Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, Department of Education

B-338093

September 17, 2026

The President
The White House

Subject: Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998: Inspector General, Department of Education

Dear Mr. President:

Pursuant to section 3349(b) of title 5 of the United States Code, we are reporting a violation of the Federal Vacancies Reform Act of 1998 (Vacancies Act),[1] at the Department of Education’s Office of the Inspector General (OIG) with respect to the Inspector General (IG) position. Specifically, we are reporting that the service of Mark E. Priebe as Acting IG from December 7, 2025, to April 7, 2026, was in violation of the Vacancies Act. On May 12, 2026, Mr. Priebe was again designated as Acting IG; however, because a nomination has been pending since that date, there is no continuing violation.[2]

Requirements of the Vacancies Act

The Vacancies Act establishes requirements for temporarily authorizing an acting official in certain vacant positions that require presidential appointment and Senate confirmation. With respect to IGs, however, the Inspector General Act (IG Act) provides that section 3345(a) of title 5, United States Code—the subsection of the Vacancies Act that prescribes who is eligible to fill covered vacancies—does not apply to IG vacancies.[3] Instead, the IG Act prescribes the class and qualifications of officials who are eligible to be appointed as an acting IG.[4] It provides that only either the IG’s first assistant or an eligible IG official designated by the President may serve as acting IG.[5] The IG Act does not affect the application of the Vacancies Act’s time limits on acting service; indeed, it specifies that those time limits continue to apply to IG vacancies.[6]

The Vacancies Act generally limits the period of acting service to 210 days beginning on the date the vacancy occurs.[7] If a nomination has been submitted, then acting service is permitted during the pendency of a first or second nomination and, if the nominee is not confirmed, for up to 210 days after the date the first or second nomination is rejected, withdrawn, or returned.[8] When no nomination is pending and a vacancy exists during the 60‑day period beginning on the date of a presidential transitional inauguration, the 210‑day period is extended by 90 days, allowing for 300 days of acting service beginning on the transitional inauguration day or the date the vacancy occurs, whichever is later.[9] The Comptroller General is required, upon a determination that an acting official has served longer than the allowable period, to report such findings to Congress, the President, and the Office of Personnel Management.[10]

BACKGROUND

OIG reported that the position of IG became vacant on January 24, 2025.[11] Rene L. Roque, the Deputy IG, served as Acting IG from January 24, 2025, to July 7, 2025.[12] Heidi Semann, whom the President designated as Acting IG, served in that role from July 7, 2025, to November 20, 2025.[13] Pursuant to a presidential designation, Mr. Priebe served as Acting IG from December 7, 2025, to April 7, 2026.[14] On May 11, 2026, the President nominated Ms. Semann to be IG, the first nomination since the vacancy began.[15] OIG reported that, on May 12, 2026, Mr. Priebe resumed service as Acting IG.[16]

DISCUSSION

The IG vacancy occurred on January 24, 2025, four days after a transitional presidential inauguration day, which means that the permissible period for acting service ended 300 days later, on November 19, 2025.[17] The President designated Mr. Priebe as Acting IG after that date, on December 7, 2025.[18] The President’s designation cited section 403 note of title 5, United States Code, as authority, a reference to the IG Act’s provisions governing the filling of IG vacancies.[19] As discussed above, the IG Act does not affect the application of the Vacancies Act’s time limits on acting service and, in fact, specifies that those time limits apply to IG vacancies.[20] Accordingly, Mr. Priebe’s service as Acting IG was subject to the Vacancies Act’s time limits. Because Mr. Priebe’s entire service as Acting IG between December 7, 2025, and April 7, 2026, took place after the period of permissible acting service had already ended, his use of the acting title violated the Vacancies Act ab initio.[21]

In contrast, Mr. Priebe’s use of the acting title since May 12, 2026, does not violate the Vacancies Act. The Vacancies Act permits acting service during a first or second nomination’s pendency before the Senate and for 210 days after the nomination’s rejection, withdrawal, or return.[22] Therefore, when Ms. Semann was nominated to be IG, Mr. Priebe was permitted to resume using the Acting IG title.

CONCLUSION

An agency’s identification of an individual as an acting officer after the end of the period of permissible acting service constitutes a violation of the Vacancies Act time limitations. Mr. Priebe’s use of the acting title from December 7, 2025, to April 7, 2026, exceeded the time limitations of the Vacancies Act and constituted a violation of the Vacancies Act. Mr. Priebe’s use of the acting title beginning on May 12, 2026, however, does not violate the Vacancies Act’s time limitations.

In accordance with the requirements of the Vacancies Act, we are also sending letters reporting this violation to the chairs and ranking members of the Senate Committee on Homeland Security and Governmental Affairs; the House Committee on Oversight and Government Reform; the Senate and House Committees on Appropriations; the Senate Committee on Health, Education, Labor, and Pensions; and the House Committee on Education and Workforce; and the Director of the Office of Personnel Management.

If you have any questions regarding this matter, please contact Shirley A. Jones, Managing Associate General Counsel, at (202) 512-8156, or Kristine Hassinger, Assistant General Counsel, at (202) 512-8152.

Sincerely,

Edda Emmanuelli Perez
General Counsel