Administrative Law

Court Concludes Ken Cuccinelli Not Lawfully Appointed Acting Director of USCIS

An important and thoughtful opinion that potentially invalidates Trump Administration refugee and asylum policies.


In June 2019, President Trump appointed ormer Virginia Attorney General Ken Cuccinelli as the Acting Director of the U.S. Citizenship and Immigration Services (USCIS), but was this appointment valid? Judge Randolph Moss of the U.S. District Court for the District of Columbia thinks not, and issued an opinion today (yes, Sunday) declaring the appointment unlawful.

The introductory portion of Judge Moss's opinion in L.M.-M v. Cuccinelli is as follows:

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 Cissna, the Senate-confirmed Director of USCIS, resigned, and, as the FVRA prescribes, his "first assistant," Deputy Director Mark Koumans, automatically assumed the post of acting Director. . . . Koumans's tenure, however, was short-lived. Nine days after Director Cissna's resignation, the then-serving acting Secretary of the Department of Homeland Security, Kevin McAleenan, appointed Cuccinelli "to serve as the Principal Deputy Director of [USCIS]," . . . a position that did not exist prior to Cuccinelli's appointment. . . . That same day, acting Secretary McAleenan also revised USCIS's order of succession, designating the newly created position of Principal Deputy Director as "the First Assistant and most senior successor to the Director of USCIS." . . . These two changes—both of which occurred after the vacancy arose—allowed Cuccinelli to leapfrog Koumans to become USCIS's acting Director.

But neither of these changes was designed to endure. Acting Secretary McAleenan specified that Cuccinelli's appointment as Principal Deputy Director "will remain in effect until the earlier to occur of (1) the appointment of a Director of USCIS by the President of the United States, or (2) the express revocation of this appointment." . . . And acting Secretary McAleenan specified that the revised order of succession, which re-designated the Principal Deputy Director position as the "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, as soon as the vacant office is filled, the status quo will be restored.

On July 2, 2019, three weeks after assuming his new office, Cuccinelli issued a memorandum announcing a revised policy for scheduling credible-fear interviews in expedited removal proceedings. AR 113. Under the revised policy, USCIS (1) reduced the time allotted for asylum seekers to consult with others prior to their credible-fear interviews from 72 or 48 hours to "one full calendar day from the date of arrival at a detention facility," ("reduced-time-to-consult directive"), and (2) prohibited asylum officers from granting asylum seekers extensions of time to prepare for their credible-fear interviews, "except in the most extraordinary of circumstances," ("prohibition-on-extensions directive"). Although not reflected in the memorandum, Plaintiffs assert that Cuccinelli also cancelled "[t]he in-person [legal] orientation process that was" previously "in place" at the Dilley Detention Center in Dilley, . . . ("in-person-orientation directive"). Before its cancellation, according to Plaintiffs, that policy "allowed asylum seekers to ask questions about their legal rights, provided the only means of transmitting information to asylum seekers who cannot read, and facilitated understanding for asylum seekers with special needs, including disabilities or competency issues." . . . Taken together, Plaintiffs refer to these revised policies as the "Asylum Directives."

Plaintiffs, five individual native Honduran asylum seekers (two adults and three of their minor children) and the Refugee and Immigrant Center for Education and Legal Services ("RAICES"), a nonprofit organization that provides legal services to refugees, challenge the lawfulness of the Asylum Directives on multiple grounds. First, they allege that Cuccinelli was not lawfully appointed to serve as the acting Director of USCIS and that, as a result, the Asylum Directives must be set aside under the Appointments Clause, the FVRA, 5 U.S.C. § 3348(d)(1), the Administrative Procedure Act ("APA"), 5 U.S.C. §706(2)(A), and as ultra vires. . . . Second, they allege that the Asylum Directives themselves are inconsistent with various statutory and regulatory requirements, including an asylum applicant's statutory right to "consult with a person or persons of the alien's choosing prior to the [credible-fear] interview," 8 U.S.C. § 1225(b)(1)(B)(iv), and the regulatory authority of asylum officers freely to reschedule credible-fear interviews whenever the asylum seeker "is unable to participate effectively . . . because of illness, fatigue, or other impediments," 8 C.F.R. § 208.30(d)(1). . . . Third, they contend that the Asylum Directives are arbitrary and capricious because USCIS failed to consider how the Directives harm asylum seekers, acted based on "animus toward immigrants" and failed to provide an adequate justification for the policy changes. Fourth, they further allege that USCIS failed to comply with the APA's notice-and-comment and advanced-notice requirements. Fifth, Plaintiffs maintain that the Asylum Directives discriminate against asylum seekers with "trauma-related and other mental impairments" in violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq.  Finally, they allege that the Asylum Directives violate the First Amendment by interfering with the ability of the individual Plaintiffs and RAICES "to communicate and [to] associate" with one another regarding the individual Plaintiffs' legal rights.

As explained below, the Court is satisfied that at least one Plaintiff has Article III standing and that the Court has statutory jurisdiction over Plaintiffs' challenges to the reduced-time-to-consult and prohibition-on-extensions directives. The Court is not persuaded, however, that it has statutory jurisdiction over Plaintiffs' challenge to the in-person-orientation directive. On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and prohibition-on-extensions directives. The remedy for that deficiency, moreover, is compelled by the FVRA and the APA: the Asylum Directives must be set aside. Finally, having reached that conclusion, the Court need not—and does not—reach Plaintiffs' alternative legal challenges.

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  1. So, can the same policies be re-enacted on Monday morning by the next guy below Cuchinelli?

  2. If this gets to the Court of Appeals I wouldn’t be surprised for them to rule on a 2-1 vote that the courts have no jurisdiction to tell Trump what he can and cannot do.

  3. This blows. Cucinelli was instituting some common sense rules for immigration: public charge (which sanders/warren supporters should be in favor of), etc.
    Did nobody in the admin anticipate this?

    I wonder along the lines of mad-kalak, however, if this will actually amount to much

    1. To mad_kalak and sam123:

      If I’m reading the remedy section correctly, acts taken by someone who holds an “acting” position in violation of the FVRA are ultra vires, so they can’t be ratified by the next guy down the list (assuming that guy holds his position properly) unless the next guy independently holds the authority to take those acts. I doubt the statutes allow the second assistant deputy USCIS director or whatever to promulgate these policy changes himself.

      That said, the judge here limits his ruling only to the named plaintiffs, and he rejects their attempt at classwide/nationwide relief.

      1. Couldn’t they just appoint another USCIS senior official who has been there for at least 90 days or any other PAS appointee (just reading the statute does this mean the prez can direct appointees of any federal agency to serve as acting director so long as they were confirmed by the senate?) to reinstitute Cucinelli’s policies?

        I’d also wonder if this would pose any APA issues. I haven’t read the opinion but assuming, arguendo, that the USCIS policies at issue (I.e.: those related to asylum applicant preparation for ‘credible fear’ hearings) did not violate the APA the first time around, would the next appointee have to go through the notice and comment process again just because cucinelli was (I am assuming) invalidly appointed?

  4. Having skimmed through the parts of the judgement that deal with Cuccinelli’s appointment, I’d say that the judge’s analysis is rather weak.

    He seems to have decided that since Cuccinelli was never in fact going to be subordinate to anyone, and since the temporary office which was created for him was going to disappear when an actual superior officer was appointed, Cuccinelli could never have been a “first assistant.” Neither he, nor anyone else serving in his office would, or could, ever have any actual superior ranking human to be assistant to.

    But this is very dubious reasoning. The temporary office created for Cuccinelli was subordinate to the superior office that had been vacated, even if no actual person was occupying that superior office at the time. And the fact that Cuccinelli’s office was structured to disappear when any actual person did occupy that superior office does not change the fact that Cuccinelli’s office while it existed was the office of the superior office’s assistant.

    Essentially it’s a substance over form argument – Cuccinelli’s form was OK, as the occupier of the office of the first assistant, but his substance fails as an assistant lacking an actual human to assist.

    Maybe some of the plaintiffs’ other arguments are stronger, but this seems pretty weak.

    1. On (slightly) closer inspection the Judge’s analysis seems even thinner than I first thought. Judge Moss’s conclusion rests on the deliberate construction of Cuccinelli’s appointment to temporary office being, allegedly, such that he cannot ever be anyone’s subordinate in fact :

      Cuccinelli does not qualify as a “first assistant” because he was assigned the role as principal on day one and – by design – he never has served and never will serve “in a subordinate capacity” to any other official at USCIS”

      But the condition for the expiry of Cuccinelli’s appointment as set out by the Judge :

      The appointment will expire without further action upon “the appointment of a Director of USCIS by the President of the United States”

      is not consistent with his conclusion that Cuccinelli can never be subordinate to a real person.

      An actual appointment of an actual new Director by the President (after Senate consent) would certainly end Cuccinelli’s appointment. But the President might instead appoint someone else to perform the duties of the office temporarily in the same way as he has recently appointed Grenell as Acting DNI – ie the President can direct anyone who has previously been Senate confirmed and appointed to another position to perform the duties of the Director of USCIS. Cuccinelli would then become subordinate to that person, but his appointment would not cease because the condition – the appointment by the President of a Director of USCIS would not have occurred.

      Trump might amuse the Appeal Court by directing Grenell to perform the duties of the Director of USCIS in addition to his DNI related duties just to underline the point.

      1. Let’s be real here. If this scheme was allowed that would completely subsume the constitutional rule and the statutes. The judge was being judicious in not calling this nonsense out and instead giving it respect to actually deserve analysis.

        1. The only reason you’re seeing this sort of thing, though, is that McConnell has no interest on moving on Trump’s nominations for anything but the judiciary. I think he’s actually quite happy to see Trump handicapped by operating with hold-overs from the prior administration.

          1. As we were told, correctly, with the Garland situation that is the Senate’s prerogative.

            1. There was a reason Bolton asked for a position that didn’t require Senate confirmation. I suspect the pro-amnesty crowd of the GOP would have a problem with “Ken the knife” as I have seem him called.

              1. The Senate GOP animosity to Cuccinelli isn’t from some pro-amnesty movement, it’s a good old-fashioned grudge.

                1. You learn something new everyday. Not that politics is a more consequential version of high school cafeteria drama…we all knew that, but that *this* particular kerfuffle is caused by a high school drama-like grudge.

        2. I’m happy to agree that however weak it may be, Judge Moss’s analysis is considerably deeper than “Let’s get real here.”

  5. Legislating from the bench, anyone?

    1. Enforcing the strictures of the constitution from the bench, anyone?

      1. Nope. The judgement is based purely on statutory construction. It has nothing to do with the constitution.

  6. Just more random acts of cruelty from this morally repulsive Administration.

  7. Your legal analysis (“thoughtful”) just isn’t bigoted enough for most of the Volokh Conspiracy’s fans, Prof. Adler.

    Thank you.

  8. So when PResident Sanders plays all these games with appointments it will be all ok with you guys, right

    Rules laws, who needs em when you got a good ol Fascist in charge

    1. Always better to argue against a perceived enemy than engage with the one in front of you.

      The answer is no I wouldn’t. Whether it’s Trump, Sanders, Biden, if I knew about it happening under Obama or Bush. Instead of making this political, deal with the law. Do you actually think this is lawful? If so what is your analysis?

      In fact you show just as much “my guyism” here as this is a separation of powers argument that is usually fully supported by conservatives.

      1. It is always better to follow the rule of law, even when it does not advance your agenda
        There are few conservatives here, many control freaks and people willing to use whatever means necessary to advance their narrow agenda.

        trump is not and never has been a conservative, and many, many so called conservatives have been shown as far from it with their bobble headed support of him

        1. Ok, so again do you think this maneuver was constitutional? You have yet to say anything about what the law is and only made assertions about peoples political hypocrisy.

    2. I’m looking forward to next year’s installment of “The Conservative Case for Gulags”

  9. Sounds about right.

    If you can get around the The Federal Vacancies Reform Act of 1998 by creating a fake position, then it’s meaningless. So unless you’re prepared to argue that The Federal Vacancies Reform Act of 1998 is an unconstitutional limit on the President, this should be a no-brainer.

    1. Exactly
      problem being much of our gov’t is based on respect for the system
      when there is no respect for the system at the top, we end up with no system
      so called conservatives supporting the end of constitutional law while arguing fine points of wording like it matters

    2. The traditional legal approach when someone finds a way to do something you don’t like, but which falls within its words, is to amend the law with new words so that it does what you want it to do.

      In this case perhaps add a definition of “first assistant” that requires the acting erson to have performed the duties of the first assistant for some period as an actual assistant to an actual superior.

      Less impressive but certainly easier is to pluck some imagined “legislative intent” from your rear end, from the vast collection of conceivable but unstated legislative intents clustered there and use your chosen one to stand in for the actual words of the statute.

      1. “its words” should of course read “the statute’s words”

      2. Cry me a river. Having to write laws that account for every bad-faith actor leads to bad laws, as it’s basically impossible to cover every possible bad-faith action. Expecting legislators to write in “dogs can’t play basketball” to every law, ever, is an atrocious position that leads to terrible convoluted laws.

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