The Vacancies Act

The Vacancies Act [5 U.S.C. 3345-3349d] prescribes requirements for filling, both permanently and temporarily, vacancies that are required to be filled by Presidential appointment with Senate confirmation (PAS appointments). The Act was substantially amended in 1998.

The new Act provides revised rules for temporarily filling vacant PAS positions. In most cases, it is the exclusive means for filling vacant PAS positions with a person designated as the "Acting" officer. The Act also recognizes other limited means to fill PAS positions, such as recess appointments and other specific statutory authorities. The 1998 amendments specifically provide that an agency head's general authority to delegate or reassign duties within the agency does not remain a viable, separate authority for filling a vacant PAS position on a temporary basis.

An office becomes "vacant" when the incumbent "dies, resigns, or is otherwise unable to perform the functions and duties of the office."

Under the Act, there are generally three categories of persons who can serve in an acting capacity for vacant PAS positions.

• First, the "first assistant" to the vacant office. The Act does not define this term, but legislative history generally refers to the top deputy to the position. The law also appears to permit creating a first assistant by regulation where there is no statutory first assistant.
• Second, an existing PAS (from the agency at issue or from any other agency) designated by the President (and only the President).
• Third, certain senior agency employees designated by the President (and only the President).

Specific time frames and other statutory considerations limit service for all three categories. There is a general limit of 210 days for serving in an acting capacity. With respect to any vacancy that exists during the 60-day period beginning with a Presidential inauguration, the 210 days begins on the later of 90 days after the inauguration or 90 days after the date of the vacancy. There are also time constraints if the President nominates a person to fill the PAS position on a permanent basis during the period that the position is held on an acting basis.

The Department of Justice’s Office of Legal Counsel (OLC) has issued extensive guidance on the Vacancies Act:
http://www.usdoj.gov/olc/finalqa.htm