U.S. Code » Title 28 » Part PART II— DEPARTMENT OF JUSTICE › Chapter CHAPTER 31— THE ATTORNEY GENERAL

28 U.S.C. § 508

Vacancies

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(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.(Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 612; amended Pub. L. 95–139, § 2, Oct. 19, 1977, 91 Stat. 1171.)

Historical and Revision Notes

Derivation

U.S. Code

Revised Statutes and

Statutes at Large

 

[Uncodified].

R.S. § 347 (last sentence).

 

 

1953 Reorg. Plan No. 4, § 1, eff. June 20, 1953, 67 Stat. 636.

The last sentence of R.S. § 347 is cited as authority inasmuch as the function contained therein was the function transferred to the Deputy Attorney General by 1953 Reorg. Plan No. 4. The word “may” is substituted for “have the power”. The words “During any period of time” are omitted as unnecessary.

Editorial NotesPrior Provisions

A prior section 508, acts June 25, 1948, ch. 646, 62 Stat. 910; Mar. 2, 1955, ch. 9, § 2(a), 69 Stat. 10; Oct. 11, 1962, Pub. L. 87–793, § 1003(a), 76 Stat. 865; Aug. 14, 1964, Pub. L. 88–426, title III, § 306(a)(1), 78 Stat. 428; Oct. 6, 1964, Pub. L. 88–631, § 3(b), 78 Stat. 1008, related to salaries of United States attorneys, assistant United States attorneys, and special attorneys, prior to repeal by Pub. L. 89–554, § 8(a), and reenactment in section 548 of this title by section 4(c) of Pub. L. 89–554.

Amendments

1977—Subsec. (b). Pub. L. 95–139 substituted “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” for “the Assistant Attorneys General and the Solicitor General, in such order of succession as the Attorney General may from time to time prescribe, shall act as Attorney General”.

Notes of Decisions
Cited in 47 cases (3 in the last 5 years), 1966–2022 · leading case: Guedes v. Bureau of Alcohol, Tobacco, Firearms, 920 F.3d 1 (D.C. Cir. 2019).
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Guedes v. Bureau of Alcohol, Tobacco, Firearms, 920 F.3d 1 (D.C. Cir. 2019). · cites it 4× “Also, the Firearms Policy Coalition ("Coalition") and Codrea argued that Acting Attorney General Whitaker lacked the legal authority to promulgate the Rule because his designation as Acting Attorney General violated the Attorney General Act, 28 U.S.C. § 508 , and the…”
Guedes v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 356 F. Supp. 3d 109 (D.C. Cir. 2019). · cites it 5× “And all of the plaintiffs contend that then-Acting Attorney General Matthew Whitaker lacked authority to promulgate the rule under either the Appointments Clause of the Constitution or 28 U.S.C. § 508 (the AG Act), a succession statute specific to the Office of the Attorney…”
In re Grand Jury Investigation, 315 F. Supp. 3d 602 (D.C. Cir. 2018). · cites it 10× “28 U.S.C. § 508 (a) Allows the DAG to Serve as Acting Attorney General Where the Attorney General is Recused.”
United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006). · cites it 6× “Comey also announced that he would serve as Acting Attorney General for the purposes of the investigation, pursuant to 28 U.S.C. § 508 (2000), and that, prior to Ashcroft’s recusal, the two had agreed that a special counsel should be appointed to oversee the investigation.”
In re: Grand Jury Investigation, 916 F.3d 1047 (D.C. Cir. 2019). · cites it 2× “Congress has authorized the Deputy Attorney General to perform "all the duties of th[e] office" in case of a vacancy, 28 U.S.C. § 508 (a), such that the Deputy becomes the "Acting" Attorney General.”
Maryland v. United States, 360 F. Supp. 3d 288 (D. Maryland 2019). · cites it 3× “Whitaker violates the Attorney General Succession Act, 28 U.S.C. § 508 , as well as the Appointments Clause of the United States Constitution, U.”
United States v. Lucido, 373 F. Supp. 1142 (E.D. Mich. 1974). · cites it 9× “Judge De-Mascio pointed to 28 U.S.C. § 508 (a) which provides that “in case of a vacancy of the office of the Attorney General, or of his absence or disability, the Deputy Attorney General may exercise all the duties of that office.”
Canning v. Nat'l Labor Relations Bd., 705 F.3d 490 (D.C. Cir. 2013). “, 28 U.S.C. § 508 (Attorney General); 29 U.”
Garrett Kajmowicz v. Matthew Whitaker, 42 F.4th 138 (3rd Cir. 2022). · cites it 2× “1 28 U.S.C. § 508 (establishing that, “[i]n case of a vacancy in the office of Attorney General,” the Deputy Attorney General may serve as Acting Attorney General and, if he is unavailable to do so, “the Associate Attorney General shall” do so).”
United States v. David Smith, 962 F.3d 755 (4th Cir. 2020). “But for the first time, Smith now suggests that the FVRA may not have been available here because 28 U.S.C. § 508 (AG Act) should be construed as the exclusive succession statute for the office of the Attorney General.”
United States v. Witmer, 835 F. Supp. 208 (M.D. Penn. 1993). · cites it 3× “Title 28 U.S.C. § 508 (a) authorizes the Deputy Attorney General to act in the absence or disability of the Attorney General.”
United States v. Lee, 89 F. Supp. 2d 1017 (E.D. Ark. 2000). · cites it 4× “” 28 U.S.C. § 508 (a) (emphasis added). Likewise, the relevant regulation declares that: “In case of vacancy in the office of the Attorney General, or of his absence or disability, the Deputy Attorney General shall, pursuant to 28 U.”
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