U.S. Code » Title 5 » Part PART III— EMPLOYEES › Subpart Subpart B— Employment and Retention › Chapter CHAPTER 33— EXAMINATION, SELECTION, AND PLACEMENT › Subchapter SUBCHAPTER III— DETAILS, VACANCIES, AND APPOINTMENTS

5 U.S.C. § 3346

Time limitation

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(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office—(1) for no longer than 210 days beginning on the date the vacancy occurs; or(2) subject to subsection (b), once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.(b)(1) If the first nomination for the office is rejected by the Senate, withdrawn, or returned to the President by the Senate, the person may continue to serve as the acting officer for no more than 210 days after the date of such rejection, withdrawal, or return.(2) Notwithstanding paragraph (1), if a second nomination for the office is submitted to the Senate after the rejection, withdrawal, or return of the first nomination, the person serving as the acting officer may continue to serve—(A) until the second nomination is confirmed; or(B) for no more than 210 days after the second nomination is rejected, withdrawn, or returned.(c) If a vacancy occurs during an adjournment of the Congress sine die, the 210-day period under subsection (a) shall begin on the date that the Senate first reconvenes.(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–612.)Editorial NotesPrior Provisions

A prior section 3346, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for details to subordinate offices, prior to repeal by Pub. L. 105–277, div. C, title I, § 151(b), (d)(1), Oct. 21, 1998, 112 Stat. 2681–611, 2681–616, effective 30 days after Oct. 21, 1998. See section 3345 of this title.

Statutory Notes and Related SubsidiariesEffective Date

Section effective 30 days after Oct. 21, 1998, and applicable to any office that becomes vacant after such effective date, with certain exceptions, see section 151(d) of Pub. L. 105–277, set out as a note under section 3345 of this title.

Notes of Decisions
Cited in 109 cases (83 in the last 5 years), 1976–2025 · leading case: Barbara Rush v. Kilolo Kijakazi, 65 F.4th 114 (4th Cir. 2023).
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Barbara Rush v. Kilolo Kijakazi, 65 F.4th 114 (4th Cir. 2023). · cites it 9× “They argue that no one may serve as an acting officer under 5 U.S.C. § 3346 (a)(2), which allows acting service while a nomination is pending in the Senate, unless that nomination occurred during the initial 210-day period of acting service allowed by 5 U.”
Seago v. O'Malley, 91 F.4th 386 (5th Cir. 2024). · cites it 6× “5 U.S.C. § 3346 (a); see also id. §§ 3346(b) (imposing different time limitations when nominations are rejected, withdrawn, or returned), 3346(c) (adjusting time limitations when vacancy occurs during adjournment of Congress sine die).”
Hooks Ex Rel. Nat'l Labor Relations Bd. v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550 (9th Cir. 2016). · cites it 2× “Congress may have decided -that only first assistants—-rather than-just any GS-15 employee—hold the requisite seniority and experience to appropriately serve in both capacities (or, perhaps more saliently, to continue serving in an acting capacity even if the nomination does not…”
Fed. Deposit Ins. v. Hurwitz, 384 F. Supp. 2d 1039 (S.D. Tex. 2005). · cites it 3× “5 U.S.C. § 3346 (a)(1), cl. 2. 218 . U.S.”
SW Gen., Inc. v. Nat'l Labor Relations Bd., 796 F.3d 67 (D.C. Cir. 2015). “§ 153(d) (permitting service for 40 days, tolled while nomination is pending before Senate), with 5 U.S.C. § 3346 (permitting service for 210 days, tolled while first or second nomination is pending before Senate).”
United States v. David Smith, 962 F.3d 755 (4th Cir. 2020). “See 5 U.S.C. § 3346 ; see also NLRB v. SW General, Inc.”
In re Grand Jury Investigation, 315 F. Supp. 3d 602 (D.C. Cir. 2018). “at 4-5, due to the time limits that the FVRA imposes on an acting officer's service, see 5 U.S.C. § 3346 . The Special Counsel argues that "[i]t would make no sense for a limited 'Acting' role to expire after a period of time when recusal continues indefinitely," and that "where…”
Martin v. Albany Bus. Journal, Inc., 780 F. Supp. 927 (N.D.N.Y. 1992). · cites it 2× “Congress made that abundantly clear when it enacted the provisions codified at 5 U.S.C. § 3346 (1988). 12 As the acting administrator, Fra *935 ser is empowered to perform the administrator’s duties.”
Garrett Kajmowicz v. Matthew Whitaker, 42 F.4th 138 (3rd Cir. 2022). “” 5 U.S.C. § 3346 (a)(1). 19 officer could ratify any action performed by an unlawfully serving acting predecessor.”
Muffley Ex Rel. NLRB v. Massey Energy Co., 547 F. Supp. 2d 536 (S.D.W. Va 2008). · cites it 3× “” 5 U.S.C. § 3346 (a). *543 The General Counsel of the National Labor Relations Board is an executive officer who is appointed by the President, by and with the advice and consent of the Senate.”
Action for Boston Cmty. Dev., Inc. v. Shalala, 983 F. Supp. 222 (D. Mass. 1997). · cites it 2× “5 U.S.C. § 3346 . Section 3347 of Title Five allows for the President to appoint the head of another executive department, or another constitutional officér, instead of the first assistant, to fill the vacancy.”
Appleby v. Comm'r of Soc. Sec. (N.D. Iowa 2023). · cites it 21× “The Plain Language of 5 U.S.C. § 3346 and its Legislative History Support the Interpretation That a Springback Provision Enabled Berryhill’s Second Term as Acting Commissioner.”
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