Thomas Berry recently flagged the Federal Vacancies Reform Act‘s front-end problem: eligibility so broad that “more than 350 federal officials [can] fill any vacant office, regardless of qualifications.” That’s a sufficient condition to amend the law, and Berry’s suggestion that “all acting officers, including those from the category of Senate-confirmed officials, must be from the same department or agency as the vacant office they temporarily fill” meets the need.
But there’s a bigger back-end problem. The FVRA’s enforcement mechanism stipulates “an action taken by any person” serving in violation of the law’s requirements “shall have no force or effect” (5 USC § 3348(d)(1)), but affords no actionable remedy for parties who could bear a meaningful cost from those actions. Ordinary APA vacatur asks a court to set aside a thing that is, until then, arguably valid. Under the FVRA the thing didn’t exist in the first place.
