Federal judge: Ken Cuccinelli wasn't legally appointed

The decision comes months after Cuccinelli was initially tapped to lead USCIS by President Trump, a move that advocates immediately said violated a relatively obscure federal statute governing selections to agency positions. It’s the latest setback in the federal courts for the Trump administration and its efforts to restrict immigration.

The statue cited in Judge Randolph Moss’ decision — the Federal Vacancies Reform Act — allows the president to select certain senior officials to fill Cabinet and agency positions. At USCIS, Cuccinelli’s initial title was created by the administration: principal deputy director. Under the statute, the only way for Cuccinelli to have become eligible to be selected to lead the agency in an interim fashion was to be deemed a “first assistant.”

Moss said the creation of the title did not meet the necessary legal standard.

“On the merits, the Court concludes that Cuccinelli was not lawfully appointed to serve as acting Director and that, as a result, he lacked authority to issue the reduced-time-to-consult and prohibition-on-extensions directives,” Moss wrote.