Acting Accordingly: Acting Officers and the Federal Vacancies Reform Act

Lawfare’s readers are well-aware that the political echelons of the Trump administration are woefully understaffed. Ten months into this presidency, the pace of appointments under Trump trails that of his predecessors by three months. And yet, though the president hasn’t nominated one, we do in fact have an assistant attorney general for national security and a general counsel of the Defense Department—but only in an acting capacity—thanks to the 1998 Federal Vacancies Reform Act (FVRA), 5 U.S.C. 3345-3349.

The FVRA is what ensured there was a functioning Department of Justice post-inauguration, when then-Deputy Attorney General Sally Yates served as the acting attorney general and again after Yates was abruptly fired by the president and Dana Boente took over as acting attorney general until Jeff Sessions was confirmed. Boente was then acting deputy attorney general until Rod Rosenstein took office. And the FVRA is what allowed Boente to be the acting assistant attorney general for national security over the past few months.

But what the FVRA giveth, the FVRA taketh away.

Lawfare contributor Matt Tait asked the following question on Twitter a few weeks ago:

The answer? Though the acting officers in approximately 400 key vacancies that remain in the Trump administration will not all hit their 300-day limit at the same time—as I explain below, most will reach their deadline within 60 days of Nov. 18—the number is staggering. And the FVRA is clear that any actions taken after the deadline have “no force or effect.”

Below is a brief overview of the FVRA, what the courts have said about the law, how it’s enforced and what that means for any officials currently serving in violation of its time limit.

General Provisions

Under 5 U.S.C. 3347, the FVRA is the exclusive means for temporarily filling vacancies in executive agencies unless:

1. a statutory provision expressly—
   1. 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
   2. designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity; or
2. 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.

(It bears mentioning that the exclusivity provision is part of the basis for the current dispute over the leadership of the Consumer Financial Protection Bureau.)

The FVRA provides three methods for allowing an acting officer to perform the nondelegable duties of vacant offices that arise for executive-branch positions subject to Senate advice and consent. As a default mechanism, 5 U.S.C. §3345 says the first assistant to the vacant position should fill the office—that’s how Deputy Attorney General Sally Yates became acting attorney general when Loretta Lynch resigned. But the president may choose to direct another Senate-confirmed officer to fill the position in an acting capacity, which is how Dana Boente, the U.S. attorney for Virginia’s eastern district, acted as attorney general after Yates left. The FVRA also lets the president designate as an acting officer an “officer or employee” who, in the 365 days preceding the vacancy, served in the same agency for 90-days or more and is GS-15 or higher on the federal pay scale. And an officer appointed for an additional term in a position they currently serve in may serve as an acting officer until the Senate acts on their nomination.

The Congressional Research Service notes that the term “first assistant” lacks clear definition:

The term “first assistant” is a unique term of art under the FVRA. Nonetheless, the term is not defined by the Act and its meaning is not entirely clear. For many offices, a statute or regulation explicitly designates an office to be the “first” assistant to that position. However, this is not true for all office, and in those cases, who qualifies as the “first assistant” to that office may be open to debate.

But the FVRA does set additional limitations on who can serve as an acting officer and what they can do.

A nominee to fill a vacancy cannot serve as acting officer for the vacant position. That’s why Jeffrey Wall became acting solicitor general when the president nominated Noel Francisco to the position; as principal deputy solicitor general at the time, Francisco was the first assistant to the solicitor general.

There’s an exception to that rule: A nominee may serve as acting officer if she has been the first assistant to the vacant position for at least 90 days or was appointed to that position with Senate confirmation. In 2007, John Rizzo served as acting general counsel of the CIA while his nomination to the general counsel position was pending before the Senate because he had been deputy general counsel—the position’s first assistant—for more than 90 days.

The FVRA also limits how long an acting officer can hold a vacant Senate-confirmed position. An acting officer may serve “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.” (The time limits do not apply to vacancies “caused by sickness,” per 5 U.S.C. §3356(a).)

Special Circumstances and Exempt Positions

What happens if the Senate rejects the president’s nominee for a vacancy? When the Senate rejects a nominee for a vacancy, the FVRA allows an acting officer to serve for another 210-day period. If a second nomination is rejected, then an officer may serve one more 210-day period. But at the end of that time, the officer may no longer serve; the act does not authorize service while a third nomination is pending.

The FVRA has a special exception for presidential transitions. For vacancies that occur on the day of or within 60 days of a new president’s inauguration, an acting officer may serve for 300 days from the date of the vacancy—creating the deadline that current acting officers began to face earlier this month. (Because some Obama administration officials continued to serve in the early days of the Trump administration, some vacancies occurred after the inauguration and, thus, would reach their 300-day deadline after Nov. 18.)

The FVRA also exempts certain positions: the general counsels of the National Labor Relations Board and Federal Labor Relations Authority, many inspectors general and chief financial officers of executive agencies, and executive branch office for which “a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.”

When there’s no acting officer in a Senate-confirmable position, Section 3348 says that either the agency head (if the position is not vacant) or another person authorized by another statute that allows acting service may perform that positions functions. Otherwise, the actions of a person violating the FVRA “in the performance of any function or duty of a vacant officer … shall have no force or effect.”

Enforcement

So where does that leave the acting officers who as of Nov. 18 (the 300th day of the Trump administration) have begun to fall out of compliance with the FVRA?

The FVRA does not provide a mechanism for removing officers who continue to act beyond their statutorily authorized period. Though the statute requires the comptroller general to report such cases to Congress, which may employ oversight tools to bring the executive branch into compliance, there is no guarantee of efficiency or effectiveness.

If the president does not nominate officers to those positions, then any actions taken after the 300 days of vacancy have no force or effect. The Supreme Court intonated in National Labor Relations Board v. SW General that such actions are “void ab initio,” or “null from the beginning.” (Courts cannot allow void acts to proceed under harmless error doctrine, as they can with “voidable” acts.) A party who has standing to challenge an action taken by a non-compliant officer might argue that the action was void. But in the absence of clearer enforcement language, it may take further litigation to understand how the FVRA applies to the uncharted territory we’ve entered.