The Vacancies Act: A Legal Overview

"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occurred or (2) during the pendency of a nomination to that office, with some extensions if the nomination is rejected, withdrawn, or returned.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.."
Vacancies