Courts have split on whether these arrangements are legal.
Separate rulings in Gianforte v. Bureau of Land Management at the US District Court for the District of Montana and Public Employees for Environmental Responsibility v. the National Park Service at the US District Court for the District of Columbia have found that agencies can’t delegate authority around the requirements of the Vacancies Act.
But the US Court of Appeals for the Federal Circuit in Arthrex, Inc. v. Smith & Nephew, Inc. upheld the legal argument being used in the current scenario at the Wage and Hour Division, that the limitations on who can serve under the Vacancies Act only apply when a temporary official is performing “exclusive” or “non-delegable” duties of the position.
