Ben Miller-Gootnick ’21 wins ABA writing competition on administrative law

Student paper explores whether the Federal Vacancies Reform Act allows the president to temporarily fill a Senate-confirmed position after firing the prior officeholder

Portrait of Benjamin Miller Gootnick

Credit: Lorin Granger Benjamin Miller-Gootnick ’21

Ben Miller-Gootnick ’21 has won the Gellhorn-Sargentich Law Student Essay Competition, an annual writing competition sponsored by the American Bar Association Section of Administrative Law and Regulatory Practice.

His paper, “Boundaries of the Federal Vacancies Reform Act,” has been cited in the Brennan Canter’s National Task Force report on the Rule of Law & Democracy, in a paper by Stanford Professor Anne Joseph O’Connell prepared for the Administrative Conference of the United States, and was featured in SSRN’s administrative law e-journal.

The award, which includes a $5,000 cash prize, recognizes students who write on any topic relating to administrative law. On Nov. 19, Miller-Gootnick traveled to Washington D.C. to talk about his paper to an audience of more than 700 judges, academics, and government lawyers at the section’s annual meeting.

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Miller-Gootnick’s paper explores whether the Federal Vacancies Reform Act of 1998 (FVRA) allows the president to temporarily fill a Senate-confirmed position after firing the prior officeholder.

Miller-Gootnick wrote the paper during winter break after his first semester of law school, after “absolutely falling in love with Legislation and Regulation.” Dean John F. Manning ’85, Professor Jack Goldsmith, and Professor Ryan D. Doerfler ’13 (visiting professor at HLS last fall) were involved as advisers. Last year, a version of his paper also won the Harvard Law School Klemens von Klemperer Prize—awarded annually to the HLS student who writes the most compelling essay on the subject of resistance.

Miller-Gootnick’s paper explores whether the Federal Vacancies Reform Act of 1998 (FVRA) allows the president to temporarily fill a Senate-confirmed position after firing the prior officeholder. The FVRA authorizes temporarily filling vacancies when an officeholder “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” But whether that language includes firings had previously received only brief and conflicting treatment. In November 2018, for instance, the Office of Legal Counsel (OLC) concluded in a footnote that the language allowed a president to fill vacancies after firing the prior officeholder; two weeks later, a federal court in dicta concluded the opposite.

The paper systematically examines the act’s text and structure, its historical context, its legislative history, and relevant OLC and judicial opinions to find that the FVRA covers vacancies created by the outgoing officer’s decisions or circumstances—but not those forced by the president through firings. The paper then considers the normative implications of that analysis, and proposes a legislative amendment to better balance efficiency with accountability.

Before coming to HLS, Miller-Gootnick worked in the U.S. intelligence community, on Hillary for America, and in the Obama White House Office of Legislative Affairs. He is an editor for the Harvard Law Review and a classical cellist.