Applicability of the Vacancies Act

The opinion of GAO was requested as to the applicability of the Vacancies Act to the agencies and the vacant positions which are subject to appointment by the President by and with the advice and consent of the Senate, and as to the effect on actions by these agencies which are taken by persons who are serving in an acting capacity for more than 30 days. The Vacancies Act provides methods for the temporary filling of vacancies created by the death, resignation, sickness, or absence of the head of an Executive department or military department or the head of a bureau thereof whose appointment is not vested in the head of the department or in the President alone. After a vacant position has been temporarily filled under the Vacancies Act the power conferred by the Act is exhausted, and the President does not have the authority to appoint either the same or another officer to temporarily fill the office for an additional period. The 30-day limitation runs only during the period that there is no nomination before the Senate for confirmation and is not for application where vacancies are filled pursuant to authority other than the Vacancies Act. It is not clear how the 30-day limitation of the Vacancies Act would affect the status of actions taken by temporary appointees under the Act who continue to serve in an acting capacity beyond the 30-day time limitation. To the extent that actions taken by such acting officers are within the scope of authority attendant to the regular office or position from which they have been detailed, such actions would appear to be valid. Those actions performed in the capacity as acting officer may possibly be viewed as acts performed by a de facto officer. Officers who serve in an acting capacity beyond the 30-day limitation should refrain from further actions at the end of the 30 days. The Secretary concerned should consider ratification of those actions and decisions which were taken subsequent to the expiration of the 30 days. Once certain functions have been delegated to a particular office, the Secretary may not redelegate those functions elsewhere when the acting official filling such office no longer has authority to serve in the vacant position. Such practice would constitute an improper circumvention of the Vacancies Act.