5 U.S.C. § 3349

Reporting of vacancies

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(a) The head of each Executive agency (including the Executive Office of the President, and other than the Government Accountability Office) shall submit to the Comptroller General of the United States and to each House of Congress—(1) notification of a vacancy in an office to which this section and sections 3345, 3346, 3347, 3348, 3349a, 3349b, 3349c, and 3349d apply and the date such vacancy occurred immediately upon the occurrence of the vacancy;(2) the name of any person serving in an acting capacity and the date such service began immediately upon the designation;(3) the name of any person nominated to the Senate to fill the vacancy and the date such nomination is submitted immediately upon the submission of the nomination; and(4) the date of a rejection, withdrawal, or return of any nomination immediately upon such rejection, withdrawal, or return.(b) If the Comptroller General of the United States makes a determination that an officer is serving longer than the 210-day period including the applicable exceptions to such period under section 3346 or section 3349a, the Comptroller General shall report such determination immediately to—(1) the Committee on Governmental Affairs of the Senate;(2) the Committee on Government Reform and Oversight of the House of Representatives;(3) the Committees on Appropriations of the Senate and House of Representatives;(4) the appropriate committees of jurisdiction of the Senate and House of Representatives;(5) the President; and(6) the Office of Personnel Management.(Added Pub. L. 105–277, div. C, title I, § 151(b), Oct. 21, 1998, 112 Stat. 2681–614; amended Pub. L. 108–271, § 8(b), July 7, 2004, 118 Stat. 814.)Editorial NotesPrior Provisions

A prior section 3349, Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 426, provided for restrictions relating to details to fill vacancies, 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 3347 of this title.

Amendments

2004—Subsec. (a). Pub. L. 108–271 substituted “Government Accountability Office” for “General Accounting Office” in introductory provisions.

Statutory Notes and Related SubsidiariesChange of Name

Committee on Governmental Affairs of Senate changed to Committee on Homeland Security and Governmental Affairs of Senate, effective Jan. 4, 2005, by Senate Resolution No. 445, One Hundred Eighth Congress, Oct. 9, 2004.

Committee on Government Reform and Oversight of House of Representatives changed to Committee on Government Reform of House of Representatives by House Resolution No. 5, One Hundred Sixth Congress, Jan. 6, 1999. Committee on Government Reform of House of Representatives changed to Committee on Oversight and Government Reform of House of Representatives by House Resolution No. 6, One Hundred Tenth Congress, Jan. 5, 2007. Committee on Oversight and Government Reform of House of Representatives changed to Committee on Oversight and Reform of House of Representatives by House Resolution No. 6, One Hundred Sixteenth Congress, Jan. 9, 2019. Committee on Oversight and Reform of House of Representatives changed to Committee on Oversight and Accountability of House of Representatives by House Resolution No. 5, One Hundred Eighteenth Congress, Jan. 9, 2023.

Effective 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 12 cases (5 in the last 5 years), 1974–2024 · leading case: Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008).

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Schaghticoke Tribal Nation v. Kempthorne, 587 F. Supp. 2d 389 (D. Conn. 2008). “STN also argues that the Department failed to provide the notice required by the VRA, 5 U.S.C. § 3349 , thereby invalidating Cason’s authority to issue the RFD.”

Action for Boston Cmty. Dev., Inc. v. Shalala, 983 F. Supp. 222 (D. Mass. 1997). “” 5 U.S.C. § 3349 . Plaintiff argues that Olivia Golden cannot validly redelegate authority to Galligan, or ratify his actions, because under the terms of the Vacancies Act, she is not acting with the authority of the Assistant Secretary of the ACF.”

United States v. Lucido, 373 F. Supp. 1142 (E.D. Mich. 1974). “These three sections are the only ones to which § 3348 applies and 5 U.S.C. § 3349 provides that (a) temporary appointment, designation, or assignment of one officer to perform the duties of another under section 3345 or 3346 of this title may not be made otherwise than as…”

Bothwell v. United States Dep't of Just. (W.D. Okla. 2023). · cites it 4× “With respect to the second claim, Bothwell alleges that there have been at least three vacancies in the USAO-WDOK requiring a certificate under 5 U.S.C. § 3349 (requiring notification to the Comptroller General of certain vacancies in an office), and yet EOUSA provided no such…”

Gonzales & Gonzales Bonds & Ins. Agency, Inc. v. Usdhs, 107 F.4th 1064 (9th Cir. 2024). “See 5 U.S.C. § 3349 ; see Bowsher v. Synar, 478 U.”

The Vacancies Act (OLC 1998). · cites it 5× “The first is that a provision of the Vacancies Act, 5 U.S.C. § 3349 , makes that statute the exclusive means o f designating an acting official in a vacant Senate-confirmed position and that Congress affirmed this conclusion when it amended the Vacan cies Act in 1988.”

Asylumworks v. Wolf (D.D.C. 2022). “1 The Government Accountability Office (“GAO”) has also opined that Wolf became Acting Secretary “by reference to an invalid order of succession,” which decision was issued in accordance with GAO’s duties, under 5 U.S.C. § 3349 , to notify Congress about FVRA violations in the…”

Fed. Vacancies Reform Act's Application to a Vacancy for Which Prior Presidents Submitted Multiple Nominations (OLC 2022). “As relevant here, section 3346 sets out the following timing rules: 2 The Vacancies Reform Act directs the Comptroller General, as head of the GAO, to notify Congress, the President, and the Office of Personnel Management upon determin- ing that an acting officer is serving in…”

Batalla Vidal v. Nielsen (E.D.N.Y 2020). “20 Moreover, DHS has not submitted any notice to Congress that Administrator Gaynor is currently serving as Acting Secretary of Homeland Security, which is required under 5 U.S.C. § 3349 (a), because Secretary of Homeland Security is an office to which the FVRA applies.”

State Of New York v. Donald Trump (E.D.N.Y 2020). “20 Moreover, DHS has not submitted any notice to Congress that Administrator Gaynor is currently serving as Acting Secretary of Homeland Security, which is required under 5 U.S.C. § 3349 (a), because Secretary of Homeland Security is an office to which the FVRA applies.”

Mcmartin v. Comm'r of Soc. Sec. (N.D. Iowa 2022). “5 U.S.C. § 3349 (a). The 210- day period expired on November 16, 2017.”

Guidance on Application of Fed. Vacancies Reform Act of 1998 (OLC 1999). · cites it 2× “5 U.S.C. § 3349 (a). Question 51. When must the report of each of these occurrences be provided? Answer.”

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