Introduction

The case of Barbara Rush, Cynthia Parker, and Vanesea Nwobi v. Kiilolo Kijakazi addressed significant questions regarding the interpretation of the Federal Vacancies Reform Act of 1998 (FVRA). The appellants challenged the appointment of Nancy Berryhill as the Acting Commissioner of the Social Security Administration (SSA), arguing that her service exceeded the statutory limitations set by the FVRA. This commentary delves into the background, key issues, parties involved, and the court's reasoning that led to the affirmation of Berryhill's appointment.

Summary of the Judgment

The United States Court of Appeals for the Fourth Circuit upheld the appointment of Nancy Berryhill as the Acting Commissioner of the SSA. The appellants contended that Berryhill exceeded the authorized period of service under 5 U.S.C. § 3346(a)(1) by claiming that 5 U.S.C. § 3346(a)(2) only tolls the initial 210-day period rather than providing an independent period of service. The court rejected this interpretation, affirming that both subsections (a)(1) and (a)(2) authorize separate and independent periods of acting service. Consequently, Berryhill's appointments of administrative law judges (ALJs) were deemed valid, and the appellants' claims were dismissed.

Analysis

Precedents Cited

The court referenced several pivotal cases and statutory interpretations to support its decision:

• Lucia v. SEC, 138 S.Ct. 2044 (2018): Established that ALJs are inferior officers and must be appointed under the Appointments Clause.
• Carr v. Saul, 141 S.Ct. 1352 (2021): Highlighted the constitutional necessity for ALJs to be appointed by agency heads.
• REITER v. SONOTONE CORP., 442 U.S. 330 (1979): Interpreted the use of "or" in statutory language as typically disjunctive, supporting the independent interpretation of FVRA provisions.
• NLRB v. SW Gen. Inc., 580 U.S. 288 (2017): Provided an overview of the FVRA's tolling provisions, albeit noting that § 3346(a) allows for independent acting periods.
• Dahle v. Kijakazi, 2023 WL 2379383 (8th Cir. Mar. 7, 2023): Similar appellate reasoning affirming independent periods under FVRA, which the Fourth Circuit chose not to follow but acknowledged for context.

These precedents collectively reinforced the court's stance that the FVRA's language supports independent periods of acting service, rather than a singular, tolling provision.

Legal Reasoning

The crux of the Fourth Circuit's reasoning rested on statutory interpretation principles. Specifically, the court analyzed the conjunction "or" in the FVRA's §3346(a), concluding that it signifies an independent choice between two separate provisions:

• §3346(a)(1): Allows an individual to serve as an acting officer for up to 210 days from the vacancy's occurrence.
• §3346(a)(2): Permits an acting officer to continue serving while a nomination is pending in the Senate, irrespective of the initial 210-day period.

The appellants argued that §3346(a)(2) was intended solely to extend or toll the initial 210-day period under §3346(a)(1). However, the court found this interpretation unsupported by the statute's text, emphasizing that:

• The use of "or" typically denotes a disjunctive and independent relationship between provisions.
• There was no explicit language in §3346(a)(2) indicating it should be read as a tolling provision.
• Comparative analysis with other subsections, such as §3346(b), which clearly uses terms like "may continue to serve," suggested that §3346(a)(2) was meant to function independently.

Additionally, the court addressed and dismissed arguments related to the FVRA's overall purpose and separation-of-powers concerns, maintaining that adhering to the statute's clear text was paramount.

Impact

This judgment has significant implications for the interpretation and application of the FVRA:

• Clarification of Service Periods: Establishes that acting officers can legally serve under both §3346(a)(1) and §3346(a)(2) independently, provided respective conditions are met.
• Consistency Across Circuits: While there exists variation in circuit interpretations, this decision emphasizes the importance of textual clarity, potentially influencing other circuits to adopt similar reasoning.
• Agency Appointments: Reinforces the authority of acting officials to ratify appointments, ensuring continuity in administrative functions like disability claims adjudication.
• Legislative Intent: Highlights the judiciary's role in adhering to clear legislative language, reducing room for interpretive discrepancies in administrative law.

Future cases involving the FVRA will likely reference this decision when addressing the scope of acting officers' service periods, promoting a more uniform understanding of the statute's provisions.

Complex Concepts Simplified

Federal Vacancies Reform Act (FVRA)

The Federal Vacancies Reform Act of 1998 outlines the procedures for temporarily filling vacant federal executive agency positions. It ensures that agencies continue to function efficiently during transitions by authorizing designated officials to serve in an acting capacity.

5 U.S.C. §3346(a)(1) and §3346(a)(2)

• §3346(a)(1): Allows an individual to serve as an acting officer for up to 210 days from the occurrence of a vacancy.
• §3346(a)(2): Permits an acting officer to continue serving while a nominee for the position is undergoing Senate confirmation, without necessarily being tied to the initial 210-day limit.

Appointments Clause

Located in Article II, Section 2, Clause 2 of the U.S. Constitution, the Appointments Clause grants the President the power to nominate, and with the Senate's advice and consent, appoint officers of the United States. This clause ensures that key officials are vetted and approved through a bicameral process, maintaining a balance of power.

Conclusion

The Fourth Circuit's affirmation in Rush v. Kijakazi underscores the importance of adhering to the clear textual provisions of statutes like the FVRA. By recognizing §3346(a)(1) and §3346(a)(2) as independent service periods, the court ensured that acting officials could effectively fulfill agency roles without unnecessary interruptions. This decision not only clarifies the scope of temporary appointments under the FVRA but also reinforces the judiciary's role in upholding legislative clarity and intent. Moving forward, this precedent will guide both legal practitioners and federal agencies in navigating the complexities of temporary appointments, fostering greater consistency and reliability in administrative operations.