*HomeU.S. Government Accountability Office*
Menu

      close


          
          
                          	
				
				
	
	
					Reports & Testimonies
									
																				
				
				
	
	
								Reports & Testimonies
													
																												
																						
							
																Recommendations Database
							
																												
																						
							
																Month in Review
							
																												
																						
							
																Order Copies
							
																												
																						
							
																Restricted Reports
							
																												
																						
							
																View Topics
							
																												
																						
							
																View Agencies
							
																												
																						
							
																Bid Protests & Appropriations Law
									
																				
				
				
	
	
								Bid Protests & Appropriations Law
													
																												
																						
							
																Bid Protests
							
																												
																						
							
																Appropriations Law
							
																												
																						
							
																Federal Vacancies Reform Act
							
																												
																						
							
																Other Legal
							
																												
																						
							
																About
									
																				
				
				
	
	
								About
													
																												
																						
							
																What GAO Does
							
																												
																						
							
																U.S. Comptroller General
							
																												
																						
							
																Careers
							
																												
																						
							
																Contact UsFor Congress
                                
                          
        
                Press Center
                                
                          
        
                Careers
                                
                          
        
                BlogSearch Breadcrumb
        Home
                            Reports & Testimonies
                            U.S. Department of Labor—Legality of Service of Acting Secretary of Labor
    U.S. Department of Labor—Legality of Service of Acting Secretary of Labor **B-335451**
        Sep 21, 2023Jump To:
    Jump ToElder Abuse
          Services for Older Adults
          State and Local-Level Drivers and Trends
          State and Local Fiscal Projections
          Federal Borrowing
          Managing the Debt
          Summary of Funding Provisions
          Auditing the Government's Books
          Unpacking the Financial Report
          Highlights
          Recommendations
          Background
          About This Work
          About This Work
          Trends
          About the Center
          Why It's High Risk
          What Remains To Be Done
          Key Reports
          Newest COVID-Related Reports
          AI Use Cases
          Flood Insurance
          Past Pandemic-Related Reports
          CARES Act Oversight Reports
          All COVID-19 Reports
          Report Suspected Fraud
          Subjects
          How to Get Notified
          Past Reports
          Public Health Threats
          Explore the FY 2022 and 2023 Funds
          Lessons Learned
          Agency Reports
          Recent Reports
          Recommendations
          Supplemental Material
          Full Report
          Additional Data
          View Decision
          Downloads
          Previously Identified Actions
          Related Pages
          Associated Agencies
          Tough Choices and Opportunities Ahead
          Americas Fiscal Future Key Areas
          Retirement Security Key Areas
          Current List
          About The High Risk List
          Area Ratings
          Previous High Risk Products
          Search Federal Vacancies
          Past Federal Vacancies
          Violation Letters
          About the Yellow Book
          Advisory Council
          Related Resources
          Comment Letters
          Related Publications
          Contacts and Resources
          Major Issues Facing the Nation
          Meeting Strategic Challenges
          Additional Resources
          Resources
          GAO Contacts
          Mission Teams
          Operations and Staff Offices
          Organization Chart
          Why a Career at GAO?
          Am I Qualified?
          Company Culture
          Reasonable Accommodations
          Video Gallery
          Paid Internships
          Student Volunteers
          Professional Development Program
          Advancement
          Executive Candidate Program
          Summer Associates
          Externships
          Benefits
          Contacts
                    Skip to Highlights
Highlights
  The Federal Vacancies Reform Act of 1998 (Vacancies Act), 5 U.S.C. §§ 3345–3349d, is the exclusive means for an acting official to serve in a vacant executive branch position that requires presidential appointment and Senate confirmation unless another statutory provision expressly designates an acting officer or authorizes the President, a court, or the head of an executive department to make a designation. Section 552 of title 29, United States Code, is such a provision. It provides that, if the Secretary of Labor resigns, the Deputy Secretary of Labor shall perform the duties of the Secretary until a successor is appointed. On March 11, 2023, the prior Secretary of Labor, Martin J. Walsh, resigned, and the Deputy Secretary of Labor, Julie A. Su, assumed the role of Acting Secretary of Labor pursuant to 29 U.S.C. § 552, not the Vacancies Act. Therefore, the Vacancies Act's time limitations on acting service do not apply to the Acting Secretary's service.

  View DecisionDecision

**Matter of:** U.S. Department of Labor—Legality of Service of Acting Secretary of Labor

**File:** B-335451

**Date:** September 21, 2023

**DIGEST**

The Federal Vacancies Reform Act of 1998 (Vacancies Act), 5 U.S.C. §§ 3345–3349d, is the exclusive means for an acting official to serve in a vacant executive branch position that requires presidential appointment and Senate confirmation unless another statutory provision expressly designates an acting officer or authorizes the President, a court, or the head of an executive department to make a designation. Section 552 of title 29, United States Code, is such a provision. It provides that, if the Secretary of Labor resigns, the Deputy Secretary of Labor shall perform the duties of the Secretary until a successor is appointed. On March 11, 2023, the prior Secretary of Labor, Martin J. Walsh, resigned, and the Deputy Secretary of Labor, Julie A. Su, assumed the role of Acting Secretary of Labor pursuant to 29 U.S.C. § 552, not the Vacancies Act. Therefore, the Vacancies Act’s time limitations on acting service do not apply to the Acting Secretary’s service.

**DECISION**

This responds to a congressional request regarding the legal authority governing Julie A. Su’s service as Acting Secretary of Labor of the U.S. Department of Labor (Labor), and whether any time limitations apply to her service.[1] As explained below, we conclude that Ms. Su is lawfully serving as the Acting Secretary under 29 U.S.C § 552 (section 552).[2] We also conclude that the Vacancies Act’s time limitations on acting service do not apply to the Acting Secretary’s service.

In accordance with our regular practice, we contacted Labor to seek factual information and its legal views on this matter.[3] Labor responded with its explanation of the pertinent facts and legal analysis.[4]

BACKGROUND

The Vacancies Act establishes requirements for temporarily authorizing an acting official to perform the functions and duties of certain vacant positions that require presidential appointment and Senate confirmation. 5 U.S.C. §§ 3345–3349d. The Vacancies Act is the exclusive means for an acting official to serve in a covered position unless another statutory provision expressly designates an officer or employee to temporarily serve in an acting capacity in a specified position or authorizes the President, a court, or the head of an executive department to make such a designation. 5 U.S.C. § 3347.

Labor is an executive department in the executive branch and is responsible for fostering the welfare of wage earners in the United States, improving their working conditions, and advancing their opportunities for profitable employment. 29 U.S.C. § 551. The Secretary of Labor is the head of the agency and is a presidentially appointed, Senate-confirmed (PAS) position. *Id.*

On July 13, 2021, Julie A. Su was confirmed as Deputy Secretary of Labor.[5] On March 11, 2023, the Secretary, Martin J. Walsh, resigned, creating a vacancy in the position.[6] According to Labor, Ms. Su began serving as Acting Secretary of Labor, as of that date, pursuant to 29 U.S.C. § 552.[7] Section 552 states, in relevant part:

The Deputy Secretary [of Labor][8] shall (1) in case of the death, resignation, or removal from office of the Secretary, perform the duties of the Secretary until a successor is appointed, and (2) in case of the absence or sickness of the Secretary, perform the duties of the Secretary until such absence or sickness shall terminate.

29 U.S.C. § 552.

Ms. Su is the only official who has served as Acting Secretary since the vacancy began.[9] Ms. Su was nominated to serve as Secretary of Labor on March 14, 2023.[10] Her nomination remains pending with the Senate.[11]

DISCUSSION

At issue here is whether 29 U.S.C. § 552 or the Vacancies Act governs Ms. Su’s service as Acting Secretary, and whether there are any time limitations on her acting service.

Authority Governing Ms. Su’s Acting Service

The Vacancies Act is the exclusive means for temporarily authorizing an acting official to perform the functions and duties of most vacant PAS positions in executive agencies unless an exception applies. 5 U.S.C. § 3347(a). In particular, an official may act under a statutory provision other than the Vacancies Act if that provision either expressly “designates an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity,” or expressly “authorizes the President, a court, or the head of an Executive department” to make such a designation. 5 U.S.C. § 3347(a)(1); B‐331650, Aug. 14, 2020.

The Secretary of Labor is a PAS position subject to the Vacancies Act.[12] According to Labor, Deputy Secretary Su began serving as Acting Secretary pursuant to 29 U.S.C. § 552, when Martin J. Walsh resigned from the position on March 11, 2023.

Section 552 directs that in the event of a vacancy the Deputy Secretary of Labor shall perform the duties of the Secretary until a successor is appointed or, in the case of absence or sickness of the Secretary, until the absence or sickness has terminated. Because section 552 expressly requires the Deputy Secretary to perform the duties of the Secretary temporarily in an acting capacity, the provision provides authority, independent of the Vacancies Act, for an official to serve as the Acting Secretary. *See* 5 U.S.C. § 3347(a)(1)(B); S. Rep. No. 105-250, at 16 (1998) (expressly identifying section 552 as falling within a similarly-worded exception in an earlier version of the bill); *see also Noel Canning v. NLRB*, 705 F.3d 490, 511 (D.C. Cir. 2013), *aff’d*, 573 U.S. 513 (2014) (citing section 552 as an example of Congress “provid[ing] for the temporary filling of a vacancy in a particular executive office by an ‘acting” officer’ authorized to perform all of the duties and exercise all of the powers of that office”).

Next, we turn to whether Ms. Su is authorized to serve under this position-specific authority. Section 552 states that the Deputy Secretary of Labor becomes the Acting Secretary when there is a vacancy in the position. *See* 29 U.S.C. § 552. Because Ms. Su began serving as Deputy Secretary on July 13, 2021, she became eligible to serve as Acting Secretary under section 552 on March 11, 2023, when the former Secretary resigned. *See id.*

Even if section 552 did not authorize Ms. Su’s service, Labor notes that Ms. Su may also serve under the Vacancies Act, even though she has been nominated to the Secretary position, because she is the “first assistant” to the Secretary and the first assistant position required presidential appointment and Senate confirmation.[13] We agree. *See* 5 U.S.C. § 3345(a)(1), b(1), (b)(2); 5 U.S.C. § 3346(a)(2) (authorizing acting service while a first nomination is pending in the Senate). However, there is no need to address Ms. Su’s potential eligibility for service under the Vacancies Act here because Ms. Su is lawfully serving as Acting Secretary pursuant to section 552.

Time Limitations on Ms. Su’s Acting Service

We next consider whether there are any time limitations on Ms. Su’s service as Acting Secretary.

Section 552 expressly limits the period of acting service after the Secretary of Labor resigns to the time at which a successor is appointed. *See* 29 U.S.C. § 552. The Vacancies Act also sets forth specific time limitations for acting service in various circumstances. *See* 5 U.S.C. § 3346.[14] However, we have previously held that when an officer is serving under a position-specific authority in accordance with section 3347, the time limitations in section 3346 do not apply to their acting service. B-333543, Feb. 1, 2022. Accordingly, if Ms. Su continues to serve as Acting Secretary pursuant to section 552, she may continue to serve in that position until a successor is appointed.

CONCLUSION

As the Deputy Secretary of Labor, Ms. Su may serve as Acting Secretary under section 552 until a successor is appointed. The Vacancies Act’s time limitations do not apply to her service.

Edda Emmanuelli Perez
General Counsel

[1] Letter from Chairwoman Virginia Foxx, House Committee on Education and the Workforce, to Comptroller General (July 6, 2023).

[2] Section 1 of the Act of April 17, 1946, 60 Stat. 91, is codified, as amended, in section 552. Section 1 was amended in 1986, in relevant part, to rename the position of “Under Secretary” to “Deputy Secretary”. Department of Labor Executive Level Conforming Amendments of 1986, Pub. L. No. 99-619, § 2(a)(1), 100 Stat. 3491 (Nov. 6, 1986).

[3] GAO, *Procedures and Practices for Legal Decisions and Opinions*, GAO-06-1064SP (Washington, D.C.: Sept. 2006), *available* *at* https://www.gao.gov/products/GAO-06-1064SP. Letter from Assistant General Counsel for Appropriations Law, GAO, to Solicitor, Labor (Aug. 4, 2023).

[4] Letter from Solicitor, Labor, to Assistant General Counsel for Appropriations Law, GAO (Aug. 25, 2023) (Labor Response)

[5] PN122 – Julie A. Su – Department of Labor, 117th Congress (2021-2022), *available at* https://www.congress.gov/nomination/117th-congress/122.

[6] Labor Response, at 1.

[7] *Id.*

[8] The Deputy Secretary of Labor is a PAS position. 29 U.S.C. § 552.

[9] *Id.*

[10] PN388 – Julie A. Su – Department of Labor, 118th Congress (2023-2024), *available at* https://www.congress.gov/nomination/118th-congress/388.

[11] *Id.*

[12] *See* 5 U.S.C. §§ 3345(a), 3347(a); 29 U.S.C. § 551 (“There shall be an executive department in the Government to be called the Department of Labor, with a Secretary of Labor, who shall be the head thereof, to be appointed by the President, by and with the advice and consent of the Senate, and whose tenure of office shall be like that of the heads of the other executive departments.”).

[13] Labor Response, at 3.

[14] If no nomination has been submitted, the allowable period of acting service is generally 210 days beginning on the date the vacancy occurs. 5 U.S.C. § 3346(a)(1). If a nomination has been submitted, acting service is permitted during the pendency of a first or second nomination and for up to 210 days after the date the first or second nomination is rejected, withdrawn, or returned. 5 U.S.C. § 3346(a)(2), (b).

Downloads
    Full Report (5 pages)
GAO Contacts
    
      Shirley A. Jones
            
            Managing Associate General Counsel
      
            jonessa@gao.gov
      
            (202) 512-5400
Office of Public Affairs
    
      Chuck Young
            
            Managing Director
      
            youngc1@gao.gov
      
            (202) 512-4800
Related Pages
      RelatedAppropriations LawRelatedBid ProtestsRelatedDecisions & FAQsRelatedThe Red BookRelatedContract Appeals BoardRelatedFederal Vacancies Reform ActRelatedCongressional Review Act
 Receive GAO Updates
  Stay informed as we add new reports & testimonies.

    GAO Logo
      U.S. Government Accountability Office


                                   Column 1
                            Press Center
                              Contact Us
                              Inspector General
                              Restricted Reports
                              Column 2
                            Copyright & Terms of Use
                              Privacy Policy
                              Accessibility
                              Sitemap
                              Column 3
                            FOIA Requests
                              Scam Alerts
                              No FEAR Act Data
                              Health Care Advisory Committees