Posted below is a copy of an open letter sent to the Comptroller General of the United States. The open letter calls for the Government Accountability Office to investigate whether the State Department has violated the Federal Vacancies Reform Act.
April 24, 2017
Comptroller General of the United States
Government Accountability Office
Dear Comptroller General,
The US State Department may be in violation of the Federal Vacancies Reform Act. I strongly encourage you to open an investigation into this issue. Once the investigation is concluded, I also encourage you to publicly release your findings.
On April 6, 2017, I received an email from a State Department spokesperson stating:
Acting Assistant Secretary Garber was delegated the authorities of the Under Secretary for Economic Growth, Energy and the Environment (which includes those of the Ombudsperson under the E.U.-U.S. Privacy Shield), pursuant to Delegation of Authority No. 415, dated January 18, 2017. She can exercise those authorities until a new Under Secretary is in place, or until the delegation is revoked by competent authority.
This statement causes serious concerns, because Judith Garber was already filling a vacancy in a temporary capacity as Acting Assistant Secretary starting in April 28, 2014, according to the State Department’s website. Please note that in 2017, the US Supreme Court upheld the Federal Vacancies Reform Act in NLRB v. SW General, Inc. There is a serious legal question as to whether or not Judith Garber can be the first assistant under Federal Vacancies Reform Act, while she is also filling in for a vacancy of another PAS (presidential appointment with Senate confirmation) position.
In addition, please also note that the delegation of authority for Judith Garber was signed before President Trump was inaugurated on January 20, 2017. Another legal question to consider is whether a previous administration’s delegation of authority is still valid after a new President comes into office.
Under the Federal Vacancies Reform Act, the State Department is required to immediately notify the Government Accountability Office (GAO) of vacancies. In an email on April 11, 2017, a GAO employee informed me that the State Department has failed to notify the GAO of the Under Secretary vacancy.
The GAO must investigate whether Judith Garber has any legal authority to act as the Under Secretary or as the Privacy Shield Ombudsperson, under the Federal Vacancies Reform Act. In addition, the GAO must investigate and determine whether the State Department violated the Federal Vacancies Reform Act.
Chairman for Committee on Government Oversight and Reform
US House of Representatives
Ranking Member for Committee on Government Oversight and Reform
US House of Representatives
Chair for LIBE Committee
Commissioner for Justice, Consumers and Gender Equality
Updated April 28, 2017 at 11am EST. Over the years, the US GAO has undergone several name changes. The GAO is called the “Government Accountability Office”, not the “General Accountability Office” as originally posted.