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DHS will appeal Cuccinelli ruling

Image: Casimiro PT / Shutterstock 

The Department of Homeland Security is appealing a federal district court ruling that found the appointment of Ken Cuccinelli to serve as the acting head of the U.S. Citizenship and Immigration Services did not comply with the Federal Vacancies Reform Act.

The ruling came down on March 2, and it was in response to a lawsuit seeking to overturn several policies put into place by Cuccinelli at USCIS regarding the treatment of asylum seekers at the border.

Cuccinelli, who has not been confirmed by the Senate to any position, holds the recently established Senior Executive Service post of first assistant at USCIS and on that basis, according to the recently adjusted order of succession, also serves as acting deputy secretary of the Department of Homeland Security.

That state of affairs, Cuccinelli said March 3 on Fox and Friends, "is less preferential to getting a full Senate appointment," adding "that's the way the president has been forced to play the game."

At a March 3 hearing of the House Homeland Security Committee, DHS Acting Secretary Chad Wolf said that the agency would appeal the district court ruling.

"The court decision is on specific decisions that [Cuccinelli] signed out at USCIS, and that is what that litigation is about, and so we are addressing that," Wolf said.

Opening the hearing, committee chairman Rep. Bennie Thompson (D-Miss.) expressed concern "about the lack of steady leadership and persistent vacancies, especially during this critical time." Thompson also noted that "it's not even certain that Mr. Wolf's appointment is valid," alluding to questions regarding the frequently updated order of succession roster at DHS.

Rep. Kathleen Rice (D-N.Y.), who chairs the Subcommittee on Border Security, Facilitation, and Operations, echoed Thompson’s suggestion that Wolf's own appointment as acting DHS secretary last November may be invalid because his predecessor's temporary stint as acting chief may have expired before the order of succession at DHS was revised.

Wolf told lawmakers that he would provide letters from agency attorneys that attest to the legality of his appointment as acting agency head. Thompson said he would like to have the letters by March 15.

At DHS almost all of the most senior roles are filled by acting officials, including the jobs of secretary, deputy secretary, chief financial officer, undersecretary for management, undersecretary for science and technology, director of Immigration and Customs Enforcement, commissioner of U.S. Customs and Border Protection and director of USCIS.

About the Author

Adam Mazmanian is executive editor of FCW.

Before joining the editing team, Mazmanian was an FCW staff writer covering Congress, government-wide technology policy and the Department of Veterans Affairs. Prior to joining FCW, Mazmanian was technology correspondent for National Journal and served in a variety of editorial roles at B2B news service SmartBrief. Mazmanian has contributed reviews and articles to the Washington Post, the Washington City Paper, Newsday, New York Press, Architect Magazine and other publications.

Click here for previous articles by Mazmanian. Connect with him on Twitter at @thisismaz.


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