The Vacancies Act: A Legal Overview

Figure 1. Two Limited Periods of Service

Source: 5 U.S.C. § 3346.

Figure 2. Period of Service After Submission of Nomination

Source: 5 U.S.C. § 3346.

U.S. Const. art. II, § 2, cl. 2 ("[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."). Thus, the Appointments Clause allows Congress to provide an alternative mechanism for the appointment of "inferior Officers," as distinguished from principal officers. See Buckley v. Valeo, 424 U.S. 1, 124-28 (1976) (per curiam) (defining requirements of the Appointments Clause); Edmond v. United States, 520 U.S. 651, 662-63 (1997) (discussing distinction between principal and inferior officers). See generally CRS Report R44083, Appointment and Confirmation of Executive Branch Leadership: An Overview, by [author name scrubbed] and [author name scrubbed].

If the vacancy exists "during the Recess of the Senate," the Constitution also allows the President to appoint an officer to serve until "the End of [the Senate's] next Session." U.S. Const. art. II, § 2. See generally CRS Report RS21308, Recess Appointments: Frequently Asked Questions, by [author name scrubbed].

See, e.g., CRS Report R40119, Filling Advice and Consent Positions at the Outset of Recent Administrations, 1981-2009, by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

See, e.g., Aaron Kessler, Trump vacancies are here to stay, CNN (Oct. 10, 2017, 3:12 PM), http://www.cnn.com/2017/10/10/politics/trump-vacancies-here-to-stay/index.html; Tom McCarthy, Why are so many crucial U.S. government positions still unfilled?, The Guardian (July 21, 2017, 7:00 AM), https://www.theguardian.com/us-news/2017/jul/21/donald-trump-administration-us-government-jobs-unfilled; Christopher Wallace, Obama holdovers, vacancies remain at top levels of State Department, Fox News (Oct. 5, 2017), http://www.foxnews.com/politics/2017/10/05/obama-holdovers-vacancies-remain-at-top-levels-state-department.html.

See, e.g., Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 209-10 (D.C. Cir. 1998) (describing vacancies legislation dating back to 1792). For a more detailed description of the various incarnations of the Vacancies Act, including the positions of the executive and legislative branches over time, see CRS Report 98-892, The New Vacancies Act: Congress Acts to Protect the Senate's Confirmation Prerogative.

It is an open question whether such temporary service might violate the Appointments Clause by allowing government employees to act as "Officers of the United States" absent appointment through the proper constitutional processes. Compare Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 123-25 (2003) (concluding acting officer was inferior officer, and that under the Vacancies Act, he was appointed consistently with the Appointments Clause), with NLRB v. SW Gen., Inc., 137 S. Ct. 929, 946 (2017) (Thomas, J., concurring) ("The [Vacancies Act] authorizes the President to appoint both inferior and principal officers without first obtaining the advice and consent of the Senate. Appointing inferior officers in this manner raises no constitutional problems. . . . Appointing principal officers under the [Vacancies Act], however, raises grave constitutional concerns because the Appointments Clause forbids the President to appoint principal officers without the advice and consent of the Senate.").

5 U.S.C. §§ 3345-3349c.

Id. § 3345.

Id. §§ 3346, 3349a.

Id. § 3348(d).

5 U.S.C. § 3347(a).

Id. §§ 3345, 3348. The heads of executive agencies are required to report any vacancies, along with information about acting officers and nominations, "to the Comptroller General of the United States and to each House of Congress." Id. § 3349(a).

See infra "Which Offices?."

See 5 U.S.C. §§ 3347-3348.

Id. § 3348(a)(2); see infra "What Are the "Functions and Duties" of an Office?."

This report refers to specific sections of the Vacancies Act using their location in the U.S. Code, rather than referring to sections of P.L. 105-277, 112 Stat. 2681-611 (1998).

Specifically, the statute requires compliance with Sections 3345, 3346, and 3347. See 5 U.S.C. § 3348(b). Section 3345 sets out three classes of people who may serve as acting officers, id. § 3345; Section 3346 prescribes time limitations for acting service, id. § 3346; and Section 3347 provides that the Vacancies Act is exclusive unless another statutory provision expressly allows a person to "perform the functions and duties of a specified office temporarily in an acting capacity," id. § 3347(1). These requirements are explained in more detail later in this report. See infra "Vacancies Act Limitations on Acting Service."

5 U.S.C. § 3348(b).

Id. This provision allowing the head of the agency to perform functions and duties of the vacant office does not apply to an office that is "the office of the head of an Executive Agency." Id. § 3348(b)(2). Accordingly, if an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act. See id.

Id. § 3348(b).

Id. § 3348(d)(1). 5 U.S.C. § 3348(a)(1) defines "action" by reference to 5 U.S.C. § 551(13), which in turn defines "agency action" as "the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act."

See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938 n.2 (2017). This case and the legal status of an agency action that has "no force or effect" are discussed in more detail infra notes 45-46 and accompanying text, and infra "Enforcement Mechanism."

Black's Law Dictionary (10th ed. 2014) (defining "void ab initio" as "[n]ull from the beginning, as from the first moment when a contract is entered into"). E.g., Interstate Commerce Comm'n v. Am. Trucking Ass'ns, 467 U.S. 354, 358 (1984) (noting that if tariff is rendered void ab initio, "whatever tariff was in effect prior to the adoption of the rejected rate becomes the applicable tariff for the period.").

See, e.g., Sphere Drake Ins. Ltd. v. Clarendon Nat'l Ins. Co., 263 F.3d 26, 31 (2d Cir. 2001) (noting that a void contract "produces no legal obligation," but that a voidable contract does impose legal obligations unless rescinded). See also Quality Health Servs. of P.R., Inc. v. NLRB, Nos. 16-1556, 16-1845, 2017 U.S. App. LEXIS 20138, at *15 (1st Cir. Oct. 16, 2017) (holding that the issue of validity of agency action had been waived under exhaustion statute, in part because complaints issued by Acting General Counsel of NLRB were, at most, voidable rather than void).

Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th Cir. 1993). The court in Easley considered both legal and ordinary definitions of the term "voidable," as distinct from the term "void," and decided that because it was considering the effect of an admitted legal error that could be cured, the most appropriate term to describe this particular type of defective action was "invalid." Id. at 909-10. Accord Chapman v. Bituminous Ins. Co. (In re Coho Res., Inc.), 345 F.3d 338, 344 (5th Cir. 2003) ("[V]iolations [of a certain provision of the bankruptcy code] are merely 'voidable' and are subject to discretionary 'cure.'"). Cf. Black's Law Dictionary (10th ed. 2014) (stating that the term "voidable" "describes a valid act that may be voided rather than an invalid act that may be ratified.").

See SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015), aff'd 137 S.Ct. 929, 944 (2017); Fed. Election Comm'n v. Legi-Tech, 75 F.3d 704, 708 n.4 (D.C. Cir. 1996); Prof'l Air Traffic Controllers Org. v. FLRA, 685 F.2d 547, 564 (D.C. Cir. 1982).

See, e.g., Brock v. Pierce Cty., 476 U.S. 253, 260 (1986) ("We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action . . . . When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act.").

See, e.g., Shapleigh v. San Angelo, 167 U.S. 646, 652 (1897) ("Did the decree of the district court . . . , abolishing the city of San Angelo as incorporated in 1889, operate to render its incorporation void ab initio, and to nullify all its debts and obligations created while its validity was unchallenged? Or can it be held, consistently with legal principles, that the abolition of the city government, as at first organized, because of some disregard of law, and its reconstruction so as to include within its limits the public improvements for which bonds had been issued during the first organization, devolved upon the city so reorganized the obligations that would have attached to the original city if the State had continued to acquiesce in the validity of its incorporation?"); Kinwood Capital Group, L.L.C. v. BankPlus (In re Northlake Dev. L.L.C.), 614 F.3d 140, 143 (5th Cir. 2010) ("For example, [under Mississippi law,] when a corporation takes an ultra vires action not authorized by its charter, the result can usually be ratified and thus cannot have been void ab initio."); Fed'l Election Comm'n v. Legi-Tech, 75 F.3d 704, 707 (D.C. Cir. 1996) (stating, in description of party arguments, that the Federal Election Commission's subsequent ratification of a defective civil enforcement proceeding could not cure error rendering that proceeding void ab initio).

5 U.S.C. § 3348. See also S. Rep. No. 105-250, at 19 (1998) ("For example, the successor in the office by virtue of his appointment by the President by and with the advice and the consent of the Senate may not ratify the actions of a person who filled the office in violation of the legislation's provisions or who, not being the agency head, performed nondelegable duties of the office."). Legislative history suggests that Congress was specifically concerned with overruling the decision of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 139 F.3d 203, 214 (1998), in which the D.C. Circuit had held that because a successor "effectively ratified" the action of an acting officer, the court did not need to decide whether that acting officer had "lawfully occupied the position." See S. Rep. No. 105-250, at 5 (1998) (noting Doolin "underscored" the "need for new legislation"). This Senate Report expressed concern that "the ratification approach taken by the court in Doolin would render enforcement of the [Vacancies Act] a nullity in many instances." Id. at 20. See also 144 Cong. Rec. S11022 (daily ed. Sept. 28, 1998) (statement of Sen. Fred Thompson) (referencing Doolin as reason to enact bill).

See infra "Enforcement Mechanism."

E.g., SW Gen., Inc., 137 S. Ct. at 937. See also S. Rep. No. 105-250, at 19-20 (1998) ("The Committee expects that litigants with standing to challenge purported agency actions taken in violation of these provisions will raise non-compliance with this legislation in a judicial proceeding challenging the lawfulness of the agency action.").

See SW Gen., Inc. v. NLRB, 796 F.3d 67, 78 (D.C. Cir. 2015) (noting rule that would apply in a "typical case," but concluding that the rule did not apply in the case before the court), aff'd 137 S.Ct. 929, 944 (2017). A number of cases suggest that an agency action is void when an agency exceeds its statutory authority, e.g., Utah Power & Light Co. v. United States, 243 U.S. 389, 410 (1917), or if a rule or action is "arbitrary, capricious, or an abuse of discretion" under the Administrative Procedure Act, 5 U.S.C. § 706(2), e.g., Mercy Hosp. of Laredo v. Heckler, 777 F.2d 1028, 1032 (5th Cir. 1985). As discussed in more detail infra notes 137 to 140 and accompanying text, these cases may provide guidance in evaluating the status of agency actions that have "no force or effect" under 5 U.S.C. § 3348(d).

5 U.S.C. § 3347.

Id.

See id. § 105 (defining "executive agency" for purposes of Title 5 of the U.S. Code); Applicability of the Fed. Vacancies Reform Act to Vacancies at the Int'l Monetary Fund and the World Bank, 24 Op. O.L.C. 58, 61 (2000) (using 5 U.S.C. § 105 to define the term "executive agency," as used in the Vacancies Act).

5 U.S.C. §§ 3345, 3348.

Specifically, the general provisions making the Vacancies Act applicable to officers of executive agencies specify that the relevant executive agencies "includ[e] the Executive Office of the President," but exclude the Government Accountability Office. Id. §§ 3345(a), 3347(a), 3348(b), 3349(a).

Id. § 3349c.

5 U.S.C. § 3348(e); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 944 (2017) (concluding 5 U.S.C. § 3345(b)(1) applied to Acting General Counsel of National Labor Relations Board and holding his service violated the Vacancies Act).

5 U.S.C. §§ 3348(b), (d), (e).

Id. § 3348(e).

S. Rep. No. 105-250, at 20 (1998). This portion of the report was discussing the exemptions for General Counsels, but the report gave distinct, but substantively similar explanations for exempting the "agency inspectors general." See id. The report did not specifically discuss sub-subsection (4), containing the exemption for Chief Financial Officers, see id., because this provision was added subsequent to the committee's consideration of the bill, 144 Cong. Rec. S12823 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson).

S. Rep. No. 105-250, at 20 (1998).

Id.

See 5 U.S.C. § 3348(d), (e).

See SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015).

137 S. Ct. 929, 938 n.2 (2017).

See id. (noting that the NLRB had not sought certiorari on this issue).

SW Gen., Inc., 796 F.3d at 79. Similarly, in Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 564 (9th Cir. 2016), the court dismissed a petition issued by the same Acting General Counsel, citing the D.C. Circuit's opinion to conclude that his actions were voidable. However, the court expressly noted that the NRLB had "waived any arguments based on the FVRA's exemption clause, 5 U.S.C. § 3348(e), and it [did] not otherwise contest the remedy sought by [the party challenging the petition]." Id. See also Quality Health Servs. of P.R., Inc. v. NLRB, Nos. 16-1556, 16-1845, 2017 U.S. App. LEXIS 20138, at *16 n.7 (1st Cir. Oct. 16, 2017); Creative Vision Res., L.L.C. v. NLRB, 872 F.3d 274, ___ n.7 (5th Cir. 2017); Hooks v. Remington Lodging & Hospitality, L.L.C., 8 F. Supp. 3d 1178, 1189 (D. Alaska 2014).

SW Gen., Inc., 796 F.3d at 79; id. at 81 (holding error had not been rendered harmless by subsequent de novo review and ratification of the complaint by a properly appointed General Counsel); id. at 82 (holding NLRB had not shown that the de facto officer doctrine should apply in this case to bar plaintiff's attack on the complaint because the doctrine allows collateral attacks against actions taken by officers acting under the color of official title, so long as those attacks are properly preserved and the agency had reasonable notice of the defect in the officer's title to office).

See id. at 81; 5 U.S.C. §§ 3348(d), (e).

See 5 U.S.C. §§ 3347; 3348(b). Nor does the Vacancies Act apply if "the President makes an appointment to fill a vacancy in such office during the recess of the Senate pursuant to clause 3 of section 2 of article II of the United States Constitution." Id. § 3347(a)(2).

Id. § 3347(a)(1). 5 U.S.C. § 3347(a)(1)(A) refers to statutes that authorize "the President, a court, or the head of an Executive department, to designate" acting officers, while 5 U.S.C. § 3347(a)(1)(B) refers to statutes that themselves designate acting officers. See, e.g., 49 U.S.C. § 102(e) (creating assistant secretary and general counsel positions and authorizing those officials to serve as acting officials).

5 U.S.C. § 3347(b). Legislative history suggests that Congress intended this provision to definitively counter the assertion of the Department of Justice that "its organic statute's 'vesting and delegation' provision" rendered the Vacancies Act's limitations inapplicable. 144 Cong. Rec. S11021 (daily ed. Sept. 28, 1998) (statement of Sen. Fred Thompson). See also id. at S11025 (statement of Sen. Robert Byrd) ("Most importantly . . . it is a bill which will, once and for all, put an end to these ridiculous, specious, fallacious arguments that the Vacancies Act is nothing more than an annoyance to be brushed aside."); id. at S11026 (statement of Sen. Carl Levin) ("[The bill] would make clear that the act is the sole legal statutory authority for the temporary filling of positions pending confirmation. . . . I think in the opinion of probably most Senators that loophole does not exist. But, nonetheless, whether it is a real one or an imaginary one, it has been used by administrations in order to have people temporarily fill positions pending confirmation for just simply too long a period of time, which undermines the Senate's advice and consent authority."); id. at S11028 (statement of Sen. Strom Thurmond) ("[T]he Attorney General's misguided interpretation of the current Vacancies Act . . . . practically interprets the Act out of existence"); 144 Cong. Rec. S12823 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson) ("[T]he organic statutes of the Cabinet departments do not qualify as a statutory exception to this legislation's exclusivity in governing the appointment of temporary officers.").

See 5 U.S.C. § 3347(a)(1). The committee report on the 1998 bill noted that the bill would "retain[] existing statutes" that contained such an express authorization and stated that the committee was "aware of the existence of statutes specifically governing a vacancy in 41 specific offices, 40 of which would be retained by this bill." S. Rep. No. 105-250, at 15-16 (1998).

See 5 U.S.C. § 3347(a)(1).

See id.

See Temporary Filling of Vacancies in the Office of U.S. Attorney, 27 Op. O.L.C. 149, 149 (2003) ("Both statutes [28 U.S.C. § 546 and the Vacancies Act] are available.").

See United States v. Lucido, 373 F. Supp. 1142, 1150 (E.D. Mich. 1974) ("[U]nder both 28 U.S.C. § 508 and 5 U.S.C. § 3345, the Deputy Attorney General assumes the duties of the vacant position."). In Lucido, a district court upheld the actions of an acting officer who had exceeded the time limitations of an older version of the Vacancies Act, holding that a separate statute, 28 U.S.C. § 508(a), had authorized him to assume the duties of the Attorney General while acting in his position as Deputy Attorney General. Id. at 1151. Cf. Authority of the President to Name an Acting Attorney Gen., 31 Op. O.L.C. 208, 210 (2007) (arguing President's action to name Acting Attorney General under Vacancies Act would trump Attorney General's designation of Acting Attorney General under 28 U.S.C. § 508); John E. Bies, If the Attorney General is Fired, Who Acts as Attorney General?, Lawfare (July 29, 2017, 5:06 PM), https://www.lawfareblog.com/if-attorney-general-fired-who-acts-attorney-general (outlining uncertainties in the interaction between the Vacancies Act and 28 U.S.C. § 508).

5 U.S.C. § 3349b. Additionally, Section 3345, which limits the types of people who can serve as an acting officer, includes a special provision allowing the President to direct certain officers who serve a fixed term in an executive department to continue to serve as an acting officer. See infra note 76. See also Inapplicability of the Fed. Vacancies Reform Act's Reporting Requirements When PAS Officers Serve Under Statutory Holdover Provisions, 23 Op. O.L.C. 178, 179 (1999) (concluding "there is no vacancy to be reported under the Act when a PAS officer continues service under a holdover provision," but noting that this conclusion is not entirely clear).

5 U.S.C. §§ 3345(a), 3345(b), (d).

Id. § 3348(a)(2).

Id. § 3348(a)(2)(B)(ii).

See id. See also Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 420 (D. Conn. 2008) ("The question before the Court is whether the authority to make tribal acknowledgment decisions is required by statute or regulation to be performed only or exclusively by the [absent officer]."), aff'd, 587 F.3d 132 (2d Cir. 2009); S. Rep. No. 105-250, at 18 (1998) ("The functions or duties of the office that can be performed only by the head of the executive agency are therefore defined as the non-delegable functions or duties of the officer . . . .").

It does not appear that courts have considered what precise language suffices to make a duty nondelegable. Cf. Fed. Vacancies Reform Act of 1998 - Assistant Attorney Gen. for the Office of Legal Counsel, U.S. Dep't of Justice, B-310780, 2008 U.S. Comp. Gen. LEXIS 101 (Comp. Gen. June 13, 2008) ("This [5 U.S.C. § 3348(a)(2)] requires language that clearly signals duties or functions that cannot be delegated, such as providing final approval or final decisionmaking authority in a particular position.").

E.g., Office of Thrift Supervision v. Paul, 985 F. Supp. 1465, 1474-75 (S.D. Fla. 1997) (holding that prior version of Vacancies Act was "not implicated" because officer formerly in vacant office had "validly delegated his responsibilities" to another officer via administrative orders, and that other officer's power to act was therefore "derived from the OTS Orders, not the statutory fall back provisions of the Vacancies Act"). Of course, such a delegation will be lawful only if the power was validly delegated by someone with the authority to do so—which might not be the case if the officer who formerly possessed those powers left without delegating any responsibilities. See id. In most cases, however, a head of an agency would likely have the ultimate authority to delegate responsibilities. Cf. id. at 1475 n.9 ("The Court does not hold that such a designation could be indefinite, and the Court has no occasion to decide that issue at this time.").

See 5 U.S.C. § 3348.

See Schaghticoke Tribal Nation, 587 F. Supp. 2d at 421. In that case, the Secretary of the Interior delegated all legally delegable duties of a vacant office to an inferior officer. Id. at 420. One of those duties was the ability to make "tribal acknowledgment decisions." Id. The Schaghticoke Tribal Nation challenged the inferior officer's decision not to "acknowledge" the group as an Indian tribe, arguing in part that the officer was unlawfully exercising a function or duty of a vacant office. Id. at 419. In response, the court considered whether the authority to make acknowledgement decisions was a nondelegable function and concluded that it was not. Id. at 420-21. The court also held that it did not matter that the inferior officer had acted after the time period prescribed by the Vacancies Act because the Act "sets no time limits on redelegations of nonexclusive duties." Id. at 421. See also Champaign Cty. v. U.S. Law Enforcement Assistance Admin., 611 F.2d 1200, 1207 (7th Cir. 1979) (holding assistant administrator's action did not violate prior version of Vacancies Act because he "was not acting in the capacity of Acting Administrator when he rejected the application, but as the Assistant Administrator with authority to deny applications delegated to him by the Administrator while the Administrator was still in office").

5 U.S.C. § 3348(b).

Id. §§ 3345, 3346, 3348. Additionally, as discussed supra notes 50 to 57 and accompanying text, the Vacancies Act allows a person to perform the duties of an office if another statute expressly authorizes "an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity." Id. §§ 3347, 3348.

Id. § 3345.

Id. § 3346.

5 U.S.C. § § 3345.

Id. § 3345(a)(1).

See 144 Cong. Rec. S12822 (daily ed. Oct. 21, 1998) (statement of Sen. Fred Thompson) ("The term 'first assistant to the officer' has been part of the Vacancies Act since 1868 . . . and the change in wording [to 'first assistant to the office'] is not intended to alter case law on the meaning of the term 'first assistant.'").

Compare Doolin Sec. Sav. Bank v. Office of Thrift Supervision, 156 F.3d 190, 192 (D.C. Cir. 1998) ("[W]hether internal [agency] documents referring to Fiechter as a 'first assistant' rendered him such for the purposes of the Vacancies Act is a matter of considerable uncertainty. Our opinion in Doolin [I] recognized that, according to 'one line of authority,' the position of 'first assistant' must be created by statute before the automatic succession provision of the Vacancies Act applies.") (quoting Doolin Sec. Sav. Bank v. Office of Thrift Supervision (Doolin I), 139 F.3d 203, 209 n.3 (D.C. Cir. 1998)), with 144 Cong. Rec. S11037 (daily ed. Sept. 28, 1998) (statement of Sen. Joseph Lieberman) (describing "first assistant" as "a term of art that generally refers to the top deputy"). See also Guidance on Application of Fed'l Vacancies Reform Act of 1998, 28 Op. O.L.C. 60, 63 (1999) ("At a minimum, a designation of a first assistant by statute, or by regulation where no statutory first assistant exists, should be adequate to establish a first assistant for purposes of the Vacancies Reform Act.").

E.g., 28 U.S.C. § 508 ("[F]or the purpose of section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney General."); 28 C.F.R. § 0.137(b) (2017) ("Every office within the Department to which appointment is required to be made by the President with the advice and consent of the Senate . . . shall have a First Assistant within the meaning of the Federal Vacancies Reform Act of 1998. Where there is a position of Principal Deputy to the . . . office, the Principal Deputy shall be the First Assistant. Where there is no position of Principal Deputy . . . , the First Assistant shall be the person whom the Attorney General designates in writing."); Designation of Acting Associate Attorney Gen., 25 Op. O.L.C. 177, 177 (2001) (concluding that "unless the President designates another person as the Acting Associate Attorney General under the [Vacancies] Act, . . . the Principal Deputy[] is actually required" by a regulation that designates principal deputies as first assistants "to perform the functions and duties of the office of the Associate Attorney General in an acting capacity").

See supra note 73.

5 U.S.C. § 3345. This directive may come only from the President. Id. There is one additional class who may serve as an acting officer: if an officer serves a fixed term rather than serving at the pleasure of the President, and the President has nominated that officer "for reappointment for an additional term to the same office in an Executive department without a break in service," then the President may direct that officer to serve, subject to the same time limitations imposed by the Vacancies Act on any other acting officer. Id. § 3345(c)(1).

Id. § 3345(a)(2).

Id. § 3345(a)(3).

See 5 U.S.C. § 3345(b); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017). In NLRB v. SW General, Inc., the Supreme Court held that 5 U.S.C. § 3345(b)(1) applied to all three classes of persons who might serve as acting officers under the Vacancies Act, rather than only to first assistants serving under 5 U.S.C. § 3345(a)(1). SW Gen, 137 S. Ct. at 938. For more on this decision, see CRS Legal Sidebar WSLG1840, Help Wanted: Supreme Court Holds Vacancies Act Prohibits Nominees from Serving as Acting Officers, by [author name scrubbed].

SW Gen, 137 S. Ct. at 944.

See 5 U.S.C. § 3345(b); SW Gen, 137 S. Ct. at 944.

Marcia Coyle, Noel Francisco, Trump's Solicitor General Pick, Is Sidelined for Now, The Nat'l Law J. (Apr. 6, 2017), http://www.law.com/nationallawjournal/almID/1202783127057/.

Id. Francisco replaced Ian Gershengorn in this role, who had himself been a Principal Deputy Solicitor General serving as Acting Solicitor General. See Attorney General Loretta E. Lynch Statement on Planned Departure of Solicitor General Donald B. Verrilli Jr. (June 2, 2016), available at https://www.justice.gov/opa/pr/attorney-general-loretta-e-lynch-statement-planned-departure-solicitor-general-donald-b.

Coyle, supra note 82.

Id.

See id.; see also Amy Howe, Opinion analysis: Court limits "acting" appointments to fill vacancies, SCOTUSblog (Mar. 22, 2017), http://www.scotusblog.com/2017/03/opinion-analysis-court-limits-acting-appointments-fill-vacancies/.

163 Cong. Rec. S5835 (daily ed. Sept. 19, 2017) (recording Rollcall Vote No. 201 Ex.).

See 5 U.S.C. § 3345(b)(1)(A).

See id. § 3345(b)(2).

See id. § 3345(b).

See 28 C.F.R. § 0.137(b) (2017) ("Every office within the Department to which appointment is required to be made by the President with the advice and consent of the Senate . . . shall have a First Assistant within the meaning of the [Vacancies Act]. Where there is a position of Principal Deputy to [an advice and consent position], the Principal Deputy shall be the First Assistant.").

See Jimmy Hoover, Jones Day Attys Nab Key Legal Jobs in Trump Administration, Law 360 (Jan. 20, 2017), https://www.law360.com/articles/883009/jones-day-attys-nab-key-legal-jobs-in-trump-administration; Amy Howe, Francisco confirmed as solicitor general, SCOTUSblog (Sept. 19, 2017), http://www.scotusblog.com/2017/09/francisco-confirmed-solicitor-general/.

These time limitations do not apply, however, to "a vacancy caused by sickness." 5 U.S.C. § 3346(a).

Id. § 3346(a).

See id. Thus, as a technical matter, the submission of a nomination does not stop the clock on the 210-day period. That 210-day counter keeps running. Nevertheless, as a practical matter, the President's submission of a nomination to Congress renders the 210-day period irrelevant. Often, the submission and pendency of a nomination will take longer than 210 days. But even if a nomination is rejected, withdrawn, or returned before 210 days have passed, that return will trigger a new 210-day period, as discussed infra note 105 and accompanying text. See 5 U.S.C. § 3346(b).

See 5 U.S.C. § 3346.

See id. § 3346(a)(1). However, "[i]f a vacancy occurs during an adjournment of the Congress sine die, the 210-day period . . . shall begin on the date that the Senate first reconvenes." Id. § 3346(c). Additionally, "[i]f the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period." Id. § 3348(c).

See id. § 3346(a)(1) (stating that an acting officer may serve in the office "for no longer than 210 days beginning on the date the vacancy occurs") (emphasis added).

See id. § 3349a.

This provision refers to the "transitional inauguration day," defined as "the date on which any person swears or affirms the oath of office as President, if such person is not the President on the date preceding the date of swearing or affirming such oath of office." Id. § 3349a(a). The relevant period in which a vacancy must exist is "the 60-day period beginning on a transitional inauguration day." Id. § 3349a(b).

Id. § 3349a(b). In effect, an acting official may serve for a 300-day period during a presidential transition. Id.

See id. § 3348. The Comptroller General is required to report any officer "serving longer than the 210-day period including the applicable exceptions to such period" to various congressional committees, the President, and the Office of Personnel Management. Id. § 3349(b).

Id. § 3346(a)(2). However, 5 U.S.C. § 3345(b) generally limits the ability of a person to serve as acting officer if that person is the one nominated to the position, as discussed supra "Ability to Serve If Nominated to Office."

144 Cong. Rec. S11022 (daily ed. Sept. 28, 1998) (statement of Sen. Fred Thompson) ("The acting officer may continue to serve beyond [210] days if the President submits a nomination for the position even if that occurs after the [210th] day. So at the [210]-day expiration, the President still has it within his sole discretion to make the nomination; just simply send the nomination up and the acting officer can come back once again and assume his duties."). See also Guidance on Application of Fed'l Vacancies Reform Act of 1998, 28 Op. O.L.C. 60, 68 (1999) (describing 5 U.S.C. § 3346 as containing a "spring-back provision, which permits an acting officer to begin performing the functions and duties of the vacant office again upon the submission of a nomination").

5 U.S.C. § 3346(b)(1).

Id. § 3346(b)(2)(A).

Id. § 3346(b)(2)(B).

See id. § 3346(a)(2).

See id. § 3348.

See id. § 3348; supra "What Are the "Functions and Duties" of an Office?."

See 5 U.S.C. § 3348. Of course, other statutes or regulations might impact the analysis of whether a particular delegation of authority, or a particular exercise of delegated authority, is lawful. E.g. 5 U.S.C. § 302 (authorizing heads of agencies to delegate supervisory authority); NASA v. FLRA, 527 U.S. 229, 261 (1999) (Thomas, J., dissenting) (recognizing implicitly that 5 U.S.C. § 302 limits authority of agency officials to discipline agency employees, absent compliant delegation). See also, e.g., Action for Boston Cmty. Dev. v. Shalala, 983 F. Supp. 222, 228-29 (D. Mass. 1997) (considering whether agency had offered sufficient evidence to demonstrate Secretary of Health and Human Services had properly delegated decisionmaking authority to regional administrator).

Fed. Vacancies Reform Act of 1998 - Assistant Attorney Gen. for the Office of Legal Counsel, U.S. Dep't of Justice, B-310780, 2008 U.S. Comp. Gen. LEXIS 101 (Comp. Gen. June 13, 2008). The Principal Deputy Assistant Attorney General had performed these responsibilities after the time periods given in the Vacancies Act had ended. Id.

Id.

Id. (emphasis added). The GAO noted first that there were "no statutory functions or duties for the position of Assistant Attorney General for the OLC, either non-delegable or delegable." Id. The GAO then concluded that although regulations assigned a number of duties to the Assistant Attorney General for the OLC, and specifically vested that officer with supervisory responsibility, the regulations were not "sufficiently prescriptive for [the OLC] to conclude that they assign non-delegable duties." Id.

See supra "What Are the "Functions and Duties" of an Office?."

5 U.S.C. § 3348(a)(2) (defining "function or duty" to include only those functions or duties "required by" statute or regulation "to be performed by the applicable officer (and only that officer)").

S. Rep. No. 105-250, at 18 (1998) ("The functions or duties of the office that can be performed only by the head of the executive agency are therefore defined as the non-delegable functions or duties of the officer . . . .").

U.S. Const. art. II, § 2, cl. 2.

See, e.g., 144 Cong. Rec. S11021 (daily ed. Sept. 28, 1998) (statement of Sen. Fred Thompson) ("As participants in the appointments process, we Senators have an obligation, I believe, to ensure that the appointments clause functions as it was designed, and that manipulation of executive appointments not be permitted.").

5 U.S.C. § 3347. As discussed supra note 52, the legislative history suggests that legislators were especially concerned with the fact that the Department of Justice was using general vesting and delegation statutes to evade the Vacancies Act's limitations on acting service.

See 5 U.S.C. § 3348.

See, e.g., United States v. Giordano, 416 U.S. 505, 523 (1974) (concluding statute that authorized delegation of authority nonetheless "confin[ed] the authority to approve wiretap applications to the Attorney General or a designated Assistant Attorney General") ; 3 U.S.C. § 301 (authorizing President to delegate functions but requiring delegation to "be in writing, [and] . . . be published in the Federal Register"); 10 U.S.C. § 138(c) ("[A]n Assistant Secretary may not issue an order to a military department unless . . . the Secretary of Defense has specifically delegated that authority to the Assistant Secretary in writing; and . . . the order is issued through the Secretary of the military department concerned."); P.L. 104-53, § 211, 109 Stat. 468, 535 (1995) (transferring certain functions of Comptroller General to Director of Office of Management and Budget and providing that "[t]he Director may delegate any such function, in whole or in part, to any other agency or agencies if the Director determines that such delegation would be cost-effective or otherwise in the public interest"). See generally Panama Refining Co. v. Ryan, 293 U.S. 388, 448 (1935) (noting that where Congress has delegated legislative power "subject to a condition, it is a requirement of constitutional government that the condition be fulfilled"); United States v. Touby, 909 F.2d 759, 769 (3d Cir. 1990) ("The central inquiry with respect to a subdelegation challenge is whether Congress intended to limit the delegatee's power to subdelegate.").

See 5 U.S.C. § 3348.

Id. § 3347.

Id. § 3349(b).

See id.

See generally, e.g., Andrew McCanse Wright, Constitutional Conflict and Congressional Oversight, 98 Marq. L. Rev. 881 (2014). The reporting requirement may result in the GAO issuing a formal opinion about whether a particular acting officer is complying with the Vacancies Act. See, e.g., Fed. Vacancies Reform Act of 1998 - Assistant Attorney Gen. for the Office of Legal Counsel, U.S. Dep't of Justice, B-310780, 2008 U.S. Comp. Gen. LEXIS 101 (Comp. Gen. June 13, 2008).

See S. Rep. No. 105-250, at 19-20 (1998) ("The Committee expects that litigants with standing to challenge purported agency actions taken in violation of these provisions will raise non-compliance with this legislation in a judicial proceeding challenging the lawfulness of the agency action.").

See 5 U.S.C. § 3348(d).

Supra notes 19 to 27 and accompanying text.

See, e.g., Interstate Commerce Comm'n v. Am. Trucking Ass'ns, 467 U.S. 354, 358 (1984).

See 5 U.S.C. § 3348(d) ("An action taken by any person who is not acting [in accordance with the Vacancies Act] in the performance of any function or duty of a vacant office to which [the Vacancies Act applies] shall have no force or effect.") (emphasis added).

Although the court ultimately upheld the agency's action, one example of such a challenge is found in Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 419-20 (D. Conn. 2008), aff'd, 587 F.3d 132 (2d Cir. 2009). Cf. Williams v. Phillips, 360 F. Supp. 1363, 1364, 1367 (D.D.C. 1973) (considering whether Vacancies Act authorized person's service as Acting Director of the Office of Economic Opportunity in the context of a suit brought by Senators to remove person from that position).

As of October 26, 2017, running a Shepard's Report on 5 U.S.C. § 3348 on Lexis Advance Research returns 32 federal court cases; narrowing the cases to those decided after January 1, 1998 drops the number of cases to 14.

5 U.S.C. § 3348(d).

NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938 n.2 (2017). This interpretation is consistent with the version of Black's Law Dictionary that was current at the time the Vacancies Act was enacted. See Black's Law Dictionary (6th ed. 1990) (defining "void" as "[a]n instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it") (emphasis added).

5 U.S.C. § 706. Cf. Utah Power & Light Co. v. United States, 243 U.S. 389, 410 (1917) ("If any of the regulations go beyond what Congress can authorize or beyond what it has authorized, those regulations are void and may be disregarded . . . ."); Catholic Social Serv. v. Shalala, 12 F.3d 1123, 1125 (D.C. Cir. 1994) ("Appellants claim that the rule in question . . . is, as a matter of administrative law, ultra vires and void ab initio. It is as if the Secretary wrote the rule on a scratch pad, left it in her home, and never published it in the Federal Register."); id. at 1128 (disagreeing with appellants that APA renders rule invalid in its entirety, "where only a part is invalid, and where the remaining portion may sensibly be given independent life"); United States v. Amdahl Corp., 786 F.2d 387, 392-93 (Fed. Circ. 1986) (stating that "[a]dministrative actions taken in violation of statutory authorization or requirement are of no effect" and considering consequences that flow from a court's determination that contract is void, rather than voidable).

5 U.S.C. § 706(2). See also Lion Health Servs. v. Sebelius, 635 F.3d 693, 704 (5th Cir. 2011) (holding rule invalid under APA "because it directly contradicts Congress's unambiguously expressed intent" and concluding lower court had jurisdiction "to declare the Regulation invalid, set it aside, and enjoin the Secretary from enforcing it"); NextWave Pers. Commc'ns, Inc. v. FCC, 254 F.3d 130, 149 (D.C. Cir. 2001) ("This provision [5 U.S.C. § 706(2)] requires us to invalidate agency action not only if it conflicts with an agency's own statute, but also if it conflicts with another federal law.").

5 U.S.C. § 3348(b).

Id. § 3348(d). See generally Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 172-73 (2012) (discussing when presumption of consistent usage should be applied to interpret similar words in distinct statutes similarly).

SW Gen., Inc., 137 S. Ct. at 938 n.2; 5 U.S.C. § 3348. See supra note 46 and accompanying text.

5 U.S.C. § 3348(e).

See id. § 3348.

See SW Gen., Inc., 137 S. Ct. at 938 n.2; SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015).

See SW Gen., Inc., 796 F.3d at 79. Although there is relatively little case law evaluating this distinction in the context of administrative law, there is a significant body of law defining what it means for contracts to be void. See, e.g., United States v. Amdahl Corp., 786 F.2d 387, 393 (Fed. Circ. 1986) (noting that if contract with agency is void, no damages can be awarded); Restatement (Second) of Contracts ch. 1, § 7 cmt. a (2008) (distinguishing "void" contracts from voidable ones, and asserting that a "void" contract is not a contract at all, because "it is the 'promise' or 'agreement' that is void of legal effect"); id. at ch. 7, topic 1, § 163 cmt. c (noting that distinction between void and voidable contracts "has important consequences," and stating as example that void contract may not be ratified by recipient of misrepresentation).

See SW Gen., Inc., 796 F.3d at 79. Counsel for NLRB apparently had not raised this argument, and accordingly the D.C. Circuit "express[ed] no view" on whether it was correct. Id.

See 5 U.S.C. § 3348.

See id. §§ 3348, 3349.