Acting USCIS Director Appointment Unlawful, Court Holds
Ken Cuccinelli’s appointment as acting Director of the U.S. Citizenship and Immigration Services is unconstitutional, a federal district court held this week.
On June 1, 2019, Lee Francis Cissna, the Senate-confirmed Director of USCIS, resigned, and by operation of the Federal Vacancies Reform Act of 1998 (FVRA), as “first assistant,” Deputy Director Mark Koumans automatically assumed the post of acting Director. Nine days later, then-serving acting Secretary of the Department of Homeland Security, Kevin McAleenan, appointed Cuccinelli to the new position of USCIS Principal Deputy Director. That same day, McAleenan revised USCIS’s order of succession, designating Principal Deputy Director as the “first assistant” and “most senior successor” to the Director of USCIS.
In revising the USCIS order of succession, McAleenan specified the designation of Principal Deputy Director as “first assistant” to the Director “will terminate automatically, without further action, upon the appointment of a new Director of USCIS by the president.” In other words, McAleenan designated that his revision would last only until a new USCIS Director was permanently filled. McAleenan’s alterations to the USCIS order of succession thus allowed Cuccinnelli to be newly hired into the federal government and leap over Koumans to become acting USCIS Director.
On July 2, 2019, three weeks after assuming his new office, Cuccinelli issued Asylum Directives announcing a revised policy that shortened time frames for expedited removal proceedings and restricted asylum officers’ ability to grant extensions of time. Sixty days after the Asylum Directives took effect, five individual native Honduran asylum seekers and the Refugee and Immigrant Center for Education and Legal Services, filed a complaint in the U.S. District Court for the District of Columbia alleging, in part, Cuccinelli was not lawfully appointed to serve as acting USCIS Director and that, as a result, the Asylum Directives must be set aside on constitutional and statutory grounds.
Plaintiffs soon thereafter filed a motion for a preliminary injunction, which the Court treated as a partial motion for summary judgment. Defendants cross-moved for summary judgment on the Complaint’s first two counts. The Court held at least one plaintiff had standing, that the Court had statutory jurisdiction to adjudicate the complaint, and then addressed the merits of the parties’ motions.
Judge Randolph Moss began his merits analysis by articulating the constitutional and statutory framework governing Cuccinelli’s appointment. He noted the parties did not contest that the USCIS Director position was that of a principal officer for the purposes of the Appointments Clause of the U.S. Constitution, which requires the office may only be held by appointment by the President with the advice and consent of the Senate (PAS). Judge Moss then observed Supreme Court precedent that “has long recognized,” subordinate officials may temporarily perform the duties of a principal officer without violating the Appointments Clause.
Consistent with the Supreme Court’s acknowledged Appointments Clause exception, Congress since 1792, has enacted statutes giving the Executive Branch authority to temporarily fill PAS positions. The FVRA is the current iteration of that framework, permitting a vacancy in a PAS office to be filled in one of three ways. First, absent action by the President, “the first assistant” to the office “shall” perform the functions and duties of the office in an acting capacity. Second, the President may direct another PAS appointee to perform the duties of the vacant office. And third, the President may direct an employee of the agency experiencing the vacancy to perform the functions and duties of the vacant office, but only if that individual served in a senior position in that agency for at least 90 days during the year preceding the occurrence of the vacancy.
Applying that framework to Cuccinelli’s appointment, the parties focused their arguments on whether the “first assistant” default rule applies only to individuals serving as first assistants at the time the vacancy arises or also applies to individuals first appointed to the position of first assistant after the PAS office vacancy arises. Those arguments missed the point, Judge Moss held, because “Cuccinelli’s appointment fails to comply with the FVRA for a more fundamental and clear-cut reason: He never did and never will serve in a subordinate role – that is, as an “assistant” – to any other USCIS official.” For that reason, Judge Moss held Cuccinelli’s appointment “cannot be squared with the text, structure, or purpose of the FVRA.”
Because Cuccinelli’s appointment as acting USCIS Director was unlawful, the Asylum Directives “have no force or effect” and must be “set aside” pursuant to the FVRA and Administrative Procedure Act, as an action taken in excess of statutory authority, Judge Moss held. However, because the matter was not a class action, Judge Moss did not vacate the existing removal orders or other adverse determinations made under the Asylum Directives with respect to individuals who were not parties to the action.
The day after the District Court opinion issued, Cuccinnelli told Fox News the administration would appeal the ruling and reissue the Asylum Directives.
Review the full U.S. District Court for the District of Columbia opinion in L.M.-M., et al. v. Cuccinelli.
This case law update was written by James P. Garay Heelan, Associate Attorney, Shaw Bransford & Roth, PC.
For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.