Countdown to Day 301 under the Federal Vacancies Reform Act of 1998

Of 612 key positions requiring Senate confirmation, no candidate has been nominated by the Trump Administration for 259 positions according to the Washington Post-Partnership for Public Service tracker. Most, if not all, of these key advice and consent positions are occupied by acting officers. For many such situations, the Federal Vacancies Reform Act of 1998, 5 U.S. Code § 3345, limits the amount of time an acting officer may remain in his or her position. According to the CRS Legal Sidebar, Out of Office: Vacancies, Acting Officers, and Day 301 (Nov. 1, 2017 LSB10022):

A number of acting officers are currently filling vacancies that occurred during the presidential transition period. For those offices that were vacant on or shortly after Inauguration Day, the 210-day period, with the 90-day extension [under The Vacancies Act], will come to an end beginning sometime in November. If an acting officer remains in office beyond this 300-day period, and if the President has not submitted any nomination to that office, then the acting officer runs the risk of violating the Vacancies Act.

So if an acting officer was appointment on Jan. 20, 2017, then day 301 is November 17th. According to the CRS analysis here’s what can happen on Day 301:

On Day 301, whenever that day might occur for a particular office, the office would be designated vacant, for purposes of the Vacancies Act, and only the head of the agency would be able to perform the functions and duties of that vacant office. (If an office designated vacant under this provision is that of the agency head, it appears that no one can temporarily perform the functions and duties of that office under the Vacancies Act.) If the acting officer remains in office and attempts to perform a nondelegable function or duty—one that a statute or regulation expressly assigns to that office—that action will “have no force or effect.” In the words of the Supreme Court, it will be “void ab initio”: void from the beginning, as if the act had never been done. (There are a few specifically named offices that are exempt from this provision, but it is unclear what the consequences are if one of those offices is staffed by an acting officer serving in violation of the Vacancies Act.) Critically, the Vacancies Act also prohibits an agency from subsequently ratifying any void actions. This means that the agency can’t cure any violations by reissuing its decision through the proper processes.

For a detailed analysis, see The Vacancies Act: A Legal Overview (Oct. 30, 2017, R44997). — Joe

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