT NOMINATED BARBARA LERNER TO BE ASSISTANT SECRETARY FOR CIVIL RIGHTS. HOWEVER, HER NOMINATION WAS SUBSEQUENTLY WITHDRAWN.

/5/ IN ADDITION, SUBSEQUENT TO MARCH 28, 1986, THREE ADDITIONAL POSITIONS BECAME VACANT, BUT HAVE BEEN REFILLED BY PERSONS CONFIRMED BY THE SENATE FOR THESE POSITIONS AS FOLLOWS: DEPUTY UNDER SECRETARY FOR MANAGEMENT WAS VACATED ON MAY 10, 1986, AND IS NOW OCCUPIED BY MARY M. ROSE WHO WAS CONFIRMED ON AUGUST 9, 1986, AND APPOINTED ON AUGUST 11, 1986; DEPUTY UNDER SECRETARY FOR INTERGOVERNMENTAL & INTERAGENCY AFFAIRS WAS VACATED ON JULY 5, 1986, AND IS NOW OCCUPIED BY PETER R. GREER WHO WAS CONFIRMED ON JUNE 10, 1986, AND APPOINTED ON JULY 7, 1986; AND THE COMMISSIONER REHABILITATIVE SERVICES ADMINISTRATION WAS VACATED ON SEPTEMBER 2, 1986, AND IS NOW OCCUPIED BY JUSTIN W. DART, JR., WHO WAS CONFIRMED ON AUGUST 9, 1986, AND APPOINTED ON SEPTEMBER 3, 1986.

/6/ B-150136, FEBRUARY 22, 1973.

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