How Long May an Official Serve?

The Vacancies Act includes several time restrictions on acting service in covered positions when vacancies are not caused by illness.  If no one has been nominated for the position, the acting officer may serve no more than 210 days beginning on the date of the vacancy.   A few exceptions apply to this general rule.

The first exception is when there is a first or second nomination for the position in which case an acting officer, who is not the nominee or is the nominee and meets certain criteria, may serve while the nomination is pending in the Senate.  If the nomination is rejected or returned by the Senate or withdrawn by the President, an acting officer may serve for no longer than 210 days after the rejection, return, or withdrawal.  Further acting service is not allowed after 210 days following the rejection, return, or withdrawal of a second nomination, even if a third nomination is made.

The other exception applies during a President’s first term where the Vacancies Act has a special allowance to fill vacancies.  Positions that are vacant during the 60-day period beginning on Inauguration Day may be filled in an acting capacity for a period up to 300 days.  In other words, any vacancy that exists during the 60-day period beginning on a transitional inauguration day, the 210-day period begins on after a 90-day period beginning with the inauguration day or 90-day period after a vacancy occurs.

Once the time cap has been reached, the PAS position is vacant until a person is nominated by the President and confirmed by the Senate for that position.  The functions or duties vested in the vacant positions by statute or regulation are delegated to the head of the agency.  Other duties outside of statute or regulation can be delegated to other officials within the agency.  Those individuals are referred to as “Senior Official Performing the Duties of” the vacant position.

The law does not account for when the vacant position is the head of an agency and the Vacancies Act time limit has been reached.