Seven different officials in President Joe Biden’s administration are in office illegally due to time limits, according to the Government Accountability Office (GAO).
On Wednesday, the GAO found that seven presidential appointees serving in “acting” positions in their respective offices have run out of time on how long they can serve without a full Senate confirmation. GAO has issued five separate reports on the issue.
There are numerous positions within the executive branch that the president must appoint, and the U.S. Senate must confirm. These roles are referred to as PAS positions. Oftentimes, presidents will select individuals to temporarily fill these PAS positions while seeking Senate confirmations to fill out the roles on a more long-term basis.
The Federal Vacancies Reform Act of 1998 regulates when and how a president can choose “acting” officers to temporarily fill these PAS positions. The law generally stipulates that appointees may only serve in an acting position for about 210 days, starting from the date the vacancy occurs.
The law states that if the Senate rejects a first nomination to permanently fill a PAS position or if the president withdraws the nomination, an “acting” officer may fill the position for up to 210 more days.
The president may submit a second nominee to the Senate, and if the nomination is rejected, an acting officer may fill the position for another 210 days. Outside of these time limits, if no individual is confirmed, the PAS position must remain vacant, and only the head of the agency may perform the functions or duties of the position.
- Allison Randall—Acting Director of the Department of Justice (DOJ) Office on Violence Against Women;
- Charlotte A. Dye—Acting General Counsel of the Federal Labor Relations Authority (FLRA);
- Tae D. Johnson—Acting Director of Immigration and Customs Enforcement (ICE);
- Deidre Harrison—Acting Controller of the Office of Federal Financial Management, the White House Office of Management and Budget (OMB);
- Karen Freeman, Craig Hart, and Ann Marie Yastishock—Assistant Administrators of the U.S. Agency for International Development (USAID) Bureau for Asia.
GAO discovered these alleged violations after conducting a review of vacant positions following a June decision.
According to the GAO letters, Dye’s service with the FLRA has been continued on in alleged violation of the Federal Vacancies Reform Act since Nov. 16, 2021.
Randall’s service with the DOJ has continued on in alleged violation of federal law since May 26, 2022.
Harrison’s OMB service has continued on in alleged violation of the law since Aug. 2, 2o22.
Johnson’s ICE service ran afoul of the law starting on Nov. 16, 2021, but Jones said Johnson ended her time in the acting position on Monday, Feb. 6.
Jones said GAO had found Freeman’s service in an acting USAID role exceeded the federal limits on Nov. 16, 2021. Freeman was eventually replaced by Hart and then by Yastishock, who vacated the position on Aug. 8, 2022.
“We respectfully disagree with GAO’s conclusion,” an OMB spokesperson told NTD News. “DOJ’s Office of Legal Counsel concluded in a recent public opinion that, under the Federal Vacancies Reform Act, a change in administrations restarts the timing sequence for acting service in a position that was vacant on inauguration date. OMB, like all Executive Branch agencies, is bound to follow DOJ’s legal conclusions. It is undisputed that Ms. Harrison’s service has been proper under DOJ’s legal interpretation of the Act.”
