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B-334563 Feb 08, 2023 1 (2023-02-08)

handle is hein.gao/gaoofy0001 and id is 1 raw text is: U.S. GOVERNMENT ACCOUNTABILITY OFFICE 441 G St. N.W. Washington, DC 20548 B-334563 February 8, 2023 The President The White House Subject: Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: General Counsel, Federal Labor Relations Authority Dear Mr. President: We have previously concluded that while the Federal Vacancies Reform Act of 1998 (Vacancies Act)1 authorizes an official to act in a presidentially appointed, Senate- confirmed position (PAS position) during the pendency of the first and second nominations to the position, the Act does not authorize acting service during the pendency of the third or successive nominations.2 Here, we also consider whether a nomination qualifies as a first or second nomination under the Vacancies Act if no acting official is eligible to serve in the vacant position while the nomination is pending. As explained below, we conclude that a nomination made to a vacant position qualifies as the first or second nomination regardless of whether an acting official is eligible to serve in the position. Accordingly, pursuant to section 3349(b) of title 5 of the United States Code, we are reporting that the service of Charlotte A. Dye as Acting General Counsel of the Federal Labor Relations Authority (FLRA) from November 16, 2021, through the present day, is in violation of the Vacancies Act.3 1 5 U. S. C. §§ 3345-3349d. 2 B-333853, June 28, 2022. Acting service would, however, be permitted if the pendency of the nomination coincides with an acting service period provided by the Act, such as the 300-day period beginning on a transitional inauguration day. Id. 3 We contacted FLRA to seek factual information and its legal views on the matter. Letter from Assistant General Counsel for Appropriations Law, GAO, to Solicitor, FLRA (Aug. 31, 2022). FLRA responded with its explanation of pertinent facts, legal analysis, and supporting documents. Letter from Solicitor, FLRA, to Assistant General Counsel for Appropriations Law, GAO (Sept. 30, 2022) (FLRA Letter); FLRA, Exhibit A - FLRA Responses to Questions Posed by GAO in its August 31, 2022 FLRA Development Letter No. B-224563 (Oct. 3, 2022) (FLRA Specific Responses).

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