Below is most of a letter from the General Counsel of the Government Accountability Office to the Chairman of the House Ways and Means Committee (footnotes omitted). Note the last sentence which I have bolded:
I've already been asked if there will be litigation on this. Maybe I lack imagination but I've not been able to think of anyone who would have standing to raise the issue.
Attorneys who sue Social Security now have a problem. When we sue the agency, we are supposed to sue the Commissioner or Acting Commissioner by name. That's why Nancy Berryhill is the defendant in thousands of lawsuits. Who is now the proper defendant? I should say that this is a technicality that doesn't affect the validity of any lawsuit.
Don't blame Nancy Berryhill for this. I doubt that she ever wanted the job even temporarily. She's a career employee. They generally try to avoid the limelight. The responsibility for this lies with President Trump.
Don't expect Trump to nominate anyone soon. The current term for a Commissioner ends in January 2019. By the time anyone was confirmed now, their term would almost be at an end and they'd have to go through the confirmation process again.
Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 19981 (herein "the Vacancies Reform Act" or "Act") at the U.S. Social Security Administration (SSA) with respect to the Commissioner position. Specifically, we are reporting that the service of Nancy A. Berryhill as Acting Commissioner at SSA after November 17, 2017, is in violation of the Act.
The Vacancies Reform Act establishes requirements for temporarily authorizing an acting official to perform the functions and duties of certain vacant positions that require Presidential appointment and Senate confirmation. The Act generally limits the period of time that such a position may be filled with an acting official to 210 days. 5 U.S.C. § 3346(a)(1). In the year of a transitional Presidential inauguration, that time period is extended to 300 days after the vacancy occurs with respect to any vacancy that exists during the 60-day period beginning on the transitional inauguration date. 5 U.S.C. § 3349a(b). Under the provisions of section 3349(b), the Comptroller General is required, upon a determination that an acting official has served longer than the allowable period of service, to report such findings to Congress, the President, and the Office of Personnel Management.
In response to our recent inquiry to all federal departments and agencies with positions subject to the Vacancies Reform Act to update the status of any vacancies, acting officials, or nominations, the General Counsel of SSA reported that the position of Commissioner remains vacant.2 Our research indicates that the position was vacant on January 20, 2017, and Nancy A. Berryhill became Acting Commissioner on January 21, 2017. To date there have been no nominations submitted for that position. According to SSA, Ms. Berryhill became Acting Commissioner pursuant to a memorandum of December 23, 2016, issued by President Obama establishing an order of succession for the performance of the functions and duties of the office of the Commissioner of Social Security (Memorandum of Succession). We note that the Memorandum of Succession specifies that its provisions are subject to the limitations of the Vacancies Reform Act.
In accordance with the Vacancies Reform Act, the 210-day period began to run 90 days after the vacancy occurred on January 20, 2017-on April 20, 2017-and ended on November 16, 2017. Thus, the position of Commissioner should have been vacant beginning November 17, 2017. SSA's website indicates that Ms. Berryhill continued serving as Acting Commissioner after November 16, 2017. We have previously determined that using the acting title of a position during the period in which the position should be vacant violates the time limitations in the Vacancies Reform Act. Therefore Ms. Berryhill was not authorized to continue serving using the title of Acting Commissioner after November 16. However, SSA can provide for performance of the delegable functions and duties of the Commissioner position in accordance with the Memorandum of Succession or other applicable authority. ...There will be a House Social Security Subcommittee hearing on this issue today.
I've already been asked if there will be litigation on this. Maybe I lack imagination but I've not been able to think of anyone who would have standing to raise the issue.
Attorneys who sue Social Security now have a problem. When we sue the agency, we are supposed to sue the Commissioner or Acting Commissioner by name. That's why Nancy Berryhill is the defendant in thousands of lawsuits. Who is now the proper defendant? I should say that this is a technicality that doesn't affect the validity of any lawsuit.
Don't blame Nancy Berryhill for this. I doubt that she ever wanted the job even temporarily. She's a career employee. They generally try to avoid the limelight. The responsibility for this lies with President Trump.
Don't expect Trump to nominate anyone soon. The current term for a Commissioner ends in January 2019. By the time anyone was confirmed now, their term would almost be at an end and they'd have to go through the confirmation process again.
13 comments:
SSA hasn't had a confirmed Commissioner since 2013 and it is Trump's fault??? Yes he should have nominated someone by now, but had one been previously confirmed, he would not have had to submit a name until late 2018, early 2019. Not everything in the world in Trump's fault.
@9:55
The prior commissioner, Carolyn Colvin was nominated by Obama for Commissioner on June 23, 2014. Congress declined to vote on the nomination on December 17, 2014. Obama could have resubmitted the nomination, but congress members publicly stated they would not vote on future nominations.
Trump has yet to nominate a Commissioner for Social Security. That is the criticism. In regard to whether Trump would have had to submit a name until late 2017 or early 2019, no. Colvin resigned voluntarily on January 20, 2017. That means the deadline to file a nomination is exactly as the Government Accountability Office lays out in their letter.
In sum, yes this is Trump's fault.
Thanks for making the record clear 10:32.
@10:32 & 11:37:
Your remarks concerning what happened with the prior SSA Commissioner, Carolyn Colvin, are not entirely clear. Obama did nominate Colvin for Commissioner. In December 2013, immediately before Congress left for the holiday break, a vote was conducted confirming several Obama appointees, of which Colvin was one. Everyone thought she would be confirmed. So much so, in fact, CNN initially reported Colvin had been confirmed. However, there were concerns about how she had handled, or lack thereof, issues of misconduct, wrongdoing, etc., when she was Acting Commissioner, which were brought to the attention of certain members of Congress. These concerns were serious and, at the 11th hour, Colvin was not confirmed SSA Commissioner, which came as a surprise to the media.
The misconduct and other issues which prevented Colvin’s expected confirmation were brought to the attention of President Obama. Obama subsequently decided not to re-nominate Colvin for SSA Commissioner. Eventually, Obama nominated Andrew Lamont Eanes for SSA Commissioner. This did not go over well with Colvin and her inner circle. They shunned Eanes from several meetings and discussions while he continued to be interviewed by members of Congress prior to being confirmed. Months went by, and during this period, Colvin made an unprecedented request to step down to a lower paying position once Eanes was confirmed, ON THE CONDITION SHE COULD MAINTAIN HER ROLE AS AGENCY HEAD. Of course, her unprecedented request was not accepted. When this happened, Colvin and her inner circle shunned Eanes more than they already had been doing.
Eanes was all set to be confirmed by Congress, but he withdrew his nomination based on how poorly he was treated by Colvin and her inner circle. By this point, it was so late in Obama’s second term, he saw no reason to nominate someone else. Thus, Colvin remained SSA Agency Head right up until the minute Trump was inaugurated. As Agency Head, Colvin, and her ONLY, retained exclusive authority to decide whether the Agency would discipline, or remove, Managers and employees whom the Agency knew from Federal Investigators engaged in misconduct and wrongdoing. Colvin’s ability to make these determinations is why she fought so vigorously to maintain her position as Agency Head. Unfortunately, Colvin used her power as Agency Head, and chose NOT to hold several Managers and employees ACCOUNTABLE in any way for the misconduct and wrongdoing, including repeated PPP’s for decades, the Agency very well knew they engaged.
@2:11pm - Your conspiracy theories may be interesting to some, but they have nothing to do with the instant blog post and the fact that Trump has shown little interest in ensuring that the government is able to function, much less appointing individuals to fill vacant positions. A year into his presidency, Trump has the most vacancies in senior-level positions in the history of our government, even with a congressional majority. But if you believe this is somehow tied to Colvin's inability to discipline an employee (as if the Commissioner even deals with the hiring and firing of individual employees), then I'm sure there may be some in the tinfoil hat crowd that would share your concerns.
@2:11
10:32 here. Interesting. I was under the impression Obama had not put forward a subsequent nomination.
In any event, my point is Trump has not yet actually put forward a nomination for SSA commissioner. 9:55 complained an agency head should have been appointed back in 2013, yet I explained there were actual attempts by the Obama administration to appoint an agency head.
@2:11 - I believe (I'm positive) Eanes was nominated as Deputy Commissioner and not Commissioner while Colvin was confirmed as Commissioner but performing in the role of ACOSS. Are we really going to ignore the DCPS factor in why Colvin didn't get confirmed and say it had to do with employee conduct issues?
Eanes was nominated as Deputy. Colvin was serving as deputy and thus as acting commissioner. Lots of talk on this blog from that time about what an Eanes confirmation would do to Colvin.
But not particularly relevant to the current situation. One challenge is that there's less than a year left in the current term for COSS. Who wants to go through vetting and a Senate hearing for a job that might only last a few months?
@4:08,
2:11 here. No “Conspiracy Theory” being espoused, just what I know. For the record, much of what I said has been corroborated on this blog the past few years.
Second, my response was to comments made by 10:32 & 11:37, which I specifically indicated at the beginning of my remarks. In no way was I suggesting the history I described had anything to do with Trump’s failure to appoint many Senior level positions, which I concur has caused many problems. Had you read my comment appropriately without needlessly writing off what I said as someone associated with the “Tinfoil Hat Crowd,” you could have saved yourself from embarrassment.
Third, a Federal Agency Head, and that person only, has historically had sole, exclusive, final decisions as to whether the Agency itself plans to hold a Manager or employee accountable for wrongdoing. Do your research. Some of the new legislation passed by Congress pertaining to the VA, and similar Bills proposed but not yet passed have suggested ways to improve on this. Moreover, the conduct and wrongdoing that surrounded Colvin also involved a failed, costly computer program, etc.
@4:25, You are correct Eanes was appointed to be Deputy Commissioner. Nevertheless, if confirmed, he would have taken over as Agency Head, which is why Colvin got so upset, asked to step down to a lower paying position on the condition she remain Agency Head.
Again, this information is widely available on this blog and other sources.
10:32 here, again. Does anyone know the date Berryhill was confirmed as deputy commissioner? I looked around, but could not find a particular senate vote on her nomination.
Colvin was nominated as COSS in June 2014. Eames was nominated as Deputy July 2014. Colvin’s nomination tanked in December 2014 (not 2013 as 2:11pm started above). After Colvin’s nomination died she remained Acting COSS because she had been confirmed as deputy COSS and remained as acting since the position was unfilled after the term expired. Eames did not get a confirmation hearing until Feb. 2016, 18 months after his original nomination. I can find no record the Senate Finance committee ever voted on his nomination. He’d he been confirmed he would have displaced Colvin because she was acting COSS by virtue of having been acting Deputy COSS. As deputy COSS, Eames would have been acting COSS since that position was vacant.
The biggest mystery in all this is how The heck Eames was ever nominated. NOthing in his resume suggested he had any business in that job. Senate Finance could not have been impressed, although it’s possible Colvin’s allies sabotaged Eames to keep Colvin as acting.
It’s hard to imagine Obama Admin could not have done better with more effort, but I think there were numerous political forces at work (and R’s ran the Finance committee). I think Trump Admin can’t find someone to take the job. I see little evidence they can do any better.
@4:08
Technically, under the Vacancies Act, every decision and everything Colvin did after she served 300 days as either Acting COSS, or Acting Deputy COSS, is subject to being overturned, especially if good cause is shown. For example, this could include decisions she made for the Agency not to discipline certain Managers and employees whom the Agency very well knew engaged in misconduct or wrongdoing, including those who have a track record of repeatedly engaging in Prohibited Personnel Practices for several years. I suggest good cause exists to overturn some of the decisions Colvin made in this realm, and ACCOUNTABILITY be enforced, which is what should have been done in the first place.
In response to your questions about Eanes’ qualifications for Deputy COSS, I would assert the same questions apply to Colvin. Ideally, individuals selected for such positions should have Advanced College Degrees and experience in the field - not just Operations.
Ideally, Political Appointees should be required to have expertise and advanced collegiate educational backgrounds.
Similarly, having individuals in all levels of Management who were simply promoted up through the ranks because of favoritism, rather than outstanding performance, and lack the requisite educational background to serve in such positions is very problematic and a disservice to the taxpayers and Agency Mission. Currently, many of these individuals do not even have a college degree, let alone an Advanced Degree, such as a J.D., Ph.D., MBA, etc., in addition to Agency specific knowledge and expertise.
If you really think Drumpf didn't do this on purpose, you're a true imbecile. An unprofessional approach to this argument, but with all that the "president" has done, he's tearing America apart. And if you really want to say that Obama was worse than Drumpf, send proof from TRUE sources, not your Republican friends, thanks.
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