While the basic process of presidential appointment and Senate confirmation is common knowledge, the law governing who can serve as an “acting” officer in a Senate-confirmed position is more complicated. Presidential administrations can make mistakes, leading to legal problems for some officers. Most issues arise under the Federal Vacancies Reform Act of 1998, which limits who can serve as an acting official in a Senate-confirmed position when the post is otherwise vacant, and how long they can serve.
On August 14, the Government Accountability Office ruled that acting Homeland Security Secretary Chad Wolf and acting Deputy Secretary Ken Cuccinelli were serving based on an invalid order of succession. In March, a federal district judge in the District of Columbia ruled that Cuccinelli’s appointment also violated the Federal Vacancies Reform Act. GAO, which monitors compliance with the FVRA, reported six violations during the Obama administration and eight so far during the Trump administration.
The FVRA limits the tenure of acting officials in two ways: who can be an acting official; and how long they can serve. It provides a default rule that the first assistant to a position automatically becomes the acting officer upon a vacancy. The president can override this default rule if he directs that another person confirmed by the Senate or another senior official in the same agency as the vacancy should serve instead.
The FVRA does not specifically describe what a first assistant is, which has created some legal confusion. In the case decided in March, DHS Secretary Kevin McAleenan created a position in the U.S. Citizenship and Immigration Service called “Principal Deputy Director” and appointed Ken Cuccinelli to fill it a few days after the director of USCIS had resigned. Cuccinelli immediately became the acting director under the theory that he had been the first assistant to the director. However, because Cuccinelli had never actually been subordinate to the director, the court found that he was not a “first assistant” for purposes of the FVRA, and so he could not become the acting director of USCIS.
Senior officials within the same agency can become acting officials if they served in the agency for at least 90 days during the year preceding the vacancy and are paid at a rate at least equivalent to the GS-15 rank on the federal pay scale. There is no similar limitation on appointing other Senate-confirmed officers. The FVRA also prohibits appointees from serving in an acting capacity if they have been formally nominated for the job.
The FVRA imposes two possible time limits on acting officials. The acting official may serve:
When the first or second nomination is rejected by the Senate, withdrawn, or returned to the president, a new 210-day clock starts. This means that an acting official can serve well over a year under the FVRA if there is a nomination pending for the position.
While the FVRA covers most kinds of vacancies, there are some exceptions. For example, it does not apply to commissioners of the Federal Energy Regulatory Commission. The law’s time limits also do not apply to someone who is acting in a position because the regular job holder is temporarily absent due to illness.
There are essentially two different enforcement mechanisms for the FVRA. GAO is in charge of monitoring compliance with the law and reporting violations to Congress, but it has no power to actually impose penalties. However, private parties may sue to enforce the FVRA. If they win, the actions taken by the illegally serving official are void.
The only limitation on voiding the actions of illegally serving officers is that the FVRA only prohibits performing a “function or duty” of the vacant office. If an illegally serving officer does something that some other official could have done, then that action is not a “function or duty” of the office and is not void. For example, the D.C. court in the Cuccinelli case held that when he issued a written policy governing asylum credible-fear determinations, it was a “function or duty” of the office of USCIS director. Since the court held that Cuccinelli’s appointment violated the FVRA, that policy was void. By contrast, in a 2008 case, the U.S. district court for Connecticut held that the ability of the federal government to formally recognize a Native American tribe could be delegated from the secretary of the interior to a lower officer. For that reason, tribal acknowledgment decisions made by the lower officer were not void even though his service violated the FVRA. Courts have split on whether “function or duty” means a function explicitly assigned to only one office or a function assigned to one office that cannot be delegated to any other official.
One practical consequence of the FVRA is that if an acting officer runs out of time and loses his or her title, the legal authorities vested in the office can be rendered useless. This is a particular problem with acting inspectors general because IGs can be seen as an encumbrance by a presidential administration. If no one is nominated to fill the vacancy and the acting officer loses the title, a president has little incentive to nominate a new IG, harming oversight of the executive agencies.
Because the FVRA is a statute, a more recently enacted statute can overrule it. The FVRA itself also allows some preexisting statutes to overrule it if those statutes expressly laid out a different succession plan for an office. It is not clear what happens if the FVRA and another statute both authorize a particular person to serve as an acting official. It is also not clear what happens if an agency-specific statute does not give a time limit but the FVRA does. Complications like these tend to be resolved by the courts and arise frequently.
In one 2018 case, the U.S. District Court for the District of Columbia held that President Trump could use either an agency-specific statute or the FVRA to appoint Mick Mulvaney as the acting director of the Consumer Financial Protection Bureau. The Dodd-Frank Act required that the deputy director take over as acting director, but the court held that the FVRA allowed the president to override that default rule. In that case, the later statute, the Dodd-Frank Act, did not overrule the FVRA.
The opinion on acting officials at DHS released by GAO in August involved a situation where another statute overruled the FVRA’s default succession rule. The 2017 National Defense Authorization Act allowed the secretary of homeland security to designate other officers at the department to serve as acting secretary. In 2019, Secretary Kirstjen Nielsen used that authority to lay out two different succession plans, one in case of resignation and the other in case of unavailability during a disaster. GAO found that when Secretary Nielsen resigned later that year, DHS followed the disaster plan instead of the resignation plan, and consequently Kevin McAleenan incorrectly took office. McAleenan introduced a new succession plan to allow Chad Wolf to become acting secretary, and then Wolf altered the succession plan to allow Cuccinelli to become the director of USCIS. Because McAleenan originally took office based on an illegal succession, GAO decided, the subsequent succession plan changes were voided, and both Wolf and Cuccinelli were serving illegally.
