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. § 3348

Vacant office

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(a) In this section—(1) the term “action” includes any agency action as defined under section 551(13); and(2) the term “function or duty” means any function or duty of the applicable office that—(A)(i) is established by statute; and(ii) is required by statute to be performed by the applicable officer (and only that officer); or(B)(i)(I) is established by regulation; and(II) is required by such regulation to be performed by the applicable officer (and only that officer); and(ii) includes a function or duty to which clause (i)(I) and (II) applies, and the applicable regulation is in effect at any time during the 180-day period preceding the date on which the vacancy occurs.(b) Unless an officer or employee is performing the functions and duties in accordance with sections 3345, 3346, and 3347, if an officer of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) whose appointment to office is required to be made by the President, by and with the advice and consent of the Senate, dies, resigns, or is otherwise unable to perform the functions and duties of the office—(1) the office shall remain vacant; and(2) in the case of an office other than the office of the head of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office), only the head of such Executive agency may perform any function or duty of such office.(c) If the last day of any 210-day period under section 3346 is a day on which the Senate is not in session, the second day the Senate is next in session and receiving nominations shall be deemed to be the last day of such period.(d)(1) An action taken by any person who is not acting under section 3345, 3346, or 3347, or as provided by subsection (b), in the performance of any function or duty of a vacant office to which this section and sections 3346, 3347, 3349, 3349a, 3349b, and 3349c apply shall have no force or effect.(2) An action that has no force or effect under paragraph (1) may not be ratified.(e) This section shall not apply to—(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 by the President, by and with the advice and consent of the Senate;(4) any Chief Financial Officer appointed by the President, by and with the advice and consent of the Senate; or(5) an office of an Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) if a statutory provision expressly prohibits the head of the Executive agency from performing the functions and duties of such office.(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–613; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)Editorial NotesPrior Provisions

A prior section 3348, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426; Pub. L. 100–398, § 7(b), Aug. 17, 1988, 102 Stat. 988, provided for time limitations relating to details, 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 3346 of this title.

Amendments

2004—Subsec. (b). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in two places.

Subsec. (e)(5). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office”.

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 86 cases (42 in the last 5 years), 1973–2026 · leading case: Garrett Kajmowicz v. Matthew Whitaker, 42 F.4th 138 (3rd Cir. 2022).
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Garrett Kajmowicz v. Matthew Whitaker, 42 F.4th 138 (3rd Cir. 2022). · cites it 13× “5 U.S.C. § 3348 (d) (emphasis added). It also provides two definitions of a “function or duty,” and the 11 parties agree that Whitaker’s promulgation of the Rule implicates the first: a “function or duty of the applicable office” that “(i) is established by statute; and (ii) is…”
Nat'l Labor Relations Bd. v. SW Gen., Inc., 137 S. Ct. 929 (2017). · cites it 2× “The Court of Appeals “assume[d] that section 3348(e)(1) renders the actions of an improperly serving Acting General Counsel voidable” and rejected the Board’s argument against voiding Solomon’s actions. 796 F. 3d, at 79– 82. The Board did not seek certiorari on this issue, so we…”
Hooks Ex Rel. Nat'l Labor Relations Bd. v. Kitsap Tenant Support Servs., Inc., 816 F.3d 550 (9th Cir. 2016). · cites it 3× “Although the FVRA generally renders void actions taken in violation of its provisions, see 5 U.S.C. § 3348 (d)(1)-(2), it also exempts from that automatic result actions by a select pool of officers, including the General Counsel of the NLRB, see 5 U.”
Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328 (Fed. Cir. 2022). · cites it 4× “§ 3345 (a); see also 5 U.S.C. § 3348 (d)(1)–(2) (“An action taken by any person who is not [appointed pursuant to the FVRA], in the performance of any function or duty of a va- cant office to which [the FVRA applies,] shall have no force or effect” and “may not be ratified.”
NLRB v. Newark Elec., 14 F.4th 152 (2d Cir. 2021). · cites it 3× “We thus read the text of the statute to foreclose the Companies’ argument that the Acting General Counsel’s complaint was void at the inception and not amenable to ratification. The parties do not dispute that, under Southwest General, Solomon’s 2010 appointment as an acting…”
SW Gen., Inc. v. Nat'l Labor Relations Bd., 796 F.3d 67 (D.C. Cir. 2015). · cites it 3× “If the violation had occurred in the typical federal office, we might agree. The FVRA renders any action taken in violation of the statute void ab initio: section 3348(d) declares that “[a]n action taken by any person who is not acting [in compliance with the FVRA] shall have no…”
Barbara Rush v. Kilolo Kijakazi, 65 F.4th 114 (4th Cir. 2023). · cites it 2× “Second, appellants cite 5 U.S.C. § 3348 (b), which states that “[u]nless an officer or employee is performing the functions and duties [of a vacant office] in accordance with sections 3345, 3346, and 3347 .”
Guedes v. Bureau of Alcohol, Tobacco, Firearms, 920 F.3d 1 (D.C. Cir. 2019). “22); see also 5 U.S.C. § 3348 (d)(1)-(2) (only prohibiting the ratification of nondelegable duties); 28 U.”
Stand Up For California! v. DOI, 994 F.3d 616 (D.C. Cir. 2021). · cites it 3× “” 5 U.S.C. § 3348 (a)(2)(A)–(B). 2 If Congress wants to make clear that a 2 Although Appellants have not raised their FVRA claims on appeal, the statute still provides guideposts to which we should adhere in analyzing the challenge to delegated authority.”
Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008). · cites it 3× “5 U.S.C. § 3348 (b). To ease the burdens on the agency head, however, Congress limited the “functions and duties” that must be performed by the agency head to those that are required by statute or regulation to be performed exclusively by the official occupying that position.”
Doolin Sec. Sav. Bank, F.S.B. v. Off. of Thrift Supervision, 139 F.3d 203 (D.C. Cir. 1998). · cites it 2× “5 U.S.C. § 3348 (a)(1). The Bank thinks § 3348’s 120-day period lapsed before, the President named Retsinas.”
United States v. Lucido, 373 F. Supp. 1142 (E.D. Mich. 1974). · cites it 5× “Kleindienst had no authority to authorize the wiretap application because of the provisions of 5 U.S.C. § 3348 ). VI The final contention of Lucido is that (t)he affidavits supporting the application for authorization and the application for extension do not establish probable…”
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