Loyola University Chicago School of Law, JD 2022
In 1998, Congress passed legislation to address vacancies created when a high-ranking official of an executive branch agency leaves their position. The Federal Vacancies Reform Act (FVRA) establishes a time limit of 210 days from the date of a vacancy for which a person may serve in an acting capacity in a position that is otherwise nominated by the President, with advice and consent of the Senate. The FVRA allows acting officials to serve beyond that time if there is a first or second nomination pending in the Senate for the vacancy. However, certain agencies have supplemental succession plans within their enabling statues that may supersede or complicate the FVRA.
Language of the FVRA
The Senate bill explains that the purpose of the FVRA was “to clarify statutory requirements relating to vacancies in and appointments to certain Federal offices, and for other purposes.” The FVRA states that it applies when an officer of an applicable executive agency whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, “dies, resigns, or is otherwise unable to perform the functions and duties of the office.” The term “officer” is defined by statute to include individuals who are required by law to be appointed in the civil service by the President or by the head of an executive agency acting in his or her official capacity.
The FVRA authorizes three types of government officials to become “acting officers” for agencies. First, the general rule is that the first assistant to a vacant office shall become the acting officer. Second, the President may override the default rule and direct a person serving in a different Presidential appointment and Senate confirmation (PAS) office (from any executive agency) to serve in an acting capacity. Finally, the President may instead direct a senior employee within the relevant agency to become the acting officer. The FVRA also prohibits an individual from serving as the acting officer if they have been in the first assistant role for less than ninety days, or if the President nominates them to permanently fill the vacancy. The enforcement language in the FVRA states that actions taken by officers acting in violation of the statute, “shall have no force or effect” and shall not be ratified.
The FVRA in practice
There are notable issues with the use of the FVRA that may circumvent the legislative intent of the law and separately allow for acting officers to serve indefinitely. There are agencies that are exempt from the FVRA. However, several other executive agencies covered by the FVRA have established succession plans that may compliment or conflict with the implementation of the FVRA. The Department of Justice and the Social Security Administration (SSA) are two such agencies. The GAO issues letters to the President and Congress reporting violations of FVRA time limitations and, at the request of Congress, issues decisions on agency compliance with the act.
Recently, the GAO determined that the current service of SSA acting Commissioner, Dr. Kilolo Kijakazi, is lawful despite her acting in excess of the FVRA time limits. Dr. Kijazi has been head of the agency in an acting capacity since July 9, 2021. GAO explained that her appointment was conducted under the Social Security Act, and not pursuant to the FVRA. The GAO determined that the Social Security Act dictates succession “independent of the [FVRA]” and that it does not provide time limits for how long an acting officer may lead the agency. President Biden has yet to nominate a permanent SSA commissioner, and with the GAO ruling, he may not have to.
Competing agency rules and regulations can also lead to litigation where federal courts must decide if the actions of acting agency heads and administrators are binding or enforceable. The FVRA’s enforcement language only applies to “non-delegable” duties. Therefore, many functions of acting officers are upheld by federal courts due to the broad interpretation of the terms “function” or “duty” even if their service is found to be in violation of the FVRA.
However, when a court does find actions have no force because an acting officer was serving in violation of the FVRA, voiding agency rules promulgated during their service or actions of their office can lead to confusion and an influx of more litigation. For example, in L.M.-M. v. Cuccinelli, the District of Columbia District Court held that Ken Cuccinelli was improperly serving as the acting director of at U.S. Citizenship and Immigration Services in violation of the FVRA (because of an invalid succession plan) and found several actions by Cuccinelli should be invalidated. That outcome is certainly beneficial for those harmed by the void actions but may also create more backlogs for other people in the system because of the ever-changing policy and procedures.
The future of the FVRA
Recent examples of acting officials serving beyond the established time limits and ongoing litigation suggests the FVRA is not working as intended. Although recommendations for improvements vary based on political ideology, many legal scholars and policy makers agree that the FVRA requires revision. According to the non-partisan group, Partnership for Public Service, the Senate can take several immediate steps to improve the confirmation process, and therefore create an incentive for the executive branch to comply with the FVRA.
First, the Senate could decrease the number of PAS positions. Since 1960, the number of PAS positions has increased nearly sixty percent. Additionally, the Senate often lags in confirming Presidential nominations within the first year of new administrations. Over the last four administrations, the Senate’s first year confirmations have dropped from seventy-five percent to fifty-five percent of nominees. Finally, Congress should update the FVRA to limit the types of officers who can serve in an acting capacity to better reduce time violations.
The work of executive agencies has real impact of the lives of citizens. Federal employees within those agencies deserve reliable structure and leadership, and we all deserve government agencies that comply with federal statutes.