[Comments on Temporary Appointments of U.S. Attorneys]

B-254491, September 28, 1993

CIVILIAN PERSONNEL Compensation Presidential appointment Temporary appointment Time restrictions MISCELLANEOUS TOPICS Federal Administrative/Legislative Matters Executive branch personnel Vacancies Temporary appointment Durations A vacancy in an office of United States attorney is filled according to 28 U.S.C. Sec. 546, which provides that the Attorney General may appoint an acting U.S. attorney for a district in which there is a vacancy. The appointment is effective until the earlier of (1) the qualification of a presidentially appointed U.S. attorney for the district, or (2) the expiration of 120 days after the appointment by the Attorney General. Upon expiration of the 120-day appointment, the district court for the relevant district may appoint an acting U.S. attorney to serve until the vacancy is filled. If the district court fails to act, the Attorney General may under certain circumstances make a second interim appointment.

The Honorable Al McCandless House of Representatives

Dear Mr. McCandless:

This is in response to your letter of July 29, 1993, inquiring about the temporary appointments of acting United States attorneys. Specifically, you asked whether the Vacancies Act, 5 U.S.C. Secs. 3345-3349 (1988), is applicable to the position of U.S. attorney and limits the duration of temporary appointments to that position.

The Vacancies Act provides for the temporary filling of vacancies created by the death, resignation, sickness or absence of the head of an executive agency or military department, or the head of a component bureau whose appointment is not vested in the head of the department. Appointments under the Vacancies Act are subject to a 120-day limitation which may not be extended. 5 U.S.C. Sec. 3348. However, the Vacancies Act and its time limitation on appointments do not apply if there is a specific statute that provides for the filling of a vacancy in a position. See B-231697, June 28, 1988; B-150136, April 11, 1973 (copies enclosed).

With regard to the office of United States attorney, there is a specific statutory provision that prescribes the manner in which vacancies are to be filled, and therefore the Vacancies Act does not apply to these appointments. Section 546 of title 28 of the United States Code, a copy of which is enclosed, provides the Attorney General with the authority to appoint an acting U.S. attorney for a district in which there is a vacancy. The Attorney General cannot appoint as acting U.S. attorney a presidential nominee whose appointment to the office has been rejected by the Senate.

Temporary appointments made under 28 U.S.C. Sec. 546 are subject to a time limitation. Section 546 states that an acting U.S. attorney appointed by the Attorney General serves until the earlier of (1) the qualification of a presidentially appointed U.S. attorney for the district, or (2) the expiration of 120 days after the appointment by the Attorney General. If the 120-day appointment expires before a U.S. attorney nominee is confirmed for the position, the district court for the relevant district is given the authority to appoint an acting U.S. attorney to serve until the vacancy is filled.

Case law interpreting 28 U.S.C. Sec. 546 recognizes that the Attorney General may in some circumstances make a second interim appointment of an acting U.S. attorney. In the most pertinent court case on the issue, the United States District Court for the District of Massachusetts held that the Attorney General's second interim appointment of an individual to be acting U.S. attorney was permissible when that individual's nomination by the President was pending before the Senate without any formal action yet taken, and when the district court had expressly declined to exercise its power to make an interim appointment. In re Grand Jury Proceedings, 671 F. Supp. 5 (D. Mass. 1987).

In sum, the provisions of 28 U.S.C. Sec. 546 generally limit temporary appointments to the office of U.S. attorney to 120 days. However, service of more than 120 days by an acting U.S. attorney is appropriate if reappointment is made by the district court for the relevant district, or under certain circumstances by the Attorney General.