# How an Acting Official Is Installed Some executive-branch offices can be filled only by a person the Senate has voted on. This page maps what happens in the meantime — the statute that says who may sit in one of those chairs while it is empty, for how long, and what becomes of the decisions they make there. That statute is the [[Federal Vacancies Reform Act]] of 1998, at 5 U.S.C. §§ 3345–3349d. The Act page covers what it is and what it has been used for; this is the procedure, stage by stage, from the moment a seat empties to the only forum that ever tests whether any of it was lawful. [[How a U.S. Attorney Is Appointed and Removed]] is the same question for one office with its own appointment statute; [[Confirmation Pipeline]] is the route this one exists to go around. ⭐ **The organizing finding is that the Act's remedy is withheld from precisely the offices an acting official could do the most damage in.** Break the rules and the acts of the person sitting in the seat have no force or effect and cannot be ratified — except in five offices, which § 3348(e) names in order to exclude. Two of them are the inspector general and the chief financial officer: the watchdog and the money. Two more are the general counsels of the [[NLRB]] and the [[Federal Labor Relations Authority]], the officials who decide what their agencies will take to court. For those seats the Act keeps its clock and its reporting duty and gives up its only sanction. The second finding is arithmetic. The 210-day limit everyone quotes is the first of three. A nomination, however long it sits in the Senate, extends service for as long as it is pending; when it fails, a fresh 210 days begins; a second nomination does the same. Two nominations that both fail produce a lawful floor of **630 days** of acting service with no confirmation vote at all, plus however many months the two nominations spent pending. A vacancy that opens in the first sixty days of a new presidency does not start counting for ninety days, which makes its first period 300. The third is that the exclusivity provision, not the clock, is where this is actually being fought. § 3347 makes the Act the only way to authorise someone to act in a Senate-confirmed office, and § 3347(b) says a general power to delegate or reassign duties is not an exception to that. On 1 December 2025 a court of appeals applied it: handing one person the entire powers of a Senate-confirmed office by delegation is acting service by another name, and unlawful. The same opinion expressly declined to say whether handing those powers to *several* people would be — see [[United States v. Giraud]]. The fourth is that nobody is required to notice. The agency must report every vacancy, every acting designation and every nomination to the Comptroller General and both chambers, immediately. The Comptroller General must report a finding that someone served too long — but is nowhere required to make the finding. On 17 September 2026 one was made, against an acting inspector general who had used the title thirteen days past the end of lawful service, and the finding was also the end of the matter. Sibling maps: [[Confirmation Pipeline]] is the process this one substitutes for; [[How a U.S. Attorney Is Appointed and Removed]] is the single-office case where a more specific statute and this Act collide; [[How an Agency Reorganizes Itself Without Congress]] is the route that avoids this Act entirely by making a seat's duties assignable; [[Agency Head Removal Protections Crosswalk]] is what the law gives the confirmed occupant that the acting one never has. > [!note] How to read this chart > `──▶` = the main path · `└─▶` = a branch · `■` = a stage · `◆` = an instrument inside a stage · `◇` = a decision point · `⊘` = a route foreclosed by statutory text · `◎` = the hinge, the point where the Act stops and something else decides · `☐` = the statute requires notice to Congress · `✕` = a check that turns out not to be one · `⚑` = a duty with no due date · `★` = used or decided in 2025–26 · `◈` = a count or reading made on this page rather than published anywhere. Section numbers are 5 U.S.C. unless marked otherwise. No officeholder is named inside the fence; each step is identified by the provision or the document that did it, and the links are in the prose, Notes and See also. ``` HOW AN ACTING OFFICIAL IS INSTALLED (as of 26 October 2026) │ ──▶ main path └─▶ branch ■ stage ◆ instrument ◇ decision ⊘ foreclosed by statute │ ◎ the hinge: the Act stops and something else decides ☐ notice owed to Congress │ ✕ a check that is not one ⚑ a duty with no due date ★ used or decided in 2025-26 │ ◈ a count or reading made here, published nowhere Offices here are plain text. │ Section numbers are 5 U.S.C. unless marked otherwise. │ ■ STAGE 0 · IS THIS OFFICE INSIDE THE ACT AT ALL? (asked before anything else) │ │ The Act reaches an office in an Executive agency that requires appointment by the │ President by and with the advice and consent of the Senate. Three provisions take │ an office back out again, and each one is a different kind of exit. │ │ ⊘ § 3349c · OUT OF §§ 3345-3349b ENTIRELY. No acting rules, no clock, no report: │ (1) a member of a multimember board, commission or similar entity, appointed │ with the Senate's consent, that governs an independent establishment or a │ Government corporation │ (2) a Commissioner of the Federal Energy Regulatory Commission │ (3) a member of the Surface Transportation Board │ (4) a judge appointed with the Senate's consent to an Article I court │ │ ⊘ § 3347(a)(1) · A MORE SPECIFIC STATUTE DISPLACES THE ACT, where that statute │ expressly (A) authorises the President, a court, or the head of an Executive │ department to designate someone to act temporarily, or (B) names the person. │ ★ 28 U.S.C. § 546 is the live example, and the one place the two regimes have │ been argued against each other in 2025-26. │ │ ⊘ § 3347(a)(2) · A RECESS APPOINTMENT is not governed by this Act at all. │ Largely closed in practice since the pro-forma-session holding of 2014. │ │ ◎ § 3347(b) · AND THE ONE THING THAT IS NOT AN EXIT. A statute that merely gives │ an agency head general power to delegate statutory duties, or to reassign them │ among agency personnel, is NOT a § 3347(a)(1) exception. One sentence, and it │ is the whole battleground of 2025-26. │ ■ STAGE A · THE TRIGGER (what starts the clock) │ │ ◆ death ◆ resignation ◆ "otherwise unable to perform the functions and │ duties of the office" │ ◆ § 3345(c)(2) · THE EXPIRY OF A TERM is deemed an inability. A term that simply │ ran out starts the same clock as a chair someone walked out of. │ ⊘ § 3346(a) · A vacancy caused by SICKNESS has no time limit at all. │ │ ──▶ The clock attaches to the VACANCY, not to the person filling it. Replacing one │ acting official with another restarts nothing. │ ■ STAGE B · THE THREE DOORS (§ 3345(a)) (only one opens by itself) │ ├─◆ DOOR 1 · THE FIRST ASSISTANT — § 3345(a)(1) │ Performs the duties on an acting basis automatically, with no presidential act. │ ⚑ The Act never defines "first assistant." The agency defines it, in a document │ the agency writes and can rewrite. │ ✕ Only the first assistant IN PLACE WHEN THE VACANCY AROSE takes the seat this │ way. Being moved into the post afterwards is not the same thing. │ ├─◆ DOOR 2 · ANOTHER SENATE-CONFIRMED OFFICER — § 3345(a)(2) │ The President ALONE may direct any person already holding a different office │ filled by appointment with the Senate's consent. No subject-matter limit: a │ confirmed officer of one agency may be directed into a vacancy in another. │ └─◆ DOOR 3 · A SENIOR EMPLOYEE OF THAT SAME AGENCY — § 3345(a)(3) The President ALONE may direct, notwithstanding Door 1, an officer or employee of that agency who meets BOTH tests: ◈ SERVICE · at least 90 days in a position in that agency during the 365 days before the death, resignation or onset of inability ◈ PAY · that position paid at or above the minimum rate for GS-15 ⚑ Neither test asks what the person did. Both ask only where they sat and what the seat paid, which is why a 90-day parking place qualifies as well as a career appointment does. │ ■ STAGE C · THE DISQUALIFIER (§ 3345(b)) │ │ ◇ Has the President submitted THIS PERSON'S nomination for THIS office? │ │ │ ├─ no ──▶ carry on to the clock. │ │ │ └─ yes ──▶ ⊘ the person MAY NOT ACT — unless they served as the office's first │ assistant for at least 90 of the preceding 365 days, or hold the │ first-assistant post itself by Senate confirmation. │ ✕ Withdrawing the nomination does not lift the bar. A withdrawal │ necessarily comes after the submission, and the submission is the │ trigger. The bar runs for the rest of the vacancy. │ ■ STAGE D · THE CLOCK (§ 3346 · § 3349a · § 3348(c)) │ │ ──▶ 210 days, beginning on the date the vacancy occurs. § 3346(a)(1) │ ──▶ Service may continue for as long as a FIRST or SECOND nomination for the office │ is pending in the Senate, however long that is. § 3346(a)(2) │ └─▶ If that nomination is rejected, withdrawn or returned, a NEW 210 days begins │ from that event. § 3346(b)(1), (2) │ ⊘ A third nomination adds nothing. There are three periods and no more. │ ◎ § 3348(c) · If the last day of a 210-day period falls on a day the Senate is not │ in session, it moves to the second day the Senate next sits and receives │ nominations. The only point in the Act where the Senate's calendar matters. │ ┌─ THE CLOCK, AND WHAT IT ADDS UP TO ─────────────────────────────────────────────────────┐ │ │ PERIOD LENGTH ENDS WHEN │ ------------------------------------------- -------------- -------------------------- │ first period, from the date of the vacancy 210 days it runs out │ while a FIRST nomination is pending no limit confirmed, or it fails │ after that first nomination fails 210 days it runs out │ while a SECOND nomination is pending no limit confirmed, or it fails │ after that second nomination fails 210 days it runs out │ a third nomination nothing it adds no time at all │ │ floor, two nominations that both fail 630 days plus both pendencies │ vacancy in the 60 days after a new 300 days the 210 is deemed to │ President is sworn in (section 3349a) begin 90 days after │ inauguration day │ a vacancy caused by sickness no limit never │ └─────────────────────────────────────────────────────────────────────────────────────────┘ │ ■ STAGE E · WHEN THE TIME RUNS OUT (§ 3348(b)) │ │ ──▶ The office is simply VACANT. Nobody is acting in it. │ ──▶ For any office other than the head of the agency, ONLY THE HEAD OF THE AGENCY │ may then perform its functions and duties. Not the deputy, not the person who │ was acting the day before, not a designee of either. │ ⚑ Nothing in the Act requires the seat to be filled, announced or explained, and │ nothing sets a date by which a nomination must be sent. │ ■ STAGE F · THE REMEDY, AND THE FIVE OFFICES IT DOES NOT REACH (§ 3348(d), (e)) │ │ § 3348(d)(1) · An action taken by a person not serving in compliance with the Act, │ in performing a FUNCTION OR DUTY of the vacant office, HAS NO FORCE OR EFFECT. │ § 3348(d)(2) · And it MAY NOT BE RATIFIED. No one can sign it afterwards. │ │ ◎ THE HINGE IS THE DEFINITION. § 3348(a)(2) counts a function or duty only if it │ is established by statute, or by a regulation in effect at some point in the 180 │ days before the vacancy, AND is required to be performed by "the applicable │ officer (and only that officer)." A duty the agency may lawfully assign to │ somebody else is outside the remedy no matter who performed it. │ │ ⊘ § 3348(e) · AND THE SECTION DOES NOT APPLY TO FIVE OFFICES AT ALL: │ (1) the General Counsel of the National Labor Relations Board │ (2) the General Counsel of the Federal Labor Relations Authority │ (3) any Inspector General appointed with the advice and consent of the Senate │ (4) any Chief Financial Officer appointed with the advice and consent of the │ Senate │ (5) an office of an Executive agency — the Executive Office of the President │ included, the Government Accountability Office excepted — where a statute │ expressly prohibits the head of the agency from performing its duties │ │ ✕ In those five, an acting official who served unlawfully leaves behind decisions │ that stand. The clock still applied. The sanction never did. │ ■ STAGE G · WHO IS TOLD (§ 3349) │ │ ☐ The head of the agency must notify the Comptroller General AND EACH HOUSE OF │ CONGRESS, "immediately upon the occurrence," of four things: the vacancy and its │ date · the name of whoever is serving in an acting capacity and the date that │ service began · the name of any nominee and the date of submission · the date any │ nomination was rejected, withdrawn or returned. │ │ ☐ If the Comptroller General DETERMINES that an officer has served beyond the │ 210-day period, the determination goes immediately to six places: the Senate and │ House oversight committees, both Appropriations Committees, the committees of │ jurisdiction, the President, and the Office of Personnel Management. │ │ ✕ ⚑ But nothing requires the Comptroller General to MAKE the determination. The │ input is self-reported by the agency; the output is discretionary. │ ★ 17 SEPTEMBER 2026 · A determination was made, against an acting inspector general │ who had used the title thirteen days past the end of lawful service. The letter │ records that a clerical error is no defence — and that § 3348(e)(3) had already │ removed that office from the voiding provision, so the question of consequence │ did not need to be reached. The letter was the consequence. │ ■ STAGE H · THE ONLY TEST ANY OF THIS EVER GETS │ │ ──▶ A defendant in a criminal case, or a party to an agency action, raises the Act │ as a defence. There is no body that reviews an acting designation before it │ takes effect, and no office inside the executive branch with a reason to ask. │ ✕ So the Act is construed almost entirely in litigation about something else, and │ the remedy runs to whoever happened to be prosecuted or regulated that year. │ ★ 1 DECEMBER 2025 · A court of appeals held that delegating ALL the powers of a │ Senate-confirmed office to one person violates § 3347 exclusivity, because a │ general delegation statute is not an exception to the Act — otherwise the │ delegate could serve as the de facto officer indefinitely. The same opinion │ expressly left open whether delegating the same powers to SEVERAL people would │ be lawful. │ ◈ Which leaves the route around this Act a question of arithmetic rather than │ principle: not whether a Senate-confirmed office can be run without the Senate, │ but across how many people it must be spread before the Act stops noticing. │ ╔═════════════════════════════════════════════════════════════════════════════════════════╗ ║ THE PATTERN ║ ║ ║ ║ Read forwards, the Act is a limit. Three named doors, one disqualifier, a 210-day ║ ║ clock, a reporting duty owed to both chambers, and acts that are void if any of it ║ ║ is broken. ║ ║ ║ ║ Read backwards, from the remedy, the shape is different. The voiding provision does ║ ║ not reach the inspector general. It does not reach the chief financial officer. It ║ ║ does not reach the two general counsels who decide what their agencies will take to ║ ║ court. Those are four of the offices a statute would protect first if the object ║ ║ were to stop an unconfirmed official doing lasting damage, and they are four of the ║ ║ five the section names in order to leave out. ║ ║ ║ ║ What is left of this Act in those seats is a clock, a filing, and a letter. ║ ╚═════════════════════════════════════════════════════════════════════════════════════════╝ ``` ## Notes **Statutes read directly** (Cornell Legal Information Institute, October 2026): 5 U.S.C. § 3345 · § 3346 · § 3347 · § 3348 · § 3349 · § 3349a · § 3349c. Every section number, time period, and list of exclusions on this page comes from that text. The structural reading of the three periods, the three doors and the five excluded offices is set out at greater length in the Congressional Research Service's legal overview of the Act, last updated 29 April 2026. **Where the 630 days comes from.** § 3346(a)(1) gives 210 days from the vacancy. § 3346(b)(1) gives a fresh 210 after a first nomination is rejected, withdrawn or returned. § 3346(b)(2)(B) gives a further 210 after a second nomination fails the same way. The three add to 630, and § 3346(a)(2) adds the full pendency of each of those two nominations on top, with no ceiling. ◈ The 630 is arithmetic performed on this page; the statute states the three periods separately and never sums them. Courts of appeals have also read § 3346(a)(2) to let a nomination submitted *after* the first 210 days have already run support service during its pendency — a "spring-back," which means the expiry of the first period is not necessarily the end of anything. **What "first assistant" means is not in the Act.** The Act uses the term and never defines it. The holding described at Door 1 — that only the person who was first assistant when the vacancy arose assumes the office automatically — comes from the Third Circuit's decision of 1 December 2025 in [[United States v. Giraud]]. Other courts have divided on it. The practical consequence is that the content of Door 1 is set by whatever internal document the agency uses to designate its first assistant, which is the same kind of instrument [[How an Agency Reorganizes Itself Without Congress]] maps at its Stage B. **The nominee bar and the withdrawal question.** § 3345(b)(1) has two limbs that must both be true before the bar bites: the person did not serve as first assistant for at least 90 of the preceding 365 days, *and* the President has submitted their nomination. The Supreme Court applied the provision to an acting general counsel of the [[NLRB]] in [[NLRB v. SW General]] (2017) and found the service unlawful, while expressly leaving open what remedy follows for an office that § 3348(e) excludes — the question this page's Stage F turns on. The further holding that withdrawing the nomination does not lift the bar, because the withdrawal necessarily comes after the submission, is from the December 2025 Third Circuit opinion. **The § 3348 definition is contested, and the split is live.** Whether "required to be performed by the applicable officer (and only that officer)" covers every duty assigned to a single office, or only the narrower class of duties that may not lawfully be delegated at all, has divided district courts; the Third Circuit addressed the phrase in [[Kajmowicz v. Whitaker]], and three judges of the District Court for the District of Columbia have declined to follow the D.C. Circuit's treatment of the question as dictum. The December 2025 opinion held that this line of cases is about § 3348 and does not govern the separate exclusivity question under § 3347 — the two provisions are doing different work, and a delegation can survive one and fail the other. **The 2025–26 delegation fight, in outline.** The Third Circuit's decision concerned the Attorney General's delegation of the full powers of a United States Attorney to one person, and held it violated § 3347 because 28 U.S.C. §§ 509, 510 and 515 are general vesting and delegation statutes, which § 3347(b) excludes from being exceptions. The remedy was prospective disqualification from the prosecutions, not dismissal of the indictments; the court did not decide the validity of the underlying interim appointment. The single-office version of this map, with 28 U.S.C. § 546 and its 120-day interim at the centre, is [[How a U.S. Attorney Is Appointed and Removed]]. The remedies counterweight — why a court may let an invalidly held office's past acts stand — is the [[De Facto Officer Doctrine]]. **The September 2026 determination, with the numbers attributed.** The Comptroller General's decision of 17 September 2026 (GAO B-338097, Office of the General Counsel, addressed to the President) found that use of the Acting Inspector General title in the transmittal of a Commerce inspector general report issued 1 December 2025 violated the Act's time limits, because the period of permissible acting service had ended on 18 November 2025. GAO recorded that the Department had put the end of acting service two days earlier than GAO's own calculation, that a clerical error is immaterial, and that because no one was currently using the title there was no continuing violation. On consequence it wrote that § 3348(d) "does not apply to IGs under § 3348(e)(3)" and that it therefore "need not consider it here." Congressional committees and the Office of Personnel Management were notified, as § 3349(b) requires. **Why the volume matters, and whose numbers these are.** The Partnership for Public Service reported on 22 July 2026, in an analysis by Chris Piper, that **27** Senate-confirmed officials in Cabinet departments had left the second administration — 11.4 percent of them — against **11** at the same point in the first and an average of **4.3** across the Bush, Obama and Biden administrations. Departed officials had served an average of **8** months after waiting just under **5** for confirmation, and for 30 percent of them the wait exceeded the tenure. Nominations were running **578** to date, the fewest since at least Reagan and 14 percent below the Reagan-to-Biden average. The Partnership's analysis does not give a total count of vacant Senate-confirmed positions or of acting officials, and none is asserted here. **What is not asserted.** No count of offices currently run by acting officials, and no claim about any particular designation. Two questions this map raises and does not answer: whether a dispersed delegation to several officials survives § 3347, which the December 2025 opinion expressly left open, and how many of the Senate-confirmed offices now vacant have passed 210 days without a determination ever being sought — a number that would exist only if someone asked for it. The scale of the practice as policy, and the reform proposals that have never advanced, belong with [[Federal Vacancies Reform Act]]. **Open questions.** Whether the Comptroller General has ever made a determination that changed an outcome rather than recording one. Whether any agency has been found to have missed the § 3349(a) immediate-notification duty, which carries no stated penalty. Whether § 3348(b)(2) — only the agency head may perform a vacant subordinate office's duties — has ever been enforced against an agency that simply kept operating. And what a court does when an acting official's entire year of decisions is challenged at once, which is the case the void-and-cannot-be-ratified language describes and no decision has yet had to resolve. ## See also - [[Federal Vacancies Reform Act]] — the statute this page maps, and what it has been used for - [[Confirmation Pipeline]] — the process this route substitutes for - [[How a U.S. Attorney Is Appointed and Removed]] — the single-office case, with its own appointment statute - [[How an Agency Reorganizes Itself Without Congress]] — the route that makes a seat's duties assignable, and so unreachable by § 3348 - [[Agency Head Removal Protections Crosswalk]] — what the law gives the confirmed occupant that the acting one never has - [[Inspector General Oversight Tree]] — the layer § 3348(e)(3) removes from the remedy - [[United States v. Giraud]] — the December 2025 exclusivity holding - [[NLRB v. SW General]] — the Supreme Court on the nominee bar - [[Kajmowicz v. Whitaker]] — the § 3348 "function or duty" question - [[De Facto Officer Doctrine]] — why an invalidly held office's past acts may still stand - [[Advice and Consent]] · [[Recess Appointment]] · [[Delegation of Authority]] - [[Government Accountability Office]] · [[OPM]] · [[NLRB]] · [[Federal Labor Relations Authority]] - [[Executive Branch Org Chart]] · [[Federal Workforce Structure Tree]] · [[Federal Agencies Hub]] · [[Foundations Hub]]