Reprinted with permission from Administrative and Regulatory Law News, Winter 2020, Volume 45, Number 2, at 16-18. ©2020 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
The Federal Vacancies Reform Act of 1998 (“FVRA”) authorizes the president to temporarily fill Senate-confirmed positions when the prior officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”1 Does the FVRA apply when the officeholder was fired?
The FVRA was once a “rather obscure area of the law.”2 Unprecedented personnel turmoil in the Trump Administration, however, has thrust it into the national spotlight. The president has to date fired three cabinet secretaries and replaced them with acting officers ostensibly under FVRA authority. Yet the interpretive question of whether the Act applies to removal has found conflicting answers the few times it has come up. On November 14, 2018, for instance, the Office of Legal Counsel (“OLC”) determined the FVRA would apply when the president fired the previous officeholder. Two weeks later, a federal judge concluded in dicta that the Act would not apply in that situation. This contribution argues that the FVRA does not authorize the president to temporarily fill vacancies created by firing the prior officeholder.
Interpreting the FVRA
Text and Structure
Section 3345(a) of the FVRA dictates the Act applies when an officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The question at the heart of this analysis is whether “otherwise unable” includes presidential removal.
The ejusdem generis canon counsels reading “otherwise unable” as reaching only other inabilities of the same basic kind as death or resignation. That canon captures a straightforward intuition about the way we use language: When a catch-all follows a list of terms, that catch-all extends only to other terms of the same kind as those listed. The canon does not end the inquiry, as Congress may draft redundantly to ensure the inclusion of certain terms. But it does offer a useful starting point, as the listed terms intuitively contextualize the language that follows.
The essential characteristic that “dies” and “resigns” share is that both are uncontrollable inabilities to serve from the president’s perspective. The president cannot choose whether his officers die or resign. However, he can choose to fire them, creating an inability to serve of a fundamentally different type from that created by the officer’s decision or circumstance. In particular, vacancies created by the very official with the power to fill them activate concerns about the Senate’s advice and consent role that remain largely dormant in the two cases listed in the Act, where the president does not create the vacancy. The ejusdem generis canon thus suggests a reading that extends “otherwise unable” only to vacancies of the same type as those listed. Here, that most naturally means other unexpected vacancies, not vacancies created by the official with the power to fill them.
This reading can be critiqued on two fronts. First, one might argue the relevant common characteristic between “dies” and “resigns” is the resultant vacancy, regardless of how that vacancy comes to be. That argument turns on how broadly we define the two terms’ essential common characteristic. The Act’s historical context augurs for a narrow reading, as explained below. But even on semantic grounds, the terms “dies” and “resigns” most naturally share the core element of being outside the president’s control. Had Congress intended to cover all cases of removal with the “otherwise unable” language, as the broader reading suggests, Congress would not have needed to list two narrower examples. It instead could have simply specified the Act applied to all vacancies and settled the matter. Indeed, Congress had used such broader language to refer to vacancies in nearly every other agency succession statute in place prior to the FVRA. The enumerated terms share various common characteristics, but their key interpretive commonality is the lack of presidential control over the creation of the vacancy.
This interpretation also raises concerns about superfluity. Specifically, “otherwise unable” might seem to do little work if limited to cases similar to the listed terms. What type of vacancy, after all, is like death or resignation but is neither? Yet examples abound: strokes, heart attacks, or other instances of temporary physical incapacitation represent just a few. Incarceration of a principal official could be another, where absence prevents performing the duties of the office. Inability also reaches recusal short of resignation. At least four federal circuit courts, for instance, have held the term “disability” includes judicial recusal under the Federal Rules of Civil Procedure. One could similarly imagine an officer temporarily recusing themselves from office without resigning—a circumstance “otherwise unable” naturally captures. These circumstantial disabilities, however, are fundamentally dissimilar from vacancies created by presidential removal. The phrase “otherwise unable” thus can have independent force without reaching beyond its natural contextual bounds.
The presumption against superfluity supports a narrow read of § 3345(a). Had Congress understood inability to encompass any vacancy in the office, its language would automatically— indeed, perhaps principally—include expiration of a term. Yet, in § 3345(c) (2), Congress specified that “the expiration of a term of office is an inability to perform the functions and duties of such office.” That provisions would be entirely superfluous if “otherwise unable” includes any time an office becomes vacant. Courts seek to construe statutes to avoid superfluity out of respect for Congress’s draftsmanship. Superfluity is not dispositive, as Congress might have included the section to protect term expiration as a particularly important instance of inability to serve. Nonetheless, the presumption against superfluity counsels against reading “otherwise unable” as reaching any case of vacancy.
When Congress passed the FVRA in 1998, thirty-five agencies had their own succession statutes authorizing a second official—typically the first official’s deputy—to assume that official’s duties under specified conditions. The Senate committee report specifically pointed to these statutes and discussed them at some length. The committee was therefore aware of how previous Congresses had written previous agency vacancy acts and drafted its language with those statutes in mind.
That historical context is key. If Congress purposely selected a narrower phrasing over broader alternatives, that choice should be given effect. Congress’s decision not to adopt readily available alternatives strongly supports the conclusion that the section only applies to the expressly listed terms. Examining these agency statutes thus represents a useful piece of context for understanding what Congress’s words mean.
Of the thirty-five statutes in the committee report, all but one used language that referred generally to a vacancy in the relevant office. Indeed, all but two even distinguished vacancy from absence or disability. The near-uniform use of broader language in those existing succession statutes creates the logical inference that Congress deliberately selected narrower language in the FVRA in order to cover only a subset of vacancies.
Take three examples. First, consider the Federal Aviation Administration statute, which dictated that “[t]he Deputy Administrator acts for the Administrator when the Administrator is absent or unable to serve, or when the office of the Administrator is vacant.” That statute explicitly distinguished inability to serve from vacancy of office. If “unable to serve” covered every case in which the office was vacant, the vacancy provision would be hopelessly redundant.
Second, the Secretary of Labor statute specifically listed “removal from office” alongside death, resignation, absence, and sickness as a criterion that would trigger application. In that statute, Congress thus distinguished removal from office from other conditions that would trigger application of the Vacancies Act. That Congress saw fit to specifically include removal from office in one statute—and excluded it from the FVRA—suggests Congress did not intend the FVRA to apply to removal from office.
Finally, the Department of Defense statute applied at the time to any situation where “the Secretary is disabled or there is no Secretary of Defense.” There, as in the other succession statutes, Congress dictated the statute would apply any time there was no Secretary. Yet in 2014, Congress amended that language to read: “The Deputy Secretary shall act for, and exercise the powers of, the Secretary when the Secretary dies, resigns, or is otherwise unable to perform the functions and duties of the office.”3 That alteration suggests daylight between general vacancy and the FVRA’s enumerated list, given the commonsense principle that a change of statutory language reflects a change of purpose. The prior statute applied any time the office was vacant; the change suggests Congress understood the subsequent version applied only under more limited circumstances.
Congress was aware of alternate phrasing it could have used to cover any vacancy in the office because nearly every agency statute it had passed up to that point used just that phrasing. Indeed, the Senate committee report specifically pointed to thirty-four such statutes. But Congress did not use that general language to cover any vacancy with the FVRA. It instead listed a subset of vacancies, not including removal, to which the Act would apply. That fact suggests a narrower reach for the FVRA.
The FVRA is best read as allowing the president to temporarily appoint an acting official where the prior officeholder dies, resigns, or otherwise becomes unexpectedly (from the president’s perspective) unable to perform the functions and duties of the office. On that reading, the president cannot appoint an acting official to replace an officer she has fired. While that interpretation is preferable to the alternative, it leaves policy challenges Congress should address through legislation, perhaps allowing an officer’s “first assistant” to replace them if fired. In so doing, Congress can improve the balance between constitutional values and efficient governance that defines the federal appointments scheme.
1. 5 U.S.C. § 3345(a) (2012).
2. 144 Cong. Rec. 22,518 (1998) (statement of Sen. Dick Durbin (D-Ill.)).
3. 10 U.S.C. § 132.
ABA Section of Administrative Law and Regulatory Practice
This article originally appeared on page 16 of Administrative and Regulatory Law News, Winter 2020 (45:2). A longer version of this article, “Boundaries of the Federal Vacancies Reform Act,” 56 Harv. J. On Legis. 459 (2019), won the Gellhorn-Sargentich Law Student Essay Competition.
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Originally published in Administrative and Regulatory Law News, Winter 2020, Volume 45, Number 2, at 16-18; reprinted in GPSolo eReport, Volume 9, Number 9, April 2020. © 2020 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, or the Solo, Small Firm and General Practice Division.