UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA L.M.-M., et al., Plaintiffs, v. Civil Action No. 19-2676 (RDM) KENNETH T. CUCCINELLI II, in his purported official capacity as acting Director of U.S. Citizenship and Immigration Services, et al., Defendants. MEMORANDUM OPINION AND ORDER Under the Appointments Clause of Article II of the Constitution, the President must obtain “the Advice and Consent of the Senate” before appointing any principal officer of the United States and, unless Congress vests the appointment power in the President, a court, or a department head alone, before appointing any inferior officer as well. U.S. Const., Art. II, § 2, cl. 2. This requirement is “more than a matter of ‘etiquette or protocol’; it is among the significant structural safeguards of the constitutional scheme.” Edmond v. United States, 520 U.S. 651, 659 (1997) (quoting Buckley v. Valeo, 424 U.S. 1, 125 (1976) (per curiam)). By dividing authority between the President and the Senate, the Appointments Clause serves as a check on both branches of government and a means of “promot[ing] . . . judicious choice[s] of [persons] for filling the offices of the union.” The Federalist No. 76, at 454–59 (C. Rossiter ed. 1961) (A. Hamilton). “The constitutional process of Presidential appointment and Senate confirmation, however, can take time,” raising the prospect that the duties and functions assigned to an office requiring Presidential appointment and Senate confirmation (referred to as a “PAS” office) can go unperformed if the President and Senate “cannot promptly agree on a replacement.” NLRB v. SW General, Inc., 137 S. Ct. 929, 934–35 (2017). Recognizing this reality, Congress has, since the early days of the Republic, authorized “the President to direct certain officials to temporarily carry out the duties of a vacant PAS office in an acting capacity, without Senate confirmation.” Id. at 934. The Federal Vacancies Reform Act of 1998 (“FVRA”), 5 U.S.C. § 3345 et seq., represents the “latest version of that authorization.” SW General, Inc., 137 S. Ct. at 934. Subject to exceptions not relevant here, it sets forth the exclusive means of temporarily filling vacancies in PAS offices. The default rule under the FVRA is that the “first assistant” to the vacant office automatically serves as the acting official when a vacancy arises. 5 U.S.C. § 3345(a)(1). That default rule applies unless the President, and only the President, directs that (1) a person who has been confirmed by the Senate to serve in another PAS office or (2) an officer or employee of the agency in question, who has worked for that agency in a senior position for at least 90 of the 365 days preceding the vacancy, “perform the functions and duties of the vacant office temporarily in an acting capacity.” Id. § 3345(a)(2) and (3). The question presented in this case is whether the acting Director of the United States Citizenship and Immigration Services (“USCIS”), Kenneth Cuccinelli II, was appointed in conformity with the FVRA. The relevant events began on June 1, 2019, when Lee Francis ...
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