The Federal Vacancies Reform Act of 1998 establishes requirements for temporarily filling vacant positions in Executive Branch agencies that require presidential appointment and Senate confirmation. These are commonly referred to as PAS positions. This act identifies who may temporarily serve, for how long, and what happens when no one is serving under the act and the PAS position is vacant.
The Vacancies Act applies to presidentially appointed, Senate confirmed positions in Executive Branch agencies, including Executive Branch departments, government corporations, independent establishments, and the Executive Office of the President. (5 U.S.C. §§ 101, 103–105, 3345(a).) However, the Vacancies Act expressly does not apply to: (1) positions at GAO; (2) members of boards, commissions, or similar entities composed of multiple members that govern independent establishments or government corporations; (3) members of the Federal Energy Regulatory Commission and Surface Transportation Board; and (4) judges appointed under Article I of the Constitution. (5 U.S.C. §§ 3345(a), 3349c.) Please note that even if a position is covered, there are certain situations where the Vacancies Act does not apply (see question 9).
The Vacancies Act directs that the first assistant to the vacant office is the default acting officer. However, the act also authorizes the President to direct a presidentially appointed, Senate confirmed officer or a senior agency employee meeting certain criteria to serve as the acting officer. (5 U.S.C. § 3345(a).)
The Vacancies Act does not define the term “first assistant.” For certain covered positions, the first assistant is designated by statute (e.g., 6 U.S.C § 113(a)(1)(A); 28 U.S.C. § 508(a)). For other covered positions, agencies may, prior to a vacancy occurring, designate first assistant positions through various means, including regulations, agency orders, agency directives, or position descriptions. (B-332995, Aug. 2, 2021.)
No. An individual who becomes first assistant after a vacancy occurs in a covered position may serve as the acting officer unless: (1) the time period for acting service has expired; or (2) the individual is nominated for the covered position (subject to some exceptions that are described in the answer to question 6). (5 U.S.C. §§ 3345(a)(1), 3345(b), 3346; B-332995, Aug. 2, 2021; GAO, Changed Interpretation of Requirements Related to First Assistants Under the Federal Vacancies Reform Act of 1998, GAO-02-272R (Washington, D.C.: Dec. 7, 2001).)
In general, the nominee to a covered position may not serve as the acting officer under the Vacancies Act. (5 U.S.C. § 3345(b)(1); NLRB v. SW General, Inc., 137 S. Ct. 929 (2017).) But the act includes several exceptions. First, the nominee may serve as acting officer if they served as first assistant to the position for a minimum period of time prior to the vacancy occurring. (5 U.S.C. § 3345(b)(1)(A).) Second, the nominee may act if: (1) they are the first assistant; (2) the first assistant position is a presidentially appointed, Senate confirmed position; and (3) the nominee was appointed by the President and confirmed by the Senate to that position. (5 U.S.C. § 3345(b)(2).) Finally, the President may direct a nominee to act if they previously held the covered position and the President nominated them for reappointment to an additional term without a break in service. (5 U.S.C. § 3345(c)(1).)
The Vacancies Act includes several time limitations on acting service in covered positions when vacancies are not caused by sickness. If no one has been nominated to the position, an acting officer may serve in the position for no longer than 210 days beginning on the date of the vacancy. (5 U.S.C. § 3346(a)(1).) However, for any vacant positions that exist during the 60-day period beginning on a transitional Presidential inauguration day, an acting officer may serve in the position for no longer than 300 days beginning on the inauguration day or the date of the vacancy, whichever is later. (5 U.S.C. § 3349a.)
If there is a first or second nomination for the position, an acting officer (who is not the nominee or is the nominee and meets certain exceptions) may serve while the nomination is pending in the Senate. (5 U.S.C. § 3346(a)(2).) If the nomination is rejected or returned by the Senate or withdrawn by the President, an acting officer may serve for no longer than 210 days after the date of the rejection, return, or withdrawal. (5 U.S.C. § 3346(b).) These additional periods of acting service only apply to the first and second nominations. Further acting service is not permitted after 210 days following the rejection, return, or withdrawal of a second nomination, even if a third nomination is made. (5 U.S.C. § 3346.)
The Vacancies Act requires that covered positions must remain vacant unless an acting officer is serving in accordance with the requirements of the act. (5 U.S.C. § 3348(b).) When a position is vacant, only the head of the Executive Branch agency (unless the vacant position is the agency head) may perform the functions and duties that are required by statute or regulation to be performed by such position. (5 U.S.C. § 3348(a)–(b).) The Vacancies Act states that if an individual who is neither the agency head nor acting in accordance with the act performs such functions or duties, those actions have no force and effect and may not be ratified. (5 U.S.C. § 3348(d).) However, some positions are excluded from these restrictions. (5 U.S.C. § 3348(e).)
The Vacancies Act is the exclusive means for temporarily filling covered positions unless: (1) there is a statutory provision that either expressly designates an acting officer or authorizes the President, court, or Executive Branch department head to designate an acting officer; or (2) the President appoints an individual while the Senate is in recess in accordance with Article II, Section 2, Clause 3 of the Constitution. (5 U.S.C. §§ 3347.)
GAO receives and records the information that agencies report to the Comptroller General under the act. GAO’s Office of the General Counsel performs outreach to agencies to promote compliance with the act, notifies Congress of violations of the act’s reporting requirements, reports violations of the act’s time limitations to the President and Congress, and issues decisions on agency compliance with the act when requested by Congress.