Acting Officials Under the Federal Vacancies Reform Act: Time Limits

Acting officials under the Federal Vacancies Reform Act can come from only three places: the first assistant to the vacant office, another official already confirmed by the Senate, or a senior employee inside the same agency who meets tenure and pay thresholds. They can generally serve for 210 days, longer if a nomination is pending, and any action they take outside the statute’s limits is void and cannot be fixed after the fact.

Which Positions the Rules Cover

The Act applies to executive branch positions that require presidential appointment and Senate confirmation, commonly called PAS positions. That covers cabinet secretaries, their senior deputies, and equivalent roles across independent agencies, government corporations, and the Executive Office of the President.¹

Two categories fall outside it. Members of the multi-member boards or commissions that govern independent agencies like the FCC and SEC follow their own succession rules. Positions inside the Government Accountability Office are also exempt, because the GAO sits in the legislative branch under separate statutes.¹

The Act is triggered when a Senate-confirmed officer “dies, resigns, or is otherwise unable to perform the functions and duties of the office.”² Expiration of a fixed term also counts, so an acting official can step in when a commissioner’s term runs out.

Who Can Serve as Acting Official

The statute lays out three paths, and only three. The president chooses among them, subject to the constraints in each.²

The default is the first assistant. This person steps into the acting role automatically when the vacancy occurs, with no presidential action required. The term usually refers to the office’s top deputy. The statute does not define it, though, and the question of who qualifies has produced real disagreement. For some offices a separate statute or regulation names the first assistant expressly. For others the answer is murky. At least one federal court has ruled that a person installed into a newly created position after the vacancy occurred did not qualify.

The president can override that default by directing another Senate-confirmed officer to take on the acting role. Because that person already cleared confirmation for a different job, the Senate has already weighed in on their fitness for senior service.

The third option is a senior employee inside the same agency. That employee must have served in a position at the agency for at least 90 days during the year before the vacancy and must have been paid at or above the GS-15 minimum rate. Those tenure and pay floors exist to keep the president from elevating a recent political placement into a powerful role without a real record at the agency.

The Nominee Bar

Once the president nominates someone for the permanent job, that nominee generally cannot also serve as the acting official for the same role. The point is to prevent the executive branch from installing its preferred candidate in the seat before the Senate votes. In 2017 the Supreme Court held that this restriction reaches all three categories of acting officials, not just first assistants. The case involved an NLRB general counsel who was serving in an acting capacity and was nominated for the permanent job; the Court held he became ineligible to continue acting the moment the nomination was submitted.³

The exceptions are narrow. A first assistant who held that role for at least 90 of the 365 days before the vacancy may keep acting after being nominated. The same exception applies where the first assistant position is itself Senate-confirmed and the person was confirmed to it. A third exception covers reappointment, where the nomination is for an additional term in the same position with no break in service.¹

How Long Acting Service Can Last

An acting official can generally serve for no more than 210 days from the date the vacancy occurs. The clock starts when the position becomes vacant, not when someone is formally designated.⁴

Submitting a nomination pauses the clock. The acting official can continue serving as long as the nomination is pending. If the Senate rejects a first or second nomination, or the president withdraws it, or the Senate returns it, a fresh 210-day window opens from the date of that event.⁴ Total acting service can therefore stretch well past the initial 210 days when an administration keeps trying to fill the seat.

Two adjustments matter. During a presidential transition, any vacancy that exists on inauguration day or arises within 60 days afterward gets a 300-day window from inauguration instead of 210 days, and the nomination-pending extensions run on top of that. And when the vacancy is caused by sickness rather than death, resignation, or another form of inability, the time cap does not apply at all, because the absent officer may return.⁴

What Happens When the Time Runs Out

If the deadline passes without a pending nomination, the acting official’s authority ends. The agency does not shut down, but the position’s exclusive powers go dormant.⁵

The Act distinguishes between duties that only the Senate-confirmed officer can perform and duties that others in the agency can lawfully handle. A “function or duty” under the FVRA is one established by statute or regulation that is required to be performed exclusively by that particular officer. Those exclusive duties cannot be performed by anyone once acting authority runs out. The position stays vacant for those purposes.

For a vacancy below the agency head, the head of the agency can step in and perform the exclusive functions of the vacant office. When the agency head’s own seat is empty, nobody can perform those exclusive duties until a permanent replacement is confirmed or a new acting official is properly authorized. Duties that are not exclusive to the vacant office, like general management functions that can move through the agency’s ordinary delegation authority, continue to be handled by other officials.

Agency-Specific Succession Laws

The FVRA calls itself the “exclusive means” for temporarily filling a PAS position, but it recognizes two alternatives.⁶

If a separate federal statute expressly authorizes someone to fill a specific position in an acting capacity, that statute remains available. Roughly 40 such provisions exist. The Deputy Attorney General, for example, is authorized by statute to exercise the duties of the Attorney General during a vacancy, and the Homeland Security Act lets the Secretary designate a further order of succession. When one of these statutes applies, the administration can pick whether to use the FVRA or the agency-specific route.

The president also retains the constitutional power to make recess appointments while the Senate is adjourned, which bypasses the FVRA entirely.

A general delegation-of-authority statute does not count as an express alternative. An agency head cannot use ordinary power to reassign duties among subordinates as a workaround.⁶ If it did, the framework would collapse.

Void Actions and No Ratification

The enforcement rule is unusually strict. If someone who is not properly serving under the Act performs a function or duty that belongs exclusively to a Senate-confirmed officer, that action “shall have no force or effect.” It is legally void from the start.⁵

A void action also cannot be ratified after the fact. Even if a properly confirmed successor later agrees with the decision, they cannot retroactively validate it. The agency has to start over.⁵ That is where the FVRA has real teeth. Regulations, orders, and policy directives issued by an improperly serving official can be thrown out entirely.

Courts have applied this in practice. A federal court struck down asylum directives issued by a senior immigration official installed in a newly created position that did not qualify as a legitimate first-assistant role. The directives were void because the official had never been properly authorized to act, and the no-ratification rule meant a confirmed successor could not simply re-sign the same orders.

The Act does not create a standalone right to sue over a vacancy. A plaintiff harmed by an agency action, such as a regulated business or someone subject to an enforcement decision, can raise the acting official’s lack of authority as one basis for invalidating that action. When the argument works, everything the improperly serving official did in the exercise of the office’s exclusive functions unravels.

Reporting and GAO Tracking

Agencies have to report vacancies. When one occurs in a covered position, the agency head must immediately notify the Comptroller General and both houses of Congress, including the date the vacancy began and the name of anyone designated to act. Updates follow whenever a nomination is submitted, withdrawn, rejected, or returned.⁷

The GAO uses this data to monitor compliance. It maintains a public database of current and past vacancies across administrations, sends letters to the president and Congress when agencies exceed the statutory limits, and issues formal decisions on compliance questions raised by Congress.⁸ The vacancy tracker is accessible to anyone, which makes it a straightforward way to check whether a particular acting official is still within the Act’s time limits.

1
U.S. Government Accountability Office. FAQs on the Vacancies Act
2
Office of the Law Revision Counsel. 5 USC 3345 – Acting Officer
3
Supreme Court of the United States. NLRB v. SW General, Inc.
4
Office of the Law Revision Counsel. 5 USC 3346 – Time Limitation
5
Office of the Law Revision Counsel. 5 USC 3348 – Vacant Office
6
Office of the Law Revision Counsel. 5 USC 3347 – Exclusivity
7
Office of the Law Revision Counsel. 5 USC 3349 – Reporting of Vacancies
8
U.S. Government Accountability Office. Federal Vacancies Reform Act