By Hun Lee and Stephen Yale-Loehr*




The Trump administration saw many acting officers fill vacancies in important offices like the Attorney General, Secretary of the Department of Homeland Security (“DHS”), and the Director of U.S. Citizenship and Immigration Services (“USCIS”). Litigation and research exist on whether formal rules issued by acting DHS officials can be challenged based on an “unlawful appointment” argument. However, less litigation and research exist on whether informal agency guidance such as Policy Memoranda or Policy Alerts (“policy guidance”) issued by acting DHS officers can also be struck down based on an unlawful appointment argument. 


This article first summarizes the various grounds on which an acting officer’s actions can be challenged, including alleged violations of the Constitution, the Immigration and Nationality Act (“INA”), the Homeland Security Act (“HSA”), the Administrative Procedure Act (“APA”), and the Federal Vacancies Reform Act (“FVRA”). It then focuses on the requirements to invalidate an acting officer’s actions under the FVRA and gives examples of recent USCIS policy changes for which an unlawful appointment challenge might be considered. 


  1. Grounds for Challenging an Acting Official’s Actions 


  1. The Constitution


A party may challenge an agency’s action, whether it is by an acting or permanent officer, on the ground that it violates the Constitution. “Advice-and-consent office” (also known as “PAS office” – “Presidential Appointment needing Senate confirmation”) refers to a high-level office in executive agencies that requires the officer to be appointed through the nomination by the President, with the advice and consent of the Senate under the Appointments Clause of the Constitution. For the Appointments Clause to apply, the officer in question must be a “Principal Officer” as identified by the Supreme Court in Edmond v. United States.


If the officer in question is clearly a “Principal Officer,” the Appointments Clause effectively prohibits one from becoming an acting officer for a PAS office without going through the advice-and-consent process. But because this appointment process can take much time, Congress has permitted individuals to temporarily perform the functions and duties of the office awaiting presidential appointment. Congress enacted the FVRA to allow temporary acting service without the appointment process. But the FVRA also prevents departments from “us[ing] organic vesting and delegation statutes to assign the duties of PAS offices to officers and employees, with little or no check from Congress.” In other words, challenges to unlawful appointment under the FVRA are ultimately grounded in the Constitution’s Appointments Clause. 


Where applicable, when making an unlawful appointment claim, plaintiffs may also include other constitutional arguments, such as alleged violations of the Due Process Clause or the Equal Protection Clause, as alternative grounds.


  1. The INA


A party may challenge an agency’s action, whether it is by an acting or permanent officer, on that ground that it violates the INA. While this may not be directly related to unlawful appointment, plaintiffs can include a substantive challenge to the agency action in question where it is plausible that the action conflicts with the text or purpose of the INA.


  1. The HSA


A party may challenge an agency’s action, whether it is by an acting or permanent officer, on the ground that it violates the HSA. If a vacancy occurs, the HSA sets forth a statutory order of succession. If such pre-identified positions become vacant, the HSA allows the Secretary of Homeland Security to designate a “further order of succession.” If an acting officer was designated in contravention of the HSA, that officer’s designation of a successor will also be deemed unlawful, and any agency action signed by such officer or the unlawfully appointed successor will lack legal authority.


For example, in February 2019, former Secretary of Homeland Security Kirstjen Nielson issued a revised order of succession for the DHS that was originally issued by Nielson’s predecessor, Jeh Johnson. After Nielson resigned, Kevin McAleenan was designated as the Acting Secretary in contravention of Nielson’s order of succession. A court held that both McAleenan and his successor, Chad Wolf, were unlawfully appointed under the HSA, meaning that Wolf’s memorandum suspending the deferred action for childhood arrivals (DACA) program was also invalid.


Where the acting officer was designated under the HSA as opposed to the FVRA, the FVRA cannot be used to invalidate a function or duty performed by the purported acting officer.


  1. The APA


A party may challenge an agency’s action, whether it is by an acting or permanent officer, on that ground that it violates the APA. The APA can also be a ground for an unlawful appointment claim because APA § 706(2)(A) provides that a court may set aside an agency action that is “not in accordance with law,” and an agency action taken by an unlawfully appointed officer is arguably “not in accordance with law.” It should be noted, however, that where an agency is expressly exempt from the FVRA, an agency action taken by an unlawfully appointed officer may be merely “voidable” and not completely void.


The APA is thus more lenient than provisions like § 3348 of the FVRA, which renders an agency action void if the acting officer was appointed in violation of the FVRA. In other words, plaintiffs suing under the APA must be ready to face some defenses allowed under the APA. For example, to vacate an agency action under APA § 706, one must show that the unlawful appointment resulted in a prejudicial error under the APA’s “rule of prejudicial error” (or the “harmless error rule”). 


Plaintiffs may also include APA § 706(2)(A) as an alternative ground and argue that the agency action was “arbitrary and capricious,” which could function as a catchall provision for attacks under the APA.


  1. The FVRA


The FVRA limits who may serve as an acting official and invalidates any function or duty performed by an unauthorized acting official. The purpose of the FVRA was to limit who can temporarily perform such functions and duties, as Congress recognized “the lack of an effective enforcement process” against mechanisms such as using an agency’s vesting-and-delegate statute to allow non-appointed individuals to perform the functions and duties of an advice-and-consent office.


The FVRA limits acting service to mainly three classes of people:

  1. An officer or employee who meets 5 U.S.C. § 3345:
    1. § 3345(a)(1): By default, “the first assistant to the office” becomes the acting officer who temporarily performs the functions and duties of a vacant advice-and-consent office.
    2. § 3345(a)(2): Alternatively, the President may direct a person serving in another advice-and-consent office to serve as the acting officer. 
    3. § 3345(a)(3): Alternatively, the President may direct a senior officer or employee of the same agency to serve as the acting officer.
  2. The agency head, if no person meets § 3345. 
  3. A person who meets another statute that allows acting service under § 3347.


Acting service under § 3345 is subject to certain limitations under § 3345(b)–(c) and the time limitation under § 3346. Under § 3346, an acting officer cannot serve for more than 210 days either from the date the vacancy occurs or the date of a first or second nomination for the vacant office. Hence, an acting officer would be deemed “unauthorized” under the FVRA once the person’s duration of service exceeds the 210-day limit, even if the person was originally authorized as an acting official under the FVRA.


The FVRA is primarily enforced when a person injured by an agency action challenges that action under § 3348, arguing that the action was taken by a person unauthorized under the FVRA to temporarily perform the functions and duties of a vacant advice-and-consent office.


  1. Requirements for Invalidating an Acting Official’s Actions under the FVRA


General statements of policy (“policy statements”) can be invalidated if an acting officer “unauthorized” under the Federal Vacancies Reform Act (“FVRA”) issued the policy statement while performing a “function or duty” of a vacant advice-and-consent office. For this vacant-office provision to apply, the following three questions must all be answered in the affirmative.


  1. Is the acting officer “unauthorized” under the FVRA?


An acting officer is “unauthorized” to perform the functions and duties of a vacant advice-and-consent office unless the officer fits into one of the three classes listed above (i.e., authorized by § 3345, § 3347, or § 3348(b)). Whereas it is clear whether a person meets § 3345 or § 3348(b), whether a person meets § 3347 is arguable.


Under § 3347, the FVRA does not apply if a statutory provision expressly authorizes the head of an agency to designate an officer or employee to temporarily perform the functions and duties of a specified office in an acting capacity. A general statute authorizing the head of an agency to delegate or reassign duties vested in the agency head to other officers or employees does not trigger § 3347.Agency-specific statutes, however, can trigger § 3347, in which case the vacant-office provision of the FVRA may not be used to invalidate the acting official’s actions.


For example, in Vidal v. Wolf, the FVRA could not be used to invalidate the Department of Homeland Security’s former Acting Secretary Chad F. Wolf’s policy memorandum effectively suspending DACA pending the Department’s review of the program, because Mr. Wolf was designated to the office under the HSA, an agency-specific statute prescribing the order of succession for Acting Secretaries. The court did invalidate the Wolf memorandum on the ground that Mr. Wolf was not properly designated under the Department’s order of succession for Acting Secretaries, showing that an agency action taken by unlawfully designated acting officials may be invalidated on other grounds even when the FVRA fails to apply.


In brief, an acting officer must have been designated under § 3345, § 3347, or § 3348(b) for the FVRA to be invoked to invalidate the officer’s actions. If an agency-specific statute invokes § 3347 to designate an acting officer, the FVRA may not be used to invalidate the officer’s actions even if that officer was unlawfully designated under the applicable agency-specific statute.


Additionally, the acting officer’s duration of service must not have exceeded the 210-day limit under § 3346. It is worth noting that an acting officer may serve for 210 additional days if the nomination for the vacated position is withdrawn, rejected by the Senate, or returned to the President. This effectively allows an acting officer to get around the normal 210-day limit.


  1. Was the policy statement issued while performing a “function or duty” under the FVRA?


Even if the acting officer is unauthorized under the FVRA, the officer’s actions can be invalidated only if the officer was performing a “function or duty” of the vacant office. The term “function or duty” means any function or duty of the applicable office that is established either by statute or regulation and is required to be performed “only” by the applicable officer. The scope of this provision depends on a court’s interpretation of the term “only.”


In L.M.-M. v. Cuccinelli, the U.S. District Court for the District of Columbia adopted a broad definition of the term “only” and held that “function or duty” includes all responsibilities that are expressly assigned only to one particular office. For example, 6 U.S.C. § 271(a)(3) lists the “functions” of the USCIS Director to include “establish[ing] policies for performing such functions,” “oversee[ing] the administration of such policies,” and “establish[ing] national immigration services policies and priorities.” The statute does not list these as functions of other offices. Hence, under the L.M.-M. court’s interpretation of “function or duty,” these functions are covered by the FVRA because they are assigned “only” to the office of the USCIS Director. This means that if an acting officer for the office of USCIS director is unauthorized under the FVRA, any action taken in performing the listed functions can be invalidated.


However, other cases suggest a narrower definition of “only” that would limit “function or duty” to a limited category of duties that are not only assigned to one office, but are also nondelegable. Under this narrow interpretation, the FVRA may not apply to the functions of the USCIS Director listed in 6 U.S.C. § 271(a)(3) because they are not nondelegable, as the organic statute of the Department of Homeland Security vests the Secretary with all the functions and duties of the Department. For example, in Stand Up for California! v. U.S. Dep’t of Interior, the court held that the “presumption of delegability” applies to 25 U.S.C. § 5108, which authorizes the Secretary of the Interior to acquire land in trust for Indian tribes, because the statute did not expressly preclude subdelegation. Because 6 U.S.C. § 271(a)(3) also does not expressly preclude subdelegation, a court might rule that the functions assigned to the USCIS Director under 6 U.S.C. § 271(a)(3) are delegable.


This means that courts can take two different positions vis-à-vis the same statutory provision listing the functions of an office, such as 6 U.S.C. § 271(a)(3). Under the narrower interpretation, the FVRA may not apply to such functions because the Department of Homeland Security presumably delegates those functions to the Secretary. On the other hand, under L.M.-M., the FVRA would prohibit unauthorized officials from performing those functions—even if they are delegable.


In brief, whether a policy statement was issued while the acting officer was performing a “function or duty” depends on how broadly a court is willing to interpret “function or duty.” The DHS appealed the L.M.-M. ruling in May 2020. The D.C. Circuit could adopt or reject the L.M.-M. court’s interpretation. If the D.C. Circuit rejects L.M.-M., it will become harder to invalidate policy statements under the FVRA.


  1. Does the FVRA prohibit subsequent ratification of the policy statement?


Courts have recognized that ratification of an agency action by a subsequent, lawfully appointed official may cure a harmless error in the previous official’s appointment. In the case of a “void” agency action that is not merely “voidable” or constitutes “harmless error,” 5 U.S.C. § 3348(d)(2) states that an agency action that has no force or effect under the FVRA may not be ratified after the fact.


If the applicable “function or duty” does not come under the FVRA, the policy statement issued under such function or duty may be ratified after the fact. For example, in Guedes v. Bureau of Alcohol, Tobacco, Firearms, and Explosives, the D.C. Circuit held that the challenged agency action was delegable and thus not void under the FVRA. The D.C. Circuit further explained that “a properly appointed official’s ratification of an allegedly improper official’s prior action” may remedy any defect, regardless of whether the previous officer was legitimately appointed under the FVRA. Therefore, if a court finds that a “function or duty” under the FVRA does not apply to delegable duties and the relevant statute does not expressly preclude delegation, a court may find that the policy statement issued while performing such function or duty can be ratified to cure any residual defect. 


In brief, this again shows the importance of which interpretation of “function or duty” a court adopts. If the L.M.-M. court’s interpretation is rejected, it becomes easier for agencies to ratify policy statements that may originally contained defects due to illegitimate appointments.


  1. Examples of Recent USCIS Policy Changes 


A Policy Memorandum (“PM”) is a formal policy guidance document that contains the official policies of the USCIS and guides immigration officers in rendering decisions on various applications. For example, the USCIS issued a PM on August 20, 2020 that adopted an AAO decision to guide determinations by all USCIS employees on a particular TPS issue. Although policy statements in PMs are not legally binding, they have the practical effect of operating as legally binding rules because adjudicators are supposed to follow the rules announced by their superior officers through the PMs.


A Policy Alert (“PA”), an interpretive guidance announcement, differs from a PM in that it clarifies previously announced policy guidance, such as a policy contained in the USCIS Policy Manual. For example, the USCIS issued a PA on July 24, 2020 that clarified guidance on maintaining EB-5 immigrant investor eligibility through further deployment of an investor’s capital to meet the capital “at risk” requirement as discussed in the USCIS Policy Manual. The USCIS also issued a PA on July 15, 2020 that consolidated existing policy guidance in the USCIS Policy Manual addressing officers’ application of discretion in adjudications. Unlike a PM, the PAs do not instruct the USCIS officers to adopt a newly announced policy. Rather, PAs clarify ambiguities in existing USCIS policy.


When applying the FVRA to PMs or PAs, a court will need to decide whether the act of issuing such policy guidance constitutes a “function or duty” covered by the FVRA. Specifically, a court would determine whether 6 U.S.C. § 271(a)(3) assigns issuance of PMs or PAs “only” to the USCIS Director. If a court were to adopt a narrower interpretation of “function or duty” and require that the issuance of such policy guidance is nondelegable, it would be less likely that the FVRA could apply to invalidate issuance of PMs or PAs.




If the acting officer was unlawfully appointed, it is possible to challenge the new policy under an unlawful appointment argument, in addition to substantive challenges. However, be careful of the grey areas surrounding the FVRA’s scope as to whether the issuance of the policy guidance constitutes a “function or duty” that only the properly appointed officer may perform.


* Hun Lee ( is a third-year law student at Cornell Law School. Stephen Yale-Loehr ( is co-author of Immigration Law and Procedure, the leading twenty-one-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School and of counsel at Miller Mayer LLP in Ithaca, New York.

Copyright © 2021 Hun Lee and Stephen Yale-Loehr. All rights reserved.