Administrative Conference of the United States

Acting Agency Officials and Delegations of Authority

Revised Draft Report: December 1, 2019
Initial Draft Report: September 16, 2019

Anne Joseph O’Connell*
Stanford Law School

This report was prepared for the consideration of the Administrative Conference of the United States. The opinions, views,
and recommendations are those of the author and do not necessarily reflect those of the members of the Conference or its
committees, except where recommendations of the Conference are cited.

I welcome suggestions and any corrections, particularly from the agencies discussed in the draft report, before I submit a
final version.

* Adelbert H. Sweet Professor of Law, Stanford University. Nine Stanford Law School students contributed significantly to

this report through a “Law and Policy Lab.” This is a unique program at the Stanford Law School, where students employ
analytic approaches to work on real-world policy issues. Arielle Andrews (SLS 2021), Juan Pablo Gonzalez (SLS 2020),
Nicholas Gonzalez (SLS 2020), Will Setrakian (SLS 2020), Thomas Veitch (SLS 2020), Alex Wu (SLS 2020), and Victor Xu
(SLS 2020) participated in the policy lab during the spring quarter, and Chelsey Davidson (SLS 2021) and Arielle Mourrain
(SLS 2020) worked on the project in the spring quarter and over the summer. Outside the policy lab, I am indebted to
Natalie Peelish (SLS 2019) and the reference librarians at Berkeley Law and Stanford Law School, particularly Shay Elbaum
and Kevin Rothenberg. Elan Dagenais programmed the agency survey into Qualtrics, and provided key advice on its
content. Bobby Ochoa and Reeve Bull at ACUS helped me in innumerable ways throughout the project. Much of the
background material in this report (for example, on the components of the Vacancies Act) is taken from a separate research
paper that focuses on normative and legal issues surrounding acting officials and delegations of authority, which is
forthcoming in the Columbia Law Review. The list of current succession statutory provisions was developed for ACUS,
however. The empirical material, other than the recent staffing of Cabinet Secretary jobs and three EPA positions, was
produced for this report (e.g., snapshot database, historical officers, GAO reporting for all the data sources, GAO violation
letters, and agency practices). The information on recent staffing in the Cabinet Secretary and the EPA positions was
originally produced for a Brookings Institution report and is reproduced here with permission. This report would not have
been possible without the contributions of former and current agency officials who shared their expertise and experience.

TABLE OF CONTENTS
INTRODUCTION ..................................................................................................................................... 1
I. BACKGROUND ON ACTING OFFICIALS UNDER THE VACANCIES ACT, SUCCESSION
PROVISIONS, AND DELEGATIONS OF AUTHORITY ...................................................................... 3
A.

Vacancies Act ...............................................................................................................................................................3
1. Included PAS Positions ...............................................................................................................................................4
2. Authority and Pay .......................................................................................................................................................4
3. Who Can Serve as Acting Leaders ..............................................................................................................................5
4. How Long Acting Officials Can Serve .........................................................................................................................7
5. Reporting Mandates and GAO Determinations...........................................................................................................7
B. Agency-Specific Succession Statutes ........................................................................................................................9
C. Delegations of Authority ......................................................................................................................................... 11
D. Constitutional and Statutory Issues ....................................................................................................................... 13
II. SCOPE OF ACTING OFFICIALS ................................................................................................... 16
A.
B.
C.

Previous Research and Data Issues ....................................................................................................................... 16
Snapshot Database ................................................................................................................................................... 19
Cabinet Secretaries.................................................................................................................................................... 20
1. Tallies of Acting Secretaries ...................................................................................................................................... 20
2. Tenures of Acting Secretaries ..................................................................................................................................... 21
3. Types of Acting Secretaries ........................................................................................................................................ 21
D. Three Positions at the EPA .................................................................................................................................... 23
E. Historical Cabinet Officers ..................................................................................................................................... 25
III. EXAMPLES OF DELEGATIONS OF AUTHORITY IN THE FACE OF STAFFING
VACANCIES ............................................................................................................................................. 28
A.
B.
C.

Delegations as Substitute for Acting Officials ..................................................................................................... 28
Standing Delegations Outside of Vacancies......................................................................................................... 30
Delegations in the Face of Vacancies .................................................................................................................... 33
1. First Assistant Delegations ....................................................................................................................................... 33
2. Combination Delegations .......................................................................................................................................... 33
3. Delegations for Specific Vacancies ............................................................................................................................. 34
a. General Delegations to Address Vacancies................................................................................................. 34
b. Targeted Delegations to Address Vacancies ............................................................................................... 36

IV. AGENCY PRACTICES CONCERNING ACTING OFFICIALS................................................... 38
A.
B.

Confusion about the Applicability of the Vacancies Act ................................................................................... 38
Internal Operations for Reporting Vacancies (and Acting Officials) and Tracking Time Limits ............... 39
1. Assignment of Tasks within the Agency .................................................................................................................... 39
2. Tracking Systems ...................................................................................................................................................... 39
3. Communicating with Acting Officials about the Vacancies Act’s Constraints ............................................................ 40
4. Training and Resources ............................................................................................................................................. 41
C. Agency-Specific Provisions and Succession Planning, Including Naming of First Assistants..................... 42
1. Agency-Specific Provisions ......................................................................................................................................... 42
2. Succession Planning................................................................................................................................................... 42
3. First Assistants ........................................................................................................................................................ 42
D. Disclosure of Titles................................................................................................................................................... 44
E. Experience of Acting Officials ............................................................................................................................... 47

1.
2.
3.
V.

Authority.................................................................................................................................................................. 47
After Acting Service.................................................................................................................................................. 49
Unexpected Aspects of Acting Service........................................................................................................................ 50

GAO REPORTING AND VIOLATIONS ....................................................................................... 51
A.
B.
C.
D.
E.
F.

Past Research ............................................................................................................................................................. 51
Snapshot Database ................................................................................................................................................... 52
Cabinet Secretaries.................................................................................................................................................... 54
EPA Positions ........................................................................................................................................................... 55
GAO Violation Letters ............................................................................................................................................ 56
Changes ...................................................................................................................................................................... 59

VI. AGENCY PRACTICES CONCERNING DELEGATIONS OF AUTHORITY............................ 60
A.
B.
C.
D.
E.
F.

Prevalence of Delegations ....................................................................................................................................... 60
Types of Delegation ................................................................................................................................................. 61
Exclusivity of Functions .......................................................................................................................................... 62
Timing, Time Limits, Exclusivity, and Wording of Delegations ...................................................................... 63
Disclosure of Delegations ....................................................................................................................................... 64
Continuity of Operations Plans.............................................................................................................................. 67

VII. RECOMMENDATIONS ................................................................................................................. 68
A.
B.
C.
D.

Acting Officials Under the Vacancies Act ............................................................................................................ 68
Acting Officials Outside the Vacancies Act and Succession Planning ............................................................ 71
Delegations of Authority Related to Staffing Vacancies .................................................................................... 72
GAO’s Role Under the Vacancies Act.................................................................................................................. 73

APPENDIX A AGENCY-SPECIFIC STATUTORY PROVISIONS ...................................................... 74
APPENDIX B SNAPSHOT DATABASE ............................................................................................... 101
APPENDIX C CABINET SECRETARY DATABASE .......................................................................... 110
APPENDIX D EPA DATABASE ............................................................................................................ 111
APPENDIX E HISTORICAL OFFICER DATABASE ......................................................................... 112
APPENDIX F SURVEY OF AGENCY OFFICIALS ............................................................................. 113
APPENDIX G INTERVIEWS WITH AGENCY OFFICIALS .............................................................. 114
APPENDIX H INTERVIEWS WITH FORMER ACTING OFFICIALS ............................................ 115
APPENDIX I AGENCY REPORTS TO GAO AND GAO VIOLATIONS DATA ............................... 116

Introduction
The federal bureaucracy relies on both political appointees and careerists to operate effectively.
There are currently over 1200 agency positions that are supposed to be filled through the presidential
nomination and Senate confirmation process; these jobs are known as PAS (or Senate-confirmed)
positions. But there are staggering vacancies in these positions—especially at the start of every
Administration, but also at other times, including the final months (and years) of a President’s tenure.
Many of these vacant positions can be filled temporarily. The Federal Vacancies Reform Act of 1998
(Vacancies Act) provides for temporary leadership primarily in cabinet departments and single-headed
executive agencies. The Vacancies Act specifies who can serve in an acting capacity, for how long, and
in what positions. Actions taken by an official not serving in accordance with the Vacancies Act
generally are without legal effect, though the voiding of such actions typically requires litigation. After
the time limits established by the Vacancies Act (which vary by timing in the Administration and
whether there are pending nominations) have passed, agencies can often continue to perform the
functions of the vacant offices through delegations of authority (mostly “down” to lower-level officials
but sometimes “up” to the agency head). There are also agency-specific succession statutes that provide
for temporary leadership, including for chairpersons at some independent regulatory commissions.
This report focuses on current federal agency practices in the face of vacancies in PAS
positions. It has three objectives. First, it provides background on the scope of acting officials in
cabinet departments and some single-headed executive agencies in recent Administrations, along with
some historical comparisons. It also offers some examples of delegated authority in the face of staffing
vacancies from cabinet departments, executive agencies, and independent regulatory commissions.
Second, through surveying and interviewing key agency personnel as well as examining public materials,
it describes agency practices concerning acting officials and delegated authority. Third, drawing from
agency best practices, investigation of agency websites, and interviews with former acting officials, it
develops recommendations for agencies to follow.
Part I provides some important background on the Vacancies Act, agency-specific succession
provisions, and delegations of authority. It also flags some legal disputes, but the report does not
address those conflicts in any meaningful way. After summarizing previous research and noting data
access issues, Part II draws on new information sources to proffer an empirically grounded perspective
of the recent and historical scope of acting officials. Part III gives some examples of delegations of
authority in the face of staffing vacancies, and more widely. Part IV uses a survey of agency officials
and interviews with agency experts and former acting leaders, among other sources, to summarize
agency practices concerning acting officials. Part V focuses on the Government Accountability Office’s
(GAO) role under the Vacancies Act, including agency compliance with reporting mandates to the
GAO and GAO violation letters. Part VI draws on the survey and interviews to discuss agency
practices related to delegations of authority when there are staffing gaps. Part VII offers
recommendations to agencies for best practices in these areas, with emphasis on affirmative disclosures
by agencies.
Three preliminary notes seem in order. First, early in this project, ACUS formally reached out
to the Department of Justice’s Office of Legal Counsel (OLC), given their role in providing legal advice
to agencies on these topics, to inform them of the research. This project does not explore legal
questions about who is permitted to serve as an acting official or what authority can be properly
delegated. Second, this project also does not examine the benefits and costs of acting officials and
1

delegated authority as a matter of policy. Third, because of the sensitivity of the covered issues, the
agencies connected to survey respondents and interviewees are not identified.

2

I.

Background on Acting Officials Under the Vacancies Act, Succession Provisions, and
Delegations of Authority

This Part briefly describes key elements of the Vacancies Act, lays out all current agencyspecific succession provisions, and explains how delegations of authority function when there are gaps
in confirmed leaders.1 It concludes by flagging some of the constitutional and statutory conflicts that
have arisen in recent years, but does not address them in detail.
A.

Vacancies Act

The current Vacancies Act is the latest in a long line of statutes, dating back to 1792.2 I do not
recount much of the history of relevant legislation here.3 The predecessor statute to the current system
was enacted in 1988.4 That legislation rejected the Department of Justice’s earlier view that agency
heads “had independent authority apart from the Vacancies Act to temporarily fill vacant offices” but
also extended the time limit for acting service to 120 days plus the time a nomination to the vacant
position was pending.5 Nearly a decade later, “approximately 20 percent of [Senate-confirmed] offices
in executive agencies were occupied by ‘temporary designees, most of whom had served beyond the
120–day limitation period . . . without presidential submissions of nominations,’” angering Congress.6
The 1998 Vacancies Act7 tried to address congressional concerns while also giving more
authority to the White House to use acting officials. This section lays out the parts of the Act relevant
to this report, describing the positions covered by the Act, the authority and pay of acting leaders, who
can serve as an acting leader and for how long, and agency reporting mandates.8 Compared to the
statute enacted a decade earlier, the current legislation creates a much more formalized process. As one
agency interviewee put it, “there are more places for agencies to trip up.”9

1 I draw much of the discussion in the first and third parts below from another project that focuses on the normative and

legal issues surrounding acting officials and delegations of authority. Anne Joseph O’Connell, Actings, 120 COLUM. L. REV.
(forthcoming 2020). In turn, that project draws from VALERIE C. BRANNON, CONG. RES. SERV. REPORT R44997, THE
VACANCIES ACT: A LEGAL OVERVIEW (2018) and Jen Kirby, A Top Official at the Justice Department Is Resigning. The Federal
Vacancies Act Has a Solution for That, VOX (Feb. 9, 2018), https://www.vox.com/2018/1/30/16924764/trump-governmentappointees-vacancies-act (an interview with me on the Act).
2 NLRB v. SW General, Inc., 137 S. Ct. 929, 935-36 (2017) (recounting the history of relevant statutes); Act of May 8, 1792,
ch. 37, § 8, 1 Stat. 281.
3 In addition to the recounting in SW General, the Congress Research Service report, supra note 1, provides considerable
detail.
4 Presidential Transitions Effectiveness Act, §7, 102 Stat. 985 (1988).
5 SW General, 137 S. Ct. at 935-36.
6 Id. (internal citation omitted).
7 The Federal Vacancies Reform Act of 1998, 112 Stat. 2681-611-16 (codified at 5 U.S.C. §§ 3345-3349d).
8 The report does not discuss enforcement mechanisms through the courts, for example. The Act does not establish a direct
removal mechanism for officials serving in violation. See Brannon, supra note 1, at 19-20 It does, however, specify that
certain actions by an improperly serving acting official should have “no force or effect.” 5 U.S.C. § 3348(d)(1) (2017). This
requires injured parties to sue, which rarely occurs. I have found only eighteen unique cases citing § 3348. See Brannon,
supra note 1, at 21 n.182 (documenting fifteen cases). I performed the same search to locate additional cases. One case
appears twice in the results but is counted only once in the tally above. Only ten of those cases discuss the “no force or
effect” part of the statutory provision.
9 See Appendix G, infra.

3

1.

Included PAS Positions

The Vacancies Act covers only some of the 1200-plus PAS positions in the Executive Branch.
The Act generally applies to positions in agencies that are not solely part of multi-member leadership
teams.10 In other words, almost all PAS jobs in the fifteen cabinet departments and executive agencies
(such as the Environmental Protection Agency) are included.11
Commissioners and members of multi-leader independent regulatory commissions and boards
(such as the Securities and Exchange Commission) do not, however, typically fall under the Act’s
purview. If a specific member of an independent entity, however, has statutory duties separate from the
multi-member board, the Act may apply to those separate functions. In addition, the Act includes
several PAS positions (outside the main leadership body) in independent regulatory commissions, such
as the General Counsel of the Federal Labor Relations Authority and the National Labor Relations
Board.12
The Act covers far more positions than its predecessors but still excludes many agencies. Those
agencies often have no other mechanism for accessing temporary leadership. For instance, the Merit
Systems Protection Board has been without its statutorily mandated quorum since January 2017,
resulting in substantial restrictions on case processing.13 The Federal Election Commission lost its fourperson quorum at the end of August 2019, preventing the agency from undertaking enforcement
actions or issuing regulations.14 Some of the entities excluded from the Vacancies Act do have agencyspecific statutory provisions permitting service beyond the expiration of the appointed term and for
acting chairpersons.
2.

Authority and Pay

Acting officials generally have the same authority as confirmed leaders.15 This does not have to
be the case. Corporate boards of directors, for example, sometimes restrict what interim CEOs can do.
In rare cases, non-statutory devices limit the authority of acting officials. Until August 2019, widelyfollowed OPM guidance “stipulated that agencies face a moratorium on … review boards for SES
candidates after their top leaders announced they were stepping down or the president announced a
successor.”16
10 5 U.S.C. §§ 3345(a), 3349(c) (2017). The Act also does not cover government corporations and independent

establishments, Article I courts, and the GAO.
11 A note on terminology. I use “executive agencies” to capture single-headed agencies; such entities are sometimes housed
within cabinet departments, like the National Oceanic and Atmospheric Administration in the Commerce Department,
while others are freestanding, like the EPA. I use “independent regulatory commissions and boards” to capture multi-leaderheaded agencies, such as the National Labor Relations Board.
12 5 U.S.C. §§ 3348(e), 3349(c) (2017).
13 Eric Katz, Federal Employee Appeals Board Can No Longer Decide Appeals, GOV’T EXEC. (Jan. 5, 2017),
https://www.govexec.com/management/2017/01/federal-employees-appeals-board-can-no-longer-decideappeals/134377/; Frequently Asked Questions About the Lack of Board Quorum and Lack of Board Members, U.S. MERITS SYSTEMS
PROTECTION BOARD, https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_March_1_2019.pdf (last updated
March 1, 2019).
14 Emily Davies, GOP Appointee Resigns from Federal Election Commission, Leaving It Without a Quorum, WASH. POST (Aug. 26,
2019), https://www.washingtonpost.com/politics/gop-appointee-resigns-from-federal-election-commission-leaving-itwithout-a-quorum/2019/08/26/d05b9cb6-c822-11e9-a4f3-c081a126de70_story.html.
15 5 U.S.C. § 3345(a) (2017) (acting officials “perform the functions and duties of the office”).
16 Eric Katz, Agencies with Acting Leaders Can Now Fill Top Career Ranks, OPM Says, GOV’T EXEC. (Aug. 20, 2019),
https://www.govexec.com/management/2019/08/agencies-acting-leaders-can-now-fill-top-career-ranks-opm-

4

Interestingly, acting officials cannot “receive pay in addition to the pay for” their non-acting
jobs.17 These officials continue to receive the salary for the position in which they serve when given the
acting title. This rule creates some unusual situations. To start, it is possible for a special government
employee to qualify for acting service, but because of lower pay be excluded from ethics reporting
mandates.18 In addition, acting officials drawn from the senior career ranks may be paid more than a
confirmed appointee would be in the position.19
3.

Who Can Serve as Acting Leaders

For covered positions under the Vacancies Act, the “first assistant” to the vacant job is the
default acting official.20 The Act, however, does not specify who the “first assistant” is.21 For some
positions, Congress has defined the first assistant; agencies have largely defined the rest.22 For example,
if there is no confirmed or recess-appointed Secretary of Defense, the confirmed or recess-appointed
Deputy Secretary of Defense, as the first assistant, becomes the acting Secretary of Defense.23
The Vacancies Act provides two main alternatives to the first assistant for acting service, but
the President must actively select them.24 First, “the President (and only the President) may direct”
another PAS official—within the agency or outside it—to serve as the acting leader.25 Second, “the
President (and only the President)” may select “an officer or employee” who has not been Senateconfirmed to serve in an acting capacity, but only if that person has worked in the agency for at least 90
days during the year-long period before the vacancy arises and earns a salary at the GS-15 level or
higher.26
The final category did not exist in previous renditions of the Vacancies Act and appears to have
made cross-agency acting officials less common as the White House can now pull an acting official
from the senior ranks of agency employees to step into a vacant position.
Here is an example of a presidential designation for the last presidential transition:27
says/159315/. Because of high vacancies, OPM changed its policy to allow acting leaders who are presidential appointees
(whether or not confirmed by the Senate) to “process new top-ranking senior executives.” Id. Other acting leaders (i.e.,
career first assistants) “will receive authority to place SES candidates before review boards on a case-by-case basis.” Id. See
also Ensuring the Continuity of the United States Government: The Presidency: Hearing Before the S. Comm. on the Judiciary and the S.
Comm. on Rules and Admin., 108th Cong. 11 (2003) (statement of John C. Fortier, Exec. Dir., Continuity of Gov’t Comm’n)
(noting that non-confirmed acting secretaries would not be in the line of presidential succession).
17 5 U.S.C. § 5535 (a) (2017). In the past, however, such acting officials received additional compensation. Designating an
Acting Attorney General: Memorandum for Emmet T. Flood, Counsel to the President, Op. O.L.C., 2018 WL 6131923, at
*11 (Nov. 14, 2018) (gathering cases).
18 See David Dayen, America’s Most Dangerous Temp, AMERICAN PROSPECT, May 17, 2017.
19 See Part IV.E.3, infra.
20 5 U.S.C. § 3345(a)(1) (2017).
21 See Brannon, supra note 1, at 9 n.74.
22 Id. at 9-10 n.75.
23 10 U.S.C. § 132 (2017).
24 There is another category of allowed acting officials: Someone who is serving a fixed term in a covered agency may stay in
that position in an acting capacity after the term expires if the President has nominated her to an additional term.
§ 3345(c)(1)). This report concentrates on the three main categories—first assistants, Senate-confirmed officials, and senior
agency staffers.
25 § 3345(a)(2).
26 § 3345(a)(3).
27 This document, along with other presidential designations, appears in the Department of Justice’s brief in English v. Trump
in the D.C. Circuit.

5

Nominations further restrict the pools of potential acting leaders, particularly after the Supreme
Court’s decision in 2017 in NLRB v. SW General.28 Under the Act, formal nominees typically “may not
serve as an acting officer” for the position to which they have been nominated.29 For instance, Mark
Esper had to relinquish his acting Secretary of Defense title when the Senate formally received his
nomination for the post on July 15, 2019. Richard Spencer, Secretary of the Navy, then became the
third acting Secretary of Defense in 2019 until the Senate confirmed Esper.
There are some limited exceptions to this bar: Unconfirmed first assistants can stay serving
during their nominations if they held the first assistant position for at least 90 days in the year before
the vacancy arose and confirmed first assistants can function as both the acting leader and the formal
nominee.30 Agency-specific statutes also may permit acting service of nominees. For example, under

28 NLRB v. SW General, Inc., 137 S. Ct. 929 (2017).
29 § 3345(b).

30 SW General, 137 S. Ct. at 936. Prior to the Court’s 2017 ruling, OLC had ruled that the restrictive conditions on nominees

applied only to first assistants while Senate-confirmed officials and senior agency workers could serve both as the nominee

6

both the Vacancies Act and the agency’s succession provision, Gina Haspel (unconfirmed Deputy
Director) was permitted to lead the CIA in an acting capacity while her nomination to head the agency
was pending.31
4.

How Long Acting Officials Can Serve

The permitted time limits under the current Act, which reset for each Administration, are much
longer than under previous legislation. Acting leaders can typically use the title for 210 days from the
vacancy’s start.32 If the vacancy exists when a new President enters the White House, or occurs within
the next 60 days, the limit extends to 300 days.33
Nominations extend these limits. Acting leaders can continue serving through two nominations
to the vacant job. If each nomination fails (most typically because it is returned to the President in a
recess), a new 210-day period of permitted tenure begins from the date of the failure. In other words,
an acting leader could conceivably have the title for 210 (or 300) days before there is a nomination,
during a first nomination, for 210 days after that nomination is returned, during a second nomination,
and for a final 210 days if the second nomination is returned as well.34
In 2006, Congress required that the Director of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives be confirmed by the Senate. From then to July 2013, there was no confirmed or recessappointed leader of ATF but there was almost always an acting official.35 President George W. Bush
submitted a nomination on March 22, 2007; the Senate returned it on January 2, 2009.36 Under
President Obama, a new 300-day period began. After 300 days, there was no acting official until he
submitted his first nomination on November 17, 2010. 37 The Senate returned that nomination on
December 22, 2011.38 He re-nominated the same person well before the end of the first 210-day period
following the first failed nomination—that nomination sat from January 5, 2011 to January 3, 2013,
when the Senate returned it.39 The Senate confirmed a third nomination (for a different person) on July
31, 2013, just within the final 210-period for acting service.
5.

Reporting Mandates and GAO Determinations

Under the Act, agencies must report certain information to the GAO and Congress.
Specifically, agencies must submit: “notification of a vacancy in a[] [covered] office … and the date
and the acting official. See Guidance on Application of Federal Vacancies Reform Act of 1998 [Guidance], 23 Op. O.L.C.
60, 64 (1999). The Court disagreed with this view in SW General.
31 See 50 U.S.C. 3037(b)(2) (2017).
32 5 U.S.C. § 3346(a)(1) (2017).
33 5 U.S.C. § 3349(a)(b) (2017).
34 See Brannon, supra note 1, at 13 fig.2. If the 210 (or 300)-day limit with no nominations runs out, and the President later
submits a nomination, there can be no acting official in between. But as soon as the nomination is pending, there can be an
acting leader (the same person as before or a new one). Id. at 13 n.105. The time limits do not apply when the vacancy has
been “caused by sickness.” § 3346(a).
35 Sari Horwitz, Senate Confirms ATF Director, WASH. POST (July 31, 2013),
http://wapo.st/1cpQigC?tid=ss_tw&utm_term=.482750acee6f.
36 Nomination of Michael J. Sullivan for Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives at Department of Justice, PN381,
110th CONG., https://www.congress.gov/nomination/110th-congress/381.
37 Nomination of Andrew L. Traver for Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives at Department of Justice, PN2296,
111TH CONG., https://www.congress.gov/nomination/111th-congress/2296.
38 Id.
39 Nomination of Andrew L. Traver for Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives at Department of Justice, PN44,
112TH CONG., https://www.congress.gov/nomination/112th-congress/44.

7

such vacancy occurred immediately upon the occurrence of the vacancy;” “the name of any person
serving in an acting capacity and the date such service began immediately upon the designation;” “the
name of any person nominated to the Senate to fill the vacancy and the date such nomination is
submitted immediately upon the submission of the nomination; and” “the date of a rejection,
withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return.”40 The
GAO also asks agencies to report the end date of service of any acting official, though that is not
required by the Vacancies Act.
These reports can be found at: https://www.gao.gov/legal/other-legal-work/federal-vacanciesreform-act#search. Here is the report for the latest vacancy in the Secretary of Homeland Security
position:41

The GAO cannot penalize agencies that do not report or that delay in reporting.42 Instead, the
GAO “provide[s] regular reminders to agencies and departments to obtain required reports.”43
The GAO then must assess whether acting officials are serving past the permitted time limits. If
the Comptroller General so determines, she must notify congressional oversight and appropriation
committees, the White House, and the Office of Personnel Management.44

40 § 3349(a).

41 DHS also reported to the GAO that McAleenan was serving under the agency’s succession provision, 6 U.S.C.

§ 113(g)(2), not under the Vacancies Act, but that information does not appear in the public database. Harrison Cramer &
Zach C. Cohen, Inside Trump’s Gambit To Install Another Acting DHS Secretary, NAT’L J. (Nov. 22, 2019),
https://www.nationaljournal.com/s/702570/inside-trumps-gambit-to-install-another-acting-dhs-secretary.
42 Id.
43 U.S. GOV’T ACCOUNTABILITY OFFICE, B-329903, LETTER TO SENATOR RON WYDEN, AGENCY COMPLIANCE WITH THE
FEDERAL VACANCIES REFORM ACT FOR POSITIONS SUBJECT TO THE JURISDICTION OF SENATE FINANCE COMMITTEE 11
n.2 (2019), https://www.gao.gov/assets/700/696799.pdf.
44 § 3349(b).

8

B.

Agency-Specific Succession Statutes

Congress has enacted a number of agency-specific succession provisions. Appendix A lists
current provisions meeting particular search criteria.45
Here are just two of the approximately 100 examples. First, Congress has specified for the
NLRB: “In case of a vacancy in the office of the General Counsel the President is authorized to
designate the officer or employee who shall act as General Counsel during such vacancy, but no person
or persons so designated shall so act (1) for more than forty days when the Congress is in session unless
a nomination to fill such vacancy shall have been submitted to the Senate, or (2) after the adjournment
sine die of the session of the Senate in which such nomination was submitted.”46
Second, Congress provided for DHS: “Notwithstanding chapter 33 of Title 5, the Under
Secretary for Management shall serve as the Acting Secretary if by reason of absence, disability, or
vacancy in office, neither the Secretary nor Deputy Secretary is available to exercise the duties of the
Office of the Secretary.”47 It further specified: “Notwithstanding chapter 33 of title 5, the Secretary may
designate such other officers of the Department in further order of succession to serve as Acting
Secretary.”48 This is a rare example of an agency succession provision where Congress has referred
explicitly to the Vacancies Act.
The interaction of these agency-specific provisions with the Vacancies Act has generated
conflict in some cases. Congress specified that the Vacancies Act is the “exclusive means for
temporarily authorizing an acting official to perform the functions and duties of any [covered]
office . . . .”49 The Act, however, includes two exceptions: recess appointments and statutes that
“expressly” provide for an alternative.50

45 With the assistance of the Stanford Law School reference librarians and Arielle Mourrain, I ran two searches in Westlaw

Edge (limited to statutes and court rules in the All Federal database) to develop a list of nonrepealed agency-specific
statutory provisions for temporary service: (1) ((absen! /20 disab!) or (absen! /20 vacan!) or (disab! /20 vacan!) or (unable
/20 serve) or (unable /20 vacant) or (absen! /20 unavail!)) OR CA(deputy or assistant or (under /2 secretary) or
undersecretary or under-secretary or acting); (2) (vacan! or absen! or disable! or unable!) AND CA(deputy or assistant or
(under /2 secretary) or undersecretary or under-secretary or acting). The first produced 768 results; the second generated 65
results. Table 18 in Appendix A lists all relevant provisions, including those for actual interim leaders (rather than “acting”
officials) (e.g., interim U.S. Attorneys) and those for positions outside the Executive Branch (e.g., House Office of
Legislative Counsel). Some of these provisions cover positions that are clearly excluded from the Vacancies Act—because
they are not in Executive Branch agencies or because they do not require Senate confirmation. I know of essentially one
other list of such statutes, focusing on provisions in effect in 1998 when the Vacancies Act was passed. The Senate
committee report accompanying the Act provided a list. S. Rep. No. 105-250, at 15-17 (1998). Ben Miller-Gootnick recently
went through this list and republished it: “The Committee Report refers to forty-one statutes in place at the drafting of the
legislation, and notes that the bill retains forty. The Report’s list skips from number twenty-five to number twenty-eight, so
in total it only lists thirty-eight statutes. Three of those statutes provide for agencies to issue their own succession regulations
….” Ben Miller-Gootnick, Boundaries of the Federal Vacancies Act, 56 HARV. J. ON LEGIS. 459, 467 n.37 (2019). I am indebted
to the reference librarians at Stanford Law School and Arielle Mourrain for their work on this task.
46 29 USC § 153(d) (2017).
47 6 USC § 113(g)(1) (2017).
48 6 USC § 113(g)(2) (2017).
49 5 U.S.C. § 3347(a) (2017).
50 Id.

9

Under OLC guidance and limited case law, agency-specific statutes often co-exist with the
Vacancies Act.51 As OLC has explained, “in calling the Vacancies Reform Act the ‘exclusive means’ for
designations ‘unless’ there is another applicable statute, Congress has recognized that there will be cases
where the Vacancies Reform Act is non-exclusive, i.e., one available option, together with the officespecific statute.”52 Thus, the Ninth Circuit held that the National Labor Relations Act’s provision for a
temporary General Counsel did not displace the Vacancies Act.53
On the other hand, Congress explicitly barred the use of the Vacancies Act for the top position
at DHS if there is a confirmed Deputy Secretary or Undersecretary for Management. When President
Trump asked Kirstjen Nielsen to step down earlier this spring, he also had to pressure Claire Grady, the
confirmed Undersecretary for Management, to resign in order to make way for his preferred choice for
the acting job, Kevin McAleenan.54
This project does not address when these agency-specific succession provisions should displace
the Vacancies Act as it does not explore the complicated legal and normative questions surrounding
acting officials.

51 Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550, 555-56 (9th Cir. 2016); English v. Trump, 279 F. Supp. 3d

307, 323-24 (D.D.C. 2018), appeal dismissed upon appellant’s motion, No. 18-5007, 2018 WL 3526296 (D.C. Cir. July 13, 2018);
Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. O.L.C. __, at *5-6 (Nov. 25, 2017).
52 Designating an Acting Director of the Bureau of Consumer Financial Protection, supra note 51, at *5-6.
53 Hooks, 816 F.3d at 555-56.
54 See Margaret Talev, Shannon Pettypiece, & Bloomberg, Latest Homeland Security Resignation Clears Way for McAleenan,
FORTUNE (April 10, 2019), https://fortune.com/2019/04/10/acting-dhs-secretary-mcaleenan/.

10

C.

Delegations of Authority

This report focuses on the statutory (and not the constitutional) aspects of delegations of
authority, which often function as a substitute for acting officials. After the GAO determined that
Nancy Berryhill was improperly serving as acting Commissioner of Social Security in early 2018, for
example, Berryhill dropped the acting title and continued carrying out all the duties of the vacant
position in her role as Deputy Commissioner through delegation.55
Not all functions of the vacant position can be delegated, however. The Vacancies Act forbids
the assignment “downward” of functions and duties that are established by statute or regulation to be
performed by “the applicable officer (and only that officer).”56 These are known as “non-delegable
functions or duties.”57 For those items tasked exclusively to lower-level officials, the Act does permit
“upward” delegation to “the head” of the agency, except for a few independent positions such as
Inspectors General.58 Agencies can modify their “regulations” about non-delegable tasks, although what
qualifies as a regulation is undefined in the statute. The Act does provide for a 180-day look back
period, which counts as exclusive duties any functions that were exclusive by regulation in the 180-day
period preceding the vacancy.59
As OLC explained in its 1999 comprehensive guidance on the Vacancies Act:
Congress understood that there would be occasions when the time limits would expire
or when there would, for a period, be no one qualified to serve in an acting capacity.
Congress also understood that if everything the PAS officer may have done in the
performance of his or her duties had to be performed by the head of the Executive
agency, the business of the government could be seriously impaired. See S. Rep. No.
105-250, at 30-31 (Additional Views). As a result, Congress delimited which functions
could be performed only by a qualified acting officer or the head of the Executive
agency, defining them as only those functions or duties assigned exclusively to the PAS
officer by statute or regulation. Most, and in many cases all, the responsibilities
performed by a PAS officer will not be exclusive, and the Act permits non-exclusive
responsibilities to be delegated to other appropriate officers and employees in the
agency.60
In short, most functions of vacant positions can be delegated downward.61 In the first year of
an Administration, one sees a lot of “acting” titles on agency websites. After the Act’s time limits run
out, one sees “performing the functions of [a particular vacant office]” language instead.
Here is a rare example of a prior non-delegable function. The Secretaries of Treasury, Labor,
and Commerce make up the Board of Directors for the Pension Benefit Guaranty Corporation.62
55 Brannon, supra note 1, at 20.
56 5 U.S.C. § 3348(a) (2017).

57 S. REP. NO. 105-250, at 18 (1998).
58 5 U.S.C. §§ 3348(b)(2), (e).

59 See Guidance, supra note 30, at 71 (Question 44).
60 Id. at 72 (Question 48).

61 Stand Up for California! v. Department of Interior, 298 F. Supp. 3d 136, 137 (D.D.C. 2018) (“[I]t turns out that, in

practice, there are very few duties that cannot be delegated to an ‘acting’ officeholder … or even another official who acts in
the place of the principal pursuant to agency regulations or orders.”).
62 29 U.S.C. § 1302(d)(1) (2017).

11

Acting Secretaries have the full power of the Secretaries and thus sit on the Board. Until 2017, only
Secretaries and acting Secretaries counted for establishing a quorum. When the time limits of the
Vacancies Act ran out in early 2013 for the acting Secretary of Commerce, the function of establishing
a quorum could not be delegated.63 (The Board maintained a quorum in this period from the leaders of
the Treasury and Labor Departments.) But this function is now delegable: “A person who, at the time
of a meeting of the Board of Directors, is serving in an acting capacity as, or performing the duties of, a
Member of the Board of Directors will serve as a Member of the Board of Directors with the same
authority and effect as the designated Secretary.”64
Agencies not covered by the Vacancies Act may be allowed, by statute, to delegate particular
functions of vacant positions as well. For instance, Congress allows the NLRB to “delegate to any
group of three or more members any or all of the powers which it may itself exercise.”65 Furthermore,
the NLRB “is also authorized to delegate to its regional directors its powers … to determine the unit
appropriate for the purpose of collective bargaining, to investigate and provide for hearings, and
determine whether a question of representation exists, and to direct an election or take a secret ballot
… and certify the results thereof, except that upon the filing of a request therefor with the Board by
any interested person, the Board may review any action of a regional director delegated to him under
this paragraph, but such a review shall not, unless specifically ordered by the Board, operate as a stay of
any action taken by the regional director.”66 This authority does not depend on vacancies, but could be
helpful if there are vacancies.
Although courts generally permit “subdelegation to a subordinate federal officer or agency …
absent affirmative evidence of a contrary congressional intent,”67 agencies not covered by the Vacancies
Act appear to also operate under far more affirmative constraints in assigning functions downward than
agencies covered by the Act.

63 29 C.F.R. § 4002.3 (2008-2017).
64 29 C.F.R. § 4002.1(a)(1) (2017).
65 29 U.S.C. § 153 (b) (2017).
66 Id.

67 U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004); cf. Cudahy Packing Co. v. Holland, 315 U.S. 357, 361

(1942) (forbidding delegation of subpoena power from a particular office as two statutes specified that the identified office
“shall have power” of subpoena).

12

D.

Constitutional and Statutory Issues

In recent years, conflict has arisen on a number of legal questions involving the Vacancies Act,
agency-specific succession provisions, and delegations of authority. Among them:
•

Non-confirmed acting leaders in principal offices: Under the Vacancies Act and certain
agency-specific succession statutes, acting officials who have not been confirmed to any
position can serve temporarily in principal offices, such as the Attorney General and the
Director of the Consumer Financial Protection Bureau. If these acting officials (for
instance, Matthew Whitaker as acting AG) are inferior officers, there is no concern as the
Appointments Clause allows Congress to permit the department head or the President
alone to appoint them. If acting officials are not inferior officers, but rather employees,
there is also no constitutional issue. But if these acting officials are principal officers, they
would be serving in violation of the Constitution. OLC and lower courts have decided that
the third category of the Vacancies Act does not run afoul of the Appointments Clause for
these high-level positions, at least in the contexts considered.68

•

Creation of offices and delegations of authority: Assuming the delegatee is an inferior
officer in carrying out the delegated functions (so as to keep the legal issues distinct from
the ones above), Congress must have established the specific position or assigned the
authority to create the job to the head of the agency under the Appointments Clause.
Disputes have arisen over whether Congress has permitted agencies to create first assistant
positions in the face of staffing vacancies (such as the new Principal Deputy Director of
U.S. Citizenship and Immigration Services). These disputes are largely statutory. Even if the
position is permitted by the Appointments Clause and relevant statutes, the agency also
needs authority to assign the duties. OLC and the lower courts have generally upheld
agency creation of offices and delegations of authority, though most of the court cases do
not involve staffing vacancies.69

•

Conflict with agency-specific succession provisions: Many agency-specific succession
provisions provide that the deputy to a vacant position serves as the acting official (e.g., the
Deputy Attorney General or the Deputy Director). The Vacancies Act gives the White
House two different alternatives to this first assistant—any Senate-confirmed appointee and
any sufficiently senior agency staff member who has spent at least 90 days in the agency in
the year before the vacancy. Disputes have arisen when the White House does not want the

68 Designating an Acting Attorney General, supra note 17; United States v. Santos-Caporal, 2019 WL 468795 , at *2-7 (E.D.

Mo. Jan. 9, 2019), report and recommendations adopted by 2019 WL 460563 (E.D. Mo. Feb. 6, 2019); United States v.
Smith, 2018 WL 6834712, at *3 (W.D.N.C. Dec. 28, 2018); United States v. Peters, 2018 WL 6313534, at *4-5 (E.D. Ky.
Dec. 3, 2018); United States v. Valencia, 2018 WL 6182755, at *7 (W.D. Tex. Nov. 27, 2018), appeal dismissed in 2019 WL
5061109 (W.D. Tex. Oct. 9, 2019). The D.C. Circuit avoided the question in its decision upholding the DOJ’s Bump-Stock
Rule, which Whitaker had signed, because Barr independently reevaluated the record and ratified the decision. Guedes v.
ATF, 920 F.3d 1, 12-13 (D.C. Cir. 2019).
69 On the creation of offices: Willy v. Administrative Review Board, 423 F.3d 483, 491-92 (5th Cir. 2005); Varnadore v.
Secretary of Labor, 141 F.3d 625, 631-32 (6th Cir. 1998); cf. U.S. v. Janssen, 73 M.J. 221, 225 (C.A.A.F. 2014). On delegation:
Guidance, supra note 30, at 72 (Question 48); U.S. Telecom Ass’n v. FCC, 359 F.3d 554, 565 (D.C. Cir. 2004); Donovan v.
National Bank of Alaska, 696 F.2d 678 (9th Cir. 1983); Stand Up for California! v. Department of Interior, 298 F. Supp. 3d
136 (D.D.C. 2018); Schaghticoke Tribal Nations v. Kempthorne, 587 F. Supp. 2d 389, 418-19 (D. Conn. 2008).

13

first assistant to take on the acting role and turns to the Vacancies Act instead of relying on
the agency-specific statute. OLC and the lower courts permitted the use of the Vacancies
Act in the recent DOJ and CFPB disputes.70 But no one suggested that the White House
could use the Vacancies Act for an acting DHS Secretary when there was still a confirmed
Deputy Secretary or Undersecretary of Management at the agency (as the DHS statute
explicitly barred the use of the Act in that case).
•

Presidential removal of confirmed officials: The Vacancies Act does not refer to
presidential firing of appointees—neither including nor excluding such actions expressly
from its coverage. The Act allows acting service when the previous officeholder of a
covered position “dies, resigns, or is otherwise unable to perform the functions and duties
of the office.” The relevant statutory question is whether the inability “to perform the
functions and duties” of the vacant office includes presidential removals. Conflict arose
after President Trump fired David Shulkin and then named a Senate-confirmed Assistant
Secretary in the Department of Defense as acting Secretary of Veterans Affairs, instead of
allowing the Deputy Secretary under the agency-specific succession provision to step into
the interim role. OLC has advised that the Vacancies Act applies to firings, but one district
court has disagreed in dicta.71

•

Naming of first assistants after the vacancy: The default acting official under the
Vacancies Act is “the first assistant to the office.” That first assistant is usually in her job
before the vacancy begins. For the times when she is not, the question is whether she still
qualifies as the default acting official. OLC initially suggested she does not but changed its
mind two years later.72 No court has ruled on whether a first assistant named after a vacancy
occurs qualifies under the Vacancies Act, though a lawsuit over the new Principal Deputy
Director of USCIS (which involves the creation of a new first assistant position after the
vacancy) was filed in September 2019.73

•

Applicability of removal provisions to acting officials: Many removal protections of
agency officials, outside of the civil service, apply to agencies not covered by the Vacancies
Act or specific agency succession statutes.74 But two agencies with removal restrictions, the

70 On CFPB: Designating an Acting Director of the Bureau of Consumer Financial Protection, 41 Op. O.L.C. __, at *5-6

(Nov. 25, 2017); English v. Trump, 279 F. Supp. 3d 307, 323-24 (D.D.C. 2018), appeal dismissed upon appellant’s motion, No. 185007, 2018 WL 3526296 (D.C. Cir. July 13, 2018). On DOJ: OLC, supra note 68; United States v. Patara, 365 F. Supp. 3d
1085, 1087-91 (S.D. Cal. 2019); Santos-Caporal, 2019 WL 468795, at *6-7; Peters, 2018 WL 6313534, at *2-3; Valencia, 2018
WL 6182755, at *7. The D.C. Circuit also avoided the statutory question in its decision upholding the DOJ’s Bump-Stock
rule. Guedes, 920 F.3d at 12-13. In a dispute involving the NLRB General Counsel, the Ninth Circuit also agreed that the
Vacancies Act still applied, despite an agency-specific provision. Hooks v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550,
555-56 (9th Cir. 2016).
71 Guidance, supra note 30, at 61 (Question 3) (citing 144 Cong. Rec. S12.823 (daily ed. Oct. 21, 1998) (statement of Sen.
Thompson); id. at S12,824 (statement of Sen. Byrd)); Valencia, 2018 WL 6182755, at *1.
72 Guidance, supra note 30 (Question 13); Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 180 (2001).
The GAO subsequently adopted OLC’s 2001 reading. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-02-272R, CHANGED
INTERPRETATION OF REQUIREMENTS RELATED TO FIRST ASSISTANTS UNDER THE FEDERAL VACANCIES REFORM ACT OF
1998, at 2 (2001), https://www.gao.gov/assets/80/75053.pdf.
73 Complaint for Declaratory and Injunctive Relief, L.M.-M. v. Cuccinelli, No. 1:19cv2676 (D.D.C. Sept. 6, 2019).
74 See, e.g., 15 U.S.C. § 41 (2017) (“Any Commissioner [of the Federal Trade Commission] may be removed by the President
for inefficiency, neglect of duty, or malfeasance in office”).

14

CFPB and the Federal Housing Finance Agency, can have acting leaders (at the least under
agency-specific succession provisions, and under the Vacancies Act, if it applies). There is
disagreement on whether the removal protections extend to acting officials—in other words
whether the President needs some sort of “cause” to remove interim leaders. Litigants in
various CFPB disputes mostly agreed removal protections did not apply, though Leandra
English claimed they would cover her in her lawsuit over the acting Director title.75 By
contrast, the Fifth Circuit, sitting en banc and affirming the original panel decision, recently
ruled that removal protections did extend to the acting Director of the FHFA.76
As this project on acting officials and delegated authority aims to provide important descriptive
information and recommend best agency practices, rather than offer legal analysis within the purview of
OLC, this report does not address these disputes.77

75 English v. Trump, 279 F. Supp. 3d at 327; Brief of Plaintiff-Appellee Consumer Financial Protection Bureau at 8,

Consumer Fin. Prot. Bur. v. All American Check Cashing, Inc., No. 18-60302, at 13 n.5 (5th Cir. Sept. 10, 2018).
76 Collins v. Mnuchin, 896 F.3d 640, 655-56 (5th Cir. 2018), aff’d in part, rev’d in part en banc, No. 17-20364, 2019 WL 4233612,
at *2 (5th Cir. Sept. 6, 2019).
77 I address these and other issues in O’Connell, supra note 1.

15

II.

Scope of Acting Officials

This Part, drawing from various data sources, describes agency use of acting officials. It starts
by summarizing past research and the difficulty in getting relevant data. It then provides an “empirical
snapshot” of agency staffing in all the cabinet departments, the EPA, and the Office of Management
and Budget as of April 15, 2019. Next, it looks at the use of acting Cabinet Secretaries from the start of
President Reagan’s Administration to the mid-way point of President Trump’s third year. Using the
same time period, it turns to the use of acting Administrators, Deputy Administrators, and General
Counsels at the EPA. Finally, it provides some historical information on Cabinet Secretaries.
A.

Previous Research and Data Issues

Although there has been considerable academic research on agency appointment delays, few
scholars have systematically examined acting officials, despite their prevalence in federal agencies. Much
of the limited existing research provides upper bounds on the tenure of interim leaders by calculating
vacancy periods (time between the departure of a confirmed or recess appointee and the start of a new
confirmed or recess appointee) but does not target acting officials directly. My research from about a
decade ago found that approximately one-fifth of the time, on average, PAS positions in cabinet
departments and single-headed executive agencies do not have confirmed or recess appointees.78
More recently, several political scientists, using agency reports of vacancies to the GAO and
other sources, constructed a database of vacancies in 416 Senate-confirmed positions in cabinet
departments and single-headed agencies from January 1989 to January 2013.79 They focus on
determinants of vacancies—finding that high-ranking jobs (including but not limited to agency heads)
and timing early in an Administration were connected with fewer vacant days but not finding significant
differences in vacancies related to institutional conflict between the White House and the Senate.80
They report in their descriptive statistics that the positions were vacant, on average, at least 151 days
during a congressional term.81 Given that congressional terms are two years, the vacancy rate is 21
percent in that period.
The situation has likely only deteriorated since 2012. More nominations have failed—returned
to the White House or withdrawn—since then.82 For nominations that have succeeded, confirmation
delays have worsened.83
There has been some work on particular positions. The GAO recently summarized the number
and length of vacancies in PAS Inspector General positions from FY2007-FY2016.84 In that decade,
there were 62 gaps between confirmed IGs, ranging from four in 2010 to nine in 2016. Of all the
positions during that period, six had no gaps, six had vacancies that totaled under a year, nine had
78 Matthew Dull & Patrick S. Roberts, Continuity, Competence, and the Succession of Senate-Confirmed Agency Appointees, 1989-2009,

39 PRESIDENTIAL STUDIES Q. 432, 441-442 figs.3 & 4 (2009); Anne Joseph O’Connell, Vacant Offices: Delays in Staffing Top
Agency Positions, 82 S. CAL. L. REV. 913, 962, 965 (2008).
79 William G. Resh, Gary Hollibaugh, & Patrick S. Roberts & Matthew Dull, Who Isn’t Running American Government?
Appointee Vacancies in Executive Agencies, at 3 (Sept. 15, 2019), https://papers.ssrn.com/abstract_id=3310806.
80 Id. at 29-31.
81 Id. at 39 tbl.1.
82 ANNE JOSEPH O’CONNELL, BROOKINGS I NST., STAFFING FEDERAL AGENCIES: LESSONS FROM 1981-2016 (2017).
83 Id.
84 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-18-270, INSPECTORS GENERAL: INFORMATION ON VACANCIES AND IG
COMMUNITY VIEWS ON THEIR IMPACT 11 fig.1 (2018).

16

vacancies that summed to between one and three years, and eleven had gaps that totaled over three
years.85
Evan Haglund has constructed a database of staffing and vacancies for U.S. Attorney (19812015) and PAS IG positions (1981-2017).86 He does not provide an overall vacancy rate for either
position. But he does find that the average time to nominate IGs and U.S. Attorneys was 8.5 months
and 8.4 months (respectively) under President Clinton, 8.8 months and 6.5 months for President
George W. Bush and 18.6 months and 9.2 months under President Obama.87 It took the Senate, on
average, 3.5 months and 2.3 months to confirm IGs and U.S. Attorneys, respectively in Clinton’s
Administration, 5 months and 2 months in Bush’s Administration, and 4.4 months and 3.1 months in
Obama’s Administration.88 In all of these studies, the focus is on vacancy period, not acting officials.89
Until recently, only Christina Kinane had collected information on interim officials directly.
From yearly data on all PAS positions in cabinet departments from 1977 to 2015 (using annual editions
of the United States Government Manual and quadrennial editions of the “Plum Book” (i.e., the United
States Government Policy and Supporting Publications)), she finds that “[o]f the 20,110 position-year
observations, 16,651 (83 percent) were filled by a permanent appointee, 1,593 (8 percent) were filled by
an interim appointee, and 1,866 (9 percent) were empty.”90 Because she relies on yearly reports, she
cannot calculate tenure of interim officials or capture many short-term acting officials.91
There is no good comprehensive source of information on acting officials. The Office of
Personnel Management does not keep information on acting officials. It does, however, keep data on
start and end dates of confirmed and recess appointees, but does not publicly post it.92 For this report,
ACUS formally asked OPM for these start and end dates so that I might be able to calculate vacancy
rates. Although OPM did disclose the dates for each confirmed official and the agency in which that
official served from 2005 to the present, it did not disclose positions for many of those officials,
without which I could not calculate vacancy rates, without extensive additional research.93

85 Id. at 12 fig.2.

86 Evan T. Haglund, Empty Seats: Vacancies, Vetting, and Nomination Delay in Presidential Appointments, at 18 (working

paper May 31, 2017). The Project on Government Oversight tracks current vacancies in IG positions. See POGO, Inspector
General Vacancy Tracker, https://www.pogo.org/database/inspector-general-vacancy-tracker/.
87 Haglund, supra note 86, at 19 tbl.3.
88 Id. at 21 tbl.4.
89 The discussion here has focused on vacancy gaps in cabinet departments and single-headed agencies. There is some
research on such gaps in independent regulatory commissions and boards. See David C. Nixon & Roisin M. Bentley,
Appointment Delay and the Policy Environment of the National Transportation Safety Board, 37 ADMIN. & SOC’Y 679 (2006); David C.
Nixon, Appointment Delay for Vacancies on the Federal Communications Commission, 61 PUB. ADMIN. REV. 483 (2001).
90 Christina M. Kinane, Control without Confirmation: The Politics of Vacancies in Presidential Appointments, at 18-20
(working paper Sept. 1, 2018).
91 She does seem to have more comprehensive data on Cabinet Secretaries. See Alan Fram, GOP Mutters, Gently, as Trump
Sidesteps Senate for Top Aides, ASSOC. PRESS (June 17, 2019), https://www.apnews.com/002bb07f6b8245d8abcfbac3322f4ede
(reporting Cabinet Secretary tallies).
92 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-19-249, GOVERNMENT-WIDE POLITICAL APPOINTEE DATA AND SOME
ETHICS OVERSIGHT PROCEDURES AT INTERIOR AND SBA COULD BE IMPROVED, at 13 (2019) (“Until the names of political
appointees and their position, position type, agency or department name, start and end dates are publicly available at least
quarterly, it will be difficult for the public to access comprehensive and reliable information.”),
https://www.gao.gov/assets/700/697593.pdf.
93 OPM explained that it relies on agencies to provide that information. I, however, obtained comprehensive position
information from OPM a decade ago for a different research project. OPM could not reproduce that earlier information for
appointees who served between 2005 and 2009 in recent months.

17

Under the Vacancies Act, agencies are required to report vacancies, acting officials, and
nominations to the GAO. But as described in Part V, compliance is mixed.
This Part now turns to four new sources of data on acting officials. First, for this project, with
the help of the policy lab students’ research, I created a new database on important lower-level PAS
positions in the fifteen cabinet departments, EPA, and OMB as of April 15, 2019. This “snapshot” of
seventeen major agencies shows which positions were staffed by a confirmed appointee, which were
filled with acting officials, and which were empty (with functions typically delegated to lower-level
officials).
Second, before this project, I created a database of all confirmed, recess, and acting Cabinet
Secretaries since the start of President Reagan’s Administration to July 19, 2019 (the half-way mark of
President Trump’s third year).94 This database captures short-term acting officials who served only for a
day or two, unlike the fourth source of data below.
Third, also before this project, I used data posted on the EPA’s website to create another
database on all confirmed, recess, and acting Administrators, Deputy Administrators, and General
Counsels in that agency, going back to 1981 for the first two jobs and to 1983 for the third, when the
Office of the General Counsel was created. In both the Cabinet Secretary and EPA databases, I
collected information on the type of acting official (for example, first assistant, other PAS official,
senior agency worker (divided into political and career)).
Finally, I built a database of confirmed, recess, and longer-term acting Cabinet Secretaries from
the first Administration in 1789 through the first term of President George W. Bush’s Administration
from the Biographical Directory of the United States Congress 1774-2005.95
More details about these new data sources are provided in the subsequent sections (and
connected Appendices).

94 The Washington Post recently posted information on acting Cabinet Secretaries, though not as complete and accurate as

the database I constructed. Philip Bump, Trump Relies on Acting Cabinet Officials More Than Most Presidents. It’s Not an Accident,
WASH. POST (April 8, 2019), https://www.washingtonpost.com/politics/2019/04/08/trump-relies-acting-cabinet-officialsmore-than-most-presidents-its-not-an-accident/?utm_term=.8907dfe1a2ad. Kinane’s data also seem to be missing some
acting Secretaries. See Fram, supra note 91.
95 BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS 1774-2005, H.R. DOC. NO. 108-222, at 3-29 (2005).

18

B.

Snapshot Database

My policy lab students and I compiled a database of the staffing status of many Senateconfirmed positions in all fifteen cabinet departments and two other executive agencies (EPA, OMB) as
of April 15, 2019. For each position, we noted whether the position was filled by a confirmed
appointee, an acting official, or no one on that date. In the latter category, the functions of the vacant
position presumably were delegated to someone. Many agencies noted such delegation; some did not
(see Part IV.D, infra). See Appendix B for more details on the database.
Table 1 lists the staffing status breakdowns for each agency:
Table 1: Staffing Status as of April 15, 2019 in Cabinet Departments, EPA, and OMB
Agency

Confirmed

Acting

Vacant/Delegated

Agriculture
Commerce
Defense
Education
Energy
Health & Human Services
Homeland Security
Housing & Urban Development
Interior
Justice
Labor
State
Transportation
Treasury
Veterans Affairs

7
17
2396
10
17
14
7
7
8
15
9
21
11
16
11

0
3
3
1
3
4
7
3
1
3
3
5
2
2
0

6
2
5
5
2
1
3
3
9
6
3
9
5
7
2

Environmental Protection Agency
Office of Management & Budget

8
4

2
1

3
2

The relatively few acting leaders on April 15, 2019 were properly serving mostly under one of
two scenarios. First, they had the title because a confirmed official had left within the past 210 days and
no nomination was pending, such as the Office of Information and Regulatory Affairs Administrator
(at OMB) position. Or second, they could call themselves acting because a confirmed official under this
Administration (or even the previous Administration) had left more than 210 days earlier but a first
nomination was pending for the position, such as for the Undersecretary of State for Economic
Growth, Energy, and the Environment.
Early in President Trump’s third year, only 64.5 percent of these key PAS positions were filled
with confirmed officials. Acting officials staffed 13.1 percent of the positions, but 22.4 percent sat
empty, with their functions typically delegated downward to some other official.

96 One of these officials was not actually confirmed to the job, which was transformed into a PAS position after President

Trump took office but where Congress permitted the current occupant to continue serving.

19

C.

Cabinet Secretaries97

Using a range of sources, I created a database of confirmed, recess, and acting Cabinet
Secretaries from the start of President Reagan’s Administration to July 19, 2019. See Appendix C for
more details. Some short-term acting Secretaries are hard to find—not appearing on agency lists, for
example. Any service (whether confirmed or interim) across two Administrations counts as two
observations—so Robert Gates counts twice as Secretary of Defense. In addition, service in multiple
capacities (recess, then confirmed, or acting, then confirmed) is treated separately. My overall counts
differ somewhat from previously reported tallies by Philip Bump and Christina Kinane.98
1.

Tallies of Acting Secretaries

From January 20, 1981 to July 19, 2019 (the half-way mark of President Trump’s third year),
there have been 168 confirmed and 3 recess-appointed Cabinet Secretaries. In that same period,
Presidents relied on 145 acting officials—an astounding 46 percent of all the top leaders in this period.
Table 2 breaks down these leaders by Administration. In parentheses in the acting column are the
number of acting officials who served at least ten days. Although all recent Presidents have used acting
officials in their cabinet, President Trump has turned to them far more often and for longer, given that
he has served only 30 months.
Table 2: Types of Cabinet Secretaries by Administration
President
Reagan
Bush 41 (1 term)
Clinton
Bush 43
Obama
Trump (2.5 years)

Confirmed
33
20
28
34
32
21

Recess
1
1
1
0
0
0

Acting (at least 10 days)
25 (11)
20 (16)
27 (11)
22 (13)
23 (14)
28 (25)

Presidents must use some acting Secretaries at the start of their Administrations (and at the beginning
of second terms) while the traditional appointments process churns. The mid-term years usually have
few acting Secretaries. For instance, in his Administration’s second year, President Obama did not rely
on a single acting Cabinet member. Presidents Reagan and George W. Bush each used one. Presidents
Clinton and George H.W. Bush each turned to two. But President Trump relied on six in his second
year (five, if you exclude Rod Rosenstein’s reported one-day of service as acting Attorney General
before the White House picked Matthew Whitaker). With his third year at the half-way point, President
Trump had used seven acting Secretaries—beating out President George H.W. Bush’s entire third year
by one. But H.W. Bush is atypical among recent Presidents for the third year: President Reagan had
three, President George W. Bush had two, and Presidents Clinton and Obama each had one.

97 This section is taken directly from earlier work I did for the Brookings Institution and is used here, with a few wording

changes, with permission. ANNE JOSEPH O’CONNELL, BROOKINGS INST., ACTING LEADERS: RECENT PRACTICES,
CONSEQUENCES, AND REFORMS (2019).
98 See Fram, supra note 91 (reporting research from Kinane); Philip Bump, Trump Relies on Acting Cabinet Officials More than
Most Presidents, WASH. POST, April 8, 2019.

20

2.

Tenures of Acting Secretaries

Although nearly half of all the Cabinet Secretaries since 1981 have been acting officials, their
tenures are typically much shorter. Table 3 breaks down the tenures of the three types of Secretaries by
Administration, rounded to the nearest five-day mark.99 In parentheses in the final column is the
average tenure, eliminating short-term acting officials of fewer than ten days. Confirmed Secretaries, on
average, serve much longer than acting Secretaries. The numbers below undercount tenure in this
Administration as service dates were cut off as of July 19, 2019, but confirmed and acting secretaries
continued serving past that date.
Table 3: Average Tenures of Cabinet Secretaries by Type, Administration (rounded, 5 days)
President
Confirmed
Reagan
1130
Bush 41 (1 term)
975
Clinton
1415
Bush 43
1245
Obama
1335
Trump (as of July 19) 585

Recess
35
40
285
0
0
0

Acting (<10 days excluded)
25 (50)
45 (55)
35 (80)
30 (50)
45 (75)
50 (55)

President Trump’s acting Secretaries have served longer, on average, than recent
Administrations. Excluding short-term acting officials, however, their tenure, on average, is similar to
other Administrations. Because there are far more long-term acting Secretaries in this Administration, in
total, their tenure is much longer. Specifically, acting Secretaries have served 10.2 percent of the days in
this Administration. By contrast, interim Secretaries were in place for only 2.4 percent and 1.6 percent
of the days in the Administrations of Presidents Obama and George W. Bush, respectively. (If the
empty period at the Commerce Department in 2013 is included along with the interim Secretaries,
President Obama’s acting (or empty) total increases to 2.7 percent).
Of the twenty-two acting Secretaries who had served at least 100 days (again rounding to the
five-day mark), the Departments of Labor and Veterans Affairs lead in long-serving interim leadership,
claiming four slots apiece. DHS, which was established only in 2003, has three (two in this
Administration), as of July 19, 2019. President Trump has the highest number on this list—with seven
acting Secretaries, despite having a Senate controlled by his party and being only half-way done with his
third year. By contrast, Presidents Obama and Clinton come in with only four each.
3.

Types of Acting Secretaries

When President Trump chose Matthew Whitaker, Jeff Sessions’ Chief of Staff, to step in as
acting Attorney General after Sessions resigned under pressure, many commentators pointed out that
having a non-confirmed acting head of the Justice Department was highly unusual in the modern era.
While Whitaker is the only non-confirmed acting Attorney General in my database, non-confirmed
acting Secretaries are not unprecedented.
99 I rounded the tenure figures because the start and end dates sometimes conflicted across sources I consulted. I used July

19, 2019 as the end date for acting officials currently serving.

21

Under the Vacancies Act, acting officials can come from three pools: (1) first assistants to the
vacant position (for a Cabinet Secretary, the Deputy Secretary); (2) Senate-confirmed officials in any
agency (how Robert Wilkie served as acting Secretary of Veterans Affairs); and (3) agency workers who
have served at least 90 days in the year prior to the vacancy and paid at least at the GS-15 level
(Whitaker fell into this category).
Agency-specific statutes may constrain the use of the Vacancies Act. For instance, since 2016,
Congress has explicitly barred the White House from turning to the Vacancies Act for the head of DHS
if there is a confirmed Deputy Secretary or Undersecretary for Management.100 Thus, when President
Trump asked Kirstjen Nielsen to resign as Secretary of Homeland Security in the spring of 2019, he had
to also ask Claire Grady, the confirmed Undersecretary for Management, to step down to make way for
his preferred choice for the acting job, Kevin McAleenan.
Table 4 displays the number of acting Secretaries by type since the Vacancies Act took effect,
broken down by Administration. I separate the final pool into two categories: long-time careerists and
political officials.101
Table 4: Types of Acting Secretaries by Administration (November 20, 1998-July 19, 2019)
President
Clinton
Bush 43
Obama
Trump

Deputy Secretary
2
15
10
8

Other PAS
1
6
10
8

Non-PAS Career
0
0
2
10

Non-PAS Political
0
0
1
2

Looking at the start of Administrations under the Vacancies Act, the two previous Presidents
drew from Deputy Secretaries of their predecessors, despite the party change in the White House. Both
President Bush and President Obama asked three such appointees to stay on after inauguration. By
contrast, only one of President Obama’s Deputy Secretaries continued into this Administration as an
acting cabinet head—Sally Yates, whom the President fired soon after.
Finally, non-confirmed political officials are rare as acting Cabinet Secretaries. From other
research I am conducting, they appear much more common in lower-level positions covered by the
Vacancies Act.

100 6 U.S.C. §113(g) (2017).

101 Of the acting Secretaries since November 20, 1998, I could not determine with certainty the identity of only two: acting

Secretary of Health and Human Services from January 19 to January 20, 2001 and acting Secretary of Education from
January 20 to January 23, 2001. These two interim periods therefore are not included in Table 4.

22

D.

Three Positions at the EPA102

The Vacancies Act covers hundreds more positions than the fifteen Cabinet Secretaries. The
EPA is rare among federal agencies in publicly posting service dates for all its leaders (confirmed,
recess, acting) in three top Senate-confirmed positions—the Administrator, Deputy Administrator, and
General Counsel. See Appendix D for more details on this data.
Table 5 lists the types of officials in these three positions, since the start of President Reagan’s
Administration for the Administrator and Deputy Administrator, and since the fall of 1983 for the
General Counsel (when the Senate-confirmed Office of the General Counsel was created). For all three
positions, there have been more acting than confirmed officials.
Table 5: Types of Officials for Three Top EPA Positions (January 20, 1981-July 19, 2019)
Position
Administrator
Deputy Administrator
General Counsel (since 1983)

Confirmed
12
11
13

Recess
0
2
1

Acting
14
12
16

Empty
0
5
1

There have also been periods in the two lower-level positions when no one held the title, even
in an acting capacity. During these “empty” periods, agencies often delegate functions of the position
“down” to people below.
Table 6 breaks down the types of acting officials in these three positions, by Senate-confirmed
officials, non-confirmed political officials, and non-confirmed senior careerists.
Table 6: Types of Acting Officials for Three Top EPA Positions (Reagan-present)
Position
Administrator
Deputy Administrator
General Counsel

Senate-Confirmed
11
5
2

Non-PAS Political
0
3
4

Non-PAS Career
3
4
10

Most of the careerists who stepped up as interim General Counsel were the first assistant, the
Principal Deputy General Counsel—which is not a political position. As with acting Cabinet
Secretaries, non-Senate confirmed political officials are less common than senior careerists in important
acting roles in the EPA.
Table 7 provides the total days of tenure for confirmed and acting officials in these three
positions, broken down by Administration, and rounded to the nearest five-day mark. President
Trump’s numbers again are cut off at the July 19, 2019 mark, resulting in lower absolute numbers for
certain positions.

102 This section is taken directly from earlier work I did for the Brookings Institution and is used here, with a few wording

changes, with permission. O’CONNELL, supra note 97.

23

Table 7: Total Tenures of Three EPA Positions by Type and Administration (rounded, 5 days)
President

Administrator
Confirmed
Acting

Deputy Administrator
Confirmed
Acting

General Counsel
Confirmed
Acting

Reagan
Bush 41
Clinton
Bush 43
Obama
Trump
(2.5 years)

2700
1445
2920
2680
2760
640

2510
1340
1970
2085
1690
465

1605
640
1185
1765
2505
560

220
15
0
235
160
265

160
100
780
385
1220
580

320
820
1600
975
415
350

If these three positions are representative of the administrative state, acting officials play a
critical role in modern governance. As with Cabinet Secretaries, until recently, the EPA’s top leader on
any given day is overwhelmingly likely to be a confirmed official—though there have been more acting
than confirmed Administrators since 1981. In the current Administration, however, there has been an
acting EPA head almost 30 percent of the time, as of July 19, 2019. But just one level down, acting
Deputy Administrators have racked up about a quarter of the days that the job has been staffed since
the start of President Reagan’s Administration (and more than half of the time in this Administration).
And a level below that, acting General Counsels have been working 35 percent of the time there has
been a confirmed or acting official from 1983 to present.

24

E.

Historical Cabinet Officers

The previous Parts focus on recent use of acting officials. With the tremendous assistance of
Natalie Peelish, I created a database of cabinet officials from President George Washington’s
Administration through the first term of President George W. Bush.103 These officials include
confirmed, recess, and acting/interim leaders but exclude some short-term acting officials. See
Appendix E for more details.
Table 8 tallies the numbers of acting secretaries and recess-appointed or confirmed secretaries
by cabinet agency.
Table 8: Leadership Types of Cabinet Officials, from April 30, 1789-January 20, 2005 (or
relevant portion), by Agency/Position (in order of agency creation)
Agency/Position
State
Treasury
War
Attorney General
Postmaster General
Navy
Interior
Agriculture
Commerce & Labor
Commerce
Labor
Defense
Health, Education & Welfare/
Health & Human Services
Housing & Urban Development
Transportation
Energy
Education
Veterans Affairs
Homeland Security

Confirmed/Recess
93
104
81
110
89
75
67
39
5
40
31
23
21

Acting
31
23
29
13
9
16
16
3
0
12
5
2
2

Percentage Acting
25.0%
18.1%
26.4%
10.6%
9.2%
17.6%
19.3%
7.1%
0.0%
23.1%
13.9%
8.0%
8.7%

13
16
11
8
4
1

3
4
1
1
3
0

18.8%
20.0%
8.3%
11.1%
42.9%
0.0%

In this data source, where some short-term acting officials are excluded, two departments
(Commerce and Labor, Homeland Security) had no listed acting heads. These departments also had the
shortest lifespans in the database (Commerce and Labor lasted a decade, and DHS had only two years
in existence).
At the other extreme, acting officials made up at least twenty percent of the listed leaders at five
agencies (Veterans Affairs, War, State, Commerce, and Transportation). The Department of Veterans
Affairs had the highest percentage of acting heads, at 43 percent.

103 BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS 1774-2005, H.R. DOC. NO. 108-222, at 3-29 (2005).

25

In contrast to the Defense Department, the Department of War had many more acting heads as
a share of its top leadership, though over 60 percent of the acting leaders in the Department of War
served in the first five decades after the founding.
The interim leaders usually varied by type within each agency. For example, in the Department
of War, all but one of the interim heads had a position listed: two were Adjutant Generals, two were
Assistant Secretaries, three were the Attorney General, seven were Chief Clerk, one was Commissioner
of Indian Affairs, three were listed as being with the Army, one was Postmaster General, four were the
Secretary of State, two were the Secretary of the Navy, and two were Secretary of the Treasury. By
contrast, every interim Postmaster General was the First Assistant Postmaster General.
Table 9 examines how long the acting officials served at the five agencies with the highest share
of interim leaders, by comparing the total days served by interim and noninterim leaders. For those
officials still serving on January 20, 2005, that was treated as the relevant end date for these calculations.
Table 9: Total Tenures by Leadership Type in Five Agencies with Highest Share of Acting
Heads
Agency/Position
Veterans Affairs
War
State
Commerce
Transportation

Confirmed/Recess
5182 days
56076 days
77745 days
33501 days
13856 days

Acting
616 days
1560 days
991 days
985 days
157 days

Percentage Acting
11%
3%
1%
3%
1%

Table 10 provides information about the longest serving acting head for each agency in the
database.

26

Table 10: Longest Serving Acting Leader in Each Cabinet Agency (in order of creation)
Agency
Acting Leader
President
Background of Acting
State
Richard Rush
Monroe
Attorney General
Treasury
William Jones
Madison
Secretary of the Navy
War
George Graham
Monroe
Chief Clerk
AG
Nicholas Katzenbach LB Johnson Deputy Attorney General
Postmaster
Horatio King
Buchanan
First Assistant PG
104
Navy
Charles Edison
FD Roosevelt Assistant Secretary
Interior
Roy O. West
Coolidge
Not listed
Agriculture
Eugene Moos
Clinton
Under Secretary
Commerce
Lewis L. Strauss
Eisenhower Not listed
Labor
Cynthia Metzler
Clinton
Deputy Secretary
Defense
Thomas S. Gates, Jr. Eisenhower Not listed
HEW/HHS Wilbur J. Cohen
LB Johnson Not listed
HUD
Alphonso R. Jackson Bush 43
Deputy Secretary
Transportation James B. Busey IV
Bush 41
Deputy Secretary
105
Energy
Elizabeth Moler
Clinton
Deputy Secretary
Education
Gary L. Jones
Reagan
Under Secretary
VA
Hershel W. Gober
Clinton
Deputy Secretary

Tenure
196 days
294 days
281 days
160 days
42 days
159 days
180 days
88 days
226 days
484 days
56 days
75 days
113 days
72 days
48 days
37 days
306 days

When you break down leaders by Administration, four Administrations had no acting cabinet
officials in the Biographical Directory: Presidents Polk, Taft, Harding, and Kennedy. At the other
extreme, two Administrations had eleven: Presidents Madison and Tyler (the latter served only one
term). According to one study, “[t]he Tyler Presidency proved the most unstable for Cabinet tenure in
American history.”106 In 1841, all but one member of President Tyler’s Cabinet resigned in protest,
which contributed to his need to rely on acting officials. President Madison also had considerable
difficulties with his Cabinet, given political and geographic conflict, contributing to turnover and use of
interim leaders.107
Finally, the historical data highlight an interesting contrast with current practices. Earlier
Presidents needed acting officials less at the start of their Administrations as they often had cabinet
officials from the preceding Administration “continue” into theirs. For example, before President
Truman took office in 1945, 27 Attorneys General, 26 Secretaries of the Treasury, and 23 Secretaries of
State kept serving from one Administration into the next.

104 Charles Edison served as “acting” Secretary of the Navy for 147 days from Aug. 5, 1939 until Dec. 30, 1939. He then

served as “ad interim” Secretary of the Navy for 12 days from Dec. 30, 1930 until Jan. 11, 1940. I included the total number
of days he served as acting and interim Secretary combined in the table since he was not confirmed until Jan. 11, 1940.
105 She was the only acting secretary of energy in the data source, which excluded some short-term acting officials.
106 R. Gordon Hoxie, The Cabinet in the American Presidency, 1789-1984, 14 PRESIDENTIAL STUD. Q. 209, 218 (1984).
107 Id. at 216.

27

III.

Examples of Delegations of Authority in the Face of Staffing Vacancies

This Part turns to delegations of authority in the face of staffing vacancies. These delegations
often function as substitutes to acting officials.108 Because this report focuses primarily on acting
officials, it does not attempt to provide comprehensive information on delegations of authority to
address vacancies in agency management, focusing instead on some key examples.109 The Part begins
with an illustration of how delegated authority can have the same effects as an acting official. It then
showcases some permanent delegations outside of the vacancies context before it turns to some
examples when positions are not filled with Senate-confirmed officials.
A.

Delegations as Substitute for Acting Officials

If the duties of the PAS position are not exclusive to that job—by statute or regulation—they
can be delegated (within the constraints of the Appointments Clause, which this report does not
examine). For such positions, an acting official and an official performing the delegated functions have
the same authority, although they have different titles. Even if some duties are exclusive to a position,
the other duties can be reassigned, leaving the delegatee with nearly the same power as an acting
official. The main difference is that delegations can operate far longer than acting officials can serve.
The following answer by a recent DHS nominee to the written questionnaire from the minority
members of the Senate Committee on Homeland Security and Governmental Affair captures this
equivalence:
Question 8
In May 2017, you began working as a Senior Advisor at the Department of Homeland
Security. In June 2017, you began serving as the Deputy Under Secretary for Science
and Technology (S&T) and the Acting Undersecretary. Since November 2017, you have
continued to serve as Deputy Under Secretary and as the Senior Official Performing the
Duties of the Under Secretary.
a. Please describe your role and responsibilities in each of these positions.
Response: My time as Senior Advisor gave me the opportunity to become familiar with
the structure, the operations and the workforce at S&T. Upon assuming the role as the
Deputy USST, Acting USST and SOPDUUST my responsibilities were no different and
focused on what I see as the mission of S&T is to be which is to enable effective,
efficient, and secure operations across all homeland security missions by applying timely
scientific, engineering, and innovative solutions through research, design, test and
evaluation, and acquisition support.

My role, should I be confirmed as USST, is to serve as the science advisor to the
Secretary and ensure S&T is a Departmental resource to all the DHS components for all
108 See Part I.C, supra.

109 I know of no work that examines delegations tied to vacancies in PAS positions systematically. Cf. Jennifer Nou,

Subdelegating Powers, 117 COLUM. L. REV. 473 (2017) (providing some examples of delegations in the face of vacancies but
focusing on agency organization issues outside of vacancies).

28

of their R&D needs. To enable that, I must ensure that we have processes and
procedures in place that can be systemically applied to all programs to deliver solutions
that address customer’s needs via a deliberative approach and to execute each program
efficiently and effectively with an objective of maximizing our return on investment.
b. Have you received any guidance regarding compliance with the Federal Vacancies
Reform Act? If so, please describe what guidance you have received.
Response: In November, 2017, DHS directed me to use the title “Senior Official
Performing the Duties of the Under Secretary for Science and Technology.” The timelimit for an official to serve as the Acting Under Secretary for S&T under the Federal
Vacancies Reform Act (FVRA) expired on November 15, 2017. Thus, after that date, I
could not use the title “Acting Under Secretary.”
c. How have your role and responsibilities changed since you ceased to be the Acting
Under Secretary in November?
Response: There are no duties of the Under Secretary that by statute or regulation must
be performed only by the Under Secretary.110
Only the nominee’s title changed when the time limits of the Vacancies Act expired.
In some cases, delegations appear to substitute for nominations. For instance, in July 2017,
President Trump nominated Anthony Kurta to be the Principal Deputy Under Secretary of Defense for
Personnel and Readiness.111 The White House withdrew the nomination on September 28, 2018.112 As
of September 2019, Kurta was currently performing the duties of the job through delegation.113

110 Nomination of William N. Bryan to be Under Secretary for Science and Technology, U.S. Department of Homeland

Security, Hearing before the Sen. Comm. on Homeland Security and Governmental Affairs, 115th Cong. 73-74 (Minority
Supplemental Pre-hearing Questionnaire) (2018).
111 Nomination of Anthony Kurta for Principal Deputy Under Secretary, Department of Defense, PN812, 115th CONG.,
https://www.congress.gov/nomination/115th-congress/812.
112 Id.
113 Anthony M. Kurta, U.S. DEP’T. OF DEF., https://www.defense.gov/OurStory/Biographies/Biography/Article/602728/anthony-m-kurta/ (last visited September 13, 2019).

29

B.

Standing Delegations Outside of Vacancies

When Congress delegates authority to agencies, it typically names agency heads (or the
President). Because of competing demands, the agency heads (or the President) then usually delegate at
least some of that nonexclusive authority downward. Agencies often accomplish this internal
organization through regulations that appear in the Code of Federal Regulations, but without prior
notice and comment under the Administrative Procedure Act’s exceptions.114
Here are three broad examples. First, the Department of Justice has provided, in part: “The
Deputy Attorney General is authorized to exercise all the power and authority of the Attorney General,
unless any such power or authority is required by law to be exercised by the Attorney General
personally.”115
Second, the Department of Agriculture has established: “The following delegation of authority
is made by the Secretary of Agriculture to the Deputy Secretary: Perform all of the duties and exercise
all of the powers and functions which are now or which may hereafter be, vested in the Secretary of
Agriculture. This delegation is subject to the limitation in § 2.10.”116
Third, the Department of Transportation has specified: “The Deputy Secretary may exercise the
authority of the Secretary, except where specifically limited by law, order, regulations, or instructions of
the Secretary.”117
These deputies are also allocated specific tasks. For instance, in the Transportation Department,
the Deputy Secretary has been delegated authority to:
(a) Exercise executive control over Departmental Budgeting and Program Evaluation.
(b) Serve as Chairman of the Departmental Executive Resources Board and its
Executive Committee.
(c) Serve as the Chair of the Department’s Safety Council.
(d) Serve as the Chair of the Department’s Credit Council.
(e) Approve the establishment, modification, extension, or termination of:
(1) Department-wide (intra-department) committees affecting more than one program.
(2) OST-sponsored interagency committees.
(f) Approve the designation of: (1) Departmental representatives and the chairman for
interagency committees sponsored by the Office of the Secretary. (2) Departmental
members for international committees.

114 5 U.S.C. § 553(b)(A) (2017) (exception for “rules of agency organization, procedure, or practice”).
115 28 C.F.R. § 0.15(a) (2018).

116 7 C.F.R. § 2.15 (2019). Section 2.10 provides: “The delegations made in this part shall not be construed to confer upon

any general officer or agency head the authority of the Secretary to prescribe regulations which by law require approval
of the President.”
117 49 C.F.R. § 1.23 (2018).

30

(g) Serve as the representative of the Secretary on the board of directors of the National
Railroad Passenger Corporation and carry out the functions vested in the Secretary as a
member of the board by 49 U.S.C. 24302.
(h) Approve the initiation of regulatory action, as defined in Executive Order 12866, by
Secretarial offices and Operating Administrations.118
Standing delegations can also apply to positions beneath the second highest official. These
delegations are often narrower in scope. Compare the regulation above concerning the authority of the
Deputy Secretary of Transportation to the Undersecretary for Policy, who is given only specific duties:
The Under Secretary is delegated the following authorities:
(a) Lead the development of transportation policy and serve as the principal adviser to
the Secretary on all transportation policy matters.
(b) Establish policy and ensure uniform departmental implementation of the National
Environmental Policy Act of 1969, Pub. L. 91-190, as amended (42 U.S.C. 4321-4347)
within the Department of Transportation.
(c) Oversee the implementation of 49 U.S.C. 303 (Policy on lands, wildlife and
waterfowl refuges, and historic sites).
(d) Represent the Secretary of Transportation on various interagency boards,
committees, and commissions to include the Architectural and Transportation Barriers
Compliance Board and the Advisory Council on Historic Preservation and the Trade
Policy Review Group and the Trade Policy Staff Committee.
(e) Serve as the Department’s designated principal conservation officer pursuant to
section 656 of the Department of Energy Organization Act, Pub. L. 94-91 [42 U.S.C.
7266], and carry out the functions vested in the Secretary by section 656 of the Act,
which pertains to planning and implementing energy conservation matters with the
Department of Energy.
(f) Carry out the functions of the Secretary pertaining to aircraft with respect to
Transportation Order T-1 (44 CFR chapter IV) under the Defense Production Act of
1950, as amended, Pub. L. 81-774, 64 Stat. 798 [50 U.S.C. App. 2061 et seq.] and
Executive Order 10480, as amended (see also Executive Order 10773 and 12919).
(g) Serve as Department of Transportation member of the Interagency Group on
International Aviation, and pursuant to Executive Order 11382, as amended, serve as
Chair of the Group.
(h) Serve as second alternate representing the Secretary of Transportation to the Trade
Policy Committee as mandated by Reorganization Plan No. 3 of 1979 (5 U.S.C. App. at
1381), as amended, and Executive Order 12188, as amended.119

118 Id.

119 Id. at § 1.25 (2018) (omitting (i)-(o)).

31

Sometimes, delegations focus on a particular task, rather than a specific position. For instance,
the State Department has delegated classification authority to various officials: “Authority for original
classification of information as Top Secret may be exercised by the Secretary and those officials
delegated this authority in writing by the Secretary. Such authority has been delegated to the Deputy
Secretaries, the Under Secretaries, the Counselor, Assistant Secretaries and equivalents; Chiefs of
Mission and U.S. representatives to international organizations; and certain other officers within the
Department and at posts abroad.”120

120 22 C.F.R. § 9.5(a) (2018).

32

C.

Delegations in the Face of Vacancies

Agencies also delegate internally to respond to gaps in confirmed leadership. This section
addresses general delegations to first assistants, general delegations that also mention vacancies, and
delegations in response to specific vacancies.
1.

First Assistant Delegations

The Vacancies Act does not define the first assistant to a covered position.121 If an agency’s
statutes do not specify a first assistant, the agency generally specifies one by regulation. Those
specifications also usually provide for delegations of authority in the face of vacancies (as acting
officials and delegated authority are largely two sides of the same coin).
For example, the Department of Transportation’s regulations establish that the Deputy
Administrator is the first assistant to the Administrator of the National Highway Transportation Safety
Administration.122 The regulations also assign duties, with some limits:
(a) All authorities lawfully vested in and reserved to the Administrator in this title, part,
or other NHTSA regulation or directive may be exercised by the Deputy Administrator
and, in the absence or disability of both officials, by the Chief Counsel, unless
specifically prohibited by statute, regulation, or order.
(b) In exercising the powers and performing the duties delegated by this part, officers of
NHTSA and their delegates are governed by applicable laws, executive orders,
regulations, and other directives, and by policies, objectives, plans, standards,
procedures, and limitations as may be issued from time to time by or on behalf of the
Secretary of Transportation, the Administrator, the Deputy Administrator, the Chief
Counsel, and the Executive Director or, with respect to matters under their jurisdiction,
by or on behalf of the Associate Administrators, the Regional Administrators, and the
Directors of Staff Offices.
(c) Each officer to whom authority is delegated by this part may redelegate and
authorize successive redelegations of that authority subject to any conditions the officer
prescribes.
(d) Each officer to whom authority is delegated will administer and perform the
functions described in the officer’s respective functional statements.123
2.

Combination Delegations

Some standing delegations make general assignments of authority as well as address vacancies.
For instance, while the State Department does not explicitly mention acting officials in top secret
classification authority, it does refer to them for secret or confidential classification power: “Authority
for original classification of information as Secret or Confidential may be exercised only by the
Secretary, the Senior Agency Official, and those officials delegated this authority in writing by the
Secretary or is often accomplished through the Senior Agency Official. Such authority has been
121 Part I.A.3, supra.

122 49 C.F.R. § 501.4 (2018).
123 Id. at § 501.5.

33

delegated to Deputy Assistant Secretaries, Principal Officers at consulates general and consulates
abroad, and certain other officers within the Department and at posts abroad. In the absence of the
Secret or Confidential classification authority, the person designated to act for that official may exercise
that authority.”124
3.

Delegations for Specific Vacancies

Delegations for specific vacancies can be more permanent (i.e., available anytime there is a gap
in leadership, like the first assistant delegations) or more targeted (i.e., issued to specific people). This
section gives examples of both.
a.

General Delegations to Address Vacancies

As appointment delays have lengthened, independent regulatory commissions and boards,
whose leaders generally do not fall under the Vacancies Act, have issued new delegations and updated
previous ones to address what functions could continue without a quorum.
In February 2017, the NLRB announced new delegations of certain functions:125
Motions for default judgment, summary judgment, or dismissal referred to Chief
Administrative Law Judge. During any period when the Board lacks a quorum, all motions
for default judgment, summary judgment, or dismissal filed or pending pursuant to § 102.50
will be referred to the Chief Administrative Law Judge in Washington, DC, for ruling. Such
rulings by the Chief Administrative Law Judge, and orders in connection therewith, may not
be appealed directly to the Board, but will be considered by the Board in reviewing the
record if exception to the ruling or order is included in the statement of exceptions filed with
the Board pursuant to § 102.46.126
Administrative and procedural requests referred to Executive Secretary. During any period
when the Board lacks a quorum, administrative and procedural requests that would normally
be filed with the Office of the Executive Secretary for decision by the Board prior to the
filing of a request for review under § 102.67, or exceptions under §§ 102.46 and 102.69, will
be referred to the Executive Secretary for ruling. Rulings by the Executive Secretary, and
orders in connection therewith, may not be appealed directly to the Board, but will be
considered by the Board if such matters are raised by a party in its request for review or
exceptions.127
A year later, the Federal Trade Commission followed suit with its own rulemaking to “delegate[]
certain limited functions where the Commission is unable to act because it lacks a quorum.”128
Specifically, the FTC provided:
Delegation of functions.
(a) The Commission, under the authority provided by Reorganization Plan No. 4 of 1961, may
delegate, by published order or rule, certain of its functions to a division of the Commission, an
124 22 C.F.R. § 9.5(b) (2018).

125 NLRB, Procedural Rules and Regulations, 82 Fed. Reg. 11748 (Feb. 24. 2017).
126 29 C.F.R. § 102.179.
127 29 C.F.R. § 102.181.

128 FTC, Delegation of Limited Authority, 83 Fed. Reg. 7109 (Feb. 20, 2018).

34

individual Commissioner, an administrative law judge, or an employee or employee board, and
retains a discretionary right to review such delegated action upon its own initiative or upon
petition of a party to or an intervenor in such action.
(b) The Commission delegates its functions, subject to certain limitations, when no quorum is
available for the transaction of business. The delegate or delegates are authorized to act in
instances in which no party or intervenor would be adversely affected by the delegated action
and entitled to seek review by the Commission, as provided by section 1(b) of Reorganization
Plan No. 4 of 1961, or in instances in which all such adversely affected parties or intervenors
have waived such a right. In actions in which at least one Commissioner is participating, this
delegation is to the participating Commissioner or to the body of Commissioners who are
participating. In actions in which no Commissioner is available or no Commissioner is
participating, the General Counsel in consultation, where appropriate, with the Directors of the
Bureaus of Consumer Protection, Competition, and Economics shall exercise this delegated
authority without power of redelegation. This delegation does not alter or affect other
delegations to Commission staff. This delegation is only authorized for those instances in which
the Commission lacks a quorum as set forth in Commission Rule 4.14(b), 16 CFR 4.14(b)
(Commission quorum).129
The Federal Energy Regulatory Commission revised its standing delegations in 2013 “to ensure
that, during emergency conditions, there are staff members located outside the National Capitol Region
to whom authority is delegated.”130 Under the agency’s Continuity of Operations Plan:
(1) When, by reason of emergency conditions, there is no Commissioner available and capable
of acting, the functions of the Commission are delegated to the first five members of the
Commission staff on the list set forth in paragraph (b)(2) of this section who are available and
capable of acting.
(2) The list referred to in paragraph (b)(1) of this section is:
(i) General Counsel;
(ii) Executive Director;
(iii) Director of the Office of Energy Market Regulation;
(iv) Director of the Office of Energy Projects;
(v) Director of the Office of Electric Reliability;
(vi) Director of the Office of Enforcement;
(vii) Deputy General Counsels, in order of seniority;
(viii) Deputy Directors, Office of Energy Market Regulation, in order of seniority;
(ix) Deputy Directors, Office of Energy Projects, in order of seniority;

129 16 C.F.R. § 0.7.

130 FERC, Continuity of Operations Plan, 78 Fed. Reg. 21245 (April 10, 2013).

35

(x) Deputy Directors, Office of Electric Reliability, in order of seniority;
(xi) Deputy Directors, Office of Enforcement, in order of seniority;
(xii) Associate General Counsels and Solicitor, in order of seniority;
(xiii) In order of seniority, Assistant Directors and Division heads, Office of Energy Market
Regulation; Assistant Directors and Division heads, Office of Energy Projects; Assistant
Directors and Division heads, Office of Electric Reliability; Deputy Associate General
Counsels; Assistant Directors and Division heads, Office of Enforcement;
(xiv) In order of seniority, Regional Engineers and Branch Chiefs of the Office of Energy
Projects’ regional offices; and Deputy Division Directors and Group Managers of the Office of
Electric Reliability’s regional offices.131
FERC already had in place delegations to particular commissioners: “Delegation of authority to one or
two Commissioners. During emergency conditions, the Commission shall function as usual, if a
quorum of the Commission is available and capable of acting. If by reason of such conditions a quorum
of the Commission is not available and capable of acting, all functions of the Commission are delegated
to the Commissioner or Commissioners who are available and capable of acting.”132
b.

Targeted Delegations to Address Vacancies

Of all the cabinet departments, on April 15, 2019, the Departments of Homeland Security and
the Interior had the lowest percentage of Senate-confirmed positions filled with confirmed
appointees.133
When time limits for certain acting officials under the Vacancies Act ran out, the Department
of Homeland Security only publicly noted delegations of duties on its leadership web page. For
example, on April 15, 2019: “Deputy Secretary (vacant), David P. Pekoske, Senior Official Performing
the Duties of the Deputy Secretary.”134
The Department of the Interior, by contrast, has issued publicly accessible formal delegation
orders. One such order, issued by Secretary David Bernhardt on July 29, 2019, provides:
135

All functions, duties, and responsibilities of the following positions are hereby delegated
to the specified employees:
a. Deputy Secretary to Kate MacGregor, Deputy Chief of Staff
b. Solicitor to Daniel Jorjani, Principal Deputy Solicitor
c. Director, Bureau of Land Management to William Perry Pendley, Deputy Director,
Policy and Programs, Bureau of Land Management

131 Id. at 21246 (18 C.F.R. § 376.204(b)).
132 18 C.F.R. § 376.204(a).

133 This is true both in the Snapshot Database and the Washington Post’s Appointments Tracker.
134 Leadership, DEP’T OF HOMELAND SECURITY, https://www.dhs.gov/leadership.

135 Not all of these delegations appear under the “Secretary’s Orders” tab in the Department’s Electronic Library of the

Interior Policies, but they do come up when you search for “3345”.

36

d. Special Trustee for American Indians to Jerold Gidner, Principal Deputy Special
Trustee for American Indians
e. Director, National Park Service to P. Daniel Smith, Deputy Director, National Park
Service
f. Director, Office of Surface Mining Reclamation and Enforcement to Glenda Owens,
Deputy Director, Office of Surface Mining Reclamation and Enforcement
g. Director, U.S. Fish and Wildlife Service to Margaret Everson, Principal Deputy
Director, U.S. Fish and Wildlife Service136
These individuals can further delegate as “necessary, consistent with 200 DM 1 and all applicable
statutes and regulations.”137
The order does place some limits on the delegation: “This delegation covers only those
functions or duties that are not required by statute or regulation to be performed only by the Senateconfirmed official occupying the position. The Secretary must perform any functions or duties required
by statute or regulation to be performed only by the Senate-confirmed official occupying the position.
This redelegation does not supersede existing delegations of authority to or from the various vacant
non-career positions to subordinate officials.”138
Finally, the order is time limited: “It will automatically expire for each vacant non-career
position when filled by a Senate-confirmed appointee, upon the subsequent designation of acting
officials, or a subsequent delegation to alternate officials. In the absence of the foregoing actions, it will
terminate on September 30, 2019, unless extended, modified, or revoked.”139

136 Department of Interior, Temporary Redelegation of Authority for Certain Vacant Non-Career

Senate-Confirmed Positions, Secretarial Order 3345, Amendment No. 28, § 3 (July 29, 2019).
137 Id.
138 Id. at § 4.
139 Id. at § 5.

37

IV.

Agency Practices Concerning Acting Officials

This Part addresses agency practices involving acting officials. It covers the following items:
(1) confusion about the applicability of the Vacancies Act; (2) agency organization for reporting and
tracking vacancies under the Vacancies Act; (3) agency-specific succession provisions and succession
planning, including the naming of first assistants; (4) disclosure (if at all) of information about acting
officials to the public; and (5) the experience of acting officials. The next Part addresses agency
interactions with the GAO, specifically reporting of vacancies and acting officials and GAO violation
letters.
To learn about agency practices involving acting officials, I drew on multiple sources, including:
a survey of current agency officials (see Appendix F), telephone interviews with some of the survey
respondents and other agency officials (see Appendix G), telephone interviews with former acting
officials (see Appendix H), congressional hearing transcripts, agency web sites, and news stories.
I promised not to identify specific respondents or their agencies. I use third person pronouns
(i.e., they, their) below to refer to specific interviewees.
A.

Confusion about the Applicability of the Vacancies Act

Under the Vacancies Act, agencies must report vacancies in covered positions and information
on any acting officials to the GAO (and to Congress).140 As noted above, conflict has arisen about the
applicability of the Act to some agency positions covered by specific succession provisions.141 No court,
however, has held that any agency-specific provision that does not expressly exclude the Vacancies Act
preempts the Act.
In its 1999 guidance on the Act, OLC advised that all cabinet departments and executive
agencies fell under the Vacancies Act.142 Although agencies are generally supposed to treat OLC advice
as binding, several of the surveyed agencies believed that they are not subject to the Vacancies Act. In
addition, several other agencies, which acknowledged the Act’s applicability, are not aware of OLC
guidance finding that first assistants could be named after a vacancy arises.143

140 Part I.A.5, supra.
141 Part I.B, supra.

142 Guidance, supra note 30, at 61-62 (Questions 4-6).

143 Designation of Acting Associate Attorney General, 25 Op. O.L.C. 177, 180 (2001) (noting that the Act refers to the

“office” and that if the first assistant is tied to the officer, the “words ‘to the office’” would be “render[ed]…meaningless”).

38

B.

Internal Operations for Reporting Vacancies (and Acting Officials) and Tracking Time
Limits

Agencies vary in how they comply with the Vacancies Act, including which offices handle GAO
reporting and time-tracking, how agencies track time limits, how they communicate with acting
officials, and the extent of training and resources dedicated to Vacancies Act compliance.
1.

Assignment of Tasks within the Agency

Of the thirteen surveyed agencies who reported that the Vacancies Act applies to at least one of
their Senate-confirmed positions, six noted that the same office handles reporting to the GAO and
tracking the time limits under the Vacancies Act.
Often, it is the General Counsel’s or Solicitor’s office heading up these functions. The General
Counsel’s office often has subdivisions, so interviewees sometimes mentioned that one division handles
tracking time limits and another division reports information to the GAO. Other agencies that rely
entirely on the General Counsel’s office explained that the “general law” division handles both duties.
Sometimes, the office in charge of White House coordination does both GAO reporting and
tracking time limits. Some interviewees noted that connections to the White House are critical in this
area because the Vacancies Act requires the President to personally select an acting official if she does
not want to rely on the default first assistant.
Four agencies indicated that different offices manage reporting and tracking. The General
Counsel’s office and the White House coordinating office are prominent actors here as well. But the
Human Resources group also plays a role for some of these agencies in reporting vacancies to GAO.144
From the survey and interviews, the General Counsel’s office almost always keeps track of the
Vacancies Act’s time limits. Even with these assignments, interviewees stressed the importance of
communication with other units. For instance, several officials noted that other offices may know more
about resignation dates and nominations—both of which are critical to tracking accurately the time
limits under the Act.
2.

Tracking Systems

Almost all agencies interviewed have a range of “systems” in place for tracking the time limits
under the Vacancies Act. One agency admitted that it does not have any system in place. On the
informal side, some agency officials count out the days and place reminders in their individual
electronic calendars. On the more formal side, several agencies explained that they maintain
spreadsheets of all PAS positions. For each position, officials track whether it is filled with a confirmed
official, an acting official, or whether delegable functions are being performed by another official. Many
of these spreadsheets also include dates on nominations and the dates that acting service lapses. All of
these systems are internal and not posted publicly on agency websites.

144 The remaining three agencies responding to the survey did not know one of the relevant offices: two did not know which

office reported to the GAO and one lacked information on which office tracked time limits.

39

In addition, some agencies hold weekly meetings about their PAS positions to discuss
onboarding for anticipated confirmed appointees or to learn about nominations that are expected to be
submitted or returned.
3.

Communicating with Acting Officials about the Vacancies Act’s Constraints

Agencies vary in how they communicate with acting officials. Some officials reported that they
both track the time limits and communicate with acting officials. Others noted that communication
with acting officials is handled by more political offices, such as the Chief of Staff for the agency head
or the office that coordinates with the White House. Several former acting officials stressed that
communication needs to extend to lower-level officials who may use the acting title of their superior in
official documents. These officials said they personally took responsibility for communication to other
agency employees.
The formality of communication differs by agency. Some agencies use formal letters from the
agency head. Other agencies rely on emails from either the General Counsel’s office or the relevant
political office. One agency remarked that they changed from formal to informal communication as the
formal communication took time and resulted in critical gaps.
Acting officials generally know less about time limits than the officials tracking them. Some
agency interviewees noted that acting officials have different preferences about time-limit reminders:
some officials want frequent reminders; others want very few because many reminders confuse them.
One former acting official did not believe anyone in their agency was tracking the time limits and only
learned about them when the GAO issued a violation letter to a different agency. A friend had to assure
the acting official that they were not serving in violation of the Vacancies Act. Another acting leader
said they presumed someone was tracking but that “it was totally not on my radar.”
Near the end of the permitted time limits, agencies almost always inform acting officials that
they can no longer use the acting title or present themselves in meetings as the acting leader. Agencies
typically tell the officials what title to use going forward. Agency interviewees stressed the importance
of these communications as many acting officials enjoy using the title—one interviewee described the
issue as “a resume problem.”
Interviews with former acting officials who served under the current Vacancies Act showed a
range of agency treatment of the Act. Some recalled no communication. Others noted that they
discussed the Act’s constraints at the start of their service.
As to the duties of the job, some agencies treat acting officials like confirmed officials,
providing full briefing books (and in some cases adding material about the Vacancies Act). Other
agencies provide reduced briefing to acting officials. And some do nothing. One former acting official
joked that the agency’s culture was “to learn on the job,” having remarked that they had received no
briefing whatsoever.
Several former acting officials recommended that the agency treat them like confirmed officials
and “fully onboard them.” Some indicated they did not need full onboarding as they were already
performing many of the functions as the first assistant. Others thought it was sufficient to seek advice
when they needed more information in the acting role.

40

Agencies also often notify potential acting officials, if they are the first assistant to a PAS
position. Specifically, many position descriptions note if a job is the official first assistant for purposes
of the Vacancies Act.
4.

Training and Resources

Agency interviewees came to take on Vacancies Act-related duties in different ways. Some
relished a challenge and noted that the Vacancies Act was a complex, interesting statute. Others were
asked to take on a specific assignment and then took on more and more work in this area. For those
officials, the work seemed tied to a person rather than a particular position. Some had no choice about
doing the work as they believed the duties were assigned to their positions.
Only one agency interviewee noted comprehensive training on Vacancies Act issues, through an
Office of Government Ethics conference over a decade ago (such training seems limited to presidential
transitions, with the most recent training having occurred in 2016). Other interviewees essentially
taught themselves about the Vacancies Act by reading the 1999 OLC guidance, internal records of
OLC advice from previous agency queries, and/or the Senate Committee report on the Act. In one
agency, more experienced officials presented Vacancies Act hypotheticals to new workers. In short,
training was “ad hoc,” as one interviewee put it.
The number of officials working on Vacancies Act issues varies—from one to two in smaller
agencies to five or six in larger ones. No official appeared to work full-time on these matters. Many
noted that the first and last years of an Administration are particularly busy times.
Almost every interviewee sang the praises of OLC, noting that they often sought informal
advice on related issues.

41

C.

Agency-Specific Provisions and Succession Planning, Including Naming of First
Assistants

1.

Agency-Specific Provisions

Of the fifteen surveyed agencies seemingly covered by the Vacancies Act (for at least one PAS
position), ten reported a specific statutory provision for succession in at least one of its Senateconfirmed positions. Four indicated that no agency-specific provisions applied to them. And one did
not know. (Appendix A provides a comprehensive list of agency-specific succession provisions.)
Of the seven independent regulatory commissions and boards completely excluded from the
Vacancies Act, none reported that their agency had a specific succession provision. Some of these
agencies had issued regulations permitting acting Chairpersons despite the lack of explicit statutory
authority for such temporary leaders.
2.

Succession Planning

Many agencies reported that they have engaged in succession planning for at least one PAS
position. Of the fifteen survey respondents covered by the Vacancies Act, eleven said that their agency
has a succession plan for at least one PAS position. Two agencies reported that they did not. And two
entities indicated that they did not know whether their agency has a succession plan.
Of the eleven agencies engaged in succession planning, most (six) claimed the relevant plans
were published in the Federal Register. Three agencies said the plans are on their web sites or the White
House’s web site. And two noted that the plans are not publicly available, outside a FOIA request.
Of the seven independent agencies with no positions covered by the Vacancies Act, four have
succession plans of some kind. Half of the agencies post those plans on their web sites; the other two
do not publicly distribute them. There may have been some confusion about whether a continuity of
operations plan (discussed in Part VI) counted as a succession plan.
One former acting official stressed the importance of these succession plans and recommended
agencies have them in place for every Senate-confirmed position.
The policy lab students and I briefly examined the websites for the seventeen agencies covered
by the Snapshot Database to see how easy agency succession plans were to find. We searched on a
variety of terms, including “order of succession,” “succession order,” and even just “succession.” On
many agency websites, we could not quickly find any current succession plans.
3.

First Assistants

For those agencies covered by the Vacancies Act, many have practices in place involving first
assistants. Many agencies explicitly note in position descriptions that the first assistant is the default
acting official. Some interviewees noted that there can be multiple deputy positions to a Senateconfirmed job, making it critical that one be designated as the first assistant for purposes of the
Vacancies Act. Several officials noted that agency leaders sometimes shift the first assistant in the face
of an expected vacancy, as leaders may have wanted one person as the first assistant when a confirmed
official was in place but want someone else to be the default acting leader. As two officials explained, it
can be difficult to get “the White House’s attention” to choose an acting official outside the first
assistant.
42

Some agencies reported that before a presidential transition they assess all their first assistant
positions to PAS jobs and get individuals in place, making sure that the officials intend to stay at the
agency for the first few months of the new Administration. One former acting leader noted that they
helped senior agency staff coordinate in the closing months of an Administration how the agency
would function after the impending presidential transition—well before the transition team contacted
them. These coordination efforts consisted of multiple meetings among senior deputies throughout the
agency.
Despite OLC guidance, some agencies will not let first assistants named after a vacancy occurs
use the acting title. For those agencies, some remarked that departures of first assistants can cause more
disruption than the departure of Senate-confirmed officials.

43

D.

Disclosure of Titles

Not all agencies disclose acting titles publicly. Of the fifteen surveyed agencies who reported
that the Vacancies Act applies to at least one of their PAS positions or that they operate under agencyspecific succession provisions, nine post acting titles on their web sites. Three admitted that they do
not. And three did not know.
The policy lab students and I examined the websites for the seventeen agencies covered by the
Snapshot Database to see whether they explicitly mark when a position does not have a Senateconfirmed official (i.e., noting it is “vacant”), whether they list acting officials, and whether they note
when someone is performing the duties of a vacant position through delegation. Table 11 summarizes
what the public can easily access about vacancies and acting officials in PAS positions.
Table 11: Accessibility of Acting Leadership Information on Agency Websites
Agency

Leadership Information

Agriculture

No central leadership page for all PAS
positions, each unit has a page (some note
vacancies)

Commerce

Central leadership page for most PAS
positions, with acting officials and delegations
noted (but not explicitly noting vacancies)

Defense

Central leadership page for PAS and many
other positions but organized by person, not
position (acting or delegation status noted)145

Education

Central leadership page for all PAS positions,
with vacancies, some acting officials and
delegations noted146

Energy

Central leadership page for some PAS positions
staffed by confirmed officials, with no easy
access to information on vacancies, acting
officials, or delegations on unit pages

Health & Human Services

Central leadership page for all PAS
positions, with acting officials and delegations
noted (but not explicitly noting vacancies)

145 You can filter by key words but it is difficult to figure out the status of a particular position. During this project, the

Defense Department appears to have changed its website; the revisions sadly made information on acting officials and
delegated authority harder to access.
146 The General Counsel position is marked vacant with no information on acting officials or delegations, for example. The
linked page for the office of the General Counsel mistakenly lists in September 2019, I think, an acting official (the position
is vacant and the duties are currently being carried out by delegation):
https://www2.ed.gov/about/offices/list/ogc/ogc_staff.html.

44

Homeland Security

Central leadership page for all PAS positions,
with vacancies, acting officials, and delegations
noted

Housing & Urban Development

Central leadership page for all PAS
positions, with acting officials and delegations
noted (but not explicitly noting vacancies)

Interior

No central leadership page for all PAS
positions, each unit has a page with acting
officials and delegations noted (but not
explicitly noting vacancies)

Justice

No central leadership page for all PAS
positions, each unit has a page with acting
officials and delegations noted (but not
explicitly noting vacancies)

Labor

Central leadership page for all PAS positions,
with vacancies, acting officials, and delegations
noted

State

Central leadership page for all PAS and many
other positions but organized by person, not
position (acting status noted but not delegated
authority)147

Transportation

Central leadership page for all PAS positions,
with acting officials and delegations noted (but
not explicitly noting vacancies)

Treasury

Central leadership page for PAS positions filled
by confirmed officials, with no easy access to
information on vacancies, acting officials or
delegations

Veterans Affairs

Central leadership page for all PAS positions,
with acting officials and delegations noted (but
not explicitly noting vacancies)

Environmental Protection Agency

Central leadership page for all PAS
positions, with acting officials and delegations
noted (but not explicitly noting vacancies)148

147 You can filter by key words but it is difficult to figure out the status of a particular position. During this project, the State

Department appears to have changed its website as well; as with the Defense Department, the revisions sadly made
information on acting officials and delegated authority harder to access.
148 The EPA’s historical web pages do have some errors concerning acting officials. See Appendix D, infra (discussing
Darwin’s and Wheeler’s start and end dates as Deputy Administrator).

45

Office of Management & Budget

No central leadership page except for
listing the top position, unit pages do not
provide information on confirmed officials or
vacant positions

A companion ACUS project, Listing Agency Officials, “reviewed agency websites for the 15
cabinet departments, 15 department subcomponents (one selected subcomponent from each cabinet
department, and 59 other independent agencies.” It found: “Most departments, departmental
subcomponents, and other independent agencies did not provide clear and thorough information about
vacancies among PAS/PA positions. A substantial number … provided no information about vacant
PAS/PA positions.”

46

E.

Experience of Acting Officials

As described in Appendix H, I spoke to nineteen former acting officials, spanning the past five
completed Administrations. Some of what I learned is incorporated in previous sections. Here I focus
on how these officials perceived their temporary status, what they did after their acting service ended,
and on some other unexpected aspects of their experience. I do not identify any of these officials or the
agencies in which they served. I use the third person plural to refer to a specific interviewee below.
1.

Authority

By law, acting officials have the same authority of confirmed officials. Theory often seemed to
accord with practice here, as many former acting leaders felt no constraints on what they could do:
“You need to lead the organization and do the responsibilities of the agency”; “You must move full
speed ahead because you are in charge and must move forward”; “From the day I took over I acted as
if I had all of the responsibility and authority of a permanent appointee.”
Even with a different pending nominee, some former temporary leaders did not delay in
carrying out the functions of the vacant job: “I think if you have the job just do it. Don’t live in the
shadow of someone who may take it. Many people try to read the tea leaves but so much of the day-today work is just putting one foot in front of another.” And when the acting official was the pending
nominee, former leaders indicated that they did not change what they did in an acting capacity in light
of the confirmation process.
Some noted that they knew a nomination would not be forthcoming so they “were going to be
performing the role until the end.” One pointed out that they had served longer as an acting leader than
any recent confirmed official in the role.
Several political acting leaders drew confidence from their White House support: “I never
considered myself to be the acting. I had full authority to run the agency and the full confidence of the
President”; “I knew that I had full authorization from the White House”; “The trust and confidence
from the White House are more than sufficient” to give an acting official from outside the agency the
needed authority. For acting officials who served before the 1998 Vacancies Act, when senior careerists
were not eligible to serve as acting leaders and the White House had to rely more on cross-agency
officials, those leaders plucked from different agencies took authority from being chosen by the White
House for the acting role. Others drew from support of agency heads: “I had the Secretary’s support.”
Even careerists in the acting role often felt unconstrained. Some had been explicitly told by
higher-level officials that they should fully perform the role: “The Secretary wanted everything
moving.” One former official expressed, however, frustration when those officials then changed their
minds months in. Another conceded that if they had been supervised by another acting (“no PAS in the
driver seat”), the situation would have differed: “Career staff can do great things but it would be great
to have someone connected to political leadership to drive the train.” One official mentioned
relationships with congressional staff they had built up in their many years at the agency. Another
acting leader noted they may have hesitated to make certain policy decisions but the work was almost
entirely operational. Interestingly, one acting official noted that their “full speed ahead” style did result
in several conflicts with their political supervisors.

47

Several former officials indicated that they may have acted differently if there had been a
pending nomination during their acting service: “I wasn’t made acting and in the same week someone
else was nominated. In the absence of anyone coming, I felt like there was no waiting.”
Some former leaders, however, pointed out restrictions they faced. Most of these leaders came
from the agency’s career ranks and acknowledged they were “not part of the club.” A few such officials
mentioned they were not invited to meetings a confirmed person in the role would have attended, and
some noted that their political supervisors did not want them testifying in front of Congress: “I knew
that there were strategy and other decisions being made that I wasn’t privy to but that I had an opinion
about. Once I was confirmed it was like I was invited to the party.”
Most of these officials were fine with being excluded from certain meetings because of their
status as careerists; others expressed frustration because they were critical to carrying out desired
policies. Some noted that they knew they were there “to keep the seat warm” and acted accordingly.
Others mentioned self-imposed constraints. “I am not excited by an acting who takes a wide
profile and orders a lot of changes. I think it invites controversy and you don’t need to do it”; “I did
not think it was appropriate for me as an acting official to take on any bold new initiatives.” One
former acting leader who had explicit backing from the White House still acted cautiously: “I didn’t
want to make decisions that I knew might be reversed because I didn’t think that would be fair to the
people below.” One former official noted how they came to a final decision on one project that had
been ongoing for years but waited for the new agency leader to announce it and explained that they
paused another project that had just started, leaving important planning decisions to the next confirmed
official. Another leader noted that the tasks of the agency—which were policy driven—contributed to
their cautiousness.
Former leaders also remarked on intangible differences: “I think Senate confirmation confers a
certain gravitas that an acting capacity just doesn’t carry”; “You’re always tentative when you are acting
because you haven’t been confirmed so you could be moved at any time. I didn’t live in fear of that but
without confirmation it’s a little bit awkward”; “It’s a delicate dance. If you’ve got the job, even if
you’re in an acting role, so long as there aren’t clear proscriptions on your duties, you should exercise
the duties. But you should be mindful of what’s coming next”; “When you are a civil servant you either
will not be in the room or you will not have the same gravitas as the political appointees.”
Acting officials sought buy-in from those beneath them and externally. Sometimes, buy-in
seemed to come easily: “There was no challenge whatsoever from the employees as to what my
responsibilities were. That was one of the things that was quite frankly very helpful and heartwarming
of my acting service.”
Other times, it took more work. Internally, former acting leaders spoke of holding meetings
(some by videoconference) with staff. One former political acting official stressed that they wanted to
“get the allegiance of the career people” rather than “rule over them.” Another official noted that
effective acting leaders “immediately learn about parts of the organization” with which they are
unfamiliar. Someone else noted that they chose their chief of staff from a different part of the agency in
which they had served. Externally, some acting leaders from the career ranks needed assistance in
making connections with stakeholders.

48

Another leader noted that senior staff members react differently depending on whether they
think the acting official is “truly temporary” or will be in charge for some time. In the former case, it is
harder to get support. One former official discussed how staff divided their loyalties between the acting
official and the announced nominee.
Others stressed the importance of having support from the agency’s head (or other senior
appointees). “If there is no one there who can help, you don’t know what the new Administration
wants.” For a former acting official who came from outside the agency, they “found a group of senior
career executives who were highly capable and knew how to adjust to and train a new boss” but also
drew on management skills from other agencies.
Some of the acting officials drawn from the agency’s senior career ranks complained about
political officials not respecting careerists sufficiently and wished that the political appointees would
treat careerists who were “team players” better. Others noted that even if they had internal support,
obtaining external support was harder because of their acting title.
Many who had been the first assistant noted that they had built up important expertise and
relationships from that role, from which they benefited when they took on the acting job: “I was sort of
doing the job anyway without the title so it wasn’t much of a transition.” These officials often remarked
that “dropping in a political person” had costs on the agency, as effort had to be expended to get
political officials up to speed.
2.

After Acting Service

Acting service ended in various ways. Some continued to perform the functions of the vacant
office through delegation. These former acting officials often noted the lack of difference (in their
minds) between the acting title and performing the functions through delegation.
Others stepped down from the acting role when a new person was confirmed. This transition
did present some complexities. Often, the acting official had to brief the confirmed official, but not
always. Several saw it as part of their duties. One former acting official felt it “was incumbent on me to
ensure that the onboarding for the political appointee is good” as “you want to protect the incoming
person from doing something stupid” and “you want to protect the agency and its interests.” By
contrast, another political acting leader felt it was not their job to orient the new confirmed official—
that such responsibility fell on the senior career staff. Another official expressed frustration with the
new appointee, who “needed a lot of help as he had no idea what he was walking into.”
Nominees who shadowed the acting leaders created their own complexities. The nominees were
not allowed to make any decisions but the acting leaders felt they were put in “untenable positions”
with the nominees attending meetings.
For those acting leaders who could have returned to their first assistant positions, many chose
to leave. For one such leader who stayed for a few months after the new leader took charge: “I wasn’t
going to go back to the number 2 position [for long] because that might impede the new[ly] confirmed
person’s ability to lead.” Another person said it felt uncomfortable to stay. One conceded that they
should have “managed up” better and there may have been less conflict when the new person arrived.
For some acting officials who went back to their previous positions in the agency, there was
sometimes conflict when they reported to the new confirmed officials. One mentioned that the
49

confirmed official wanted them to leave the agency so that people would go to the confirmed official
with questions and concerns instead of the previous acting official. By contrast, another noted that the
confirmed leader specifically asked them to stay, which they did for about a year.
3.

Unexpected Aspects of Acting Service

On the advantage side, several former officials who had been nominated for the vacant position
mentioned that they were glad, in part, that they were not confirmed because they were paid more as a
senior career executive than they would have been as a confirmed political appointee.
On the cost side, some acting leaders drawn from the career ranks spoke of the difficulty in
evaluating their former peers in their interim capacity. This human resources component of their job
was among the hardest, according to several former acting leaders drawn from the senior career ranks,
as their peers in the career ranks informally questioned their authority to make these personnel
decisions. One such leader called for more training on that aspect of the role.
Finally, several former acting officials spoke about their decision to use the physical office of
the position or not. For those who moved into the office: “It became important to people that I move
into that office and reestablish the symbol of that office. It’s not Game of Thrones but the symbol is
important to people.” One person regretted making the physical change: “It emphasized that I was
trying to take over things. It was superficial but I shouldn’t have moved in.” For those who did not take
the “big” office: “I knew I wasn’t the confirmed position.”

50

V.

GAO Reporting and Violations

This Part focuses on agency interactions with the GAO, specifically reporting of vacancies and
acting officials under the Vacancies Act as well as on GAO violation letters. It starts by summarizing
past research on agency compliance with the Act’s reporting mandates and then turns to assessing
agency performance for the vacancies in the snapshot database as well as the gaps since 1999 in the
Cabinet Secretary and EPA databases. Next, it analyzes the violation letters issued by GAO since the
enactment of the Vacancies Act and concludes by discussing agency recommendations for change.
Appendix I details the data sources used.
A.

Past Research

The GAO itself has issued multiple reports discussing problems with agency compliance under
the Vacancies Act. Most recently, at the request of the Ranking Minority Member of the Senate Finance
Committee, Senator Wyden, the GAO assessed “compliance with the Federal Vacancies Reform
Act . . . by agencies and departments with respect to positions subject to the jurisdiction of the Senate
Finance Committee”—a total of 36 positions.149 For those positions vacant at some point in the studied
period, the GAO determined that agencies submitted many reports months after the vacancy began.150
And agencies did not report some vacancies at all.151 Earlier, the GAO determined that between the
November enactment of the 1998 Vacancies Act and the end of June 2000 “agencies had not reported
17 vacancies (19 percent) and 21 acting officials (24 percent).”152
Evan Haglund and David Lewis examined agency delays in reporting and found that agencies
“with appointed general counsels are slower to report vacancies (larger number of days) than other
agencies, even when controlling for differences across agencies such as agency size, location, and the
number of appointed positions to be monitored.”153

149 U.S. GOV’T ACCOUNTABILITY OFFICE, supra note 43, at 1.
150 Id. at 4-11.

151 See, e.g., id. at 11 n.2.

152 U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-01-701, PRESIDENTIAL APPOINTMENTS: AGENCIES’ COMPLIANCE WITH

PROVISIONS OF THE FEDERAL VACANCIES REFORM ACT OF 1998, at 2 (2001).
153 Evan Haglund & David E. Lewis, Politicization and Compliance with the Law: The Case of the Federal Vacancies
Reform Act of 1998, at 17-18 (working paper April 2013).

51

B.

Snapshot Database

I assessed agency compliance with the Vacancies Act’s reporting mandates for the three recent
databases discussed in Part II. To start, for every position in the seventeen agencies comprising the
Snapshot Database that was not filled with a confirmed appointee on April 15, 2019, I checked to see if
it had been reported to the GAO, and if so, measured the delay from the vacancy (as stated in the
report) to the submission of the report. Table 12 provides the relevant information for each agency.
Table 12: Reporting of Vacancies (existed April 15, 2019) to GAO as of August 15, 2019 in
Cabinet Departments, EPA, and OMB
Agency

Vacancies

Reported

Average Delay

Agriculture
Commerce
Defense
Education
Energy
Health & Human Services
Homeland Security
Housing & Urban Development
Interior
Justice
Labor
State
Transportation

6
5
8
6
5
5
10
6
10
9
6
13
7

5154
5155
8156
6
5158
5159
9160
6
10
8161
5162
13163
7

377 days
425 days
183 days
270 days157
129 days
429 days
6 days
102 days
383 days
388 days
50 days
168 days
125 days

154 The unreported vacancy, for the Assistant Secretary for Administration, seems to date back to January 2017.

155 The agency did not report the vacancy starting date for one position, Assistant Secretary for Global Markets and Director

General of U.S. and Foreign Commercial Service; the position therefore could not be included in the delay calculation. The
agency also did not report any new acting Undersecretary for Industry and Security (a formal nomination for the position
was submitted to the Senate on April 11, 2019, permitting acting service again). The agency’s report for that position in
March 2019 did identify the acting official (and start and end dates) serving during the permitted 210 days without a
nomination.
156 Three of these vacancies were reported in the Obama Administration and were reported a second time in the Trump
Administration (one with a vacant date shifted by one day); I used the earlier reports to calculate the delay.
157 The agency reported one vacancy several days before it began. (I included the negative duration in the average.)
158 One of these vacancies was reported in the Obama Administration and was reported a second time in the Trump
Administration (with the vacant date shifted by two days); I used the earlier report to calculate the delay.
159 One of these vacancies was reported in the Obama Administration and was reported a second time in the Trump
Administration; I used the earlier report to calculate the delay.
160 The unreported vacancy, for the Undersecretary for Strategy, Policy, and Plans, involves a new position.
161 Four of these vacancies date back to the Obama Administration and were reported in that Administration; the agency
reported three of them again in the Trump Administration (despite there being no confirmed official in the meantime). I
used the earlier reporting dates for those three vacancies. The unreported vacancy, for the Deputy Administrator of DEA,
dates back to June 2018.
162 The unreported vacancy, for the Assistant Secretary for Disability Employment Policy, appears to date back to early
2015.
163 One of these vacancies was reported in the Obama Administration and was reported a second time in the Trump
Administration; I used the earlier report to calculate the delay.

52

Treasury
Veterans Affairs

9
2

9164
1165

331 days
226 days

Environmental Protection Agency
Office of Management & Budget

5
3

5
3

117 days
182 days

Five agencies did not report all of the vacancies that existed on April 15, 2019 as of August 15,
2019. Overall, however, agencies reported almost all of the vacancies in the Senate-confirmed positions
analyzed in the Snapshot Database.166
Agencies varied in their speed in reporting: while DHS took one week, on average, to report the
vacancies that existed on April 15 (though it did not report at all on one vacancy), HHS took 429 days.
The long average delays in the Department of Agriculture and HHS resulted from vacancies dating
back to President Obama’s Administration that had not been reported until this Administration. The
Department of State has a higher average because of one such vacancy. By contrast, the reporting
delays in the Departments of Commerce, the Interior and the Treasury largely derived from
submissions in the spring of 2018 for vacancies that began with President Trump’s inauguration.

164 The agency did not report the vacancy starting date for one position, Deputy Undersecretary for International Finance;

the position therefore could not be included in the delay calculation. Three vacancies (Assistant Secretary for Financial
Markets, Assistant Secretary for Financial Stability, Chief Financial Officer) were reported in 2014; no confirmed official
appears to have served since in any of the positions. I used the Obama Administration reports in calculating delays for those
positions.
165 The unreported vacancy, for the Deputy Secretary, seems to date back to June 2018.
166 It took some effort to find some of the reports as the GAO organizes reports by Administration. Some of the vacancies
that existed on April 15 began in the previous Administration and were reported at that time. These vacancies also reflect
the long periods some positions go without confirmed officials as they had not been filled by a confirmed official in the
meantime. Some of these vacancies were reported a second time in this Administration. I used the earlier report date for the
delay calculations.

53

C.

Cabinet Secretaries

From January 1, 1999 to July 19, 2019, there have been 77 acting Secretaries (see Appendix C
for more on how vacant periods are defined in the Cabinet Secretary database). I examined whether
agencies reported the vacancy associated with each acting Secretary and the next nomination to the
GAO. For vacancies late in an Administration, I also checked reports for the next Administration. For
those acting officials provided, I checked to see if start and end dates were also listed. Table 13 details
compliance for the very highest positions in the fifteen cabinet departments.
Table 13: Reporting of Secretary Position to GAO
President
Clinton (since 1999)
Bush 43
Obama
Trump

Vacancies
4
22
23
28

Reported
2
19
18167
25

Acting Start
1
12
16
20

Acting End
0
5
8
14168

Nomination
1
19
18
17169

Even for the highest positions in the federal bureaucracy, some vacancies were not reported.
For those reported, agencies often included the acting official and their start date, but typically did not
report an end date (which the GAO requests but the Vacancies Act does not mandate). In doing this
compliance assessment, I observed that the GAO has no reports displayed from the Department of
Veterans Affairs for the entire Obama Administration, for any position.

167 One of the reports lists the right position but the wrong acting official and dates, so I did not count it as a report.
168 Two acting Secretaries are currently still serving so there are no end dates to report for them.

169 Two of the vacancies do not yet have formal nominations so there are no nominations to report for them.

54

D.

EPA Positions

Tables 14-16 list by position the number of vacancies staffed by acting officials (as determined
from the EPA’s own lists, see Appendix D), the number of reported vacancies, the number of acting
officials listed with start date, the number of acting officials with listed end date, and the number of
vacancies with nomination information (and outcome) reported.
Table 14: Reporting for Administrator Position to GAO
President
Clinton (since 1999)
Bush 43
Obama
Trump

Vacancies
0
4
3
2

Reported
N/A
1
2
2

Acting Start
N/A
0
2
2

Acting End
N/A
0
0
2

Nomination
N/A
0
2
2

Acting End
0
0
1
1171

Nomination
0
1
2
1

Acting End
N/A
0
0
1

Nomination
N/A
3
2
1

Table 15: Reporting for Deputy Administrator Position to GAO
President
Clinton (since 1999)
Bush 43
Obama
Trump

Vacancies
1
1170
3
2

Reported
0
1
2
2

Acting Start
0
1
2
2

Table 16: Reporting for General Counsel Position to GAO
President
Clinton (since 1999)
Bush 43
Obama
Trump

Vacancies
0
5
2
1

Reported
N/A
4
2
1

Acting Start
N/A
2
2
1

Some items to note. First, the reported start and end dates provided generally do not match the
dates of acting service listed on the agency’s web site. They differ by only a few days, however. Second,
while most vacancies are reported in this and the past Administrations, there are considerable delays.
The difference between the listed vacancy date and the reporting date for all the reported vacancies
above averaged 102 days for the Administrator position, 170 days for the Deputy Administrator role,
and 186 days for the General Counsel job.

170 There is a second report for a period, where there was no acting official.

171 The acting official was still serving, as of July 19, 2019, so there could not have been a reported end date.

55

E.

GAO Violation Letters

Under the Vacancies Act, the GAO is tasked with reporting on any agency violations of the
Act’s time limits it finds.172 But the GAO is not required by the Act to search for non-compliance.173
From the enactment of the Vacancies Act in 1998 to August 31, 2019, the GAO has released only
twenty-three “violation letters”—finding twenty-five violations (one letter contained three issues). See
Appendix I for more information on the GAO’s letters.
Of these violations, five occurred in the current Administration. The GAO found six, ten, and
three violations under Presidents Obama, Bush, and Clinton, respectively. In none of the letters does
the GAO recommend nullifying any agency action, and in some letters, because they involve Inspectors
General and Chief Financial Officers, the GAO expressly notes why agency action performed by
noncompliant acting officials should not be undone.174
These time violations are spread across sixteen agencies. The Department of Health and
Human Services (including the Social Security Administration and the Centers for Medicare and
Medicaid Services) has racked up the most with five violation letters.175 The Department of Defense
comes in second with three violations.176 The Departments of Education,177 Energy,178 Housing and
Urban Development,179 and Veterans Affairs180 each have two. The remaining agencies—the
Departments of Agriculture,181 Commerce,182 Justice,183 State,184 and Transportation,185 the Tennessee

172 5 U.S.C. § 3349(b).

173 Id. (specifying reporting only “[i]f the Comptroller General of the United States makes a determination that” the time

limit has been violated). The GAO appears to look for violations primarily from submitted agency reports. It does
occasionally ask agencies for additional information. See, e.g., Violation Letter B-318244 (Gen. Counsel, Dep’t of Health &
Hum. Servs.) (Jun. 18, 2014).
174 Natalie Peelish provided excellent analysis of almost all of these violation letters. See Memorandum from Natalie Peelish
to Professor Anne Joseph O’Connell, Stanford Law School (Oct. 24, 2018) (on file with author).
175 Violation Letter B-305939 (Comm’r, Food & Drug Admin.) (Mar. 17, 2006); Violation Letter B-318244 (Gen. Counsel,
Dep’t of Health & Hum. Servs.) (Jun. 18, 2014); Violation Letter B-326794 (Assistant Sec’y for Health, Dep’t of Health &
Hum. Servs.) (Nov. 25, 2015); Violation Letter, B-321357 (Adm’r, Ctr. for Medicare & Medicaid Servs.) (July 18, 2016);
Violation Letter B-329853 (Comm’r, Social Security Admin.) (Mar. 6, 2018).
176 Violation Letter B-286265 (Inspector Gen., Dep’t of Def.) (Sept. 15, 2000); Violation Letter B-305675 (Ass. Sec’y for
Civil Works, Dep’t of the Army) (Dec. 22, 2005); Violation Letter B-329939 (Gen. Counsel, Dep’t of the Air Force) (May 9,
2018).
177 Violation Letter B-302743 (Assistant Sec’y for Elementary & Secondary Educ., Dep’t of Educ.) (Aug. 19, 2004);
Violation Letter B-308956 (Assistant Sec’y for Vocational & Adult Educ., Dep’t of Educ.) (Apr. 17, 2007).
178 Violation Letter B-286265 (Chief Fin. Officer, EPA) (Sept. 15, 2000); Violation Letter B-328888 (Dir. of the Office of
Sci., Dep’t of Energy) (Mar. 3, 2017).
179 Violation Letter B-323112, (Inspector Gen., Dep’t of Hous. & Urban Dev.) (May 17, 2012); Violation Letter B-329918,
(Inspector Gen., Dep’t of Hous. & Urban Dev.) (May 9, 2018).
180 Violation Letter B-305188 (Under Sec’y for Health, Dep’t of Veterans Affairs) (July 20, 2005); Violation Letter B-326480
(Inspector Gen., Dep’t of Veterans Affairs) (March 30, 2015).
181 Violation Letter B-289367 (Assoc. Gen. Counsel, Dep’t of Agric.) (Mar. 18, 2000).
182 Violation Letter B-307351 (Ass. Sec’y for Import Admin., Dep’t of Commerce) (July 12, 2006).
183 Violation Letter B-286265 (Inspector Gen., Dep’t of Justice) (Sept. 15, 2000). DOJ has another letter, where the GAO
determined there was no violation. Violation Letter B-310780 (Assistant Att’y Gen., Office of Legal Counsel) (June 13,
2008).
184 Violation Letter B-328671 (Chief Fin. Officer, Dep’t of State) (Mar. 3, 2017).
185 Violation Letter B-305187 (Fed. Railroad Adm’r, Dep’t of Transp.) (July 20, 2005).

56

Valley Authority,186 the U.S. Agency for International Development,187 and the Institute of Museum and
Library Services188—come in with one apiece.
Noncompliance also varied by position. Eight of the twenty-five violations concern an acting
Inspector General, over thirty percent of the total. Acting Assistant Secretaries make up the next
highest, with five violations. Interim Directors and General Counsels chalk up three issues apiece, while
acting Administrators, Chief Financial Officers, and Commissioners have two violations each. One
acting Undersecretary is flagged. When time limits were provided, the average violation was about
seven months (past the deadline).189 At the highest end, acting General Counsels at the Department of
Health and Human Services were in violation of the 1998 Vacancy Act for nearly three-and-a-half
years.190
Although the GAO must report noncompliance of only the time limits it finds, in two of its
violation letters, it flagged additional violations of the Vacancies Act. First, reporting in 2002, it
determined that the acting General Counsel at the Department of Agriculture had been improperly
serving because the Secretary, and not the President, had chosen him from the third category of
permitted acting officials (i.e., senior agency workers).191 Second, reporting in 2014, the GAO noted
that three of the four acting General Counsels at the Department of Health and Human Services (from
2009 to 2014) were not eligible under the Act, again because the President had not chosen them (and
because they were not the first assistant).192
The GAO has also issued two additional letters. One, in June 2008, responded to a
congressional request seeking the agency’s opinion about whether the first assistant to the Assistant
Attorney General for OLC could be delegated all the functions of the Assistant Attorney General’s
role. The GAO found such delegation acceptable.193 The other, in February 2019, responded to a
request by the Ranking Minority Member of the Senate Finance Committee about agency compliance
with all of the Act’s requirements (including agency reporting to the GAO) for positions under its
purview.194 The GAO found a number of reporting violations; the one time limit violation it noted
involved the SSA, about which it had earlier issued a violation letter.195
Because the GAO relies on agency reports to find violations and not on agency websites and
other announcements, the GAO’s letters seem to undercount agency non-compliance. In November
2017, when the 300-day time limit passed in President Trump’s first year, there were dozens of acting
186 Violation Letter B-331027 (Inspector Gen., TVA) (Aug. 6, 2019).

187 Violation Letter B-307400 (Inspector Gen., USAID) (July 24, 2006).

188 Violation Letter B-287720 (Dir., Inst. of Museum & Library Servs.) (May 18, 2001).

189 Many of the letters identified precise start and end dates of problematic service. The letter concerning the acting Director

of the Institute of Museum and Library Services found the acting official using the title improperly on April 4, 2000, so I
used that as the end date in that example. Similarly, the letter concerning the acting IG at HUD flagged the agency’s website
on April 12, 2018 using the title, so I used that as the end date. For two other letters, one involving the acting General
Counsel at the Agriculture Department and one involving the acting Commissioner of Social Security, I used the date of the
letter as the end date of problematic service. For the acting Director of Science in DOE, I added the two periods of
improper service.
190 Violation Letter B-318244 (Gen. Counsel, Dep’t of Health & Hum. Servs.) (Jun. 18, 2014).
191 Violation Letter B-289367 (Assoc. Gen. Counsel, Dep’t of Agric.) (Mar. 18, 2000).
192 Violation Letter B-318244 (Gen. Counsel, Dep’t of Health & Hum. Servs.) (Jun. 18, 2014).
193 Violation Letter B-310780 (Assistant Att’y Gen., Office of Legal Counsel) (June 13, 2008).
194 Violation Letter B-329903 (collecting violations across agencies).
195 Id.

57

officials seemingly serving in violation of the Act according to agency websites. By mid-December,
according to Bloomberg, there were still about a dozen positions listed with acting officials, which
should have been empty under the Vacancies Act, including at the Departments of Interior, Justice, and
State.196 The GAO did not issue any violation letters in November or December.

196 Josh Eidelson, Trump’s Stand-In Bureaucrats May Have Overstayed Limits, BLOOMBERG NEWS, (Dec. 12, 2017).

58

F.

Changes

Many agency officials in the interviews complained about the GAO’s reporting system,
particularly that they cannot submit required reports through an automated system. Although the forms
are online, the agency must download them, fill them out, and send them in hard copy to the GAO
(and to Congress). As one official noted, with other pressing demands, it is “easy to let the GAO
reporting slip.” By making reporting available online, these agency officials felt it would take less effort
and may increase timeliness of their submissions.

59

VI.

Agency Practices Concerning Delegations of Authority

This Part examines delegations of authority in the face of vacancies in PAS positions. It
addresses (1) the prevalence of delegations; (2) types of delegations; (3) exclusivity of functions; (4)
timing, time limits, exclusivity, and wording of delegations; (5) disclosure of delegations; and (6)
continuity of operations plans.
To learn about agency practices in this area, I drew on multiple sources, including: a survey of
current agency officials (see Appendix F), telephone interviews with some of the survey respondents
and other agency officials (see Appendix G), telephone interviews with former acting officials (see
Appendix H), agency web sites, and news stories.
As before, I do not identify the agencies of respondents or interviewees. I also use the third
person plural below to refer to any specific individual.
A.

Prevalence of Delegations

Of the fourteen surveyed agencies who have at least one position arguably covered by the
Vacancies Act,197 ten revealed that their agency uses delegated authority in the face of staffing vacancies
in Senate-confirmed positions. Three indicated that they do not rely on such delegations, and one
agency did not know.
For those agencies reporting no delegations, all noted that they always use acting officials to
keep operating. In some cases, the agencies have specific statutory authority for the deputy to serve in
an acting capacity indefinitely.
Of the seven surveyed agencies who are not covered by the Vacancies Act for any position,
three use delegations in the face of staffing vacancies and at least one of the four other agencies does
seem to have standing delegations in place.
For the four independent regulatory commissions and boards reporting no delegations, many
revealed that they sometimes cannot perform certain functions. Even some of the agencies who do use
delegations noted that delegations are not sufficient in some contexts and they could not perform some
functions.

197 One agency responded to questions on acting officials, agency-specific provisions, and succession planning but did not

respond to questions on delegated authority.

60

B.

Types of Delegation

The survey asked about delegations in the face of staffing vacancies in Senate-confirmed
positions. The interviews helped clarify that some of those delegations occur through permanent or
standing orders, and some happen through temporary assignments. Because both standing and
temporary assignments generally qualify as internal agency organization and management practices
under the Administrative Procedure Act,198 none seem to have been issued after prior notice and
comment.
Some of the permanent or standing orders are contingent on vacancies—for example, allowing
particular tasks to be carried out only if there is no PAS official in a particular position. But many of the
permanent or standing delegation orders allow lower-level officials to carry out particular duties even
when higher-level officials are in place. These permanent delegations name particular positions, rather
than specific individuals, that can carry out functions. Some orders have time limits under agency
sunsetting policies that require regular revisiting of certain decisions. Others can be repealed at any
time, assuming proper process (typically a decision by the agency head, which may include a vote of
commissioners or board members in an independent agency).
Several interviewees expressed a preference for standing delegations because of their relative
formality and transparency. Some former acting officials noted that when the time limits ran out on
their acting service, standing delegations permitted them to carry out the delegable functions of the
vacant positions without requiring new delegations.
By contrast, temporary delegations are often tied to staffing gaps. Interviewees described them
as “ad hoc” devices to keep an agency functioning. Temporary delegations generally name a particular
person who can carry out the delegated task, but some identify a position instead. They usually have
time limits tied to the next confirmed official—in other words, they are valid until a specific position is
filled through the traditional appointments process. Some have specific end-dates attached and can be
renewed if the vacancy persists. Several interviewees noted that temporary delegations are more
palatable to agency heads than standing orders, which require more effort to change. An agency head,
one interviewee noted, might be willing to delegate to a specific lower-level official but not be willing to
delegate to that position generally.

198 5 U.S.C. § 553(b)(A) (2017).

61

C.

Exclusivity of Functions

Under the Vacancies Act, only non-exclusive functions of Senate-confirmed positions can be
delegated downward.199 Agencies covered by the Act for at least one position vary on the exclusivity of
functions. Some interviewees reported that nothing is exclusive to any position in their agencies,
allowing delegation of all duties. Others noted that a handful of specific tasks could not be delegated
downward.
So as not to violate the Vacancies Act, many agencies officially assign “delegable functions” or
“nonexclusive functions” of the “vacant office” when the Act’s time limits run out, without defining
what those functions are. These agencies then address any questions about particular functions as they
arise. Many agencies reported seeking OLC advice on whether particular duties are non-exclusive and
therefore can be carried out by lower-level officials.
Some interviewees noted the importance of delegation in the face of lengthening staffing
vacancies. Several agency officials recommend against creating exclusive functions or duties through
regulation (separate from any mandated by statute), so that operations can continue in the face of
vacancies.
By contrast, independent regulatory commissions and boards face more restrictions on
delegation. Some of those agencies have quorum mandates, forbidding even a confirmed commissioner
or board member from carrying out particular tasks if there is no quorum. Those independent agencies
often keep lists of what functions can be carried out, and by whom, without a quorum. Several
interviewees mentioned the Anti-Deficiency Act as a key enforcement mechanism. Under the AntiDeficiency Act, agency officials can face criminal penalties for using appropriated funds in
contravention of Congress’s desires.200
One agency noted that it had issued regulations with default outcomes, because it could not
delegate certain functions downward in the face of vacancies. Instead of delegating functions, the
agency allows decisions to take effect automatically if the agency does not act within a specified time
period. If the agency cannot act in that period, the decisions still take effect.

199 See Part I.C, supra.

200 31 U.S.C. §§ 1341, 1359 (2017).

62

D.

Timing, Time Limits, Exclusivity, and Wording of Delegations

Agencies differ in their timing of issuing temporary delegations. Often, agencies will delegate in
advance of expected vacancies in lower-level positions. In such cases, the departing confirmed official
will delegate relevant tasks. But one interviewee said that they can “go to the agency head” to delegate if
the lower-level official does not assign duties before departing. Some agencies with quorum mandates
do not have access to this alternative once a quorum is lost so there is more pressure to get delegations
settled before that happens.
Other agencies have a policy to issue delegations in the months before a presidential transition.
Interviewees stressed the importance of advance planning: “Imagine the worst”; “Think through what
you can do legally before you lose a quorum and use the quorum to put the plan in place.” Many noted
that delegations before vacancies have stronger legal grounding.
Agencies also vary in imposing time limits on their delegations. Four surveyed agencies
indicated that they put time limits on delegations—for example, “until entry of duty of a presidential
appointee.” Four agencies do not restrict their delegations in that way. Some agencies did not know.
As with permanent or standing delegation orders, agencies typically reserve residual authority to
perform temporarily delegated tasks to higher-level officials. In other words, the agency head or deputy
agency head is explicitly allowed to carry out any delegated function.
Agencies seem to have coalesced on the relevant wording for those carrying out delegated
functions: “performing the duties of [fill in Senate-confirmed position].”

63

E.

Disclosure of Delegations

As with acting titles, agencies do not always disclose delegations of authority in the face of
staffing vacancies. Indeed, agencies disclose less about such delegations than about acting leaders.
Nine surveyed agencies indicated that they publish delegations in the Federal Register or on
their web sites. But six agencies said they do not publicly post them, with some noting that they are
available through FOIA.
Interviews helped to flesh out these disclosure policies. Several agencies explained that they
publish permanent or standing delegations in the Federal Register but not temporary ones. Some noted
the cost of Federal Register publication. For those agencies posting delegations on their web sites, the
reasons vary. Some interviewees cited the importance of transparency or communication with their
stakeholders, particularly if the agencies lacked a quorum. As one remarked, “transparency builds
credibility.” One interviewee commented that the agency lacked an effective internal agency platform so
these policies were posted on their website.
Jennifer Nou has noted the discrepancy in disclosure policies for standing delegations. She
contrasted the SEC, “which routinely publishes its subdelegations in the Federal Register and Code of
Regulations (CFR),” and the EPA, whose Delegations Manual is “hosted on an internal server” and can
be accessed only “through a time-consuming Freedom of Information Act request.”201 Nou has called
for agencies to disclose their delegations publicly to “make [them] more credible.”202
The policy lab students and I looked in the spring and summer of 2019 at the websites of the
fifteen cabinet departments, the EPA, OMB, FTC, and MSPB to see if we could easily locate
delegations of authority, and delegations in response to staffing vacancies, in particular. Because Table
11 summarizes disclosure of titles on leadership pages that indicate whether an official is performing
the functions of a vacant office, that form of disclosure is excluded below. Many agencies publish their
permanent delegations in the Federal Register; these standing delegations also appear in the Code of
Federal Regulations. We focused on websites to find delegations related to staffing vacancies. We
searched for “directives,” “delegation(s) of authority,” “redelegation(s) of authority,” “perform
nonexclusive,” “performing the duties,” “Federal Vacancies Reform Act,” “3345,” and “3348” and
examined the first page of any results. Table 17 provides a summary assessment of our investigation.

201 Nou, supra note 109, at 502-03.
202 Id.

64

Table 17: Access to Delegations on Agency Websites
Agency

Availability of Delegations on Agency Websites

Agriculture

Central list of standing directives, which include delegations, unable to
easily find any delegations related to staffing vacancies (no search results
for relevant terms)

Commerce

Central list of standing directives, which include delegations (NOAA
also has central list of delegations), some items referencing delegated
authority related to specific staffing vacancies appear in search results

Defense

No easily accessible central list of standing directives or delegations,
some items referencing delegated authority related to specific staffing
vacancies appear in search results

Education

Central list of standing delegations, some items referencing delegated
authority related to specific staffing vacancies appear in search results

Energy

Central lists of standing delegations and designations, some items
referencing delegated authority related to specific staffing vacancies
appear in search results

Health & Human
Services

No easily accessible central list of standing directives or delegations
(specific ones do appear in search results), unable to easily find any
delegations related to staffing vacancies (no search results for relevant
terms)

Homeland Security

Central list of standing directives (including one on delegations of
authority, though the specific delegations are not easily accessible),
many items referencing delegated authority related to specific staffing
vacancies appear in search results

Housing & Urban
Development

Central lists of standing delegations and directives, many items
referencing delegated authority in connection to general staffing
vacancies appear in search results

Interior

No easily accessible central list of standing directives or delegations
(though many agencies within the department have them), many items
referencing delegated authority related to specific staffing vacancies
appear in search results (but some amendments to Order discussed in
Part III.C.3 do not appear)

Justice

No easily accessible central list of standing directives or delegations
(though the Justice Manual contains them), many items referencing
delegated authority in connection to general staffing vacancies appear in
search results

65

Labor

No easily accessible central list of standing directives or delegations
(specific ones do appear in search results, some no longer apply), unable
to easily find any delegations related to staffing vacancies (no search
results for relevant terms)

State

No easily accessible central list of standing directives or delegations
(specific ones do appear in search results), unable to easily find any
delegations related to staffing vacancies (no search results for relevant
terms)

Transportation

No easily accessible central list of standing directives or delegations
(specific ones do appear in search results), many items referencing
delegated authority in connection to general staffing vacancies appear in
search results

Treasury

Central lists of standing directives and orders, which include delegations
(IRS and IG also have central lists), some items referencing delegated
authority in connection to general staffing vacancies appear in search
results

Veterans Affairs

No easily accessible central list of standing directives or delegations
(though search results produce a directive for the agency to provide this
access and there is a link to the CFR), some items referencing delegated
authority related to specific staffing vacancies appear in search results

Environmental
Protection Agency

No easily accessible central list of standing directives or delegations
(specific ones do appear in search results), unable to easily find any
delegations related to staffing vacancies (no search results for relevant
terms)

Office of Management
& Budget

No easily accessible central list of standing directives or delegations,
unable to easily find any delegations related to staffing vacancies (no
search results for relevant terms) (looked only at OMB, not the White
House)

Federal Trade
Commission

No easily accessible central list of standing directives or delegations (but
can search for delegations in the Federal Register notices centralized
list)

Merit Systems
Protection Board

Central list of standing delegations

66

F.

Continuity of Operations Plans

Separate from agency succession plans, agencies are supposed to develop a continuity of
operations plan (COOP) for emergencies. The Federal Emergency Management Agency, within DHS,
leads COOP efforts for federal agencies, among other entities. According to the template for federal
agencies: “Continuity planning facilitates the performance of Executive Branch Essential Functions
during all-hazards emergencies or other situations that may disrupt normal operations.”203
Multiple interviewees informed me that they interpret their COOP to cover not only a terrorist
attack or natural disaster but also vacancies in Senate-confirmed positions. These agencies typically face
statutory restrictions on delegations and quorum mandates. They cited their COOP as the basis for
limited actions if they have no quorum.
These limited actions do not include final agency decisions but rather focus on procedural
elements. For example, agencies cited their COOP to permit lower-level officials to gather information,
hold a hearing, and even make a tentative decision that could be appealed to the full agency when it
regained a quorum. Interviewees often conceded the costs of this approach, specifically, the costs of the
additional process on the agency and participants. But they stressed the need for making some
decisions, even if they were constrained.

203 Continuity of Operations Plan Template for Federal Departments and Agencies, FEMA, (April 2013)

https://www.fema.gov/media-library-data/1386609058805-b084a7230663249ab1d6da4b6472e691/COOP-PlanningTemplate.pdf.

67

VII.

Recommendations

In light of Parts I-VI, this Part proposes recommendations to federal agencies, whether or not
they are covered by the Vacancies Act, on their use of acting officials, succession planning, and
delegated authority. It also proposes recommendations to the GAO. Part A addresses
recommendations concerning acting officials for agencies with positions covered by the Vacancies Act.
Part B offers recommendations on acting officials for agencies with Senate-confirmed positions not
covered by the Act and on succession planning in all agencies. Part C proposes recommendations
related to delegated authority in the face of staffing vacancies. Part D suggests some changes to the
GAO’s reporting system under the Vacancies Act.
These recommendations fit with ACUS’s affirmative disclosure initiative and complement, in
part, another on-going ACUS project, Listing Agency Officials. The Senate has recently passed legislation
on succession planning, mandating that “the head of each agency shall ensure that a succession plan is
in place for each senior noncareer position in the agency.”204
A.

Acting Officials Under the Vacancies Act
Agencies should engage, if they do not do so already, in the following practices:
•

As a preliminary matter, agencies should determine if they are subject to the Federal Vacancies
Reform Act (FVRA).
o Agency-specific statutory succession provisions do not necessarily exclude agencies
from the Vacancies Act, though there is little caselaw on this issue.
o Agencies should consult with the Office of Legal Counsel, if necessary.

•

Agencies with at least one PAS position covered by the FVRA should establish an internal
organizational structure for complying with the Act, with good communication channels.
o Organizational structure may vary among agencies. Some agencies may prefer to have
one office handle all relevant aspects; other agencies may want to divide the tasks.
Larger agencies with sub-agencies with covered positions may want to centralize the
functions at the top or decentralize to the relevant sub-agencies or offices.
o No matter the organizational structure, agencies should ensure strong internal
communication with relevant offices (e.g., human resources for resignation dates, White
House liaison for nomination information).
o No matter the organizational structure, duties (e.g., tracking time limits) should be
assigned to a position, rather than a particular person, so in case the occupant departs,
the task is still performed.

204 Presidential Transition Enhancement Act of 2019, S.394, 116th Cong. §2 (passed by Senate on Aug. 1, 2019).

68

o Agencies should consider disclosing on their websites their organizational structure for
the FVRA.
•

Agencies with at least one PAS position covered by the FVRA should ensure that officials in
positions responsible for aspects of the FVRA have adequate training.
o Officials tracking time limits should understand the Senate process related to
nominations (including the likelihood of multiple returns) and how to access important
dates (official submission dates of nomination, returns, etc.).
o Agencies ideally would coordinate on this training, perhaps with the GAO or some
other organization offering government-wide information sessions.

•

Agencies with at least one PAS position covered by the FVRA should name official first
assistant positions to those covered PAS jobs.
o If there are multiple deputy positions to a covered position, agencies should specify
which deputy position is the official first assistant position.
o These official first assistant positions should match other internal orders, position
descriptions, and organization charts.
o These official first assistant positions should be developed in communication with the
White House if possible.
o In the description of each official first assistant position, agencies should explain that
the first assistant is the default acting official under the FVRA.

•

Agencies with at least one PAS position covered by the FVRA should develop policies for the
use of the acting title, applicable time limits, and communication of the FVRA’s mandates to
the acting official.
o Agencies should develop some system for tracking the time limits, such as a spreadsheet
with relevant dates.
o Acting officials should be told that there are time limits on the use of the title (and how
the time limits can be extended with nominations) and be updated as needed as to when
they can no longer use the title.

•

Agencies with at least one PAS position covered by the FVRA should disclose acting officials in
those positions on their websites.
o Agencies should consider disclosing start and any expected end dates as well.

69

•

Agencies with at least one PAS position covered by the FVRA should consider how they orient
acting officials.
o Agencies should consider using the same orientation for confirmed officials with acting
officials, particularly if the acting leaders come from outside the agency.
o For acting officials drawn from the agency’s senior career ranks, agencies should
consider providing information on human resources duties, in particular (i.e., evaluation
of former peers).

•

Agencies with at least one PAS position covered by the FVRA should explore how best to
reintegrate any senior careerists after they have served as acting officials and a confirmed official
is put in place.

70

B.

Acting Officials Outside the Vacancies Act and Succession Planning
•

Agencies with PAS positions not covered by the FVRA where Congress has provided some
alternative mechanism for acting officials (e.g., acting Chairperson) should disclose acting
officials in those positions on their websites.
o Agencies should consider disclosing start and any expected end dates as well.

•

All agencies should have formal, clear, and easily accessible succession plans for each PAS
position, to the extent permitted by law.
o Each succession plan should have at least two lower-level positions listed, if permitted
by law.
o These succession plans should match other internal orders, position descriptions, and
organization charts.
o These succession plans should be developed in communication with the White House if
possible.

•

Agencies should make their succession plans publicly accessible on their web sites.

71

C.

Delegations of Authority Related to Staffing Vacancies
•

All agencies should determine, if possible, which functions and duties, if any, are exclusive to
each PAS position.
o Agencies should assess whether statutes or their own regulations make a function or
duty exclusive to a PAS position.
o Agencies should consult with the Office of Legal Counsel, if necessary.

•

Agencies with quorum requirements should consider establishing a plan for operations without
a quorum before any such loss of quorum.
o Agencies should determine which functions they could perform without a quorum as
well as which functions they could not perform without a quorum.

•

Agencies that do establish plans for operations without a quorum should disclose, if possible,
those plans on their websites.
o Agencies should consider whether they want to disclose such plans before a loss a
quorum or only if lose their quorum.

•

To the extent possible, agencies should make their delegations of authority in the face of
staffing vacancies in PAS positions publicly and easily accessible on their web sites.
o These delegations should include standing orders and ad hoc assignments.

72

D.

GAO’s Role Under the Vacancies Act
•

The GAO should consider whether it could change its reporting system so that agencies could
report information on vacancies, acting officials (including start and end dates), and
nominations online.

73

Appendix A
Agency-Specific Statutory Provisions
To come up with this list of agency-specific statutory provisions for temporary leadership, I ran,
with the assistance of the Stanford Law School reference librarians and Arielle Mourrain, two searches
in Westlaw Edge (narrowed to nonrepealed statutes and court rules, within the All Federal database):
•

•

((absen! /20 disab!) or (absen! /20 vacan!) or (disab! /20 vacan!) or (unable /20 serve) or
(unable /20 vacant) or (absen! /20 unavail!)) OR CA(deputy or assistant or (under /2 secretary)
or undersecretary or under-secretary or acting)
(vacan! or absen! or disable! or unable!) AND CA(deputy or assistant or (under /2 secretary) or
undersecretary or under-secretary or acting).

The first produced 768 results; the second generated 65 results. Table 18 lists all relevant provisions,
including those for actual interim leaders (rather than “acting” officials) (e.g., interim U.S. Attorneys)
and those for positions outside the Executive Branch (e.g., House Office of Legislative Counsel). Some
of these provisions cover positions that are clearly excluded from the Vacancies Act—because they are
not in Executive Branch agencies or because they do not require Senate confirmation.
Table 18: Agency-Specific Statutory Provisions
Code Section
2 U.S.C. § 282a(b)(1)

Agency
House Office of Legislative Counsel

2 U.S.C. § 285d(2)(A)

Office of the Law Revision Counsel

2 U.S.C. § 287b

Office of Parliamentarian of House
of Representatives

74

Succession Provision
One of the attorneys appointed
under subsection (a) shall be
designated by the Legislative Counsel
as Deputy Legislative Counsel.
During the absence or disability of
the Legislative Counsel, or when the
office is vacant, the Deputy
Legislative Counsel shall perform the
functions of the Legislative Counsel.
One of the employees appointed
under paragraph (1) shall be
designated by the Law Revision
Counsel as Deputy Law Revision
Counsel. During the absence or
disability of the Law Revision
Counsel, or when the office is
vacant, the Deputy Law Revision
Counsel shall perform the functions
of the Law Revision Counsel.
(a) With the approval of the Speaker,
or in accordance with policies and
procedures approved by the Speaker,
the Parliamentarian shall appoint
such attorneys and other employees
as may be necessary for the prompt
and efficient performance of the
functions of the Office. Any such
appointment shall be made without
regard to political affiliation and
solely on the basis of fitness to
perform the duties of the position.
Any person so appointed may be
removed by the Parliamentarian with

2 U.S.C. § 288(a)(1)

Office of Senate Legal Counsel

2 U.S.C. § 601(a)(1)

Congressional Budget Office

2 U.S.C. § 1804

Architect of the Capitol

2 U.S.C. § 2214(a)

Architect of the Capitol

75

the approval of the Speaker, or in
accordance with policies and
procedures approved by the Speaker.
(b)(1) One of the attorneys
appointed under subsection (a) of
this section shall be designated by
the Parliamentarian as Deputy
Parliamentarian. During the absence
or disability of the Parliamentarian,
or when the office is vacant, the
Deputy Parliamentarian shall
perform the functions of the
Parliamentarian.
There is established, as an office of
the Senate, the Office of Senate
Legal Counsel (hereinafter referred
to as the “Office”), which shall be
headed by a Senate Legal Counsel
(hereinafter referred to as the
“Counsel”); and there shall be a
Deputy Senate Legal Counsel
(hereinafter referred to as the
“Deputy Counsel”) who shall
perform such duties as may be
assigned to him by the Counsel and
who, during any absence, disability,
or vacancy in the position of the
Counsel, shall serve as Acting Senate
Legal Counsel.
There is established an office of the
Congress to be known as the
Congressional Budget Office
(hereinafter in this chapter referred
to as the “Office”). The Office shall
be headed by a Director; and there
shall be a Deputy Director who shall
perform such duties as may be
assigned to him by the Director and,
during the absence or incapacity of
the Director or during a vacancy in
that office, shall act as Director.
On and after August 18, 1970, the
Deputy Architect of the Capitol shall
act as Architect of the Capitol during
the absence or disability of that
official or whenever there is no
Architect.
The Architect of the Capitol shall -(1) upon recommendation of the
Chief Executive Officer, appoint an
assistant who shall perform the
responsibilities of the Chief
Executive Officer during the absence
or disability of the Chief Executive
Officer, or during a vacancy in the
position of the Chief Executive
Officer

2 U.S.C. § 6532

Secretary of the Senate

5 U.S.C. § 595(b)

Administrative Conference of the
United States

5 U.S.C. § 1102(b)

Office of Personnel Management

5 U.S.C. § 1203(b)-(c)

Merit Systems Protection Board

6 U.S.C. § 113(g)

Department of Homeland Security

76

For any period during which both
the Secretary and the Assistant
Secretary of the Senate are unable
(because of death, resignation, or
disability) to discharge such
Secretary's duties as disbursing
officer of the Senate, the Financial
Clerk of the Senate shall be deemed
to be the successor of such Secretary
as disbursing officer.
During the absence or incapacity of
the Chairman, or when that office
is vacant, the Vice Chairman shall
serve as Chairman.
There is in the Office a Deputy
Director of the Office of Personnel
Management appointed by the
President, by and with the advice and
consent of the Senate. The Deputy
Director shall perform such
functions as the Director may from
time to time prescribe and shall act
as Director during the absence or
disability of the Director or when the
office of Director is vacant.
(b) The President shall from time to
time designate one of the members
of the Board as Vice Chairman of
the Board. During the absence or
disability of the Chairman, or when
the office of Chairman is vacant, the
Vice Chairman shall perform the
functions vested in the Chairman. (c)
During the absence or disability of
both the Chairman and the Vice
Chairman, or when the offices of
Chairman and Vice Chairman are
vacant, the remaining Board member
shall perform the functions vested in
the Chairman.
(1) Absence, disability, or vacancy of
Secretary or Deputy Secretary
Notwithstanding chapter 33 of Title
5, the Under Secretary for
Management shall serve as the
Acting Secretary if by reason of
absence, disability, or vacancy in
office, neither the Secretary nor
Deputy Secretary is available to
exercise the duties of the Office of
the Secretary.
(2) Further order of succession
Notwithstanding chapter 33 of Title
5, the Secretary may designate such
other officers of the Department in
further order of succession to serve
as Acting Secretary.
(3) Notification of vacancies

8 U.S.C. § 1324b(c)(1)

Office of Special Counsel for
Immigration-Related Unfair
Employment Practices
(Department of Justice)

10 U.S.C. § 132(b)

Department of Defense

10 U.S.C. § 137a(b)

Department of Defense

10 U.S.C. § 154(d)-(e)

Joint Chiefs of Staff
(Department of Defense)

10 U.S.C. § 196(b)(2)

Test Resource Management Center
(Department of Defense)

77

The Secretary shall notify the
Committee on Homeland Security
and Governmental Affairs of the
Senate and the Committee on
Homeland Security of the House of
Representatives of any vacancies that
require notification under sections
3345 through 3349d of Title 5
(commonly known as the “Federal
Vacancies Reform Act of 1998”).
In the case of a vacancy in the office
of the Special Counsel the President
may designate the officer or
employee who shall act as Special
Counsel during such vacancy.
The Deputy Secretary shall act for,
and exercise the powers of, the
Secretary when the Secretary dies,
resigns, or is otherwise unable to
perform the functions and duties of
the office.
Each Deputy Under Secretary of
Defense shall be the first assistant to
an Under Secretary of Defense and
shall assist such Under Secretary in
the performance of the duties of the
position of such Under Secretary and
shall act for, and exercise the powers
of, such Under Secretary when such
Under Secretary dies, resigns, or is
otherwise unable to perform the
functions and duties of the office.
(d) When there is a vacancy in the
office of Chairman or in the absence
or disability of the Chairman, the
Vice Chairman acts as Chairman and
performs the duties of the Chairman
until a successor is appointed or the
absence or disability ceases. (e) When
there is a vacancy in the offices of
both Chairman and Vice Chairman
or in the absence or disability of both
the Chairman and the Vice
Chairman, or when there is a vacancy
in one such office and in the absence
or disability of the officer holding
the other, the President shall
designate a member of the Joint
Chiefs of Staff to act as and perform
the duties of the Chairman until a
successor to the Chairman or Vice
Chairman is appointed or the
absence or disability of the Chairman
or Vice Chairman ceases.
There shall be a Deputy Director of
the Center, selected by the Secretary
from among individuals who have
substantial experience in the field of

10 U.S.C. § 2773

Department of Defense

10 U.S.C. § 7016(b)(5)(B)

Department of the Army
(Department of Defense)

10 U.S.C. § 7017

Department of the Army
(Department of Defense)

78

test and evaluation. The Deputy
Director shall act for, and exercise
the powers of, the Director when the
Director is disabled or the position
of Director is vacant.
(b)(1) If a disbursing official of the
Department of Defense dies,
becomes disabled , or is separated
from office, a deputy disbursing
official may continue the accounts
and payments in the name of the
former disbursing official until the
last day of the 2d month after the
month in which the death, disability,
or separation occurs. The accounts
and payments shall be allowed,
audited, and settled as provided by
law. The Secretary of the Treasury
shall honor checks signed in the
name of the former disbursing
official in the same way as if the
former disbursing official had
continued in office.
The Assistant Secretary shall have a
Principal Military Deputy, who shall
be an officer of the Army on active
duty. The Principal Military Deputy
shall be appointed from among
officers who have significant
experience in the areas of acquisition
and program management. The
position of Principal Military Deputy
shall be designated as a critical
acquisition position under section
1733 of this title. In the event of
a vacancy in the position of Assistant
Secretary of the Army for
Acquisition, Logistics, and
Technology, the Principal Military
Deputy may serve as Acting
Assistant Secretary for a period of
not more than one year.
If the Secretary of the Army dies,
resigns, is removed from office, is
absent, or is disabled, the person
who is highest on the following list,
and who is not absent or disabled,
shall perform the duties of the
Secretary until the President, under
section 3347 of title 5, directs
another person to perform those
duties or until the absence or
disability ceases:
(1) The Under Secretary of the
Army.
(2) The Assistant Secretaries of the
Army, in the order prescribed by the
Secretary of the Army and approved

10 U.S.C. § 7018

Department of the Army

10 U.S.C. § 7034(d)

Department of the
Army(Department of Defense)

10 U.S.C. § 8016(b)(4)(B)

Department of the Navy
(Department of Defense)

79

by the Secretary of Defense.
(3) The General Counsel of the
Department of the Army.
(4) The Chief of Staff.
(a) There is an Administrative
Assistant in the Department of the
Army. The Administrative Assistant
shall be appointed by the Secretary
of the Army and shall perform duties
that the Secretary considers
appropriate.
(b) During a vacancy in the office of
Secretary, the Administrative
Assistant has charge and custody of
all records, books, and papers of the
Department of the Army.
(c) The Secretary may authorize the
Administrative Assistant to sign,
during the temporary absence of the
Secretary, any paper requiring his
signature. In such a case, the
Administrative Assistant's signature
has the same effect as the Secretary's
signature.
When there is a vacancy in the office
of Chief of Staff or during the
absence or disability of the Chief of
Staff-(1) the Vice Chief of Staff shall
perform the duties of the Chief of
Staff until a successor is appointed or
the absence or disability ceases; or
(2) if there is a vacancy in the office
of the Vice Chief of Staff or the Vice
Chief of Staff is absent or disabled,
unless the President directs
otherwise, the most senior officer of
the Army in the Army Staff who is
not absent or disabled and who is
not restricted in performance of duty
shall perform the duties of the Chief
of Staff until a successor to the Chief
of Staff or the Vice Chief of Staff is
appointed or until the absence or
disability of the Chief of Staff or
Vice Chief of Staff ceases, whichever
occurs first.
The Assistant Secretary shall have a
Principal Military Deputy, who shall
be an officer of the Navy or the
Marine Corps on active duty. The
Principal Military Deputy shall be
appointed from among officers who
have significant experience in the
areas of acquisition and program
management. The position of
Principal Military Deputy shall be

10 U.S.C. § 8017

Department of the Navy
(Department of Defense)

10 U.S.C. § 8035(d)

Department of the Navy
(Department of Defense)

80

designated as a critical acquisition
position under section 1733 of this
title. In the event of a vacancy in the
position of Assistant Secretary of the
Navy for Research, Development,
and Acquisition, the Principal
Military Deputy may serve as Acting
Assistant Secretary for a period of
not more than one year.
If the Secretary of the Navy dies,
resigns, is removed from office, is
absent, or is disabled, the person
who is highest on the following list,
and who is not absent or disabled,
shall perform the duties of the
Secretary until the President, under
section 3347 of title 5, directs
another person to perform those
duties or until the absence or
disability ceases:
(1) The Under Secretary of the Navy.
(2) The Assistant Secretaries of the
Navy, in the order prescribed by the
Secretary of the Navy and approved
by the Secretary of Defense.
(3) The General Counsel of the
Department of the Navy.
(4) The Chief of Naval Operations.
(5) The Commandant of the Marine
Corps.
When there is a vacancy in the office
of Chief of Naval Operations or
during the absence or disability of
the Chief of Naval Operations-(1) the Vice Chief of Naval
Operations shall perform the duties
of the Chief of Naval Operations
until a successor is appointed or the
absence or disability ceases; or
(2) if there is a vacancy in the office
of the Vice Chief of Naval
Operations or the Vice Chief of
Naval Operations is absent or
disabled, unless the President directs
otherwise, the most senior officer of
the Navy in the Office of the Chief
of Naval Operations who is not
absent or disabled and who is not
restricted in performance of duty
shall perform the duties of the Chief
of Naval Operations until a
successor to the Chief of Naval
Operations or the Vice Chief of
Naval Operations is appointed or
until the absence or disability of the
Chief of Naval Operations or Vice
Chief of Naval Operations ceases,
whichever occurs first.

10 U.S.C. § 8044(d)

Department of the Navy
(Department of Defense)

10 U.S.C. § 8075

Department of the Navy
(Department of Defense)

10 U.S.C. § 8089(d)-(e)

Department of the Navy
(Department of Defense)

81

When there is a vacancy in the office
of Commandant of the Marine
Corps, or during the absence or
disability of the Commandant-(1) the Assistant Commandant of the
Marine Corps shall perform the
duties of the Commandant until a
successor is appointed or the
absence or disability ceases; or
(2) if there is a vacancy in the office
of the Assistant Commandant of the
Marine Corps or the Assistant
Commandant is absent or disabled,
unless the President directs
otherwise, the most senior officer of
the Marine Corps in the
Headquarters, Marine Corps, who is
not absent or disabled and who is
not restricted in performance of duty
shall perform the duties of the
Commandant until a successor to the
Commandant or the Assistant
Commandant is appointed or until
the absence or disability of the
Commandant or Assistant
Commandant ceases, whichever
occurs first.
(a) When there is a vacancy in the
office of chief of a bureau, or during
the absence or disability of the chief
of a bureau, the deputy chief of that
bureau, unless otherwise directed by
the President, shall perform the
duties of the chief until a successor is
appointed or the absence or disability
ceases.
(b) When subsection (a) cannot be
complied with because of the
absence or disability of the deputy
chief of the bureau, the heads of the
major divisions of the bureau, in the
order directed by the Secretary of the
Navy, shall perform the duties of the
chief, unless otherwise directed by
the President.
(d) When there is a vacancy in the
Office of the Judge Advocate
General, or during the absence or
disability of the Judge Advocate
General, the Deputy Judge Advocate
General shall perform the duties of
the Judge Advocate General until a
successor is appointed or the
absence or disability ceases.
(e) When subsection (d) cannot be
complied with because of the
absence or disability of the Deputy
Judge Advocate General, the

10 U.S.C. § 9016(b)(4)(B)

Department of the Air Force
(Department of Defense)

10 U.S.C. § 9017

Department of the Air Force
(Department of Defense)

10 U.S.C. § 9034(d)

Department of the Air Force
(Department of Defense)

82

Assistant Judge Advocates General,
in the order directed by the Secretary
of the Navy, shall perform the duties
of the Judge Advocate General.
The Assistant Secretary shall have a
Principal Military Deputy, who shall
be an officer of the Air Force on
active duty. The Principal Military
Deputy shall be appointed from
among officers who have significant
experience in the areas of acquisition
and program management. The
position of Principal Military Deputy
shall be designated as a critical
acquisition position under section
1733 of this title. In the event of
a vacancy in the position of Assistant
Secretary of the Air Force for
Acquisition, the Principal Military
Deputy may serve as Acting
Assistant Secretary for a period of
not more than one year.
If the Secretary of the Air Force dies,
resigns, is removed from office, is
absent, or is disabled, the person
who is highest on the following list,
and who is not absent or disabled,
shall perform the duties of the
Secretary until the President, under
section 3347 of title 5, directs
another person to perform those
duties or until the absence or
disability ceases:
(1) The Under Secretary of the Air
Force.
(2) The Assistant Secretaries of the
Air Force, in the order prescribed by
the Secretary of the Air Force and
approved by the Secretary of
Defense.
(3) The General Counsel of the
Department of the Air Force.
(4) The Chief of Staff.
When there is a vacancy in the office
of Chief of Staff or during the
absence or disability of the Chief of
Staff-(1) the Vice Chief of Staff shall
perform the duties of the Chief of
Staff until a successor is appointed or
the absence or disability ceases; or
(2) if there is a vacancy in the office
of the Vice Chief of Staff or the Vice
Chief of Staff is absent or disabled,
unless the President directs
otherwise, the most senior officer of
the Air Force in the Air Staff who is
not absent or disabled and who is

10 U.S.C. § 9037(d)(2)-(3)

Department of the Air Force
(Department of Defense)

10 U.S.C. § 10502(f)

National Guard Bureau
(Department of Defense)

12 U.S.C. § 4

Office of the Comptroller of the
Currency
(Department of the Treasury)

83

not restricted in performance of duty
shall perform the duties of the Chief
of Staff until a successor to the Chief
of Staff or the Vice Chief of Staff is
appointed or until the absence or
disability of the Chief of Staff or
Vice Chief of Staff ceases, whichever
occurs first.
(2) When there is a vacancy in the
office of the Judge Advocate
General, or during the absence or
disability of the Judge Advocate
General, the Deputy Judge Advocate
General shall perform the duties of
the Judge Advocate General until a
successor is appointed or the
absence or disability ceases.
(3) When paragraph (2) cannot be
complied with because of the
absence or disability of the Deputy
Judge Advocate General, the heads
of the major divisions of the Office
of the Judge Advocate General, in
the order directed by the Secretary of
the Air Force, shall perform the
duties of the Judge Advocate
General, unless otherwise directed by
the President.
(1) When there is a vacancy in the
office of the Chief of the National
Guard Bureau or in the absence or
disability of the Chief, the Vice Chief
of the National Guard Bureau acts as
Chief and performs the duties of the
Chief until a successor is appointed
or the absence or disability ceases.
(2) When there is a vacancy in the
offices of both the Chief and the
Vice Chief of the National Guard
Bureau or in the absence or disability
of both the Chief and the Vice Chief
of the National Guard Bureau, or
when there is a vacancy in one such
office and in the absence or disability
of the officer holding the other, the
senior officer of the Army National
Guard of the United States or the
Air National Guard of the United
States on duty with the National
Guard Bureau shall perform the
duties of the Chief until a successor
to the Chief or Vice Chief is
appointed or the absence or disability
of the Chief or Vice Chief ceases, as
the case may be.
During a vacancy in the office or
during the absence or disability of
the Comptroller, each Deputy

12 U.S.C. § 306

Federal Reserve

12 U.S.C. § 341

Federal Reserve

12 U.S.C. § 635a(b)

Export–Import Bank

12 U.S.C. § 1427(g)(3)

Federal Home Loan Banks

12 U.S.C. § 1812(b)(3)

Federal Deposit Insurance
Corporation

84

Comptroller shall possess the power
and perform the duties attached by
law to the office of the Comptroller
under such order of succession
following the First Deputy
Comptroller as the Comptroller shall
direct.
Subject to the approval of the Board
of Governors of the Federal Reserve
System, the Federal reserve agent
shall appoint one or more assistants.
Such assistants, who shall be persons
of tested banking experience, shall
assist the Federal reserve agent in the
performance of his duties and shall
also have power to act in his name
and stead during his absence or
disability.
The first vice president of the bank
shall be appointed in the same
manner and for the same term as the
president, and shall, in the absence
or disability of the president or
during a vacancy in the office of
president, serve as chief executive
officer of the bank. Whenever a
vacancy shall occur in the office of
the president or the first vice
president, it shall be filled in the
manner provided for original
appointments; and the person so
appointed shall hold office until the
expiration of the term of his
predecessor.
There shall be a First Vice President
of the Bank, who shall be appointed
by the President of the United States
by and with the advice and consent
of the Senate, who shall serve as
President of the Bank during the
absence or disability of or in the
event of a vacancy in the office of
President of the Bank, and who shall
at other times perform such
functions as the President of the
Bank may from time to time
prescribe.
(g)(3) In the event of a vacancy in
the position of Chairperson of the
board of directors or during the
absence or disability of the
Chairperson, the Vice Chairperson
shall act as Chairperson.
In the event of a vacancy in the
position of Chairperson of the Board
of Directors or during the absence or
disability of the Chairperson, the

12 U.S.C. § 4703(b)(2)

Community Development Financial
Institutions Fund
(Department of the Treasury)

12 U.S.C. § 5321(c)

Financial Stability Oversight Council

12 U.S.C. § 5491

Consumer Financial Protection
Bureau

14 U.S.C. § 304

United States Coast Guard
(Department of Homeland Security)

14 U.S.C. § 950

United States Coast Guard
(Department of Homeland Security)

15 U.S.C. § 633(b)(1)

Small Business Administration

15 U.S.C. § 2053(b),(d)

Consumer Product Safety
Commission

85

Vice Chairperson shall act as
Chairperson.
In the event of a vacancy in the
position of the Administrator or
during the absence or disability of
the Administrator, the chief financial
officer shall perform the duties of
the position of Administrator.
Any vacancy on the Council shall be
filled in the manner in which the
original appointment was made.
(5) Deputy Director
There is established the position of
Deputy Director, who shall-(A) be appointed by the Director;
and
(B) serve as acting Director in the
absence or unavailability of the
Director
The President may appoint, by and
with the advice and consent of the
Senate, one Vice Commandant who
shall rank next after the
Commandant, shall perform such
duties as the Commandant may
prescribe and shall act as
Commandant during the absence or
disability of the Commandant or in
the event that there is a vacancy in
the office of Commandant.
(b)(1) If a disbursing official of the
Coast Guard dies, becomes disabled ,
or is separated from office, a deputy
disbursing official may continue the
accounts and payments in the name
of the former disbursing official until
the last day of the second month
after the month in which the death,
disability, or separation occurs. The
accounts and payments shall be
allowed, audited, and settled as
provided by law. The Secretary of
the Treasury shall honor checks
signed in the name of the former
disbursing official in the same way as
if the former disbursing official had
continued in office.
The Deputy Administrator shall be
Acting Administrator of the
Administration during the absence or
disability of the Administrator or in
the event of a vacancy in the office
of the Administrator.
(b) Any Commissioner appointed to
fill a vacancy occurring prior to the
expiration of the term for which his
predecessor was appointed shall be
appointed only for the remainder of

15 U.S.C. § 2204(c)

Fire Administration
(Department of Homeland Security)

15 U.S.C. § 2413(b)

National Center for Productivity and
Quality of Working Life

16 U.S.C. § 832i(a)

Bonneville Power Administration
(Department of Energy)

16 U.S.C. § 1157

North Pacific Fur Seal Commission

19 U.S.C. § 2072(b)

U.S. Customs Service

20 U.S.C. § 47

Smithsonian Institution

86

such term. A Commissioner may
continue to serve after the expiration
of this term until his successor has
taken office, except that he may not
so continue to serve more than one
year after the date on which his term
would otherwise expire under this
subsection. (d) The Commission
shall annually elect a Vice Chairman
to act in the absence or disability of
the Chairman or in case of a vacancy
in the office of the Chairman.
The Administrator may appoint a
Deputy Administrator, who shall-(1) perform such functions as the
Administrator shall from time to
time assign or delegate; and
(2) act as Administrator during the
absence or disability of the
Administrator or in the event of a
vacancy in the office of
Administrator.
The Executive Director shall appoint
a Deputy Director, who shall
perform such functions as the
Executive Director may prescribe.
The Deputy Director shall act for
and exercise the powers of the
Executive Director during the
absence of disability of the Executive
Director.
The Assistant Administrator shall
perform the duties and exercise the
powers of the Administrator, in the
event of the absence or sickness of
the Administrator until such absence
or sickness shall cease and in the
event of a vacancy in the office of
Administrator until a successor is
appointed.
The Deputy Commissioner shall be
the principal adviser of the
Commissioner, and shall perform the
duties of the Commissioner in the
case of his death, resignation,
absence, or illness.
The Secretary of the Treasury is
authorized to designate an officer of
the United States Customs Service to
act as Commissioner of Customs,
during the absence or disability of
the Commissioner of Customs, or in
the event that there is no
Commissioner of Customs
The chancellor of the Smithsonian
Institution may, by an instrument in
writing filed in the office of the
Secretary thereof, designate and

20 U.S.C. § 2103(e)(1)

American Folklife Center
(Library of Congress)

20 U.S.C. § 3412(a)(1)

Department of Education

21 U.S.C. § 1703(a)(2)(B),(a)(3)

Office of National Drug Control
Policy
(Executive Office of the President)

22 U.S.C. § 287(d)

U.N. Ambassador

87

appoint a suitable person to act as
Secretary of the Institution when
there shall be a vacancy in said
office, and whenever the Secretary
shall be unable from illness, absence,
or other cause to perform the duties
of his office; and in such case the
person so appointed may perform all
the duties imposed on the Secretary
by law until the vacancy shall be
filled or such inability shall cease.
The said chancellor may change such
designation and appointment from
time to time as the interests of the
Institution may in his judgment
require.
The Vice Chairman shall perform the
duties of the Chairman in his
absence. In case of a vacancy
occurring in the chairmanship or
vice-chairmanship, the Board shall
elect a member to fill the vacancy for
the remainder of the unexpired term.
During the absence or disability of
the Secretary, or in the event of a
vacancy in the office of the Secretary,
the Deputy Secretary shall act as
Secretary. The Secretary shall
designate the order in which other
officials of the Department shall act
for and perform the functions of the
Secretary during the absence or
disability of both the Secretary and
Deputy Secretary or in the event of
vacancies in both of those offices.
(2) The Deputy Director of National
Drug Control Policy shall-(A) carry out the duties and powers
prescribed by the Director; and
(B) serve as the Director in the
absence of the Director or during
any period in which the office of the
Director is vacant. (3) Acting
Director
If the Director dies, resigns, or is
otherwise unable to perform the
functions and duties of the office,
the Deputy Director shall perform
the functions and duties of the
Director temporarily in an acting
capacity pursuant to subchapter III
of chapter 33 of Title 5.
The President may, without the
advice and consent of the Senate,
designate any officer of the United
States to act without additional
compensation as the representative
of the United States in either the

22 U.S.C. § 2021(c)

International Atomic Energy Agency

22 U.S.C. § 2384(b)

U.S. Agency for International
Development

25 U.S.C. § 2a

Bureau of Indian Affairs
(Department of Interior)

88

Economic and Social Council or the
Trusteeship Council (1) at any
specified session thereof where the
position is vacant or in the absence
or disability of the regular
representative or (2) in connection
with a specified subject matter at any
specified session of either such
Council in lieu of the regular
representative. The President may
designate any officer of the
Department of State, whose
appointment is subject to
confirmation by the Senate, to act,
without additional compensation, for
temporary periods as the
representative of the United States in
the Security Council of the United
Nations in the absence or disability
of the representatives provided for
under subsections (a) and (b) or in
lieu of such representatives in
connection with a specified subject
matter.
The President may designate any
officer of the United States
Government, whose appointment is
subject to confirmation by the
Senate, to act, without additional
compensation, for temporary periods
as the representative of the United
States on the Board of Governors or
to the General Conference of the
Agency in the absence or disability of
the representative and deputy
representative appointed under
subsection (a) or in lieu of such
representatives in connection with a
specified subject matter.
The President may also fix the order
of succession among the officers
provided for in subsection (a) of this
section in the event of the absence,
death, resignation, or disability of
one or more of said officers.
Assistant or deputy commissioners
of the Bureau of Indian Affairs, in
the Department of the Interior, shall
be appointed by the Secretary of the
Interior, subject to the civil-service
laws and chapter 51 and subchapter
III of chapter 53 of Title 5.
Appointments to these positions
shall be considered as made under
the authority of section 3101 of Title
5. Assistant and deputy
commissioners so appointed shall be
authorized to sign such letters,

25 U.S.C. § 53

Bureau of Indian Affairs
(Department of Interior)

28 U.S.C. § 508

Department of Justice

28 U.S.C. § 546

Department of Justice

89

papers, and documents and to
perform such other duties as may be
directed by the commissioner of the
Bureau of Indian Affairs. The
Secretary may designate for the
Bureau of Indian Affairs an assistant
or deputy commissioner, who shall
be authorized to perform the duties
of the commissioner in case of the
death, resignation, absence , or
sickness of the commissioner.
Any disbursing agent of the Indian
Service, with the approval of the
Commissioner of Indian Affairs, may
authorize a clerk employed in his
office to act in his place and
discharge all the duties devolved
upon him by law or regulations
during such time as he may be
unable to perform the duties of his
position because of absence, physical
disability, or other disqualifying
circumstances: Provided, That such
clerk, while acting for his principal,
shall be subject to all the liabilities
and penalties prescribed by law for
official misconduct of disbursing
agents.
(a) In case of a vacancy in the office
of Attorney General, or of his
absence or disability, the Deputy
Attorney General may exercise all
the duties of that office, and for the
purpose of section 3345 of title 5 the
Deputy Attorney General is the first
assistant to the Attorney General.
(b) When by reason of absence,
disability, or vacancy in office,
neither the Attorney General nor the
Deputy Attorney General is available
to exercise the duties of the office of
Attorney General, the Associate
Attorney General shall act as
Attorney General. The Attorney
General may designate the Solicitor
General and the Assistant Attorneys
General, in further order of
succession, to act as Attorney
General.
(a) Except as provided in subsection
(b), the Attorney General may
appoint a United States attorney for
the district in which the office of
United States attorney is vacant.
(b) The Attorney General shall not
appoint as United States attorney a
person to whose appointment by the
President to that office the Senate

28 U.S.C. § 562

Department of Justice

28 U.S.C. § 606

Administrative Office of the United
States Courts

29 U.S.C. § 153(d)

National Labor Relations Board

90

refused to give advice and consent.
(c) A person appointed as United
States attorney under this section
may serve until the earlier of-(1) the qualification of a United
States attorney for such district
appointed by the President under
section 541 of this title; or
(2) the expiration of 120 days after
appointment by the Attorney
General under this section.
(d) If an appointment expires under
subsection (c)(2), the district court
for such district may appoint a
United States attorney to serve until
the vacancy is filled. The order of
appointment by the court shall be
filed with the clerk of the court.
(a) In the case of a vacancy in the
office of a United States marshal, the
Attorney General may designate a
person to perform the functions of
and act as marshal, except that the
Attorney General may not designate
to act as marshal any person who
was appointed by the President to
that office but with respect to such
appointment the Senate has refused
to give its advice and consent.
(b) A person designated by the
Attorney General under subsection
(a) may serve until the earliest of the
following events:
(1) The entry into office of a United
States marshal appointed by the
President, pursuant to section 561(c).
(2) The expiration of the thirtieth day
following the end of the next session
of the Senate.
(3) If such designee of the Attorney
General is appointed by the
President pursuant to section 561(c),
but the Senate refuses to give its
advice and consent to the
appointment, the expiration of the
thirtieth day following such refusal.
The Deputy Director shall perform
the duties assigned to him by the
Director, and shall act as Director
during the absence or incapacity of
the Director or when the Director's
office is vacant.
In case of a vacancy in the office of
the General Counsel the President is
authorized to designate the officer or
employee who shall act as General
Counsel during such vacancy, but no
person or persons so designated shall

29 U.S.C. § 552

Department of Labor

31 U.S.C. § 301(c)(2),(f)(1)

Department of the Treasury

31 U.S.C. § 306(d)

Department of the Treasury

31 U.S.C. § (b),(f)

Office of Management and Budget

91

so act (1) for more than forty days
when the Congress is in session
unless a nomination to fill such
vacancy shall have been submitted to
the Senate, or (2) after the
adjournment sine die of the session
of the Senate in which such
nomination was submitted.
There is established in the
Department of Labor the office of
Deputy Secretary of Labor, which
shall be filled by appointment by the
President, by and with the advice and
consent of the Senate. The Deputy
Secretary shall perform such duties
as may be prescribed by the Secretary
of Labor or required by law. The
Deputy Secretary 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.
(c) The Department has a Deputy
Secretary of the Treasury appointed
by the President, by and with the
advice and consent of the Senate.
The Deputy Secretary shall carry out
(1) duties and powers prescribed by
the Secretary; and
(2) the duties and powers of the
Secretary when the Secretary is
absent or unable to serve or when
the office of Secretary is vacant.
(f)(1) The Secretary may designate
one of the Assistant General
Counsels to act as the General
Counsel when the General Counsel
is absent or unable to serve or when
the office of General Counsel is
vacant. The General Counsel and
Assistant General Counsels shall
carry out duties and powers
prescribed by the Secretary.
The Secretary of the Treasury may
designate another officer or
employee of the Department to act
as the Fiscal Assistant Secretary
when the Fiscal Assistant Secretary is
absent or unable to serve or when
the office of Fiscal Assistant
Secretary is vacant.
(b) The Office has a Deputy
Director of the Office of

31 U.S.C. § 703

Government Accountability Office

92

Management and Budget, appointed
by the President, by and with the
advice and consent of the Senate.
The Deputy Director-(1) shall carry out the duties and
powers prescribed by the Director;
and
(2) acts as the Director when the
Director is absent or unable to serve
or when the office of Director is
vacant. (f) When the Director and
Deputy Director are absent or
unable to serve or when the offices
of Director and Deputy Director are
vacant, the President may designate
an officer of the Office to act as
Director.
(2) When a vacancy occurs in the
office of Comptroller General or
Deputy Comptroller General, a
commission is established to
recommend individuals to the
President for appointment to the
vacant office. The commission shall
be composed of-(A) the Speaker of the House of
Representatives;
(B) the President pro tempore of the
Senate;
(C) the majority and minority leaders
of the House of Representatives and
the Senate;
(D) the chairmen and ranking
minority members of the Committee
on Governmental Affairs of the
Senate and the Committee on
Government Operations of the
House; and
(E) when the office of Deputy
Comptroller General is vacant, the
Comptroller General.
(3) A commission established
because of a vacancy in the office of
the Comptroller General shall
recommend at least 3 individuals.
The President may ask the
commission to recommend
additional individuals.
(b) Except as provided in subsection
(e) of this section, the term of the
Comptroller General is 15 years. The
Comptroller General may not be
reappointed. The term of the Deputy
Comptroller General expires on the
date an individual is appointed
Comptroller General. The Deputy
Comptroller General may continue
to serve until a successor is

33 U.S.C. § 857-14(c)

National Advisory Committee on
Oceans and Atmosphere205
(Department of Commerce)

34 U.S.C. § 11111(c)

Office of Juvenile Justice and
Delinquency Prevention
(Department of Justice)

38 U.S.C. § 304

Department of Veterans Affairs

40 U.S.C. § 302(b)

General Services Administration

appointed.
(c) The Deputy Comptroller
General-(1) carries out duties and powers
prescribed by the Comptroller
General; and
(2) acts for the Comptroller General
when the Comptroller General is
absent or unable to serve or when
the office of Comptroller General is
vacant.
(d) The Comptroller General shall
designate an officer or employee of
the Government Accountability
Office to act as Comptroller General
when the Comptroller General and
Deputy Comptroller General are
absent or unable to serve or when
the offices of Comptroller General
and Deputy Comptroller General are
vacant.
The Vice Chairman shall act as
Chairman in the absence or
incapacity of, or in the event of a
vacancy in the office of, the
Chairman.
There shall be in the Office a Deputy
Administrator who shall be
appointed by the Attorney General.
The Deputy Administrator shall
perform such functions as the
Administrator may from time to time
assign or delegate and shall act as the
Administrator during the absence or
disability of the Administrator.
There is in the Department a Deputy
Secretary of Veterans Affairs, who is
appointed by the President, by and
with the advice and consent of the
Senate. The Deputy Secretary shall
perform such functions as the
Secretary shall prescribe. Unless the
President designates another officer
of the Government, the Deputy
Secretary shall be Acting Secretary of
Veterans Affairs during the absence
or disability of the Secretary or in the
event of a vacancy in the office of
Secretary.
The Deputy Administrator is Acting
Administrator of General Services
during the absence or disability of
the Administrator and, unless the
President designates another officer

205 This Committee was disbanded in the late 1980s, though the statutory authority remains. Kathryn J. Mengerink, The Pew

Oceans Commission Report: Navigating a Route to Sustainable Seas, 31 ECOLOGY L.Q. 689, 712 (2004).

93

42 U.S.C. § 206(a),(d)

Public Health Service
(Department of Health and Human
Services)

42 U.S.C. § 902(b)(4)

Social Security Administration

42 U.S.C. § 1863(f)

National Science Foundation

42 U.S.C. § 1864a

National Science Foundation

42 U.S.C. § 2000ee(j)(2)

Privacy and Civil Liberties Oversight
Board

94

of the Federal Government, when
the office of Administrator is vacant.
(a) Deputy Surgeon General
The Surgeon General shall assign
one commissioned officer from the
Regular Corps to administer the
Office of the Surgeon General, to act
as Surgeon General during the
absence or disability of the Surgeon
General or in the event of a vacancy
in that office, and to perform such
other duties as the Surgeon General
may prescribe, and while so assigned
he shall have the title of Deputy
Surgeon General.
(d) Designation of Assistant Surgeon
General with respect to absence,
disability, or vacancy in offices of
Surgeon General and Deputy
Surgeon General
The Surgeon General shall designate
the Assistant Surgeon General who
shall serve as Surgeon General in
case of absence or disability, or
vacancy in the offices, of both the
Surgeon General and the Deputy
Surgeon General.
The Deputy Commissioner shall
perform such duties and exercise
such powers as the Commissioner
shall from time to time assign or
delegate. The Deputy Commissioner
shall be Acting Commissioner of the
Administration during the absence or
disability of the Commissioner and,
unless the President designates
another officer of the Government
as Acting Commissioner, in the
event of a vacancy in the office of
the Commissioner.
The election of the Chairman and
Vice Chairman of the Board shall
take place at each annual meeting
occurring in an even-numbered year.
The Vice Chairman shall perform the
duties of the Chairman in his
absence. In case a vacancy occurs in
the chairmanship or vice
chairmanship, the Board shall elect a
member to fill such vacancy.
The Deputy Director shall act for,
and exercise the powers of, the
Director during the absence or
disability of the Director or in the
event of a vacancy in the office of
Director.
If the position of chairman of the
Board is vacant, during the period of

42 U.S.C. § 2034

Atomic Energy Commission

42 U.S.C. § 2286(c)(4)

Defense Nuclear Facilities Safety
Board

42 U.S.C. § 5812(i)

Energy Research and Development
Administration

42 U.S.C. § 7132(a)

Department of Energy

43 U.S.C. § 32

United States Geological Survey
(Department of the Interior)

95

the vacancy, the Board, at the
direction of the unanimous vote of
the serving members of the Board,
may exercise the authority of the
chairman under paragraph (1).
(b) Deputy General Manager; duties;
appointment; removal
a Deputy General Manager, who
shall act in the stead of the General
Manager during his absence when so
directed by the General Manager,
and who shall perform such other
administrative and executive
functions as the General Manager
shall direct. The Deputy General
Manager shall be appointed by the
General Manager with the approval
of the Commission, shall serve at the
pleasure of the General Manager,
and shall be removable by the
General Manager.
The Vice Chairman shall act as
Chairman in the event of
the absence or incapacity of the
Chairman or in case of a vacancy in
the office of Chairman.
The Deputy Administrator (or in the
absence or disability of the Deputy
Administrator, or in the event of a
vacancy in the office of the Deputy
Administrator, an Assistant
Administrator, the General Counsel
or such other official, determined
according to such order as the
Administrator shall prescribe) shall
act for and perform the functions of
the Administrator during any
absence or disability of the
Administrator or in the event of a
vacancy in the office of the
Administrator.
The Deputy Secretary shall act for
and exercise the functions of the
Secretary during the absence or
disability of the Secretary or in the
event the office of Secretary
becomes vacant. The Secretary shall
designate the order in which the
Under Secretary and other officials
shall act for and perform the
functions of the Secretary during the
absence or disability of both the
Secretary and Deputy Secretary or in
the event of vacancies in both of
those offices.
The Secretary of the Interior may
authorize one of the geologists to act
as Director of the United States

44 U.S.C. § 304

Government Publishing Office

44 U.S.C. § 2103(c)

National Archives and Records
Administration

47 U.S.C. § 155(a)

Federal Communications
Commission

49 U.S.C. § 102(c)-(e)

Department of Transportation

96

Geological Survey in the absence of
that officer.
In case of the death, resignation,
absence, or sickness of the Director
of the Government Publishing
Office, the Deputy Director of the
Government Publishing Office shall
perform the duties of the Director of
the Government Publishing Office
until a successor is appointed or the
Director’s absence or sickness
ceases; but the President may direct
any other officer of the Government,
whose appointment is vested in the
President by and with the advice and
consent of the Senate, to perform
the duties of the vacant office until a
successor is appointed, or the
sickness or absence of the Director
of the Government Publishing
Office ceases. A vacancy occasioned
by death or resignation may not be
filled temporarily under this section
for longer than ten days, and a
temporary appointment, designation,
or assignment of another officer may
not be made except to fill a vacancy
happening during a recess of the
Senate.
During any absence or disability of
the Archivist, the Deputy Archivist
shall act as Archivist. In the event of
a vacancy in the office of the
Archivist, the Deputy Archivist shall
act as Archivist until an Archivist is
appointed under subsection (a).
In the case of a vacancy in the office
of the chairman of the Commission,
or the absence or inability of the
chairman to serve, the Commission
may temporarily designate one of its
members to act as chairman until the
cause or circumstance requiring such
designation shall have been
eliminated or corrected.
(c) The Department has a Deputy
Secretary of Transportation
appointed by the President, by and
with the advice and consent of the
Senate. The Deputy Secretary-(1) shall carry out duties and powers
prescribed by the Secretary; and
(2) acts for the Secretary when the
Secretary is absent or unable to serve
or when the office of Secretary is
vacant.
(d) The Department has an Under
Secretary of Transportation for

Policy appointed by the President, by
and with the advice and consent of
the Senate. The Under Secretary shall
provide leadership in the
development of policy for the
Department, supervise the policy
activities of Assistant Secretaries with
primary responsibility for aviation,
international, and other
transportation policy development
and carry out other powers and
duties prescribed by the Secretary.
The Under Secretary acts for the
Secretary when the Secretary and the
Deputy Secretary are absent or
unable to serve, or when the offices
of Secretary and Deputy Secretary
are vacant.
(e) Assistant Secretaries; General
Counsel.-(1) Appointment.--The Department
has 6 Assistant Secretaries and a
General Counsel, including-(A) an Assistant Secretary for
Aviation and International Affairs,
an Assistant Secretary for
Governmental Affairs, an Assistant
Secretary for Research and
Technology, and an Assistant
Secretary for Transportation Policy,
who shall each be appointed by the
President, with the advice and
consent of the Senate;
(B) an Assistant Secretary for Budget
and Programs who shall be
appointed by the President;
(C) an Assistant Secretary for
Administration, who shall be
appointed by the Secretary, with the
approval of the President; and
(D) a General Counsel, who shall be
appointed by the President, with the
advice and consent of the Senate.
(2) Duties and powers.--The officers
set forth in paragraph (1) shall carry
out duties and powers prescribed by
the Secretary. An Assistant Secretary
or the General Counsel, in the order
prescribed by the Secretary, acts for
the Secretary when the Secretary,
Deputy Secretary, and Under
Secretary of Transportation for
Policy are absent or unable to serve,
or when the offices of the Secretary,
Deputy Secretary, and Under
Secretary of Transportation for
Policy are vacant.

97

49 U.S.C. § 106(i)

Federal Aviation Administration
(Department of Transportation)

49 U.S.C. § 109(c)

Maritime Administration
(Department of Transportation)

49 U.S.C. § 114(b)(2)(B)

Transportation Security
Administration
(Department of Homeland Security)

49 U.S.C. § 1111(d)

National Transportation Safety
Board

50 U.S.C. § 2403(b)

Nuclear Security Administration
(Department of Energy)

50 U.S.C. § 2931(b)(2)

Office of the United States
Coordinator for the Prevention of
Weapons of Mass Destruction
Proliferation and Terrorism

50 U.S.C. § 3026(a)(6)

Office of the Director of National
Intelligence

50 U.S.C. § 3037(b)

Central Intelligence Agency

98

The Deputy Administrator acts for
the Administrator when the
Administrator is absent or unable to
serve, or when the office of the
Administrator is vacant.
The Deputy Administrator shall be
Acting Administrator during the
absence or disability of the
Administrator and, unless the
Secretary designates another
individual, during a vacancy in the
office of Administrator.
The Deputy Administrator shall be
Acting Administrator during the
absence or incapacity of the
Administrator or during a vacancy in
the office of Administrator.
When the Chairman is absent or
unable to serve or when the position
of Chairman is vacant, the Vice
Chairman acts as Chairman.
The Principal Deputy Administrator
shall act for, and exercise the powers
of, the Administrator when the
Administrator is disabled or the
position of Administrator is vacant.
There shall be a Deputy United
States Coordinator for the
Prevention of Weapons of Mass
Destruction Proliferation and
Terrorism (in this section referred to
as the “Deputy Coordinator”), who
shall-(A) assist the Coordinator in carrying
out the responsibilities of the
Coordinator under this subchapter;
and
(B) serve as Acting Coordinator in
the absence of the Coordinator and
during any vacancy in the office of
Coordinator.
The Principal Deputy Director of
National Intelligence shall act for,
and exercise the powers of, the
Director of National Intelligence
during the absence or disability of
the Director of National Intelligence
or during a vacancy in the position of
Director of National Intelligence.
The Deputy Director of the Central
Intelligence Agency shall-(1) assist the Director of the Central
Intelligence Agency in carrying out
the duties and responsibilities of the
Director of the Central Intelligence
Agency; and
(2) during the absence or disability of
the Director of the Central

51 U.S.C. § 20111(b)

National Aeronautics and Space
Administration

52 U.S.C. § 30106(a)(2)(D)(5)

Federal Election Commission

54 U.S.C. § 304101(f)

Advisory Council on Historic
Preservation

5 U.S.C. Appendix 1 Reorg. Plan 3,
1970

Environmental Protection Agency

5 U.S.C. Appendix 1 Reorg. Plan 4,
1970

National Oceanic and Atmospheric
Administration
(Department of Commerce)

5 U.S.C. Appendix 1 Reorg. Plan 2,
1973

Drug Enforcement Administration
(Department of Justice)

5 USC Appendix 1 Reorg. Plan 2,
1978

Office of Personnel Management

99

Intelligence Agency, or during a
vacancy in the position of Director
of the Central Intelligence Agency,
act for and exercise the powers of
the Director of the Central
Intelligence Agency.
The Deputy Administrator shall act
for, and exercise the powers of, the
Administrator during the
Administrator’s absence or disability.
The vice chairman shall act as
chairman in the absence or disability
of the chairman or in the event of a
vacancy in such office.
The Vice Chairman shall perform the
functions of the Chairman during the
absence or disability of the Chairman
or when the office is vacant.
(c) There shall be in the Agency a
Deputy Administrator of the
Environmental Protection Agency
who shall be appointed by the
President, by and with the advice and
consent of the Senate. The Deputy
Administrator shall perform such
functions as the Administrator shall
from time to time assign or delegate,
and shall act as Administrator during
the absence or disability of the
Administrator or in the event of a
vacancy in the office of
Administrator.
(c) The Deputy Administrator shall
perform such functions as the
Administrator shall from time to
time assign or delegate, and shall act
as Administrator during the absence
or disability of the Administrator or
in the event of a vacancy in the
office of Administrator.
(c) The Deputy Administrator or
such other official of the
Department of Justice as the
Attorney General shall from time to
time designate shall act as
Administrator during the absence or
disability of the Administrator or in
the event of a vacancy in the office
of Administrator.
The Deputy Director shall perform
such functions as the Director may
from time to time prescribe and shall
act as Director during the absence or
disability of the Director or in the
event of a vacancy in the Office of
the Director.

5 U.S.C. Appendix 1 Reorg. Plan 3
1978

Federal Emergency Management
Agency

5 U.S.C. Appendix 2 § 14

National Infrastructure Advisory
Council

100

The Deputy Director shall perform
such functions as the Director may
from time to time prescribe and shall
act as Director during the absence or
disability of the Director or in the
event of a vacancy in the Office of
the Director.
The President shall designate from
among the members of the NIAC a
Chair and a Vice Chair, who shall
perform the functions of the Chair if
the Chair is absent or disabled, or in
the instance of a vacancy in the
Chair.

Appendix B
Snapshot Database
Using the 2016 Plum Book, policy lab students listed all Senate-confirmed positions in the
fifteen cabinet departments, EPA, and OMB. From there, I eliminated some positions to make the data
collection task manageable: for instance, I removed Service Secretaries and other PAS slots in the
Services from the Defense Department; U.S. Marshal and Attorney positions and Commissioners of
the Parole Commission and the Foreign Claims Settlement Commission from the Justice Department;
U.S. Ambassador and Representative positions and Members of the U.S. Advisory Commission on
Public Diplomacy from the State Department; Members of the Surface Transportation Board from the
Transportation Department; Members of the Internal Revenue Service Oversight Board from the
Treasury Department; and a number of other positions. I also removed positions mistakenly listed as
PAS slots in the 2016 Plum Book where Congress in 2012 had eliminated the Senate’s role.206
Where appropriate, I updated remaining position titles to reflect current agency organization
(for instance, the Defense Department and the EPA had renamed some positions since 2016; the
Department of Agriculture lost one of its PAS slots).
I list below which positions remained for each agency. For each position, we determined to the
best of our ability whether it was filled by a confirmed official, an acting leader, or no one on April 15,
2019. That proved surprisingly difficult for a number of positions, particularly at agencies that disclose
only confirmed officials on their web sites. We used the nominations database at congress.gov,
Vacancies Act reports to the GAO, news searches, and other materials. For a number of positions, we
defaulted to vacant, when we could find no evidence of a confirmed or acting official.

Department of Agriculture:
Secretary
Deputy Secretary
Assistant Secretary for Administration
Assistant Secretary for Civil Rights
Assistant Secretary for Congressional Relations
Chief Financial Officer
General Counsel
Under Secretary for Farm and Foreign Agricultural Services
Under Secretary for Food Nutrition and Consumer Services
Under Secretary for Food Safety
Under Secretary for Marketing and Regulatory Programs
Under Secretary for Natural Resources and Environment
Under Secretary for Research, Education, and Economics

206 See Presidential Appointment Efficiency and Streamlining Act of 2011, Pub. L. No. 112-166, 126 Stat. 1283 (2012).

101

Department of Commerce:
Secretary
Deputy Secretary
Assistant Secretary for Communications and Information
Assistant Secretary for Economic Development
Assistant Secretary for Enforcement and Compliance
Assistant Secretary for Environmental Observation and Prediction
Assistant Secretary for Export Administration
Assistant Secretary for Export Enforcement
Assistant Secretary for Global Markets and Director General of the United States and Foreign
Commercial Service
Assistant Secretary for Industry and Analysis
Assistant Secretary for Legislative and Intergovernmental Affairs
Assistant Secretary for Oceans and Atmosphere
Chief Financial Officer and Assistant Secretary for Administration
Director of the Census
General Counsel
Inspector General
Under Secretary for Economic Affairs
Under Secretary for Industry and Security
Under Secretary for Intellectual Property and Director of the United States Patent and Trademark
Office
Under Secretary for International Trade
Under Secretary for Oceans and Atmosphere and Administrator of the National Oceanic and
Atmospheric Administration
Under Secretary for Standards and Technology
Department of Defense:
Secretary
Deputy Secretary
Assistant Secretary for Acquisition
Assistant Secretary for Health Affairs
Assistant Secretary for Homeland Defense and Global Security
Assistant Secretary for Indo-Pacific Security Affairs
Assistant Secretary for International Security Affairs
Assistant Secretary for Legislative Affairs
Assistant Secretary for Manpower and Reserve Affairs
Assistant Secretary for Nuclear & Chemical & Biological Defense Programs
Assistant Secretary for Readiness
Assistant Secretary for Special Operations and Low Intensity Conflict
Assistant Secretary for Strategy, Plans, and Capabilities
Assistant Secretary for Sustainment
Chief Information Officer
102

Chief Management Officer
Director of Cost Assessment and Program Evaluation
Director of Operational Test and Evaluation
General Counsel
Inspector General
Inspector General of the National Security Agency
Principal Deputy Under Secretary and Comptroller
Principal Deputy Under Secretary for Intelligence
Principal Deputy Under Secretary for Personnel and Readiness
Principal Deputy Under Secretary for Policy
Under Secretary and Comptroller/Chief Financial Officer
Under Secretary for Acquisition and Sustainment
Under Secretary for Intelligence
Under Secretary for Personnel and Readiness
Under Secretary for Policy
Under Secretary for Research and Engineering
Department of Education:
Secretary
Deputy Secretary
Assistant Secretary for Career, Technical, and Adult Education
Assistant Secretary for Civil Rights
Assistant Secretary for Elementary and Secondary Education
Assistant Secretary for Legislation and Congressional Affairs
Assistant Secretary for Office of Communications and Outreach
Assistant Secretary for Planning, Evaluation, and Policy Development
Assistant Secretary for Postsecondary Education
Assistant Secretary for Special Education and Rehabilitative Services
Chief Financial Officer
Commissioner of the Rehabilitation Services Administration
Director of the Institute of Education Sciences
General Counsel
Inspector General
Under Secretary
Department of Energy:
Secretary
Deputy Secretary
Administrator of the Energy Information Administration
Assistant Secretary for Congressional and Intergovernmental Affairs
Assistant Secretary for Electricity Delivery and Energy Reliability
Assistant Secretary for Energy Efficiency and Renewable Energy
Assistant Secretary for Environmental Management
Assistant Secretary for Fossil Energy
Assistant Secretary for International Affairs
Assistant Secretary for Nuclear Energy
103

Chief Financial Officer
Deputy Administrator for Defense Nuclear Nonproliferation
Deputy Administrator for Defense Programs, National Nuclear Security Administration
Director of the Advanced Research Project Agency (Energy)
Director of the Office of Minority Economic Impact
Director of the Office of Science
General Counsel
Inspector General
Principal Deputy Administrator for National Nuclear Security
Under Secretary for Management and Performance
Under Secretary for Nuclear Security and Administrator for Nuclear Security
Under Secretary for Science (and Energy)
Department of Health and Human Services:
Secretary
Deputy Secretary
Administrator of the Centers for Medicare and Medicaid Services
Assistant Secretary and Administrator of the Substance Abuse and Mental Health Service
Assistant Secretary for Aging and Administrator of the Administration for Community Living
Assistant Secretary for Children and Families
Assistant Secretary for Financial Resources
Assistant Secretary for Health
Assistant Secretary for Legislation
Assistant Secretary for Planning and Evaluation
Assistant Secretary for Preparedness and Response
Commissioner of the Administration for Children, Youth and Families
Commissioner of the Administration for Native Americans
Commissioner of Food and Drugs
Director of the Indian Health Service
Director of the National Institutes of Health
General Counsel
Inspector General
Surgeon General
Department of Homeland Security:
Secretary
Deputy Secretary
Administrator of the Federal Emergency Management Agency
Assistant Secretary for Immigration and Customs Enforcement
Assistant Secretary for Transportation Security Administration
Chief Financial Officer
Commissioner of United States Customs and Border Protection
Deputy Administrator of the Federal Emergency Management Agency
Deputy Administrator for Resilience at the Federal Emergency Management Agency
Director of the Cybersecurity and Infrastructure Security Agency
Director of United States Citizenship and Immigration Services
104

General Counsel
Inspector General
Under Secretary for Intelligence and Analysis
Under Secretary for Management
Under Secretary for Science and Technology
Under Secretary for Strategy, Policy, and Plans
Department of Housing and Urban Development:
Secretary
Deputy Secretary
Assistant Secretary for Administration and Chief Human Capital Officer
Assistant Secretary for Community Planning and Development
Assistant Secretary for Congressional and Intergovernmental Relations
Assistant Secretary for Fair Housing and Equal Opportunity
Assistant Secretary for Housing, Federal Housing Commissioner
Assistant Secretary for Policy Development and Research
Assistant Secretary for Public and Indian Housing
Chief Financial Officer
General Counsel
Inspector General
President of the Government National Mortgage Association
Department of the Interior:
Secretary
Deputy Secretary
Assistant Secretary for Fish and Wildlife and Parks
Assistant Secretary for Indian Affairs
Assistant Secretary for Insular Areas
Assistant Secretary for Land and Minerals Management
Assistant Secretary for Policy Management and Budget
Assistant Secretary for Water and Science
Chairman of the National Indian Gaming Commission
Commissioner of the Bureau of Reclamation
Director of the Bureau of Land Management
Director of the Geological Survey
Director of the National Park Service
Director of the Office of Surface Mining Reclamation and Enforcement
Director of the U.S. Fish and Wildlife Service
Inspector General
Solicitor
Special Trustee for American Indians
Department of Justice:
Attorney General
Deputy Attorney General
Administrator of the Drug Enforcement Administration
105

Assistant Attorney General for Antitrust
Assistant Attorney General for Civil
Assistant Attorney General for Civil Rights
Assistant Attorney General for Criminal
Assistant Attorney General for Environment & Natural Resources
Assistant Attorney General for Legislative Affairs
Assistant Attorney General for National Security Division
Assistant Attorney General for the Office of Legal Counsel
Assistant Attorney General for the Office of Legal Policy
Assistant Attorney General for the Office of Justice Programs
Assistant Attorney General for Tax
Associate Attorney General
Deputy Administrator of the Drug Enforcement Administration
Director of the Bureau of Alcohol, Tobacco, Firearms, and Explosives
Director of the Community Relations Service
Director of the Federal Bureau of Investigation
Director of the Office of Violence Against Women
Director of the U.S. Marshal’s Service
Inspector General
Solicitor General
Special Counsel for Immigration-Related Unfair Employment Practices
Department of Labor:
Secretary
Deputy Secretary
Assistant Secretary for Congressional and Intergovernmental Affairs
Assistant Secretary for Disability Employment Policy
Assistant Secretary for Employee Benefits Security
Assistant Secretary for Employment and Training
Assistant Secretary for Mine Safety and Health
Assistant Secretary for Occupational Safety and Health
Assistant Secretary for Policy
Assistant Secretary for Veterans Employment and Training
Chief Financial Officer
Commissioner of Labor Statistics
Inspector General
Solicitor of Labor
Wage and Hour Administrator
Department of State:
Secretary
Deputy Secretary
Deputy Secretary for Management and Resources
Assistant Secretary for African Affairs
Assistant Secretary for Conflict and Stabilization Operations and Coordinator for Reconstruction and
Stabilization
106

Assistant Secretary for Consular Affairs
Assistant Secretary for Democracy, Human Rights, and Labor
Assistant Secretary for Diplomatic Security
Assistant Secretary for East Asian and Pacific Affairs
Assistant Secretary for Economic and Business Affairs
Assistant Secretary for Educational and Cultural Affairs
Assistant Secretary for Energy Resources
Assistant Secretary for European and Eurasian Affairs
Assistant Secretary for Intelligence and Research
Assistant Secretary for International Narcotics and Law Enforcement Affairs
Assistant Secretary for International Organizational Affairs
Assistant Secretary for International Security and Non-Proliferation
Assistant Secretary for Legislative Affairs
Assistant Secretary for Near Eastern Affairs
Assistant Secretary for Oceans and International Environment and Scientific Affairs
Assistant Secretary for Political-Military Affairs
Assistant Secretary for Population, Refugees, and Migration
Assistant Secretary for South Asian Affairs
Assistant Secretary for Verification and Compliance
Assistant Secretary for Western Hemisphere Affairs
Chief Financial Officer
Director General of the Foreign Service and Director of Human Resources
Inspector General
Legal Adviser
Under Secretary for Arms Control and International Security
Under Secretary for Civilian Security, Democracy, and Human Rights
Under Secretary for Economic Growth, Energy, and the Environment
Under Secretary for Management
Under Secretary for Political Affairs
Under Secretary for Public Diplomacy
Department of Transportation:
Secretary
Deputy Secretary
Administrator of the Federal Aviation Administration
Administrator of the Federal Highway Administration
Administrator of the Federal Motor Carrier Safety Administration
Administrator of the Federal Railroad Administration
Administrator of the Federal Transit Administration
Administrator of the Maritime Administration
Administrator of the National Highway Traffic Safety Administration
Administrator of the Pipeline and Hazardous Materials Safety AdministrationGeneral Counsel
Chief Financial Officer and Assistant Secretary for Budget and Programs
Assistant Secretary for Aviation and International Affairs
Assistant Secretary for Governmental Affairs
107

Assistant Secretary for Research and Technology
Assistant Secretary for Transportation Policy
Inspector General
Under Secretary for Policy
Department of the Treasury:
Secretary
Deputy Secretary
Assistant Secretary for Economic Policy
Assistant Secretary for Financial Institutions
Assistant Secretary for Financial Markets
Assistant Secretary for Financial Stability
Assistant Secretary for Intelligence and Analysis
Assistant Secretary for International Markets and Development
Assistant Secretary (Deputy Under Secretary) for Legislative Affairs
Assistant Secretary for Tax Policy
Assistant Secretary for Terrorist Financing
Chief Counsel of the Internal Revenue Service
Chief Financial Officer
Commissioner of Internal Revenue
Comptroller of the Currency
Deputy Under Secretary/Designated Assistant Secretary for International Finance
Director of the Mint
Director of the Office of Financial Research
General Counsel
Inspector General
Inspector General for Tax Administration
Member of the Financial Stability Oversight Council
Under Secretary for Domestic Finance
Under Secretary for International Affairs
Under Secretary for Terrorism and Financial Intelligence
Department of Veterans Affairs:
Secretary
Deputy Secretary
Assistant Secretary for Congressional and Legislative Affairs
Assistant Secretary for Enterprise Integration
Assistant Secretary for Information and Technology
Assistant Secretary for Management and Chief Financial Officer
Assistant Secretary for the Office of Accountability and Whistleblower Protection
Chairman of the Board of Veterans’ Appeals
General Counsel
Inspector General
Under Secretary for Benefits
Under Secretary for Health
Under Secretary for Memorial Affairs
108

Environmental Protection Agency:
Administrator
Deputy Administrator
Assistant Administrator for Air and Radiation
Assistant Administrator for Chemical Safety and Pollution Prevention
Assistant Administrator for Enforcement and Compliance Assurance
Assistant Administrator for International and Tribal Affairs
Assistant Administrator for Land and Emergency Management
Assistant Administrator for Mission Support
Assistant Administrator for Research and Development
Assistant Administrator for Water
Chief Financial Officer
General Counsel
Inspector General
Office of Management and Budget:
Director
Deputy Director
Deputy Director for Management
Administrator of the Office of Federal Procurement Policy
Administrator of the Office of Information and Regulatory Affairs
Controller of the Office of Federal Financial Management
Intellectual Property Enforcement Coordinator

109

Appendix C
Cabinet Secretary Database
Using data I had previously obtained from the OPM for other research, I had start and end
dates of confirmed and recess appointees who served between 1981 and 2009. Almost all cabinet
departments provide information on confirmed officials in the highest job (Secretary or Attorney
General). Combining the OPM and agency-provided information with extensive searches of public
material (including congressional documents, litigation materials, and news sources), I determined the
start and end dates of all confirmed and recess appointees, within a few days. If someone served across
two Administrations, she has two observations in the database, one for service in each Administration.
Using those extensive searches and the gaps in service, I was able to determine start and end
dates of interim leaders in these very top jobs, again within a few days. For the 145 interim periods, I
was able to locate information on the specific official serving in all but sixteen of them. As with
confirmed service, if the interim period spanned two presidential Administrations (e.g., January 19 to
January 23), I broke it into two observations, one in each Administration. All sixteen missing periods
are in the final few days of an Administration or the first days of a new Administration. All but one of
these stints are between one and three days, and the final one is under ten days. I excluded interim
periods of under a day (i.e., where the departing Secretary left as of midnight, and the incoming
Secretary started at noon on January 20).
The Secretary of Commerce is the only position in the database to lack a confirmed, recess, or
acting Secretary at any point—specifically, during President Obama’s Administration when the
Vacancies Act’s time limits ran out before the White House formally submitted Penny Pritzker’s
nomination.
Two of the current fifteen cabinet departments came into existence after 1981—the
Department of Veterans Affairs started in 1989 (after being elevated from a stand-alone agency) and
the Department of Homeland Security commenced operations in 2003. The database includes officials
for those agencies from 1989 and 2003, respectively.

110

Appendix D
EPA Database
I started with the EPA’s publicly provided data on former Administrators, Deputy
Administrators, and General Counsels.207
I confirmed the EPA’s data with other sources and made some corrections (for instance, when
a start date preceded the official’s confirmation date). The agency incorrectly lists Andrew Wheeler’s
end date as confirmed Deputy Administrator as July 7, 2018 and Henry Darwin’s start date as acting
Deputy Administrator as July 9, 2018. Technically, Wheeler remained Deputy Administrator until he
was confirmed as the agency’s Administrator on February 28, 2019. Darwin officially became the acting
Deputy Administrator on March 1. As with the Cabinet Secretary data, I treated service—in any
capacity—across two Administrations separately.
Four additional items to note: First, there is a two-day period unaccounted for in the EPA list
for Administrators—from January 20 to January 22, 1993. I presume there was an acting official
between the departure of William Reilly on January 20 and the start of Carol Browner’s service on
January 22. I ignore this gap in the analysis. Second, I assume there was a sixth empty period in the
Deputy Administrator role, from January 20, 1981 to May 19, 1981. The EPA lists nothing for that
period; I exclude it from the analysis. Third, there is also a gap between April 3 and April 12, 2018 in
the agency data for the Deputy Administrator. Because Mike Flynn could continue serving under the
Vacancies Act until Wheeler was confirmed on April 12, I did not treat the short period as empty. I did
not, however, add the time to the tenure of the acting Deputy Administrators in Table 7. Fourth, there
is one gap in the EPA data for the General Counsel—between the departure of Jonathan Cannon on
July 4, 1998 and the start of Gary Guzy on November 17, 1998. Both Cannon and Guzy were acting
officials. I assume this period was entirely vacant after the enactment of the 1998 Vacancies Act and
count it as empty in the analysis.
I also determined, through nomination records and other public information (including news
stories), the background of the acting leaders—specifically, whether they had been confirmed to
another position, held a non-confirmed political position, or were drawn from the agency’s career
ranks.

207 For Administrators: https://www.epa.gov/history/chronology-epa-administrators. For Deputy Administrators:

https://www.epa.gov/history/chronology-epa-deputy-administrators. For General Counsels:
https://www.epa.gov/history/current-and-former-epa-general-counsels.

111

Appendix E
Historical Officer Database
The Biographical Directory of the United States Congress 1774-2005 lists longer-serving
interim cabinet officials in its list of executive officers from the start of President George Washington’s
Administration through President George W. Bush’s first term.208 Here is a typical entry (from
President John Tyler for the Secretary of State position):
SECRETARY OF STATE—DANIEL WEBSTER, of Massachusetts, continued
from preceding administration. HUGH S. LEGARE, of South Carolina (Attorney
General), ad interim, May 9, 1843. WILLIAM S. DERRICK (chief clerk), ad interim,
June 21, 1843. ABEL P. UPSHUR, of Virginia (Secretary of the Navy), ad interim,
June 24, 1843. ABEL P. UPSHUR, of Virginia, July 24, 1843. (Killed by a gun
explosion on the U.S.S. Princeton February 28, 1844.) JOHN NELSON, of
Maryland (Attorney General), ad interim, February 29, 1844. JOHN C. CALHOUN,
of South Carolina, March 6, 1844; entered upon duties April 1, 1844.209
Natalie Peelish took this information and entered into a spreadsheet all of these individuals, with start
and end dates, whether they had served in the previous Administration (and therefore were
“continued”), whether they served in an interim or acting capacity, and if they did serve in an interim
capacity, what other position they held (if it was listed). As with the modern databases, any service
across two Administrations counts as two observations. In addition, as with the modern databases, a
person who served in different capacities (interim, then confirmed) also received two observations.
Not all the agencies existed for the entire period, 1789-2005. The Departments of Treasury and
War, as well as the Attorney General and the Postmaster General, started in September 1789. The
Postmaster General dropped out of the Cabinet in 1971. The Department of Navy started in June 1798
and dropped out of the Cabinet in 1947. The Departments of Interior, Agriculture, Commerce and
Labor, Housing and Urban Development, and Homeland Security began in March 1849, February
1889, February 1903, January 1966, and January 2003, respectively.
I combined data for the Department of Health, Education, and Welfare (which began in April
1953) with its successor agency, the Department of Health and Human Services. But I did not combine
data for the Department of Commerce and Labor (which ended in March 1913) with either the
Department of Commerce or the Department of Labor (both began in March 1913). I also kept the
Departments of War (which ended in September 1947) and Defense (which began at that time)
separate.

208 BIOGRAPHICAL DIRECTORY OF THE UNITED STATES CONGRESS 1774-2005, H.R. DOC. NO. 108-222, at 3-29 (2005).
209 Id. at 5.

112

Appendix F
Survey of Agency Officials
In June 2019, I emailed a link to a Qualtrics survey on acting officials and delegated authority to
51 agencies, some of which sit inside other agencies. Most of the emails were addressed to the agency’s
official representative to ACUS; the remainder were addressed to the General Counsel or Deputy
General Counsel of major agencies that did not have a current ACUS representative. Of the 51
agencies, 27 were cabinet departments or executive agencies (some free standing, some within cabinet
departments) and 24 were independent regulatory commissions or boards, or other entities. I followed
up with those agencies that did not complete the survey on multiple occasions, encouraging
submission. Several agencies informed me that they could not complete it due to the sensitivity of the
requested material, even though respondents were promised that answers would not be tied to their
particular agencies. In the end, ten cabinet departments or executive agencies and twelve independent
agencies or other entities filled out the survey. Many of the dozen independent agencies or other
entities who responded operate under a quorum requirement for taking particular actions, but not all.
Stanford University’s Research Compliance Office informed me that I did not need to seek
human subjects approval for the survey from the University’s Institutional Review Board “[s]ince your
work is about the agencies, not the individuals, and because it’s primarily a project to provide
recommendations to the agencies and not to develop generalizable knowledge ….”
The survey instrument is attached at the end of this report.

113

Appendix G
Interviews with Agency Officials
In the survey described in Appendix F, I asked respondents if they might be willing to speak
with me by telephone. I then reached out to most of the willing respondents and asked to schedule an
interview. I also contacted agency officials recommended to me as experts on acting officials or
delegations of authority for interviews. I conducted fourteen interviews, each of which ranged from 20
to 60 minutes, in July and August 2019. The interviewees came from a range of agencies: seven were
officials in cabinet departments or executive agencies with multiple positions covered by the Vacancies
Act; four worked at agencies with at least one position covered by the Act; and three served in agencies
with no positions covered by the Act. I promised that I would not identify the interviewees or their
agencies.
These interviews focused on the use of acting officials (if any), compliance with the Vacancies
Act (if relevant), and delegations of authority. I asked all interviewees about best practices from their
agencies.
Stanford University’s Research Compliance Office informed me that I did not need to seek
human subjects approval for these interviews from the University’s Institutional Review Board “[s]ince
your work is about the agencies, not the individuals, and because it’s primarily a project to provide
recommendations to the agencies and not to develop generalizable knowledge ….”

114

Appendix H
Interviews with Former Acting Officials
In May and June 2019, I conducted nineteen interviews with former acting officials in Senateconfirmed positions, each for 30-60 minutes to learn more about their experiences. The former acting
officials covered the past five completed Administrations, from President Reagan to President Obama
and were mostly drawn from elected Fellows of the National Academy of Public Administration.
Although some indicated that they were happy to speak on the record, I promised all of the former
leaders that I would not identify them or their agencies.
These interviews were unstructured so as not to fall under the Paperwork Reduction Act. I
aimed to learn about the attractions and frustrations of their acting service.
Stanford University’s Research Compliance Office informed me that I did not need to seek
human subjects approval for these interviews from the University’s Institutional Review Board “[s]ince
your work is about the agencies, not the individuals, and because it’s primarily a project to provide
recommendations to the agencies and not to develop generalizable knowledge ….”

115

Appendix I
Agency Reports to GAO and GAO Violations Data
The GAO posts agency reports under the Vacancies Act on its website:
https://www.gao.gov/legal/other-legal-work/federal-vacancies-reform-act.
For each of the previous Administrations covered by the Vacancies Act, the GAO provides
three spreadsheets—one listing all the vacancies (with agency and position information), one noting any
acting officials identified (along with any start and end dates provided), and one of any nominations
that followed the vacancy (along with information about the outcome of those nominations). Each
vacancy, which is tied to an agency and a specific position, is given an identifier, which can be used to
connect any provided information on acting officials and nominations.
I am immensely grateful to Shay Elbaum, a reference librarian at Stanford Law School, who
scraped the information from the GAO’s web site for this Administration and placed it into
spreadsheet form to match what the agency has provided for previous Administrations.
Agency reports on vacancies do not match how I counted vacancies perfectly. Most notably, I
count a vacancy twice in my tallies if it spanned two Administrations, one for each Administration. In
counting agency reports, I would count one report for such a vacancy twice (to match my counting). In
calculating delays in agency reporting, however, I included the delay only once for such vacancies.
The GAO also makes available at the same link above its assessments of any violations under
the Vacancies Act. As of the end of August 2019, there were 25 posted letters, which were analyzed for
this report.

116

ACUS Survey PAS Vacancies!
Survey

Actions

Distributions

Data & Analysis

Projects

Reports

ACUS Survey PAS Vacancies

Acting Agency Officials and Delegations of Authority

"Published

%

Administrative Conference of the United States | Stanford Law School

!

Block Options

#
$

2019 Survey on Acting Agency Officials and Delegations of Authority

1 of 12

Contacts

Library

Help

#
$

Introduction

%

Welcome to the 2019 Survey on Acting Agency Officials and Delegations of Authority. This survey is
part of a project for the Administrative Conference of the United States (ACUS), which is exploring
agency practices when there are vacancies in Senate-confirmed positions. This project seeks to gather
information on the wide set of procedures federal agencies use when faced with vacancies in Senateconfirmed positions and to share best practices. The project is descriptive in nature—it will not
explore legal questions about who is permitted to serve as an acting official or what authority can be
properly delegated. For more information about the project, please visit the ACUS website here:
https://www.acus.gov/research-projects/acting-agency-officials-and-delegations-authority.
Purpose of the Survey: This survey aims to learn about agency practices involving acting officials
(if any) and delegated authority. We are seeking information from both agencies covered by the Federal
Vacancies Reform Act of 1998 and those excluded from the Act. Your input will help foster a better
understanding of the range of agency practices in this area. It will also help inform generalized
recommendations about how agencies can best address vacancies in Senate-confirmed agency
positions (outside of the traditional political appointments process).
Study Procedures: This survey should take 15 to 30 minutes to complete. The ideal respondent is
an agency official with firsthand knowledge of the agency’s use of acting officials (if any) and delegated
authority in the face of staffing vacancies in Senate-confirmed agency positions. A senior attorney in
the Office of General Counsel or a senior manager in the Office of Human Resources may be best
suited to respond. You can share the survey link with multiple people; the link is not unique. All
answers are voluntary. We would be very grateful if you could complete the survey by July 3.
Confidentiality of Responses: In the project report for ACUS, survey responses will not be
connected to particular agencies unless you give explicit permission at the end of this survey. Rather,
the project report will use survey responses to provide aggregated information about agency practices.
For example, the report will summarize recommended best practices (but not which agency they come
from).
Whom to Contact with Questions:
Anne Joseph O’Connell (J.D./Ph.D.)
Public Member
Administrative Conference of the United States
Adelbert H. Sweet Professor of Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305
(650) 736-8721
(415) 710-8475 (mobile)
amjoc@law.stanford.edu
Bobby Ochoa (J.D.)
Attorney Advisor
Administrative Conference of the United States
1120 20th St NW, Suite 706 South
Washington, DC 20036
(202) 480-2098
bochoa@acus.gov

Please click on the arrow in the lower right to begin.

Basic Information

#
$
%

2 of 12

Basic Information

!

Block Options

#
$

What is the name of your agency?

%

#
$

'

What is your position at the agency (including the office in which you work)?

%

'

Federal Vacancies Reform Act of 1998

#
$

!

Block Options

Federal Vacancies Reform Act of 1998

%

#
$
%

#
$
%

This survey covers topics including and beyond the 1998 Federal Vacancies Reform Act (FVRA). If
you know that your agency is not covered by the FVRA, please answer below that you are familiar with
the Act and then on the following question that your agency is not covered.

Are you familiar with the 1998 Federal Vacancies Reform Act and how the FVRA applies (if at all) to
your agency? (Please check yes if you know that the Act does not apply to your agency.)
Yes
No

(
#
$
%

3 of 12

Display This Question:
If Are you familiar with the 1998 Federal Vacancies Reform Act and how the FVRA
applies (if at all)... Yes Is Selected

Does the FVRA apply to any Senate-confirmed positions in your agency?
Yes
No

)

(
#
$
%

Display This Question:
If Does the FVRA apply to any Senate-confirmed positions in your agency? Yes Is
Selected

)

Which positions in your agency does the FVRA cover?
All Senate-confirmed positions
Only the executive director
Only the general counsel
Other: (fill in)

'

Don't know

(
$
#
%

Display This Question:
If Does the FVRA apply to any Senate-confirmed positions in your agency? Yes Is
Selected

)

Is any official (or office) tasked with reporting to the GAO about vacancies?
Yes. Who (or which office)?

'

No
Don't know

(
$
#
%

Display This Question:
If Does the FVRA apply to any Senate-confirmed positions in your agency? Yes Is
Selected

)

Is any official (or office) tasked with tracking the FVRA’s time limits?
Yes. Who (or which office)?

'

No
Don't know

(
$
#
%

Display This Question:
If Does the FVRA apply to any Senate-confirmed positions in your agency? Yes Is
Selected

For acting officials under the FVRA, is the “acting” status of the official placed on the agency’s web
site?
Yes, for all Senate-confirmed positions
Yes, for some positions but not for others
No, for all positions
Don't know

4 of 12

)

(
$
#

Display This Question:

)

If Does the FVRA apply to any Senate-confirmed positions in your agency? No Is
Selected

Does your agency operate under a statutory quorum requirement to take particular actions (e.g., three
Senate-confirmed or recess appointed commissioners needed to vote on a regulation)?

%

Yes
No
Don't know

(
$
#

Display This Question:

)

If Are you familiar with the 1998 Federal Vacancies Reform Act and how the FVRA
applies (if at all)... No Is Selected

Who might be familiar with the 1998 Federal Vacancies Reform Act at your agency? If you can, please
provide an email address or telephone number.

%
'

(
$
#

Display This Question:

Can we use your name in contacting that person?

%

Yes
No

Agency-Specific Provisions and Succession Planning

$
#

$
#
%

Agency-Specific Provisions and Succession Planning

Are there any agency-specific statutory provisions that provide for acting officials in the face of
vacancies in Senate-confirmed positions in your agency (even if for just one or two positions)?
Yes
No
Don't know

!

Block Options

%

5 of 12

)

If Are you familiar with the 1998 Federal Vacancies Reform Act and how the FVRA
applies (if at all)... No Is Selected

(
#
$

Display This Question:
If Are there any agency-specific statutory provisions that provide for acting officials in
the face... Yes Is Selected

Which positions do they cover?

%

(
#
$

'

Display This Question:
If Are there any agency-specific statutory provisions that provide for acting officials in
the face... Yes Is Selected

#
$
%

'

Display This Question:
If Are there any agency-specific statutory provisions that provide for acting officials in
the face... Yes Is Selected

Yes, for all covered positions

No, for all positions
Don't know

%

Apart from any agency-specific statutory provisions providing for acting officials that may apply to
your agency, does your agency have a leadership succession plan for any Senate-confirmed positions
(even if for just one position, e.g., Chairman)?
Yes
No
Don't know

6 of 12

)

For acting officials under these agency-specific provisions, is the “acting” status of the official placed
on the agency’s web site?

Yes, for some positions but not for others

#
$

)

If you can, please provide citations or links to the relevant provisions.

%

(

)

(
#
$

Display This Question:

)

If Apart from any agency-specific statutory provisions providing for acting officials that
may apply... Yes Is Selected

Which positions does the plan cover?

%

All Senate-confirmed positions
Only certain top positions
Other: (fill in)

'

Don't know

(
#
$

Display This Question:

)

If Apart from any agency-specific statutory provisions providing for acting officials that
may apply... Yes Is Selected

When was the plan last revised? (If you don't know, please say so.)

'

%

(
#
$

Display This Question:

)

If Apart from any agency-specific statutory provisions providing for acting officials that
may apply... Yes Is Selected

Can the public access the plan?

%

Yes, agency web site
Yes, published in Federal Register
Yes, other (fill in):

'

No
Don't know

General Questions on Acting Officials and Succession Planning

#
$
%

7 of 12

General Questions on Acting Officials and Succession Planning

!

Block Options

#
$

Which of your agency's practices, if any, pertaining to acting officials or succession planning for
Senate-confirmed positions would you recommend to other agencies and why do you think they are
desirable?

%

'
#
$

What help or changes would you like to see on acting officials or succession planning for Senateconfirmed positions from your agency? From outside your agency?

%

'

Delegated Authority

#
$

!

Block Options

Delegated Authority

%

#
$

To repeat, this project aims to study the variation in agency practices and to recommend best practices.
It is not examining the legality of what can be delegated in the face of vacancies in Senate-confirmed
positions.

%

#
$
%

Are you familiar with delegations of authority (i.e., when the agency delegates functions of one
position to someone else)?
Yes
No

8 of 12

(
#
$
%

Display This Question:
If Are you familiar with delegations of authority (i.e., when the agency delegates
functions of one... Yes Is Selected

)

Does your agency use delegated authority in the face of staffing vacancies in Senate-confirmed
positions?
Yes
No
Don't know

(
#
$
%

Display This Question:
If Does your agency use delegated authority in the face of staffing vacancies in Senateconfirmed po... Yes Is Selected

)

Does your agency limit the length of time the delegated authority can operate (i.e., an expiration date
set at the time of delegation, which may be extended through an additional order)?
Yes
No
Other: (fill in)

'

Don't know

(
#
$
%

Display This Question:
If Does your agency use delegated authority in the face of staffing vacancies in Senateconfirmed po... Yes Is Selected

)

Does your agency publish delegations of authority in the Federal Register?
Yes
No
Don't know

(
#
$
%

Display This Question:
If Does your agency use delegated authority in the face of staffing vacancies in Senateconfirmed po... Yes Is Selected

Does your agency provide information about delegated authority on the agency’s web site?
Yes. If possible, please provide a link to the relevant page:
No
Don't know

9 of 12

'

)

(
#
$

Display This Question:

)

If Does your agency use delegated authority in the face of staffing vacancies in Senateconfirmed po... Yes Is Selected

Are there other ways that your agency provides information about delegated authority?

%
'

(
#
$

Display This Question:

)

If Does your agency use delegated authority in the face of staffing vacancies in Senateconfirmed po... No Is Selected

How does your agency operate without delegated authority in the face of vacancies in Senateconfirmed positions?

%

Agency always employs acting officials
Agency is sometimes unable to perform some functions
Other: (fill in)

(
#
$

'

Display This Question:

)

If Are you familiar with delegations of authority (i.e., when the agency delegates
functions of one... No Is Selected

Who might be familiar with delegated authority at your agency? If you can, please provide an email
address or telephone number.

%
'

(
#
$

Display This Question:

Can we use your name in contacting that person?

%

Yes
No

General Questions on Delegation

10 of 12

)

If Who might be familiar with delegated authority at your agency? If you can, please
provide an emai... Text Response Is Not Empty

!

Block Options

#
$

Which of your agency's practices, if any, pertaining to delegated authority in the face of staffing
vacancies in Senate-confirmed positions would you recommend to other agencies and why do you
think they are desirable?

%

'
#
$

What help or changes would you like to see on delegated authority from your agency? From outside
your agency?

%

'

Closing Questions

#
$

!

Block Options

Closing Questions

%

#
$

Is there anything else you would like to share?

%
'
#
$

Who else should we contact, whether or not at your agency, to learn more about acting officials and
delegated authority? If you can, please provide email address(es) or telephone number(s).

%
'

11 of 12

(
#
$
%

#
$

Display This Question:
If Who else should we contact, whether or not at your agency, to learn more about acting
officials a... Text Response Is Not Empty

Can we use your name in contacting any of these people?
Yes
No

Please provide your name and contact information for survey validity.

%

#
$
%

)

'

Would you be willing to talk in more detail, either on or off the record?
Yes
No
Maybe

#
$
%

Are you willing to have your responses tied to your agency in the report? The default is that your
responses will not be connected to your agency.
Yes
No

End of Survey

12 of 12

Survey Termination Options...