The Vacancies Act: A Legal Overview
Updated August 1, 2022
Congressional Research Service
https://crsreports.congress.gov
R44997

The Vacancies Act: A Legal Overview

Summary
The Federal Vacancies Reform Act of 1998 (Vacancies Act) generally provides the exclusive
means by which a government employee may temporarily perform the functions and duties of a
vacant advice-and-consent position in an executive agency. Unless an acting officer is serving in
compliance with the Vacancies Act, any attempt to perform the functions and duties of that office
will have no force or effect.
The Vacancies Act limits a government employee’s ability to serve as an acting officer in two
primary ways. First, the Vacancies Act provides that only three classes of people may serve
temporarily in an advice-and-consent position. As a default rule, the first assistant to a position
automatically becomes the acting officer. Alternatively, the President may direct either a senior
official of the agency or a person serving in any other advice-and-consent position to serve as the
acting officer. Second, the Vacancies Act limits the length of time a person may serve as acting
officer: a person may serve either (1) for a limited time period running from the date that the
vacancy occurred or (2) during the pendency of a nomination to that office, with some extensions
if the nomination is rejected, withdrawn, or returned. The Vacancies Act is primarily enforced
when a person who has been injured by an agency’s action challenges the action based on the
theory that it was taken in contravention of the Act.
There are, however, a few key limitations on the scope of the Vacancies Act. The Vacancies Act
has largely been interpreted to govern the ability of a person to perform only those functions and
duties of an office that are nondelegable. Unless a statute or regulation expressly specifies that a
duty must be performed by the absent officer, that duty may likely be delegated to another
government employee. In other words, under this interpretation, delegable job responsibilities are
outside the purview of the Vacancies Act. In addition, if another statute expressly authorizes
acting service, that other statute may render the Vacancies Act nonexclusive, or possibly even
inapplicable.
This report first describes the Vacancies Act’s scope and operation, identifying when the
Vacancies Act applies to a given office and which offices are exempt from its provisions. The
report then explains who may serve as an acting officer and for how long, focusing on the
limitations the Vacancies Act places on acting service. Next, the report discusses the Vacancies
Act’s enforcement mechanisms. Finally, the report turns to evolving legal issues regarding the
application of the Vacancies Act, including a discussion of how other federal laws may limit the
Act’s reach. Specifically, the report concludes by examining the interaction of the Vacancies Act
with agency-specific statutes, the ability to delegate the duties of a vacant office, and
constitutional considerations.
Congressional Research Service

The Vacancies Act: A Legal Overview

Background
The Appointments Clause of the Constitution generally requires high-level “officers of the United
States” to be appointed through nomination by the President, with the advice and consent of the
Senate.1 Appointment to these advice-and-consent positions can be a lengthy process, and officers
sometimes unexpectedly vacate offices, whether by resignation, death, or other absence, leaving
before a successor has been chosen.2 In particular, there are often a large number of vacancies
during a presidential transition, when a new President seeks to install new officers in important
executive positions.3 In the case of such a vacancy, Congress has long provided that individuals
who were not appointed to that office may temporarily perform the functions of that office.4
Usually, where a statute authorizes acting service, courts have said that “an acting officer is
vested with the same authority that could be exercised by the officer for whom he acts.”5
To serve as an acting officer for an advice-and-consent position, a government officer or
employee generally must be authorized to perform the duties of a vacant office by the Federal
Vacancies Reform Act of 1998 (Vacancies Act).6 The Vacancies Act allows only certain classes of
employees to serve as an acting officer for an advice-and-consent position,7 and specifies that
they may serve for only a limited period.8 If a covered acting officer’s service is not authorized by
the Vacancies Act, any attempt by that officer to perform a “function or duty” of a vacant office
has “no force or effect.”9
This report first describes the Vacancies Act’s scope and operation, identifying when the
Vacancies Act applies to a given office and which offices are exempt from its provisions. The
report then explains who may serve as an acting officer and for how long, focusing on the
limitations the Vacancies Act places on acting service. Next, the report discusses how the
Vacancies Act is enforced. Finally, the report turns to evolving legal issues regarding the
application of the Vacancies Act, including a discussion of how other federal laws may limit the
Act’s reach. Specifically, the report concludes by examining the interaction of the Vacancies Act

1 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.”). 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 Henry B. Hogue.
2 See generally Anne Joseph O’Connell, Actings, 120 COLUM. L. REV. 613, 638–48 (2020) (summarizing previous
empirical research on executive branch vacancies and providing new data on Cabinet-level vacancies).
3 See, e.g., CRS Insight IN11541, Presidential Transitions: Executive Branch Political Appointment Status, by Henry
B. Hogue.
4 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).
5 In re Grand Jury Investigation, 916 F.3d 1047, 1055 (D.C. Cir. 2019). Cf. Nw. Immigrant Rights Project v. U.S.
Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 69 (D.D.C. 2020) (holding that a statute authorizing “the Secretary”
of Homeland Security to designate an order of succession “to serve as Acting Secretary” did not authorize an acting
Secretary to change the order of succession).
6 5 U.S.C. §§ 3345–3349c.
7 Id. § 3345.
8 Id. §§ 3346, 3349a.
9 Id. § 3348(d).
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with agency-specific statutes, the ability to delegate the duties of a vacant office, and
constitutional Appointments Clause considerations.
Scope and Operation of the Vacancies Act
The Vacancies Act generally provides “the exclusive means for temporarily authorizing an acting
official to perform the functions and duties of any office of an Executive agency . . . for which
appointment is required to be made by the President, by and with the advice and consent of the
Senate.”10 The Vacancies Act may sometimes operate in tandem with agency-specific statutes that
provide for a specific official to serve in the case of a vacancy.11 The Vacancies Act applies if an
officer serving in an advice-and-consent position in the executive branch “dies, resigns, or is
otherwise unable to perform the functions and duties of the office.”12 Some have suggested that
the Vacancies Act may not apply in the case of a presidential removal from office13 or in the case
of a temporary rather than permanent absence,14 but the phrase “unable to perform the functions
and duties of the office” appears relatively broad on its face, and the Vacancies Act does not
expressly exclude firings or temporary absences.15
Although some positions are excluded from the Vacancies Act,16 ordinarily a person may not
temporarily perform “the functions and duties” of a vacant advice-and-consent position unless
that service comports with the Vacancies Act.17 The Vacancies Act specifies that a “function or
duty” is one that, by statute or regulation, must be performed by the officer in question.18 Section
334819 provides that, “unless an officer or employee is performing the functions and duties [of an

10 Id. § 3347(a).
11 See infra “Exclusivity of the Vacancies Act.”
12 5 U.S.C. §§ 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).
13 See, e.g., United States v. Valencia, No. 5:17-CR-882-DAE, 2018 U.S. Dist. LEXIS 200564, at *11–12 (W.D. Tex.
Nov. 27, 2018); Ben Miller-Gootnick, Boundaries of the Federal Vacancies Act, 56 HARV. J. ON LEGIS. 459, 460
(2019). But cf. O’Connell, supra note 2, at 674 (noting textual, legislative history, and policy arguments “weigh[ing] in
favor of the Vacancies Act applying to firings”).
14 Cf., e.g., English v. Trump, 279 F. Supp. 3d 307, 322 (D.D.C. 2018) (noting party’s argument that agency-specific
statute referring to “absence or unavailability” includes only vacancies resulting from “temporary” conditions,
opposing this language to that of the Vacancies Act); In re Grand Jury Investigation, 916 F.3d 1047, 1055–56 (D.C.
Cir. 2019) (concluding that an agency-specific statute authorizing acting service in the event of the Attorney General’s
“absence or disability” could apply when the Attorney General recused himself from certain investigations, because the
“single-issue recusal” qualified as “a ‘disability’ that created a vacancy”).
15 The Vacancies Act expressly refers to at least one form of temporary absence: sickness. See 5 U.S.C. § 3346
(providing that time limits on acting service do not apply to “a vacancy caused by sickness”).
16 See infra “Which Offices?”
17 See 5 U.S.C. §§ 3347–3348.
18 Id. § 3348(a)(2); see infra “What Are the “Functions and Duties” of an Office?”
19 This report refers to specific sections of the Vacancies Act using their location in Title 5 of the U.S. Code, rather than
referring to sections of P.L. 105-277, 112 Stat. 2681-611 (1998).
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office] in accordance with” the Act,20 “the office shall remain vacant.”21 If there is no acting
officer serving in compliance with the Vacancies Act, then generally “only the head of [an
agency] may perform” the functions and duties of that vacant office.22 As a result, Section 3348
usually allows three types of people to perform the functions and duties of an advice-and-consent
office when it is vacant: the agency head, a person complying with the Vacancies Act, or a person
complying with another statute that allows acting service.23 Section 3348 further provides that “an
action taken by any person who” is not complying with the Vacancies Act “in the performance of
any function or duty of a vacant office . . . shall have no force or effect.”24 The Vacancies Act also
states that an agency may not ratify any acts taken in violation of the statute.25 Enforcement is
discussed in more detail below.26
Which Offices?
The Vacancies Act generally applies to advice-and-consent positions in executive agencies.27 The
term “Executive agency”28 is defined broadly in Title 5 of the U.S. Code to mean “an Executive
department, a Government corporation, [or] an independent establishment.”29 However, the
Vacancies Act explicitly excludes certain offices altogether.30 First, the Vacancies Act does not
apply to officers of the Government Accountability Office (GAO).31 Second, a distinct provision
states that the Vacancies Act does not apply to (1) a member of a multimember board that

20 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 provisions are explained in more detail infra, “Vacancies Act Limitations on
Acting Service,” and “Exclusivity of the Vacancies Act.”
21 5 U.S.C. § 3348(b).
22 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 likely that no one can temporarily perform
the functions and duties of that office under the Vacancies Act. See S. REP. NO. 105-250, at 19 (1998) (“If the head of
the agency position is vacant for more than 150 days without a nomination being sent to the Senate, the office is to
remain vacant.”).
23 5 U.S.C. § 3348(b).
24 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.”
25 Id. § 3348(d)(2).
26 See infra “Consequences of Violating the Vacancies Act.”
27 5 U.S.C. § 3347.
28 Id.
29 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).
30 5 U.S.C. §§ 3345, 3348.
31 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 GAO. Id.
§§ 3345(a), 3347(a), 3348(b), 3349(a). Although the GAO is generally considered to be a legislative agency rather than
an executive branch agency, see, e.g., Colonial Press Int’l, Inc. v. United States, 788 F.3d 1350, 1357 (Fed. Cir. 2015),
it is expressly excluded from the Vacancies Act—likely because another statute, 5 U.S.C. § 104, expressly identifies
the GAO as an “independent establishment” falling within the generally applicable definition of “executive agency”
provided in 5 U.S.C. § 105.
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“governs an independent establishment or Government corporation”; (2) a “commissioner of the
Federal Energy Regulatory Commission”; (3) a “member of the Surface Transportation Board”;
or (4) a federal judge serving in “a court constituted under article I of the United States
Constitution.”32
Additionally, while not excluded from the other requirements of the Vacancies Act,33 certain
offices are exempt from the provision allowing only agency heads to perform the duties of a
vacant office and the provision that renders noncompliant actions void.34 Specifically, the statute
states that Section 3348 does not apply to:
(1) the General Counsel of the National Labor Relations Board;
(2) the General Counsel of the Federal Labor Relations Authority;
(3) any Inspector General appointed by the President, by and with the advice and consent
of the Senate;
(4) any Chief Financial Officer appointed by the President, by and with the advice and
consent of the Senate; or
(5) an office of an Executive agency (including the Executive Office of the President, and
other than the Government Accountability Office) if a statutory provision expressly
prohibits the head of the Executive agency from performing the functions and duties of
such office.35
The legislative history of the Vacancies Act sheds some light on the purpose of this exemption,
suggesting that Congress sought to exclude these “unusual positions” from Section 3348 because
these officials are meant to be independent of the commission or agency in which they serve.36
The Senate report accompanying the Act suggests that for at least some of these positions,
Congress intended “to separate the official who would investigate and charge potential violations
of the underlying regulatory statute from the officials who would determine whether that statute
had actually been violated.”37 Allowing the head of the agency to perform the nondelegable duties
of these positions would undermine the independence of these positions.38
It is unclear what the consequences are if an acting officer in one of these exempt positions
violates the Vacancies Act.39 Because Section 3348 does not apply to those positions, it appears
that the law would not render noncompliant actions void.40 Instead, a court might conclude that

32 5 U.S.C. § 3349c. This first category would likely include, for example, members of the National Credit Union
Administration Board, a multimember board that manages “an independent agency.” 12 U.S.C. § 1752a. One example
of an “Article I court” is the U.S. Court of Appeals for Veterans Claims. See, e.g., CRS In Focus IF11365, U.S. Court
of Appeals for Veterans Claims: A Brief Introduction, by Jonathan M. Gaffney.
33 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).
34 5 U.S.C. § 3348(b), (d), (e).
35 Id. § 3348(e).
36 S. REP. NO. 105-250, at 20 (1998). This portion of the report discusses the exemptions for General Counsels, but the
report offers distinct, but substantively similar, explanations for exempting the “agency inspectors general.” See id. The
report does not specifically discuss sub-subsection (4), containing the exemption for Chief Financial Officers, see id.,
because this provision was added after the committee’s consideration of the bill, 144 CONG. REC. S12823 (daily ed.
Oct. 21, 1998) (statement of Sen. Fred Thompson).
37 S. REP. NO. 105-250, at 20 (1998).
38 Id.
39 Infra “Consequences of Violating the Vacancies Act.”
40 See 5 U.S.C. § 3348(d), (e).
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any noncompliant acts are merely voidable—a legal distinction discussed below—or could
conclude that even if these officers violate the Vacancies Act, that law will not invalidate their
actions.41
Finally, the Vacancies Act contemplates that other statutes may, under limited circumstances,
either supplement or supersede its provisions.42 Section 3347 provides that the Vacancies Act is
exclusive unless “a statutory provision expressly” authorizes “an officer or employee to perform
the functions and duties of a specified office temporarily in an acting capacity.”43 However,
Section 3347 states that a general statute authorizing the head of an executive agency “to delegate
duties statutorily vested in that agency head to, or to reassign duties among, officers or employees
of such Executive agency” will not supersede the limitations of the Vacancies Act on acting
service.44 For instance, 28 U.S.C. § 510, which states generally that the Attorney General may
authorize any other employee to perform any function of the Attorney General, likely would not
render the Vacancies Act nonexclusive.45 To supplement or supersede the Vacancies Act, a statute
must “expressly” authorize “acting” service.46 Under certain circumstances, it might be the case
that more than one statute governs acting service in a given office,47 and that a person could
lawfully serve as an acting officer under either statute.48 This issue is discussed in more detail
below.49

41 See SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015); infra notes 171–181 and accompanying text.
42 See 5 U.S.C. §§ 3347, 3348(b). In addition, the Vacancies Act does not 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).
43 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).
44 5 U.S.C. § 3347(b). Legislative history suggests that Congress intended this provision to definitively counter the
Department of Justice’s assertion 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.”).
45 See 5 U.S.C. § 3347(a)(1).
46 Id. The committee report on the 1998 bill noted that the bill would “retain[] existing statutes” that contained such an
express authorization. S. REP. NO. 105-250, at 15–16 (1998).
47 See, e.g., Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016).
48 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.
49 See infra “Exclusivity of the Vacancies Act.”
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The Vacancies Act also makes certain exemptions for holdover provisions in other statutes:
Section 3349b provides that the Vacancies Act “shall not be construed to affect any statute that
authorizes a person to continue to serve in any office” after the expiration of that person’s term.50
What Are the “Functions and Duties” of an Office?
The Vacancies Act limits an officer or employee’s ability to perform “the functions and duties” of
a vacant advice-and-consent office.51 Section 3348 contains a definition providing that a
“function or duty” must be (1) established either by statute or regulation and (2) “required” by
that statute or regulation “to be performed by the applicable officer (and only that officer).”52 The
interpretation of “function or duty” has significant implications for an agency’s ability to delegate
the duties of a vacant office and for determining the consequences of violating the Vacancies Act.
For example, if an official performs a duty that is not within the scope of this definition, then
even if that official’s service did not comply with the Vacancies Act, Section 3348’s enforcement
provisions will not apply to invalidate the duty.53 The issues of enforcement and delegation are
discussed in more detail in later sections of this report.54
For duties established by regulation rather than statute, Section 3348 includes any function or
duty established by a regulation that was “in effect at any time during the 180-day period
preceding the date on which the vacancy occurs.”55 This 180-day provision has been referred to as
a “lookback” provision that requires the agency to assign or reassign any regulatory duties prior
to the vacancy.56 This provision suggests that a regulatory duty falls outside this definition if it is
not assigned to an office in the lookback period, and the Vacancies Act may not apply if an
agency attempts to assign a new duty to a vacant office after the vacancy occurs.57 Relying on
legislative history, the GAO has said this provision was also intended “to prevent agencies from

50 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. 5 U.S.C. § 3345(c)(1); infra note 103. 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).
51 5 U.S.C. §§ 3345(a), 3348(b), (d).
52 Id. § 3348(a)(2). The definition of “function or duty” is found in 5 U.S.C. § 3348 and applies only to “this section” of
the Vacancies Act. However, given that Section 3348 creates the Act’s enforcement mechanisms, the definition is
effectively controlling for the rest of the Act, as well. In other words, even if the language “functions and duties” as
used in Sections 3345 and 3347 were interpreted to mean something different than the text used in Section 3348, a duty
performed by a noncompliant official will have “no force or effect” under the Act only if it satisfies the definition in
Section 3348. But cf. Nina Mendelson, L.M.-M. v. Cuccinelli and the Illegality of Delegating Around Vacant Senate-
Confirmed Offices, YALE J. REG.: NOTICE & COMMENT (Mar. 5, 2020) (arguing that the Vacancies Act’s “requirements
for acting officers and time limitations on acting service could still be enforced under the Administrative Procedure
Act” even if a challenged action does not fall under the definition of “function or duty” used in Section 3348).
53 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per
curiam).
54 See infra “Consequences of Violating the Vacancies Act” and “Delegability of Duties.”
55 5 U.S.C. § 3348(a)(2)(B)(ii).
56 See L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 33 (D.D.C. 2020) (discussing “lookback provision”); Guidance on
Application of Fed. Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 71 (1999) (discussing “look-back provision”);
O’Connell, supra note 2, at 634 (discussing “look-back period”).
57 See S. REP. NO. 105-250, at 18 (1998) (“The bill does not include as duties or functions of the office those duties that
are limited or eliminated by statute after the date 180 days preceding the vacancy.”)
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re-issuing regulations providing that an office has no exclusive duties,”58 possibly also preventing
them from limiting the covered duties of the vacant office after the vacancy occurs.59
As one trial court described, there are at least two ways to interpret Section 3348’s definition of
“functions and duties”—and in particular, courts have disagreed about what it means for a statute
or regulation to “require[]” a duty to be performed “only” by the applicable officer.60 In the first
interpretation, “functions and duties” could refer to a more limited category of duties that are not
only assigned to one office by statute or regulation, but also may not be delegated to any other
official.61 In the second interpretation, the “functions and duties” of a vacant office could include
all the responsibilities that are expressly assigned by statute or regulation to one particular office
and that were not delegated to another office during the lookback period (even if they could have
been).62
Applying the first, narrower interpretation of “functions and duties,” the Vacancies Act has been
described as applying to only the nondelegable functions and duties of a vacant office because a
delegable duty is not a duty that may be performed “only” by the officer in the vacant office.63
One consequence of this interpretation is that temporary officials or subordinate officials may
perform the delegable duties of a vacant office without violating the Vacancies Act.64 Further,
under this view, even if a duty has not been delegated, as long as it is delegable, it will fall outside
the Section 3348 definition.65 A number of courts,66 along with the executive branch67 and the
Comptroller General,68 have seemingly adopted this view, concluding that the Vacancies Act
applies only to nondelegable duties. One federal court of appeals acknowledged that this

58 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, at *10 n.11 (Comp. Gen. June 13, 2008).
59 See S. REP. NO. 105-250, at 2 (1998) (“Such duties include duties established by regulation for the officer during any
part of the 180 days before the vacancy occurred, notwithstanding subsequent regulations that purported to limit those
duties.”).
60 L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 31 (D.D.C. 2020).
61 See id. at 31–32.
62 See id. at 31.
63 See, e.g., 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 . . . .”). Cf.,
e.g., Crawford-Hall v. United States, 394 F. Supp. 3d 1122, 1133 (C.D. Cal. 2019) (referring to an office’s “exclusive”
duties).
64 See, e.g., ANNE JOSEPH O’CONNELL, ADMIN. CONFERENCE OF THE U.S., ACTING AGENCY OFFICIALS AND
DELEGATIONS OF AUTHORITY 28 (2019) (discussing agency practice of using delegations as a substitute for acting
service under the Vacancies Act). Even if the Vacancies Act is not understood to bar delegation, however, the
delegation may be challenged on its own terms. The legal principles that generally govern courts’ analyses of whether a
delegation is permissible are discussed infra “Delegability of Duties.” For example, 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 Office of Thrift
Supervision v. Paul, 985 F. Supp. 1465, 1474–75 (S.D. Fla. 1997); see also 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.”).
65 Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); see
also infra “Consequences of Violating the Vacancies Act.”
66 E.g., Kajmowicz v. Whitaker, No. 21-2434, 2022 U.S. App. LEXIS 20103, at *11–12 (3d Cir. July 21, 2022);
Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1336 (Fed. Cir. 2022); Stand Up for Cal.! v. U.S. Dep’t of
Interior, 994 F.3d 616, 622 (D.C. Cir. 2021); Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 420–21
(D. Conn. 2008), aff’d, 587 F.3d 132 (2d Cir. 2009).
67 E.g., Under Secretary of the Treasury for Enforcement, 26 Op. O.L.C. 230, 233–34 (2002).
68 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, at *12–13 (Comp. Gen. June 13, 2008).
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approach renders the Vacancies Act’s scope “vanishingly small,” as usually only a small subset of
an official’s duties will be nondelegable, but the court nonetheless concluded that this was the
best reading of Section 3348.69
For example, the GAO considered in 2008 whether a senior official in the Department of Justice’s
Office of Legal Counsel (OLC), the Principal Deputy Assistant Attorney General, had violated
the Vacancies Act by performing the responsibilities of an absent officer, the Assistant Attorney
General for the OLC.70 The GAO concluded that the principal deputy had not violated the
Vacancies Act because he had merely been performing the duties of his own position, which
included the delegated duties of the vacant office.71 The GAO approved of this delegation after
reviewing the relevant statutes and regulations and concluding that “there [were] no duties” that
could be performed only by the Assistant Attorney General.72 The Department of Justice has
likewise argued that Congress intended to allow the delegation of “non-exclusive responsibilities”
because Congress “understood” that if only the head of an agency could perform all of a vacant
office’s duties, “the business of the government could be seriously impaired.”73
By contrast, some trial courts have concluded that the second, broader interpretation of “function
or duty” described above is more consistent with the text, operation, and purpose of the Vacancies
Act.74 Specifically, for example, one of those courts said that the narrower reading of “function or
duty” was “at odds” with Congress’s intent to prohibit agency heads from invoking general
vesting-and-delegation statutes to evade the Vacancies Act.75 One of the Act’s primary purposes
was to prevent the Executive from appointing “officers of the United States”76 without Senate
advice and consent.77 Accordingly, Section 3347 provides that the Vacancies Act is “the exclusive

69 Arthrex, 35 F.4th at 1337.
70 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, at *7 (Comp. Gen. June 13, 2008). The Principal Deputy Assistant
Attorney General had performed these responsibilities after the time periods provided by the Vacancies Act had ended.
Id.
71 Id. at *12–13.
72 Id. at *5 (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. at *8. 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. at *11.
73 Guidance on Application of Fed. Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 72 (1999).
74 Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. 19-3629, 2022 U.S. Dist. LEXIS 93204, at *30–31 (D.D.C. May
24, 2022); Asylumworks v. Mayorkas, No. 20-3815, 2022 U.S. Dist. LEXIS 21529, at *25 & n.8 (D.D.C. Feb. 7,
2022); Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946–47 (N.D. Cal. 2021); L.M.-M. v. Cuccinelli, 442 F.
Supp. 3d 1, 32 (D.D.C. 2020). As these citations suggest, three judges from the U.S. District Court for the District of
Columbia have reached this conclusion even though the D.C. Circuit’s decision in Guedes v. Bureau of Alcohol,
Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam), seemed to imply that Section 3348
encompasses only nondelegable duties. Those trial courts have declined to apply Guedes on the grounds that the
relevant statements in that opinion were dicta. E.g., L.M.-M., 442 F. Supp. 3d at 33 (“[T]he meaning of the vacant-
office provision was neither disputed nor decided in Guedes. Indeed, neither below nor on appeal did the parties dispute
whether the official’s appointment satisfied the [Vacancies Act], . . . nor did the parties contest that, by the time the
dispute reached the D.C. Circuit, the challenged rule had been validly ratified by a properly appointed official . . . .”
(citations omitted)).
75 Id. at 33.
76 U.S. CONST. art. II, § 2, cl. 2.
77 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.”).
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means” to authorize a person to temporarily perform the duties of a vacant advice-and-consent
office, and specifies that a statute that vests an agency head with the general authority to delegate
duties will not suffice to override the Vacancies Act.78 At the same time, a general vesting-and-
delegation statute likely renders many duties of an office delegable,79 and could permit an agency
head to delegate any delegable responsibilities of a vacant office to another official.80 As a result,
if the responsibilities of a particular advice-and-consent position primarily consist of delegable
duties, a general delegation statute could allow an agency employee to perform most of that
position’s responsibilities even though that employee was not appointed to that position through
the advice-and-consent process.81 The trial court said that by allowing “the mere existence of . . .
vesting-and-delegation statutes” to “negate” the Vacancies Act’s enforcement mechanisms, the
second reading would be inconsistent with the law’s purpose.82
Another trial court taking a broader view of the definition of “function or duty” agreed with these
arguments based on the statue’s purpose and also believed the broader approach was consistent
with the plain language of Section 3348.83 That court held that a federal regulation created a
function or duty “squarely within” the definition’s text because the regulation designated one
specific “officer and only that officer to perform the duty or function.”84 The regulation did not
“identify any other official” who could perform the function.85 In the court’s view, looking to the
agency’s vesting-and-delegation statute to conclude that the function was delegable would bring
in “a second, additional statute”—an “interpretive exercise” unsupported by the Vacancies Act’s
“unambiguous language.”86
Both approaches to interpreting “function or duty,” therefore, sometimes allow agencies to
delegate the duties of an office and thereby exclude those duties from the Vacancies Act’s
definition of function or duty: the first view broadly excludes any delegable duties, and the
second view honors regulatory delegations in effect during the 180-day lookback period.87 As
mentioned, the first reading interpreting the Vacancies Act to govern only a narrow set of
nondelegable duties has seemed to be the majority view.

78 5 U.S.C. § 3347. As discussed supra note 44, 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 also, e.g., Pub. Emps. for Env’t Resp., 2022 U.S. Dist. LEXIS 93204,
at *31–32 (taking a broader approach to Section 3348 and concluding that a provision allowing the Secretary of the
Interior to delegate any of the office’s functions was “not the kind of ‘agency-specific statute’ that is ‘intended to apply
alongside’” the Vacancies Act but was instead “a general authority that must be interpreted in light of the more specific
and limited authority in the” Vacancies Act (quoting English v. Trump, 279 F. Supp. 3d 307, 319 (D.D.C. 2018))).
79 See L.M.-M., 442 F. Supp. 3d at 34.
80 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per
curiam).
81 L.M.-M., 442 F. Supp. 3d at 34.
82 Id.
83 Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021).
84 Id. at 946.
85 Id. at 945–46.
86 Id. at 946.
87 L.M.-M., 442 F. Supp. 3d at 34; but cf. Behring Reg’l Ctr. LLC, 544 F. Supp. 3d at 947 (holding that a preexisting
delegation of the Secretary’s functions to the Deputy Secretary did “not apply” when there was no Deputy Secretary to
exercise the purportedly delegated statutory function).
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Vacancies Act Limitations on Acting Service
Section 3348 of the Vacancies Act allows only certain officers or employees to perform the
“functions and duties” of a vacant advice-and-consent office.88 Unless an acting officer is serving
in compliance with the Vacancies Act, only the agency head can perform a covered duty of a
vacant advice-and-consent office.89 The Vacancies Act creates two primary types of limitations on
acting service: it limits (1) the classes of people who may serve as an acting officer,90 and (2) the
time period for which they may serve.91
Who Can Serve as an Acting Officer?
Section 3345 allows three classes of government officials or employees to temporarily perform
the functions and duties of a vacant advice-and-consent office under the Vacancies Act.92 First, as
a default and automatic rule, once an office becomes vacant, “the first assistant to the office”
becomes the acting officer.93 The term “first assistant” is a term of art under the Vacancies Act.94
Nonetheless, the term is not defined by the Act and its meaning is somewhat ambiguous.95 The
Vacancies Act’s legislative history suggests that the term refers to an office’s “top deputy.”96 For
some offices, a statute or regulation explicitly designates an office to be the “first assistant” to

88 5 U.S.C. § 3348(b).
89 Id. §§ 3345, 3346, 3348. Additionally, as discussed supra notes 42 to 48 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.
90 Id. § 3345.
91 Id. § 3346.
92 Id. § 3345.
93 Id. § 3345(a)(1).
94 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.’”). Cf., e.g., L.M.-M. v. Cuccinelli,
442 F. Supp. 3d 1, 25–26 (D.D.C. 2020) (looking to a dictionary to determine the ordinary meaning of the term “first
assistant”).
95 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 Guidance on Application of Fed. Vacancies Reform Act of 1998, 23 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.”).
96 144 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 L.M.-M., 442 F. Supp. 3d at 24 (ruling that an official
was not a “first assistant” because he occupied a temporary position that would never “serve in a subordinate role—that
is, as an ‘assistant’—to any other . . . official”).
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that position.97 However, not all offices have such statutory or regulatory designations, and in
those cases, who qualifies as the “first assistant” to that office may be open to debate.98
One additional question has been whether a first assistant must be serving at the time the vacancy
occurs, or whether a person who later steps into the first assistant position can also serve as an
acting officer under this provision of the Vacancies Act.99 The most recent executive branch
position on this question concludes that new first assistants can step in as acting officials.100 In a
2001 opinion, the OLC noted that the text of the Vacancies Act refers to “the first assistant to the
office,” not the particular officer.101 The OLC emphasized that prior versions of the Act had
formerly used the phrase “first assistant to the officer,” and argued that requiring a first assistant
to be in place at the time of the vacancy would, in effect, improperly revive this old text by
requiring that person to be the first assistant to the departing officer.102
Apart from the first assistant, the President “may direct” two other classes of officials to serve as
acting officers instead.103 First, the President may direct a person who has been confirmed to a
different advice-and-consent position to serve as acting officer.104 Second, the President can select
a senior “officer or employee” of the same executive agency, if that employee served in that
agency for at least 90 days during the year preceding the vacancy and is paid at a rate equivalent
to at least a GS-15 on the federal pay scale.105
Section 3345 places an additional limitation on the ability of these three classes of officials to
serve as acting officers for an advice-and-consent position. As a general rule, if the President
nominates a person to the vacant position, that person “may not serve as an acting officer” for that
position.106 Thus, if the President nominates a person who is currently the acting officer for that

97 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) (2019) (“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.”).
98 See supra note 95; see also Designating an Acting Director of the Federal Housing Finance Agency, slip op. at 8
(Op. O.L.C. Mar. 18, 2019), https://www.justice.gov/olc/file/1220591/download (stating that where an agency has
multiple deputy directors, “none of them is obviously the . . . Director’s ‘first assistant’”).
99 See, e.g., L.M.-M., 442 F. Supp. 3d at 24 (noting that this “dispute poses a difficult question that the Office of Legal
Counsel has answered differently at different times”). Compare Guidance on Application of Federal Vacancies Reform
Act of 1998, 23 Op. O.L.C. 60, 64 (1999) (concluding that an officer “must be the first assistant when the vacancy
occurs in order to be the acting officer by virtue of being the first assistant”), with Designation of Acting Associate
Attorney General, 25 Op. O.L.C. 177, 180 (2001) (concluding that the prior OLC interpretation was erroneous and that
the Vacancies Act, particularly as amended by Congress, “does not require that the first assistant be in place at the time
the vacancy occurred to be the acting officer by virtue of being the first assistant”).
100 E.g., Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 180 (2001).
101 Id. at 179–80.
102 Id.
103 5 U.S.C. § 3345. This directive may come only from the President. Id. Whether a standing presidential order of
succession qualifies as such a directive is an open question in the courts. See T.D. v. Kijakazi, No. 19-cv-2542, 2022
U.S. Dist. LEXIS 10690, at *28 (D. Minn. Jan. 20, 2022). There is one additional class of officials who may serve as
acting officers: if an officer serves a fixed term, 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. 5
U.S.C. § 3345(c)(1).
104 5 U.S.C. § 3345(a)(2).
105 Id. § 3345(a)(3).
106 See id. § 3345(b); NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017). In NLRB v. SW General, Inc., the Supreme
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position, that person usually may not continue to serve as acting officer without violating the
Vacancies Act.107 The President may name another qualified person to serve as an acting officer
instead of the nominated person.108
The limitations of the Vacancies Act can create the need to shift government employees to
different positions within the executive branch. For example, in January 2017, shortly after
entering office, President Trump named Noel Francisco as Principal Deputy Solicitor General.109
Francisco then began to serve as Acting Solicitor General.110 In March of that year, the President
announced that he would be nominating Francisco to serve permanently as the Solicitor
General.111 After this announcement, Francisco was moved to another role in the department and
Jeffrey Wall, who was chosen by Francisco to be the new Principal Deputy Solicitor General,
became the acting Solicitor General.112 This last shift may have occurred to comply with the
Vacancies Act.113 Ultimately, the Senate confirmed Francisco to the position of Solicitor General
on September 19, 2017.114
There is an exception to this limitation: a person who is nominated to an office may serve as
acting officer for that office if that person is in a “first assistant” position to that office and either
(1) has served in that position for at least 90 days during the year preceding the vacancy115 or (2)
was appointed to that position through the advice-and-consent process.116 Returning to the
example of the Solicitor General position, it appears that Noel Francisco did not qualify for this
exception and could not continue to serve as the Acting Solicitor General, once nominated to that
position.117 Although Francisco may have been in a first assistant position, as the Principal

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 Valerie C. Brannon.
107 SW Gen., 137 S. Ct. at 944.
108 See 5 U.S.C. § 3345(b); SW Gen., 137 S. Ct. at 944.
109 Marcia Coyle, Noel Francisco, Trump’s Solicitor General Pick, Is Sidelined for Now, NAT’L LAW J. (Apr. 6, 2017),
http://www.law.com/nationallawjournal/almID/1202783127057.
110 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), https://www.justice.gov/opa/pr/attorney-general-loretta-e-lynch-
statement-planned-departure-solicitor-general-donald-b.
111 Coyle, supra note 109.
112 Id.
113 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.
114 163 CONG. REC. S5835 (daily ed. Sept. 19, 2017) (recording Rollcall Vote No. 201 Ex.).
115 See 5 U.S.C. § 3345(b)(1)(A).
116 See id. § 3345(b)(2). In addition, 5 U.S.C. § 3345(c) authorizes the President to direct “an officer who is nominated
. . . for reappointment for an additional term to the same office in an Executive department without a break in service,
to continue to serve in that office.”
117 See id. § 3345(b).
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Deputy Solicitor General,118 he had not served in that position for 90 days prior to the vacancy;
nor had he been appointed to that position through the advice-and-consent process.119
For How Long?
The Vacancies Act generally limits the amount of time that a vacant advice-and-consent position
may be filled by an acting officer.120 Section 3346 provides that a person may serve “for no longer
than 210 days beginning on the date the vacancy occurs,” or, “once a first or second nomination
for the office is submitted to the Senate, from the date of such nomination for the period that the
nomination is pending in the Senate.”121 These two periods are generally understood to run
independently and concurrently.122 Consequently, the submission and pendency of a nomination
allow an acting officer to serve beyond the initial 210-day period.123
Figure 1. Two Limited Periods of Service

Source: 5 U.S.C. § 3346.
The 210-day time limitation is tied to the vacancy itself, rather than to any person serving in the
office, and the period generally begins on the date that the vacancy occurs.124 This period does not
begin on the date an acting officer is named, and because it runs continuously from the

118 See 28 C.F.R. § 0.137(b) (2019) (“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.”).
119 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.
120 These time limitations do not apply, however, to “a vacancy caused by sickness.” 5 U.S.C. § 3346(a).
121 Id.
122 See id. But see T.D. v. Kijakazi, No. 19-cv-2542, 2022 U.S. Dist. LEXIS 10690, at *24 (D. Minn. Jan. 20, 2022)
(“[Section 3346] does not establish alternative periods of permissible service. Rather, § 3346 establishes a unified
period of permissive service that may be tolled in certain circumstances.”). As a technical matter, under the view that
these time periods are independent, 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. However, 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 133 and accompanying text. See 5 U.S.C. § 3346(b).
123 See 5 U.S.C. § 3346.
124 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).
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occurrence of the vacancy, the time limitation does not reset if the President names a new acting
officer.125 The period is extended during a presidential transition period when a new President
takes office.126 If a vacancy exists on the new President’s inauguration day or occurs within 60
days after the inauguration,127 then the 210-day period begins either 90 days after inauguration or
90 days after the date that the vacancy occurred, depending on which is later.128 If an acting
officer attempts to perform a function or duty of an advice-and-consent office after the 210-day
period has ended, and if the President has not nominated anyone to the office, that act will have
no force or effect.129
Alternatively, Section 3346 allows an acting officer to serve while “a first or second nomination
for the office . . . is pending in the Senate,” regardless of how long that nomination is pending.130
The legislative history of the Vacancies Act suggests that an acting officer may serve during the
pendency of a nomination even if that nomination is submitted after the 210-day period has run
following the start of the vacancy.131 Most courts, the GAO, and the executive branch have agreed
with this view, describing Section 3346 as containing a “spring-back” provision.132 “If the first
nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the
Senate,” then an acting officer may continue to serve for another 210-day period beginning on the
date of that rejection, withdrawal, or return.133 If the President submits a second nomination for
the office, then an acting officer may continue to serve during the pendency of that nomination.134
If the second nomination is also “rejected, withdrawn, or returned,” then an acting officer may
continue for one last 210-day period.135

125 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).
126 See 5 U.S.C. § 3349a.
127 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).
128 Id. § 3349a(b). In effect, an acting official may serve for a 300-day period during a presidential transition. Id.
129 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).
130 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 notes 106 to 119 and accompanying text.
131 144 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.”). .
132 See, e.g., Williams v. Kijakazi, No. 1:21-CV-141-GCM, 2022 U.S. Dist. LEXIS 106466, at *7–8 (W.D.N.C. Jun 14,
2022); Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998—Department of Energy,
Director of Office of Science, B-328888, slip op. at 2 (Comp. Gen. Mar. 3, 2017); Guidance on Application of Fed.
Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 68 (1999). But see T.D. v. Kijakazi, No. 19-cv-2542, 2022 U.S. Dist.
LEXIS 10690, at *28–30 (D. Minn. Jan. 20, 2022) (rejecting the “spring-back” interpretation and concluding that an
official who had surpassed the 210-day limit and was not “presently serving” at the time of the first nomination could
not serve after the first nomination was submitted).
133 5 U.S.C. § 3346(b)(1).
134 Id. § 3346(b)(2)(A).
135 Id. § 3346(b)(2)(B).
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An acting officer may not serve beyond this final period—the Vacancies Act will not allow acting
service during the pendency of a third nomination, or any subsequent nominations.136 The GAO
has said that where a vacancy spans presidential Administrations, if a former President already
submitted two nominations for the vacant position, these nomination-based time periods do not
reset for a new President.137 Under this reading, if, for example, a former President submitted one
nomination but withdrew it without confirmation, a new President’s first nomination to the
position would be the “second nomination” for purposes of the time limitations in Section 3346.
Again, if the acting officer serves beyond the pendency of the first or second nomination and the
subsequent 210-day periods, any action performing a function or duty of the office will have no
force or effect.138
Figure 2. Period of Service After Submission of Nomination

Source: 5 U.S.C. § 3346.
Consequences of Violating the Vacancies Act
The Vacancies Act may be enforced through both the political process and through litigation.
Several provisions of the Vacancies Act are centrally enforced through political measures rather
than through the courts. For example, while the Act provides that an “office shall remain vacant”
unless an acting officer is serving “in accordance with” the Vacancies Act, the statute does not

136 See id. § 3346(a)(2).
137 Department of Defense, Office of Inspector General—Legality of Service of Acting Inspector General, B-333853
(Comp. Gen. June 26, 2022).
138 See 5 U.S.C. § 3348.
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create a clear mechanism to directly implement this provision.139 Accordingly, the text of the
Vacancies Act does not contemplate a means of removing any noncompliant acting officers from
office.
If the Comptroller General determines that an officer has served “longer than the 210-day
period,” the Comptroller General must report this service to the appropriate congressional
committees.140 This provision does not require the Comptroller General to make any such
determination, may depend in part on agency reporting of vacancies,141 and contains no additional
enforcement mechanism.142 If the Comptroller General does make such a report to Congress, this
reporting mechanism may prompt congressional action pressuring the executive branch to comply
with the Vacancies Act, exerted through normal channels of oversight.143 For instance, in March
2018, the House Committee on Ways and Means Subcommittee on Social Security held a hearing
on a vacancy in the office of the Commissioner of Social Security.144 The day before the hearing,
the Comptroller General issued a letter reporting that the Acting Commissioner, Nancy Berryhill,
was violating the Vacancies Act.145 Shortly thereafter, Berryhill reportedly stepped down from the
position of Acting Commissioner, serving instead in her position of record as Deputy
Commissioner of Operations.146
The most direct means to enforce the Vacancies Act is through private suits in which courts may
nullify noncompliant agency actions.147 Violations of the Vacancies Act are generally enforced if
a third party with standing (such as a regulated entity that has been injured by agency action)
successfully challenges the action in court.148 Accordingly, for example, a number of lawsuits

139 Id. § 3347.
140 Id. § 3349(b). GAO’s website has a searchable database containing the vacancies that agencies have reported to
them. Federal Vacancies Reform Act, GAO, https://www.gao.gov/legal/other-legal-work/federal-vacancies-reform-act
(last visited Aug. 1, 2022).
141 A 2019 GAO opinion suggested that agencies are not fully compliant with their reporting obligations under the
Vacancies Act. Agency Compliance with the Federal Vacancies Reform Act for Positions Subject to the Jurisdiction of
Senate Finance Committee, B-329903, 2019 U.S. Comp. Gen. LEXIS 36 (Comp. Gen. Feb. 7, 2019).
142 See 5 U.S.C. § 3349(b).
143 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).
144 See Hearing on Lacking a Leader: Challenges Facing the SSA after over 5 Years of Acting Commissioners, H.
COMM. ON WAYS & MEANS (Mar. 7, 2018), https://waysandmeans.house.gov/event/hearing-lacking-leadership-
challenges-facing-ssa-5-years-acting-commissioners.
145 Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998—Commissioner, Social
Security Administration, B-329853 (Comp. Gen. Mar. 6, 2018).
146 Joe Davidson, Social Security Is Now Headless because of Trump’s Inaction. Will Other Agencies Be Decapitated?,
WASH. POST (Mar. 12, 2018), https://www.washingtonpost.com/news/powerpost/wp/2018/03/12/social-security-now-
headless-because-of-trumps-inaction-will-others-agencies-be-decapitated. See also, e.g., Extension of Expiration Dates
for Two Body System Listings, 83 Fed. Reg. 13863 (Apr. 2, 2018) (signed by “Nancy Berryhill, Deputy Commissioner
for Operations, performing the duties and functions not reserved to the Commissioner of Social Security”).
147 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.”).
148 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
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challenged actions of the Social Security Administration that depended on Berryhill’s authority as
Acting Commissioner.149 The Vacancies Act renders noncompliant actions “void ab initio,”150
meaning that they were “null from the beginning,”151 by providing that such actions have “no
force or effect.”152
The consequences that flow from a determination that an action is “void” are more severe than if
a court were to announce that the action was merely “voidable.”153 A “voidable” action is one that
may be judged invalid because of some legal defect, but that “is not incurable.”154 For instance,
before a court strikes down a voidable agency decision, it will often inquire into whether the legal
defect created actual prejudice.155 If an error is harmless, the court may uphold the agency
action.156 In contrast, acts that are “void” may not be ratified, meaning that another person who
properly exercises legal authority on behalf of an agency may not subsequently approve or
replicate the act, thereby rendering it valid.157 The Vacancies Act affirms this consequence by
explicitly specifying that an agency may not ratify any acts taken in violation of the statute.158
Accordingly, one court concluded that the Vacancies Act “clearly” prohibits “a statement or
directive that merely adopts an earlier action in identical form with no additional reasoning” but
clarified that agencies can sometimes reconsider a prior action and reach a similar outcome in a
separate action.159

to remove person from that position).
149 See, e.g., Williams v. Kijakazi, 2022 U.S. Dist. LEXIS 106466, at *4–10 (W.D.N.C. June 14, 2022).
150 See NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938 n.2 (2017); Asylumworks v. Mayorkas, No. 20-3815, 2022 U.S.
Dist. LEXIS 21529, at *31 (D.D.C. Feb. 7, 2022).
151 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.”).
152 See 5 U.S.C. § 3348(d).
153 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).
154 Easley v. Pettibone Mich. Corp., 990 F.2d 905, 909 (6th Cir. 1993).
155 See, e.g., SW Gen., Inc. v. NLRB, 796 F.3d 67, 79 (D.C. Cir. 2015), aff’d 137 S.Ct. 929, 944 (2017); Prof’l Air
Traffic Controllers Org. v. FLRA, 685 F.2d 547, 564 (D.C. Cir. 1982); L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 35–36
(D.D.C. 2020).
156 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.”).
157 See, e.g., FEC 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).
158 5 U.S.C. § 3348. Legislative history suggests that Congress was specifically concerned with overruling the decision
of the D.C. Circuit in Doolin Security Savings Bank v. Office of Thrift Supervision, 139 F.3d 203, 214 (D.C. Cir. 1998),
in which that court 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).
159 Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. 19-3629, 2022 U.S. Dist. LEXIS 93204, at *35–36 (D.D.C.
May 24, 2022). The court concluded in that case that the Vacancies Act did not invalidate an agency rule that qualified
as “a new deliberative action” even though the rule “reached a similar conclusion” as a prior action taken by an
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Federal district courts have sometimes vacated agency actions as void (as opposed to voidable)
after determining the challenged actions were taken by officials improperly performing the duties
of a vacant office.160 In reviewing these agency actions, some of these courts have cited not only
the “no force or effect” provision of the Vacancies Act, but also a provision of the Administrative
Procedure Act (APA) that directs courts to “hold unlawful and set aside” any agency action that is
“not in accordance with law.”161 For example, in L.M.-M. v. Cuccinelli, a federal district court
expressly ruled that both the Vacancies Act and the APA authorized the court to vacate the
agency’s actions.162 In applying the APA provision, the court considered the mitigating doctrine of
harmless error, asking whether the plaintiffs were prejudiced by the error.163 The court ultimately
concluded that the error was not harmless because a different acting officer, serving properly,
might have taken different actions.164 The L.M.-M. court did not, however, consider any
mitigating doctrines before concluding the actions had no force or effect under the Vacancies Act,
holding that the Act barred the court from considering the ratification doctrine.165
The Vacancies Act’s enforcement mechanisms—the no-force-or-effect provision and the no-
ratification provision—apply if a person performs a “function or duty” of the vacant office.166
Consequently, their application is subject to the interpretive dispute described above regarding the
proper interpretation of “function or duty.”167 The breadth of this definition can have significant
consequences for agency actions.168 Courts adopting a narrower definition of “function or duty”
have allowed delegable functions to be ratified,169 while the trial courts taking a broader approach
to the definition have concluded that Section 3348 prevented the ratification of functions
statutorily assigned to a vacant office.170
As mentioned above, it is not entirely clear what the consequences are if a person performs a
function or duty of a vacant office that falls within one of the exceptions from Section 3348.171
Certain offices are exempt from the provision that nullifies the noncompliant actions of an acting
officer,172 and the statute does not otherwise specify what consequences follow if a person

improperly acting official. Id. at *39.
160 E.g., Asylumworks v. Mayorkas, No. 20-3815, 2022 U.S. Dist. LEXIS 21529, at *33–34 (D.D.C. Feb. 7, 2022);
L.M.-M. v. Cuccinelli, 442 F. Supp. 3d 1, 35–36 (D.D.C. 2020); Crawford-Hall v. United States, 394 F. Supp. 3d 1122,
1154 (C.D. Cal. 2019).
161 5 U.S.C. § 706(2); Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1130 (D. Mont. 2020); L.M.-M.,
442 F. Supp. 3d at 34; Crawford-Hall, 394 F. Supp. 3d at 1154.
162 L.M.-M., 442 F. Supp. 3d at 35–36.
163 Id. at 35. The court also considered and rejected application of the de facto officer doctrine. Id.
164 Id.
165 Id. at 30–36. Cf. Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. 19-3629, 2022 U.S. Dist. LEXIS 93204, at
*30–31 (D.D.C. May 24, 2022) (concluding that Section 3348 barred ratification of a duty that had not been delegated,
but holding that a subsequent agency action was not merely a ratification of an action taken by an improperly serving
acting officer).
166 5 U.S.C. § 3348.
167 Supra “What Are the “Functions and Duties” of an Office?”
168 See, e.g., Kajmowicz v. Whitaker, No. 21-2434, 2022 U.S. App. LEXIS 20103, at *13–14 (3d Cir. July 21, 2022).
169 E.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).
170 E.g., Asylumworks v. Mayorkas, No. 20-cv-3815, 2022 U.S. Dist. LEXIS 21529, at *30–31 (D.D.C. Feb. 7, 2022);
Behring Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 948 (N.D. Cal. 2021).
171 Supra “Which Offices?”
172 5 U.S.C. § 3348(e).
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temporarily serving in one of those offices violates the Vacancies Act.173 In NLRB v. SW General,
Inc., the Supreme Court explicitly left open the question of remedy with respect to those officials
who are carved out of Section 3348.174 In that case, the Supreme Court held that the service of the
Acting General Counsel of the National Labor Relations Board (NLRB) violated the Vacancies
Act, but noted that this position was exempt “from the general rule that actions taken in violation
of the [Vacancies Act] are void ab initio.”175 The Court affirmed the D.C. Circuit ruling vacating
the Acting General Counsel’s noncompliant actions, but did not explicitly reconsider the issue of
remedy.176
The D.C. Circuit in SW General, Inc. had itself clarified that it was not fully exploring the
question of the appropriate remedy and was merely assuming, on the basis of the parties’
arguments, “that section 3348(e)(1) renders the actions of an improperly serving Acting General
Counsel voidable, not void.”177 Accordingly, because the D.C. Circuit assumed that the contested
actions were voidable, the court considered but ultimately rejected application of the harmless
error and de facto officer doctrines.178 The D.C. Circuit later held in another case that complaints
initially filed by the improperly appointed General Counsel had been ratified by a properly
appointed General Counsel, and therefore could not be challenged on the basis of the initial
improper appointment.179
Notwithstanding its decision to accept the parties’ litigating postures in SW General, the D.C.
Circuit expressly left open the possibility that the Vacancies Act might “wholly insulate the
Acting General Counsel’s actions,” so that the actions of an acting officer in one of these named
offices are not even voidable.180 It is possible that the Vacancies Act does not undermine the
legality of the actions of these specified officers, even if they violate the Act, and that, under this
interpretation, these positions could be indefinitely filled by acting officers without consequence
under the Vacancies Act. However, the Second Circuit has since suggested that a complaint issued
by the improperly serving NLRB Acting General Counsel was “void unless it was subsequently
ratified by a lawfully serving official.”181

173 See id. § 3348.
174 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 938 n.2 (2017); 5 U.S.C. § 3348.
175 SW Gen., Inc., 137 S. Ct. at 938 n.2.
176 See id. (noting that the NLRB had not sought certiorari on this issue).
177 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 Creative Vision Res., L.L.C. v. NLRB, 882 F.3d 510, 528
n.6 (5th Cir. 2018); Quality Health Servs. of P.R., Inc. v. NLRB, 873 F.3d 375, 383 n.7 (1st Cir. 2017); Hooks v.
Remington Lodging & Hospitality, L.L.C., 8 F. Supp. 3d 1178, 1189 (D. Alaska 2014).
178 SW Gen., Inc., 796 F.3d 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 challenges are
properly preserved and the agency had reasonable notice of the defect in the officer’s title to office).
179 Midwest Terminals of Toledo Int’l, Inc v. NLRB, 783 Fed. Appx. 1, 7 (D.C. Cir. 2019).
180 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.
181 NLRB v. Newark Elec. Corp., 14 F.4th 152, 161 (2d Cir. 2021). The court ruled that a subsequent Acting General
Counsel’s ratification was valid where he ratified the act with “the authority necessary to undertake the ratified act at
the time of ratification, . . . and with full knowledge of the material facts.” Id. at 162–63 (citation omitted)).
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The various questions discussed here may be clarified in future litigation, but Congress could, if it
so chose, add statutory language clarifying the consequences of violating the Vacancies Act,
particularly with respect to those offices exempt from Section 3348’s enforcement
mechanisms.182 Congress could also amend the existing enforcement mechanisms, possibly by
altering the reporting requirements or by adding additional consequences for violations of the
Vacancies Act.183
Evolving Legal Issues
Thus far, this report has discussed the Vacancies Act in isolation. The remainder of this report
turns to selected, evolving legal issues that involve questions about how other federal laws,
including both statutes and the Constitution, interact with the Vacancies Act. It also highlights
special considerations for Congress.
Exclusivity of the Vacancies Act
The Vacancies Act provides “the exclusive means” to authorize “an acting official to perform the
functions and duties” of a vacant office—unless another statute “expressly”:
(A) authorizes the President, a court, or the head of an Executive department, to designate
an officer or employee to perform the functions and duties of a specified office temporarily
in an acting capacity; or
(B) designates an officer or employee to perform the functions and duties of a specified
office temporarily in an acting capacity[.]184
Across the executive branch, there are many statutes that expressly address who will temporarily
act for specified officials in the case of a vacancy in the office.185 The Senate report on the
Vacancies Act identified 40 agency-specific provisions that “would be retained by” the Act.186 To
take one example, the Senate report anticipated that the Vacancies Act would not disturb the
provision governing a vacancy in the office of the Attorney General.187 That statute provides that
“[i]n case of a vacancy in the office of Attorney General, or of his absence or disability, the
Deputy Attorney General may exercise all the duties of that office.”188

182 See 5 U.S.C. § 3348.
183 See id. §§ 3348, 3349. See also, e.g., H.R. 1847, 116th Cong. § 3 (2019) (providing that “[i]f the President fails to
make a formal nomination for a vacant Inspector General position” within 210 days of the vacancy occurring, the
President must submit to Congress “(1) the reasons why the President has not yet made a formal nomination; and (2) a
target date for making a formal nomination”); S. 1761, 105th Cong. § 2 (1998) (providing that “[a]n individual who
performs the duties of an office in any Executive agency . . . temporarily in excess of” the Vacancies Act’s time limits
“may not receive pay for each day such duties are performed”).
184 5 U.S.C. § 3347(a).
185 E.g., 49 U.S.C. § 102 (“The Department has a Deputy Secretary of Transportation . . . . The Deputy
Secretary . . . acts for the Secretary when the Secretary is absent or unable to serve or when the office of Secretary is
vacant.”).
186 S. REP. NO. 105-250, at 16–17 (1998). See also O’CONNELL, supra note 64, app. A at 74 (2019) (compiling agency-
specific provisions).
187 S. REP. NO. 105-250, at 16 (1998).
188 28 U.S.C. § 508(a). The statute further provides that “for the purpose of section 3345 of title 5 the Deputy Attorney
General is the first assistant to the Attorney General.” Id. This reference to the Vacancies Act has been in that statute at
least since its codification in Pub. L. No. 89-554 § 4(c), 80 Stat. 612 (1966).
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In the event that there is an agency-specific statute designating a specific government official to
serve as acting officer, the Vacancies Act will no longer be exclusive.189 Even if the Vacancies Act
does not exclusively apply to a specific position, though, that does not mean that the other statute
does exclusively apply.190 It is possible that both the agency-specific statute and the Vacancies Act
may be available to temporarily fill a vacancy.191 The Senate report can be read to support this
view: it states that “even with respect to the specific positions in which temporary officers may
serve under the specific statutes this bill retains, the Vacancies Act would continue to provide an
alternative procedure for temporarily occupying the office.”192 A number of courts have held that
this principle applies to the statute governing Attorney General vacancies quoted above, ruling
that the President may invoke the Vacancies Act to name an acting official and override the
statutory line of succession provided in the agency-specific statute.193
When two statutes simultaneously apply to authorize acting service, it may be unclear which
statute governs in the case of a conflict. If there are inconsistencies between the two statutes and
an official’s service complies with only one of the two statutes, such a situation may prompt
challenges to the authority of that acting official.194 The Vacancies Act sets out a detailed scheme
delineating three classes of governmental officials that may serve as acting officers195 and
expressly limits the duration of an acting officer’s service.196 By contrast, agency-specific statutes
tend to designate only one official to serve as acting officer197 and often do not specify a time
limit on that official’s service.198 Accordingly, for example, if an acting officer is designated by

189 See 5 U.S.C. § 3347.
190 See, e.g., Designating an Acting Director of National Intelligence, slip op. at 4 (Op. O.L.C. Nov. 15, 2019),
https://www.justice.gov/olc/file/1220586/download (“In a series of opinions dating back to 2003, this Office has
consistently explained that the Vacancies Reform Act remains available to the President as a means for designating an
acting official even when an office-specific statute provides that someone else ‘shall’ serve in that role.”). See also
Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 556 (9th Cir. 2016) (“[The Vacancies Act] form[s]
the exclusive means for filling a vacancy in an Executive agency office unless another statute expressly provides a
means for filling such a vacancy. Because [29 U.S.C. § 153(d)] does so, neither the [Vacancies Act] nor [29 U.S.C.
§ 153(d)] is the exclusive means of appointing an Acting General Counsel of the [National Labor Relations Board].”).
191 Temporary Filling of Vacancies in the Office of U.S. Attorney, 27 Op. O.L.C. 149, 149 (2003) (concluding that the
Vacancies Act and a separate statute, 28 U.S.C. § 546(a), were both “available” to temporarily fill the position).
192 S. REP. NO. 105-250, at 17 (1998).
193 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 139 (D.D.C. 2019),
aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); see also United States v. Castillo, 772 Fed. Appx.
11, 13 n.5 (3d Cir. 2019) (collecting cases).
194 See, e.g., Lower E. Side People’s Fed. Credit Union v. Trump, 289 F. Supp. 3d 568, 571 (S.D.N.Y. 2018)
(dismissing a suit that challenged the authority of an acting officer designated under the Vacancies Act by arguing that
an agency-specific statute provided the sole authority for someone to serve as acting director of the agency).
195 5 U.S.C. § 3345.
196 Id. § 3346.
197 See, e.g., 15 U.S.C. § 633(b)(1) (designating Deputy Administrator of the Small Business Administration to act for
Administrator); 50 U.S.C. § 3037(b)(2) (designating Deputy Director of the Central Intelligence Agency to act for
Director). Cf. 28 U.S.C. § 508 (designating Deputy Attorney General to act for Attorney General and providing that
Attorney General may designate “further order of succession”); 42 U.S.C. § 902(b)(4) (designating Deputy
Commissioner of Social Security to act for Commissioner “unless the President designates another officer of the
Government”).
198 See S. REP. NO. 105-250, at 17 (1998); see also, e.g., United States v. Guzek, 527 F.2d 552, 560 (8th Cir. 1975)
(ruling that official serving under an agency-specific statute “succeeded to all the powers of the office . . . without
circumscription by the 30-day limitation” created by a prior version of Vacancies Act). But see, e.g., 12 U.S.C.
§ 4512(f) (authorizing the designation of an acting Federal Housing Finance Agency Director who will serve “until the
return of the Director, or the appointment of a successor”); 29 U.S.C. § 153(d) (“[N]o person . . . designated [to act as
General Counsel of the NLRB] shall so act (1) for more than forty days when the Congress is in session unless a
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the President to serve under the Vacancies Act but is not authorized to serve under the agency-
specific statute, a potential conflict may exist between the two laws.199
Where two statutes encompass the same conduct, courts will, if possible, “read the statutes to give
effect to each.”200 Courts are generally reluctant to conclude that statutes conflict and will usually
assume that two laws “are capable of co-existence . . . absent a clearly expressed congressional
intention to the contrary.”201 At the same time, however, another general interpretive rule
prescribes that more specific statutes should usually prevail over more general ones—even where
the more general statutes were enacted after the more specific ones.202 This canon of construction
could suggest that agency-specific statutes should prevail in the case of a conflict with the
Vacancies Act. Facing these two principles, courts have tended to conclude that the Vacancies Act
should operate concurrently with agency-specific statutes, and that government officials should
be able to temporarily serve under either statute.203 Accordingly, some courts have resolved any
potential conflict by holding that whichever statute is invoked is the controlling one.204
For example, in Hooks ex rel. NLRB v. Kitsap Tenant Support Services, one federal court of
appeals rejected a litigant’s contention that an agency-specific statute displaced the Vacancies Act
and provided “the exclusive means” to temporarily fill a vacant position.205 The agency-specific
statute at issue in that case provided that if the office of the NLRB’s General Counsel is vacant,
“the President is authorized to designate the officer or employee who shall act as General Counsel
during such vacancy.”206 It also provided for a shorter term of acting service than the Vacancies
Act.207 The President, however, had invoked the Vacancies Act to designate an Acting General
Counsel.208 The court concluded that “the President is permitted to elect between these two
statutory alternatives to designate” an acting officer.209 Accordingly, the court rejected the
argument that because the officer’s designation did not comply with the agency-specific statute,
“the appointment was necessarily invalid.”210

nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment sine die of the
session of the Senate in which such nomination was submitted.”).
199 See CRS Legal Sidebar LSB10036, UPDATE: Who’s the Boss at the CFPB?, by Valerie C. Brannon and Jared P.
Cole (describing conflict over vacancy in the position of the Director of the Consumer Financial Protection Bureau in
which the Deputy Director claimed that an agency-specific statute authorizing the Deputy to serve as Acting Director
was the sole legal authority governing the vacancy, while the President invoked the Vacancies Act to name a different
person as Acting Director).
200 Watt v. Alaska, 451 U.S. 259, 267 (1981).
201 Morton v. Mancari, 417 U.S. 535, 551 (1974).
202 See, e.g., Radzanower v. Touche Ross & Co., 426 U.S. 148, 153 (1976) (“It is a basic principle of statutory
construction that a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted
statute covering a more generalized spectrum.”).
203 See, e.g., Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 139 (D.D.C. 2019),
aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam); English v. Trump, 279 F. Supp. 3d 307, 319
(2018); United States v. Lucido, 373 F. Supp. 1142, 1151 (E.D. Mich. 1974).
204 See, e.g., Lucido, 373 F. Supp. at 1151. See also, e.g., English, 279 F. Supp. 3d at 325 (declining to apply the canon
that more specific statutes should prevail over more general ones because it was “not clear” that the agency-specific
statute was “more ‘specific’” than the Vacancies Act, “as applied to” the specific circumstances of the case).
205 Hooks ex rel. NLRB v. Kitsap Tenant Support Servs., 816 F.3d 550, 555 (9th Cir. 2016).
206 29 U.S.C. § 153(d).
207 See Hooks, 816 F.3d at 555.
208 Id. at 553.
209 Id. at 556.
210 Id.
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The two statutes governing a vacant office might not always be so readily reconciled. In Hooks,
both the Vacancies Act and the agency-specific statute expressly authorized the President to select
an acting officer.211 A more difficult question may be raised when an agency-specific statute
instead seems to expressly limit succession to a particular official.212 The federal courts
considered such a contention in a dispute over who was authorized to serve as the Acting Director
of the Consumer Financial Protection Bureau (CFPB). The position of CFPB Director became
vacant in late 2017, and the President invoked the Vacancies Act to designate Mick Mulvaney, the
Director of the U.S. Office of Management and Budget, to serve as Acting Director of the
CFPB.213 The Deputy Director of the CFPB, Leandra English, filed suit,214 arguing that she was
the lawful Acting Director under an agency-specific statute that provided that the CFPB’s Deputy
Director “shall . . . serve as acting Director in the absence or unavailability of the Director.”215
English argued that the agency-specific statute displaced the Vacancies Act under normal
principles of statutory interpretation, as a later-enacted and more specific statute.216
The U.S. District Court for the District of Columbia rejected these arguments and held that the
President had permissibly invoked the Vacancies Act to designate Mulvaney as Acting Director.217
In the trial court’s view, both statutes were available: the agency-specific statute “requires that the
Deputy Director ‘shall’ serve as acting Director, but . . . under the [Vacancies Act] the President
‘may’ override that default rule.”218 The court invoked two interpretive canons, the rule that
statutes should be read in harmony and the rule against implied repeals, and concluded that under
the circumstances, an “express statement” was required to displace the Vacancies Act entirely.219
Accordingly, because the agency-specific statute was “silent regarding the President’s ability to
appoint an acting director,” it did not render the Vacancies Act unavailable.220
When officials serve under an agency-specific statute, they must comply with any requirements
or limitations set out in that separate statute—and may not have to comply with Vacancies Act
limitations.221 For example, between August 2020 and January 2021, six different judicial

211 See id. at 555–56.
212 See, e.g., Plaintiff-Appellant’s Brief at 2-3, English v. Trump, No. 18-5007 (D.C. Cir. 2018),
http://guptawessler.com/wp-content/uploads/2018/01/English-v-Trump-Brief-1.30.pdf.
213 English v. Trump, 279 F. Supp. 3d 307, 314 (D.D.C. 2018).
214 For a more in-depth discussion of this lawsuit, see CRS Legal Sidebar LSB10036, UPDATE: Who’s the Boss at the
CFPB?, by Valerie C. Brannon and Jared P. Cole.
215 12 U.S.C. § 5491(b)(5).
216 English, 279 F. Supp. 3d at 317. See generally United States v. Estate of Romani, 523 U.S. 517, 532–33 (1998)
(noting that in the case of “plain inconsistency” between two statutes, later-enacted, more specific statutes generally
trump prior, general statutes).
217 English, 279 F. Supp. 3d at 319. The district court’s ruling was on a motion for a preliminary injunction, so
technically, the court held only that “English is not likely to succeed on the merits of her claim that Dodd-Frank’s
Deputy Director provision displaces the President’s ability to name an acting Director of the CFPB pursuant to the
FVRA.” Id. at 331. However, much of the court’s language was not so qualified.
218 English, 279 F. Supp. 3d at 319.
219 Id. at 320 (noting that the agency-specific statute provides that “[e]xcept as otherwise provided expressly by law, all
Federal laws dealing with public or Federal . . . officers . . . shall apply to the exercise of the powers of the Bureau”).
See also id. at 324–25 (invoking the presumption against implied repeals).
220 Id. at 322 (emphasis omitted).
221 See, e.g., Casa de Md., Inc. v. Wolf, 486 F. Supp. 3d 928, 955 (D. Md. 2020) (“[T]he Court cannot generally extend
the FVRA’s timing provisions to a person serving temporarily and in an acting capacity pursuant to an agency-specific
statute.”); id. at 957 (concluding that the designation under the agency-specific statute was likely unauthorized). See
also, e.g., Social Security Administration—Legality of Service of Acting Commissioner, B-333543, slip op. at 1–2
(Comp. Gen. Feb. 1, 2022) (concluding the Vacancies Act’s time limitations and enforcement provisions did not apply
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opinions concluded that the Department of Homeland Security (DHS) had failed to comply with
the Homeland Security Act of 2002 (HSA) in designating an Acting DHS Secretary.222 The HSA
provides that the Deputy Secretary of Homeland Security is the Secretary’s “first assistant for
purposes of the Vacancies Act.”223 The HSA also states that, “notwithstanding” the Vacancies Act,
the Secretary “may designate” a “further order of succession to serve as Acting Secretary.”224
DHS Secretaries had invoked this HSA provision to designate a further order of succession, and a
number of courts held that DHS acted impermissibly when the agency attempted to install an
Acting Secretary outside the relevant line of succession.225 However, a few of these opinions
rejected arguments alleging the Acting Secretary had additionally violated the time limits of the
Vacancies Act, concluding that because the Acting Secretary was serving under the HSA, the
Vacancies Act’s time restrictions did not apply.226 Further, one court ruled that because the Acting
Secretary was not serving under the Vacancies Act, the no-ratification provision in Section 3348
did not apply.227 Accordingly, that court considered a September 2020 DHS attempt to ratify the
actions of the Acting Secretary—although it ultimately concluded that the ratification was likely
ineffective on its merits.228 However, two later trial court decisions concluded that Section 3348
did bar the ratification of actions taken by the improperly acting official, because the Vacancies
Act still applied to the vacant office, even if the specific acting official was purportedly
designated under the HSA.229

to an Acting Commissioner of Social Security serving under the Social Security Act rather than the Vacancies Act). But
see, e.g., Nw. Immigrant Rights Project v. U.S. Citizenship & Immigration Servs., 496 F. Supp. 3d 31, 58–59 (D.D.C.
2020) (concluding 5 U.S.C. § 3348(d) might apply to an official serving under an agency-specific statute, so long as the
vacant position is also covered by the Vacancies Act).
222 Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966, 974 (N.D. Cal. 2021); Batalla Vidal v.
Wolf, 501 F. Supp. 3d 117, 131 (E.D.N.Y. 2020); Nw. Immigrant Rights Project, 496 F. Supp. 3d at 70; Immigrant
Legal Res. Ctr. v. Wolf, 491 F. Supp. 3d 520, 535–36 (N.D. Cal. 2020); Casa de Md., Inc., 486 F. Supp. 3d at 957; La
Clinica de la Raza v. Trump, 477 F. Supp. 3d 951, 972 (N.D. Cal. 2020). See also Department of Homeland Security—
Legality of Service of Acting Secretary of Homeland Security and Service of Senior Official Performing the Duties of
Deputy Secretary of Homeland Security, B- 331650 (Comp. Gen. Aug. 14, 2020) (concluding DHS’s purported
designations under the HSA were improper). Many of these judicial decisions involved requests for preliminary
injunctions, and so the courts held only that the plaintiffs were likely to succeed on the merits of their claims arguing
the acting appointments were improper.
223 6 U.S.C. § 113(a)(1)(A). The HSA further specifies that, “notwithstanding” the Vacancies Act, “the Under Secretary
for Management shall serve as the Acting Secretary if “neither the Secretary nor Deputy Secretary is available to
exercise the duties of the Office of the Secretary.” Id. § 113(g)(1).
224 Id. § 113(g)(2).
225 Specifically, after the Senate-confirmed Secretary resigned, an Acting Secretary claimed authority to act under a
succession order that pertained to acting service in the event of a disaster or catastrophic emergency, but he was not
authorized to serve under the succession order that applied in the event of the Secretary’s death, resignation, or inability
to perform the functions of the Office. See, e.g., Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 535; Casa de Md., Inc.,
486 F. Supp. 3d at 957; La Clinica de la Raza, 477 F. Supp. 3d at 972.
226 Batalla Vidal, 501 F. Supp. 3d at 130; Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 538; Casa de Md., Inc., 486 F.
Supp. 3d at 955.
227 Batalla Vidal, 501 F. Supp. 3d at 130 (“Because Mr. Wolf did not assume the Acting Secretary role under Section
3345, Sections 3346 and 3348 do not apply to him.”).
228 Id. at 133. See also Pangea Legal Servs. v. U.S. Dep’t of Homeland Sec., 512 F. Supp. 3d 966, 975 (N.D. Cal. 2021)
(concluding the ratification was ineffective without expressly ruling on whether Section 3348 applied); Immigrant
Legal Res. Ctr., 491 F. Supp. 3d at 535–36 (same); but cf. Nw. Immigrant Rights Project, 496 F. Supp. 3d at 61, 69–70
(concluding that the ratification likely did render the initial errors harmless, assuming that a new succession order was
valid, but later concluding that the succession order was not valid because it was issued by an Acting Secretary without
authority to designate an order of succession).
229 Asylumworks v. Mayorkas, No. 20-cv-3815, 2022 U.S. Dist. LEXIS 21529, at *26 (Feb. 7, 2022 D.D.C.); Behring
Reg’l Ctr. LLC v. Wolf, 544 F. Supp. 3d 937, 946 (N.D. Cal. 2021). Cf. Nw. Immigrant Rights Project, 496 F. Supp. 3d
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As Hooks and English illustrate, congressional silence on the relationship between agency-
specific provisions and the Vacancies Act can leave courts with difficult questions for resolution.
Congress can itself resolve tensions between the Vacancies Act and agency-specific statutes by
clarifying the conditions under which these statutes apply. For example, the HSA states that
certain of the statutory provisions governing acting service in the office of the Secretary of
Homeland Security apply “notwithstanding” the Vacancies Act,230 indicating an intent to render
the Vacancies Act inapplicable under the relevant circumstances.231 To take another example, the
statute governing vacancies in the office of the Attorney General provides that “for the purpose of
section 3345 of title 5 the Deputy Attorney General is the first assistant to the Attorney
General.”232 This statute expressly clarifies—in at least one respect—how the two statutes
interact.233 Congress could also amend the Vacancies Act itself—for example, to clarify that an
agency-specific statute containing a mandatory provision for acting service not only renders the
Vacancies Act nonexclusive, but also inapplicable.234
Delegability of Duties
Ambiguity in the definition of “functions and duties” has created competing interpretations of
what functions are covered by the Vacancies Act.235 Some courts have interpreted the Vacancies
Act to encompass only the nondelegable functions and duties of a vacant advice-and-consent
position.236 As explained earlier, this view permits an agency to delegate those duties to any other
employee, who may then perform that duty without violating the Vacancies Act, even if the Act’s
time limits have run out.237 According to this interpretation of the Act, in many circumstances, an

at 59 (concluding that Section 3348 could apply to an Acting Secretary serving under the HSA, but holding that the no-
ratification provision did not apply to a duty that had been delegated prior to the vacancy).
230 6 U.S.C. § 113(g)(1) (“Notwithstanding chapter 33 of title 5, the Under Secretary for Management shall serve as the
Acting Secretary if . . . neither the Secretary nor Deputy Secretary is available to exercise the duties of the Office of the
Secretary.”); id. § 113(g)(2) (“Notwithstanding chapter 33 of title 5, the Secretary may designate such other officers of
the Department in further order of succession to serve as Acting Secretary.”).
231 See, e.g., Immigrant Legal Res. Ctr., 491 F. Supp. 3d at 537; Designating an Acting Director of National
Intelligence, slip op. at 6, https://www.justice.gov/olc/file/1220586/download (Op. O.L.C. Nov. 15, 2019). See
generally, e.g., Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (saying a “notwithstanding” clause “clearly
signals the drafter’s intention that the provisions of the ‘notwithstanding’ section override conflicting provisions of any
other section.”).
232 28 U.S.C. § 508.
233 Cf. United States v. Lucido, 373 F. Supp. 1142, 1150–51 (E.D. Mich. 1974) (considering how to reconcile 28 U.S.C.
§ 508 with a prior version of the Vacancies Act); Authority of the President to Name an Acting Attorney Gen., 31 Op.
O.L.C. 208, 209–10 (2007) (holding President’s designation of an acting officer under the Vacancies Act would trump
Attorney General’s designation of a successor under 28 U.S.C. § 508(b)).
234 See, e.g., Accountability for Acting Officials Act, H.R. 6689, 116th Cong. § 2(g) (2020) (“[A]ny statutory provision
. . . that contains a non-discretionary order or directive to designate an officer or employee to perform the functions and
duties of a specified office temporarily in an acting capacity shall be the exclusive means for temporarily authorizing an
acting official to perform the functions and duties of such office.”).
235 See 5 U.S.C. § 3348; supra “What Are the “Functions and Duties” of an Office?”
236 See, e.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1336 (Fed. Cir. 2022). See also, e.g., Nw.
Immigrant Rights Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d 31, 59 (D.D.C. 2020) (concluding a
duty delegated in an order that was in effect “during the 180-day window proceeding the vacancy” was not a “function
or duty” vested exclusively in the Secretary for purposes of enforcing the Vacancies Act).
237 See, e.g., Guidance on Application of Fed. Vacancies Reform Act of 1998, 23 Op. O.L.C. 60, 72 (1999). Other
statutes or regulations might affect the analysis of whether a particular delegation of authority, or a particular exercise
of delegated authority, is lawful. See, e.g., Utah Ass’n of Ctys. v. Bush, 316 F. Supp. 2d 1172, 1196 (D. Utah 2004)
(considering the scope of an executive order delegating “authority otherwise vested” in the President to perform certain
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agency official who has not been appointed to a particular advice-and-consent position could
perform the responsibilities of that position pursuant to a proper delegation.
The apparent majority view of the Vacancies Act as applying only to nondelegable duties requires
courts to consider what duties are delegable, an inquiry that frequently involves the organic
statutes that grant authority to federal officials. In the context of the Vacancies Act itself, those
courts that have considered the issue have most frequently upheld the ability of government
officials to perform the delegated duties of a vacant office, so long as the delegation is otherwise
lawful under the legal principles that ordinarily govern delegations.238
Outside the context of the Vacancies Act, courts often presume that delegation is permissible
“absent affirmative evidence of a contrary congressional intent.”239 The Supreme Court has
recognized that an agency head may have so many statutory responsibilities that it would be
unreasonable to think that Congress intended the head to personally perform—or even oversee
the performance of—every single assigned task.240 In the words of the Court, internal agency
delegation may be “necessary for prompt and expeditious action” in circumstances where delay
could cause “injury beyond repair.”241
The general presumption of delegability may be overcome in certain circumstances. A statute that
expressly prohibited delegation of a duty—for example, stating that a duty “‘may only be
delegated to,’ ‘may not [be] delegate[d],’ ‘may not be reledegated,’ ‘shall not be redelegated,’ or is
‘not subject to delegation,’”—would likely render that duty nondelegable.242 Some statutes may
implicitly preclude delegation.243 For example, courts have recognized that some statutes may

functions); 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).
238 See, e.g., Arthrex, 35 F.4th at 1339; Stand Up for Cal.! v. U.S. Dep’t of Interior, 994 F.3d 616, 625–26 (D.C. Cir.
2021); Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389, 421 (D. Conn. 2008), aff’d, 587 F.3d 132 (2d
Cir. 2009); Office of Thrift Supervision v. Paul, 985 F. Supp. 1465, 1474–75 (S.D. Fla. 1997).
239 U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004). See also, e.g., United States v. Mango, 199 F.3d
85, 91–92 (2d Cir. 1999) (concluding, in the face of statutory ambiguity, that subdelegation is permissible); Loma
Linda Univ. v. Schweiker, 705 F.2d 1123, 1128 (9th Cir. 1983) (“Express statutory authority for delegation is not
required . . . .”). But see Cudahy Packing Co. v. Holland, 315 U.S. 357, 361 (1942) (holding officer could not delegate
subpoena power, where 29 U.S.C. § 209 and 15 U.S.C. § 49 provided that the officer “shall have power” of subpoena).
In Cudahy Packing Co., the Court considered whether the delegation of the subpoena power was authorized by a statute
providing that “[t]he principal office of the [officer] shall be in the District of Columbia, but he or his duly authorized
representative may exercise any or all of his powers in any place.” Id. at 360 (quoting 29 U.S.C. § 204). The Court
rejected this contention, stating that “[a] construction of the Act which would thus permit the Administrator to delegate
all his duties, including those involving administrative judgment and discretion which the Act has in terms given only
to him, can hardly be accepted unless plainly required by its words.” Id. at 361.
240 Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 122–23 (1947).
241 Id.
242 Stand Up for Cal.! v. U.S. Dep’t of Interior, 298 F. Supp. 3d 136, 143 (D.D.C. 2018), aff’d, 994 F.3d 616. See also,
e.g., 12 U.S.C. § 1790d(i)(4)(A) (“Except as provided in subparagraph (B), the [National Credit Union Administration]
Board may not delegate the authority of the Board under this subsection.”) (emphasis added); 25 U.S.C. § 2706(a)
(“The [National Indian Gaming] Commission shall have the power, not subject to delegation . . . .”) (emphasis added).
243 Cf., 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, at *12 (Comp. Gen. June 13, 2008) (saying that finding
nondelegability “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”).
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limit the class of officers to whom a duty is delegable, meaning by implication that the duties are
not delegable outside of that specified class.244
To take another example, one federal district court ruled in February 2019 that a statute implicitly
precluded the delegation of a specific duty in the context of a Department of the Interior decision
to take property into trust at the request of the Santa Ynez Band of Chumash Mission Indians.245
Federal law authorizes the Secretary of the Interior to acquire land in trust “for the purpose of
providing land for Indians.”246 Pursuant to agency regulations delegating this authority and
outlining procedures for its use, the Assistant Secretary-Indian Affairs (AS-IA) assumed
jurisdiction over an administrative appeal reviewing the agency’s decision to acquire the land for
this tribe.247 However, while the internal appeal was pending, the AS-IA resigned.248 The Principal
Deputy Assistant Secretary-Indian Affairs (PDAS) initially served as Acting AS-IA as the first
assistant under the Vacancies Act, but “reverted” to his position as PDAS after 210 days.249 After
the expiration of the 210-day period, the PDAS issued a decision rendering the land acquisition
final, citing “the authority delegated to [the PDAS] by 25 C.F.R. § 2.20(c).”250 This regulation
authorized the AS-IA to issue decisions in administrative appeals, but also allowed the AS-IA to
assign decisionmaking authority to “a Deputy.”251 The regulation further said that if a decision “is
signed by the [AS-IA], it shall be final . . . and effective immediately.”252 By contrast, if a Deputy
signed the decision, the regulation provided that such a decision could be appealed to the Bureau
of Indian Affairs.253
As framed by the trial court, the relevant question was therefore “whether 25 C.F.R. § 2.20(c)
exclusively reserves with the [AS-IA] the authority to issue final decisions . . . , or whether the
[AS-IA’s] authority to issue final appeals decisions is delegable to a Deputy.”254 Although the
regulation did not explicitly state that this authority was exclusive to the AS-IA or otherwise
expressly preclude delegation,255 the court nonetheless held that the duty to render final decisions
was exclusive to the AS-IA and nondelegable for the purposes of the Vacancies Act.256 The court
observed that the regulation expressly stated that if a decision were “signed by a Deputy to the
[AS-IA],” it would be subject to further appeal, meaning that “only” the AS-IA “may issue a final
decision on the appeal.”257 The court further concluded that, in light of “the history and purpose

244 See, e.g., United States v. Giordano, 416 U.S. 505, 507–08 (1974) (holding “Congress did not intend the power to
authorize wiretap applications to be exercised by any individuals other than the Attorney General or an Assistant
Attorney General specially designated by him”); Halverson v. Slater, 129 F.3d 180, 185 (D.C. Cir. 1997) (concluding
statute that authorized Transportation Secretary to “delegate the duties and powers conferred by this subtitle to any
officer, employee, or member of the Coast Guard,” 46 U.S.C. § 2104(a), prohibited the “delegation of . . . functions to a
non-Coast Guard official”).
245 Crawford-Hall v. United States, 394 F. Supp. 3d 1122, 1137 (C.D. Cal. 2019).
246 25 U.S.C. § 5108.
247 Crawford-Hall, 394 F. Supp. 3d at 1129.
248 Id.
249 Id.
250 Id.
251 25 C.F.R. § 2.20(c) (2018).
252 Id.
253 Id.
254 Crawford-Hall, 394 F. Supp. 3d at 1136 (emphasis added).
255 See id. at 1143.
256 Id. at 1137.
257 Id.
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behind the [AS-IA’s] authority over appeals,” the regulation was “intended to restrict the [AS-
IA’s] permissible delegation authority.”258 Finally, the court looked to the nature of the challenged
function and inferred that the agency “contemplated that . . . [this] authority . . . would be used
with restraint,” suggesting that the duty should not “be freely delegable.”259
A different federal district court decision from September 2020 held that an agency delegation
violated the Vacancies Act based on the specific factual circumstances.260 That case involved a
series of orders delegating the duties of ten positions within the Department of the Interior,
including the Director of the U.S. Bureau of Land Management (BLM).261 The initial order issued
by the outgoing Secretary of the Interior in January 2017 operated temporarily, with a fixed end
date.262 However, various Secretaries, both acting and Senate-confirmed, amended and extended
the delegation order “thirty-two times over the next three years.”263 In May 2020, the official who
was exercising the duties of the BLM Director pursuant to the amended order, William Perry
Pendley, issued a new memo clarifying BLM’s “order of succession” and designating himself as
the first assistant to the BLM Director.264 The memo also delegated to Pendley the authority to
perform the Director’s duties.265 Once his authority to act under the Secretary’s order expired,
Pendley performed the delegated duties of the BLM Director pursuant to this memo.266
Montana officials sued BLM in July 2020, arguing that Pendley was unlawfully serving as Acting
BLM Director in violation of the Vacancies Act.267 The district court agreed with the challengers,
saying that under the circumstances, the agency’s attempt to designate Pendley as “an ‘official
performing the Director’s duties under the Secretary’s delegation’” rather than the “‘Acting
Director’” was merely “wordplay,” representing “a distinction without a difference.”268 The court
looked to two factors to conclude that Pendley did in fact “operate[] as the Acting BLM Director”
in violation of the Vacancies Act.269 The court noted that, first, “Pendley actually exercised
powers reserved to the BLM Director,” and second, “the Executive Branch repeatedly presented
Pendley as Acting BLM Director.”270 The duration of the delegations also seemed to be a factor in
the court’s decision, with the court stating, “[t]he President cannot shelter unconstitutional
‘temporary’ appointments for the duration of his presidency through a matryoshka doll of
delegated authorities.”271 This decision was fact-specific, and it remains to be seen whether any
other courts will similarly look past agency designations to conclude that officials exercising

258 Id. at 1139.
259 Id. at 1147.
260 See Bullock v. U.S. Bureau of Land Mgmt., 489 F. Supp. 3d 1112, 1126 (D. Mont. 2020).
261 Id. at 1118.
262 Id.
263 Id.
264 Id. at 1126.
265 Id.
266 Id. at 1126–27.
267 Id. at 1119.
268 Id. at 1125, 1127.
269 Id. at 1126–27.
270 Id. at 1128.
271 Id. at 1126. The court also noted that other courts had found “recent” violations of the Vacancies Act in other
executive offices. Id.
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delegated authority are in fact serving as acting officials who must comply with the Vacancies
Act.272
If Congress were concerned about agencies delegating duties of vacant offices, it could amend
either the Vacancies Act or the organic acts creating those duties. For instance, Congress could
amend the definition of “function or duty” in the Vacancies Act to prohibit delegation explicitly
once an office becomes vacant.273 Congress could also enact other statutory limitations on the
ability of certain officers to delegate their authority.274 There are already a number of statutes that
grant authority to executive branch officials but expressly provide that those authorities may not
be delegated, or may only be delegated to specific officials.275 Beyond placing additional
substantive limitations on the types of duties that are delegable, Congress could also create
procedural limitations on the way in which duties may be delegated.276 For example, some
statutes require delegations to be in writing,277 while others provide that duties may only be
delegated if certain conditions are met.278
Constitutional Considerations
Some have questioned whether the Vacancies Act is consistent with the U.S. Constitution’s
Appointments Clause, at least with respect to particular types of acting service279—although, as
explained below, courts have so far rejected such constitutional challenges. The Appointments
Clause creates specific requirements for the appointment of “Officers of the United States”:
generally, officers must be appointed through presidential nomination and Senate confirmation.280
However, while principal officers may only be appointed through Senate confirmation, Congress
can vest the appointment of “inferior Officers . . . in the President alone, in the Courts of Law, or

272 But see also Pub. Emps. for Env’t Resp. v. Nat’l Park Serv., No. 19-3629, 2022 U.S. Dist. LEXIS 93204, at *32–33
(D.D.C. May 24, 2022) (agreeing with Bullock’s interpretation of the Vacancies Act and ruling Reorganization Plan
No. 3 of 1950 “does not allow the Secretary [of the Interior] to evade the FVRA by ‘delegating’ the entirety of the
duties and functions for an appointment-and-confirmation office to an inferior official”).
273 See 5 U.S.C. § 3348. As discussed, however, at least one district court held that the Vacancies Act already prohibits
the performance of delegated duties unless the delegation complied with the 180-day lookback period. L.M.-M., 442 F.
Supp. 3d at 34.
274 See, e.g., 42 U.S.C. § 3535(q)(2) (“The Secretary may delegate authority to approve a waiver of a regulation only to
an individual of Assistant Secretary rank or equivalent rank, who is authorized to issue the regulation to be waived.”).
275 See, e.g., 21 U.S.C. § 360c(i)(1)(E)(iii) (“The responsibilities of the Director under this subparagraph may not be
delegated.”); see also supra note 242. Cf., e.g., 26 U.S.C. § 7701(a)(11)(A) (“The term ‘Secretary of the Treasury’
means the Secretary of the Treasury, personally, and shall not include any delegate of his.”).
276 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”).
277 See, e.g., 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.”).
278 See, e.g., 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”).
279 See, e.g., NLRB v. SW Gen., Inc., 137 S. Ct. 929, 946 (2017) (Thomas, J., concurring).
280 U.S. CONST. art. II, § 2, cl. 2. See generally CRS Report R44083, Appointment and Confirmation of Executive
Branch Leadership: An Overview, by Henry B. Hogue and Maeve P. Carey.
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in the Heads of Departments.”281 Accordingly, to determine whether an official’s appointment
complied with the Appointments Clause, courts ask whether the official is a principal officer,
inferior officer, or a “non-officer employee.”282 The Supreme Court has said that a federal official
is a principal or inferior officer subject to the Appointments Clause if the official (1) performs
duties that are “continuing and permanent, not occasional or temporary”283; and (2) exercises
“significant authority pursuant to the laws of the United States.”284 To distinguish a principal
officer from an inferior officer, the Supreme Court asks whether the officer’s “work is directed
and supervised at some level by others who were appointed by presidential nomination with the
advice and consent of the Senate.”285 Stated another way, the relevant question is whether the
officer has a “superior other than the President.”286
Some have argued that temporary service under the Vacancies Act might violate the
Appointments Clause by allowing government officials to act as “Officers of the United States”
absent appointment through the proper constitutional processes.287 Justice Thomas expressed this
concern in a concurring opinion in NLRB v. SW General, Inc., arguing that the President could not
act alone to appoint someone to serve as the NLRB’s general counsel.288 A person performing the
duties of an office that is generally subject to Senate confirmation will likely be performing—
perhaps temporarily—continuing statutory duties that may qualify as “significant” for purposes of
the Appointments Clause.289 Thus, acting officials performing these continuing, significant duties
could thereby qualify as officers subject to constitutional appointment procedures.290 If their
performance of those duties is not supervised by anyone other than the President, they might even
be viewed as principal officers.291 If acting officials could be considered principal officers when
they perform a principal officer’s duties, they would have to be appointed through Senate
confirmation.292 Under the Vacancies Act, however, acting officials are not appointed to serve
through advice-and-consent procedures, but instead may serve pursuant to the operation of the
statute or presidential designation alone.293 Another possible concern not raised by Justice

281 U.S. CONST. art. II, § 2, cl. 2 (emphasis added); see also, e.g., Edmond v. United States, 520 U.S. 651, 662–63
(1997) (discussing distinction between principal and inferior officers).
282 See Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018).
283 United States v. Germaine, 99 U.S. 508, 511–12 (1878).
284 Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).
285 Edmond, 520 U.S. at 663.
286 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 947 (2017) (Thomas, J., concurring). Cf. Morrison v. Olson, 487 U.S. 654,
671–72 (1988) (relying on four factors to conclude that an official was an inferior officer: that the official (1) was
“subject to removal by a higher Executive Branch official”; (2) “perform[ed] only certain, limited duties”; (3) held an
office that was “limited in jurisdiction”; and (4) held an office that was “limited in tenure”).
287 See, e.g., Patrick v. Whitaker, 426 F. Supp. 3d 182, 184–85 (E.D.N.C. 2019) (noting plaintiff’s argument “that Mr.
Whitaker’s designation as Acting Attorney General violated the Appointments Clause”); Joshua L. Stayn, Note, Vacant
Reform: Why the Federal Vacancies Reform Act of 1998 Is Unconstitutional, 50 DUKE L.J. 1511, 1513 (2001).
288 See SW Gen., Inc., 137 S. Ct. at 948.
289 Id. at 946–47. See also, e.g., Nw. Immigrant Rights Project v. U.S. Citizenship & Immigr. Servs., 496 F. Supp. 3d
31, 64–65 (D.D.C. 2020) (“[T]he Acting Secretary of the Department undoubtedly exercises significant governmental
authority[.]”).
290 See SW Gen., Inc., 137 S. Ct. at 947.
291 See id. at 947–48; see also Freytag v. Comm’r, 501 U.S. 868, 882 (1991) (“Special trial judges are not inferior
officers for purposes of some of their duties . . . , but mere employees with respect to other responsibilities. The fact
that an inferior officer on occasion performs duties that may be performed by an employee not subject to the
Appointments Clause does not transform his status under the Constitution.”).
292 See SW Gen., Inc., 137 S. Ct. at 947–48.
293 See 5 U.S.C. § 3345.
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Thomas is that even if acting officials could be considered inferior officers rather than principal
officers, the Vacancies Act may violate the Appointments Clause to the extent that it allows non-
officer employees to automatically serve as acting officials by virtue of being first assistants.294
A number of federal courts have concluded that officials temporarily acting under the Vacancies
Act did not violate the Appointments Clause.295 A few different theories have been offered to
explain why acting service under the Vacancies Act does not violate the Appointments Clause—
although some of these theories may justify only certain categories of service authorized by the
Vacancies Act. First, for some officers who have already been appointed in accordance with the
Appointments Clause, acting service could be seen as a conditional duty of the office to which
they were originally appointed.296 For example, a statute outlining the duties of the Senate-
confirmed Deputy Secretary of Defense states that the Deputy will “act for, and exercise the
powers of” the Secretary of Defense if the Secretary “dies, resigns, or is otherwise unable to
perform the functions and duties of the office.”297 Under these circumstances, acting service can
be seen as a contingent duty of the office—a duty that the President and Congress were aware of
when appointing the Deputy Secretary.298 In one opinion, the OLC argued that the Vacancies Act
similarly makes acting service “part and parcel of the office” for all officers appointed after the
enactment of the Vacancies Act, suggesting that the provisions authorizing acting service could be
seen as creating a conditional duty for any covered offices.299
Another argument broadly justifying acting service is based on Supreme Court cases that may
suggest that when a government official temporarily performs duties, the temporary nature of the
duties may prevent the official from being considered an officer, rather than an employee.300
Specifically, courts have cited a Supreme Court case from the late 1800s for the proposition that
officials temporarily serving in a continuing office should be considered, at most, inferior officers
who may be appointed by the President or a department head acting alone.301 In United States v.
Eaton, the Supreme Court held that it did not violate the Appointments Clause for a vice-consul

294 Cf. E. Garrett West, Note, Congressional Power over Office Creation, 128 YALE L.J. 166, 219 (2018) (discussing
the “automatic-promotion mechanism” in the context of a first assistant who is an inferior officer performing the duties
of a principal office).
295 See, e.g., United States v. Smith, 962 F.3d 755, 763 (4th Cir. 2020) (holding that Acting Attorney General serving
under the Vacancies Act did not violate the Appointments Clause); United States v. Castillo, 772 Fed. Appx. 11, 13 n.5
(3d Cir. 2019) (collecting cases reaching the same conclusion). But see Patrick v. Whitaker, 426 F. Supp. 3d 182, 186
(E.D.N.C. 2019) (“The Court is inclined to agree with plaintiff that the President’s designation of Mr. Whitaker as a
principal officer pursuant to the [Vacancies Act] ‘raises grave constitutional concerns . . . .’ However, because the
Court concludes that plaintiff lacks standing, it dismisses his claims.” (quoting SW Gen., Inc., 137 S. Ct. at 946)).
296 See, e.g., West, supra note 294, at 219.
297 10 U.S.C. § 132(b).
298 See, e.g., Ben Miller-Gootnick, Note, Boundaries of the Federal Vacancies Reform Act, 56 HARV. J. ON LEGIS. 459,
491 n.163 (2019).
299 Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 122 n.3 (2003); see
also 5 U.S.C. § 3345(a)(2) (“[T]he President (and only the President) may direct a person who serves in an office for
which appointment is required to be made by the President, by and with the advice and consent of the Senate, to
perform the functions and duties of the vacant office temporarily in an acting capacity . . . .”).
300 Cf. Auffmordt v. Hedden, 137 U.S. 310, 327 (1890) (holding that a merchant appraiser who “acts only occasionally
and temporarily” was not a constitutional officer); United States v. Germaine, 99 U.S. 508, 512 (1878) (holding that a
surgeon who exercised “occasional and intermittent” duties, acting only “when called on . . . in some special case” was
not a constitutional officer).
301 E.g., Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1334 (Fed. Cir. 2022); United States v. Smith, 962 F.3d
755, 764 (4th Cir. 2020); Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 148
(D.D.C. 2019), aff’d on other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).
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appointed by the Secretary of State to “temporarily perform[] the functions of the consular office”
during the illness of the consul-general.302 The Court said that where “the subordinate officer is
charged with the performance of the duty of the superior for a limited time and under special and
temporary conditions, he is not thereby transformed into the superior and permanent official.”303
Eaton suggests that the Court views temporary acting service differently than the permanent
performance of duties.304
On this basis, the OLC has argued that acting officials temporarily performing a principal
officer’s duties should be considered only inferior officers, and that when the President designates
an official to serve under the Vacancies Act, he is appointing an inferior officer consistently with
the Appointments Clause.305 The Vacancies Act says that the President may “direct” Senate-
confirmed officers and senior agency officials to serve as acting officials, rather than saying that
the President may “appoint” these officials to serve.306 Nonetheless, the OLC and at least one trial
court have concluded that this provision should be interpreted as authorizing an appointment
consistent with Appointments Clause procedures.307
The OLC’s Eaton-based argument may have some limitations. For example, the argument does
not, on its own, appear to account for first assistants who automatically serve pursuant to the
operation of the Vacancies Act, because these officials are not appointed to the acting position in
accordance with the Appointments Clause.308 At least one scholar has argued that for first
assistants, automatic acting service should be viewed as “contingent powers appended to the
original office.”309 In addition, this Eaton-based argument may not extend to a first assistant who
is a non-officer employee that was not appointed by the President or department head.310 Eaton

302 United States v. Eaton, 169 U.S. 331, 343 (1898).
303 Id.
304 See also, e.g., Morrison v. Olson, 487 U.S. 654, 672 (1988) (holding that an independent counsel appointed under
the Ethics in Government Act of 1978 was an inferior officer that could permissibly be appointed by a court, and
noting, among other factors, that the office was “limited in tenure,” citing Eaton). In SW General, Inc., Justice Thomas
distinguished Eaton by noting that the official serving as acting General Counsel had “served for more than three years
in an office limited by statute to a 4-year term, and he exercised all of the statutory duties of that office,” saying that
there was “nothing ‘special and temporary’ about Solomon’s appointment.” NLRB v. SW Gen., Inc., 137 S. Ct. 929,
946 n.3 (2017) (Thomas, J., concurring). It is unclear whether the full Supreme Court or lower courts would take a
similar view of acting service or, for Justice Thomas, what duration of service or amount of responsibility suffices to
transform an acting official. Cf., e.g., Bhatti v. Fed. Hous. Fin. Agency, 332 F. Supp. 3d 1206, 1218 (D. Minn. 2018)
(ruling that “determining whether an otherwise validly appointed acting officer has served for ‘too long’ [in violation of
the Appointments Clause] is a non-justiciable political question”).
305 Designating an Acting Attorney General, slip op. at 9 (Op. O.L.C. Nov. 14, 2018),
https://www.justice.gov/olc/file/1112251/download; Designation of Acting Director of the Office of Management and
Budget, 27 Op. O.L.C. 121, 123–24 (2003).
306 See 5 U.S.C. § 3345(a)(2)–(3).
307 Designation of Acting Director of the Office of Management and Budget, 27 Op. O.L.C. 121, 124–25 (2003);
Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 154–55 (D.D.C. 2019), aff’d on
other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam).
308 See 5 U.S.C. § 3345(a)(1). A similar argument could be raised to challenge acting officials serving under an agency
order of succession or delegation order. One federal appeals court responded to such an argument by concluding that a
general delegation provision authorized the President, acting through an agency official, to select a delegate to perform
the challenged duties. Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1334–35 (Fed. Cir. 2022). The implicit
conclusion was that this delegation provision satisfied the requirement of presidential selection.
309 West, supra note 294, at 219.
310 See id. (arguing that first assistants can lawfully serve if “(1) the inferior officer’s original appointment satisfies the
Appointments Clause (i.e., she was lawfully appointed by the President, head of the department, or a court of law) and
(2) the contingent duties are . . . ‘special and temporary’” (quoting United States v. Eaton, 169 U.S. 331, 343 (1898))).
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described the vice-consul temporarily filling the vacant office as an inferior officer.311 Under the
Appointments Clause, an inferior officer may be granted “significant authority,” while a mere
employee may not.312 Accordingly, it is not clear whether Eaton supports the automatic
designation of a non-officer employee to serve as an acting officer—even an inferior officer.
Further—although contrary to the rulings of the courts that have thus far applied Eaton to reject
constitutional challenges to acting service—some scholars have argued that because Eaton
involved a temporary absence—an illness—it should not be interpreted to authorize an inferior
officer to fill a permanent vacancy in a principal office.313
A court might also consider the long history of the Vacancies Act as support for the
constitutionality of acting service.314 In “separation-of-powers case[s]” interpreting the
Appointments Clause, the Supreme Court has put “significant weight upon historical practice.”315
One district court upholding the constitutionality of an acting appointment under the Vacancies
Act highlighted the “unbroken string of legislative enactments” authorizing acting service starting
in 1792.316 While there has been some “interbranch conflict” regarding various iterations of the
Vacancies Act,317 the executive branch has agreed that at least some temporary appointments are
constitutional.318 The executive branch has even, at times, argued that the President has the
inherent power “to make temporary . . . appointments in cases of need without conforming to the
requirements of the Appointments . . . Clause.”319 Accordingly, historical practice suggests that
Congress and the executive branch have considered at least some forms of acting service to be
constitutional. In particular, since 1868, prior versions of the Vacancies Act have provided for
first assistants to take on acting service automatically.320
It is likely that litigants challenging the validity of acting officials’ service will continue to raise
constitutional arguments under the Appointments Clause. Further judicial consideration of the
issue may shed additional light on what types of acting officials are constitutionally problematic
and which of the theories described above may justify acting service.

311 See United States v. Eaton, 169 U.S. 331, 343 (1898); see also, e.g., Bandimere v. SEC, 844 F.3d 1168, 1173–74
(10th Cir. 2016) (describing the vice consul as an example of an inferior officer). The vice-consul had been appointed
by the Secretary of State, the department head. Eaton, 169 U.S. at 337.
312 Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).
313 E.g., Thomas Berry, Is Matthew Whitaker’s Appointment Constitutional? An Examination of the Early Vacancies
Acts, YALE J. ON REG.: NOTICE & COMMENT (Nov. 26, 2018), https://www.yalejreg.com/nc/is-matthew-whitakers-
appointment-constitutional-an-examination-of-the-early-vacancies-acts-by-thomas-berry (noting that an official
stepping in during a temporary absence is still subject to the supervision of the absent official and asserting that early
executive branch practice treated short vacancies differently than more lengthy vacancies). Cf., e.g., Arthrex, 35 F.4th
at 1335 (holding that an acting official was still serving “for a limited time” under Eaton although the service was for
the duration of the vacancy).
314 E.g., United States v. Smith, 962 F.3d 755, 764, 765 (4th Cir. 2020) (noting that “Eaton is congruous with centuries
of unbroken historical practice”).
315 NLRB v. Noel Canning, 573 U.S. 513, 514 (2014).
316 Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109, 148 (D.D.C. 2019), aff’d on
other grounds, 920 F.3d 1, 12 (D.C. Cir. 2019) (per curiam). Accord, e.g., Designating an Acting Attorney General, slip
op. at 10–16 (Op. O.L.C. Nov. 14, 2018), https://www.justice.gov/olc/file/1112251/download.
317 NLRB v. SW Gen., Inc., 137 S. Ct. 929, 935 (2017).
318 See, e.g., id. at 935–36; The Vacancies Act, 22 Op. O.L.C. 44 (1998).
319 The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C. 124, 161–62 (1996).
Cf., e.g., Williams v. Phillips, 360 F. Supp. 1363, 1369 (D.C. Cir. 1973) (saying that if such a power existed, it would
be only in “emergency situations,” and pointing out “[s]everal constitutional problems . . . presented by a temporary
appointive power”).
320 See Act of July 23, 1868, ch. 227, 15 Stat. 168.
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Author Information

Valerie C. Brannon

Legislative Attorney

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