Eleventh Circuit Confirms “Spring-Back” Authority Under the Federal Vacancies Reform Act

Introduction

In Rachael M. Gorecki v. Commissioner, Social Security Administration, No. 23-13863 (11th Cir. 2025), the Eleventh Circuit confronted a now-familiar collateral attack on Social Security disability decisions: the argument that Acting Commissioner Nancy Berryhill’s second period of “acting” service contravened the Federal Vacancies Reform Act of 1998 (“FVRA”), rendering the appointments of Administrative Law Judges (“ALJs”) invalid under the Constitution’s Appointments Clause.

The appellant, Rachael Gorecki, sought disability benefits. Her claim was denied by an ALJ whose appointment had been expressly ratified by Berryhill during her second stint as Acting Commissioner. Gorecki argued that Berryhill had exceeded the FVRA’s temporal limits, and therefore lacked authority to ratify the ALJ’s appointment, making the underlying benefits decision void.

Every circuit to consider the issue (Third, Fourth, Fifth, Sixth, and Eighth) had already rejected identical challenges. The Eleventh Circuit now joins them, firmly cementing a nationwide consensus that § 3346(a)(2) of the FVRA authorizes a “spring-back” period of acting service whenever a first or second nomination to the vacant position is pending before the Senate, even if the original 210-day window has closed.

Summary of the Judgment

The Court (Newsom, joined by Brasher & Carnes, JJ.) affirmed the Northern District of Alabama’s judgment and held:

Section 3346(a)(2) of the FVRA independently authorizes an acting officer to resume (“spring back” to) acting service upon the submission of a first or second presidential nomination for the vacant PAS (“Presidential Appointment with Senate confirmation”) position, irrespective of whether the nomination occurs within the initial 210-day window under § 3346(a)(1).
Consequently, Nancy Berryhill’s second tenure as Acting Commissioner was lawful; her ratification of Social Security ALJs was valid; and the ALJ who decided Gorecki’s claim was constitutionally appointed.
Because the ALJ’s appointment was valid, no Appointments Clause violation occurred, and Gorecki’s request for a rehearing before a new ALJ was properly denied.

Analysis

A. Precedents Cited

U.S. Constitution, Art. II, § 2, cl. 2 (Appointments Clause) – Establishes that principal officers require presidential appointment and Senate confirmation, while inferior officers may be appointed by the President, courts, or agency heads.
NLRB v. SW General, Inc., 580 U.S. 288 (2017) – Interpreted § 3345(b)(1) of the FVRA; offered dicta describing § 3346 that appellant relied upon.
Lucia v. SEC, 585 U.S. 237 (2018) – Held that SEC ALJs are “Officers of the United States,” prompting Berryhill’s 2018 mass ratification of Social Security ALJs.
Five appellate decisions rejecting identical FVRA challenges:
- Rush v. Kijakazi, 65 F.4th 114 (4th Cir. 2023)
- Dahle v. Kijakazi, 62 F.4th 424 (8th Cir. 2023)
- Gaiambrone v. Comm’r Soc. Sec., 2024 WL 3518305 (3d Cir. 2024)
- Seago v. O’Malley, 91 F.4th 386 (5th Cir. 2024)
- Fortin v. Comm’r Soc. Sec., 112 F.4th 411 (6th Cir. 2024)

These authorities collectively framed the legal terrain: the Supreme Court supplied constitutional baseline rules; the other circuits provided persuasive statutory interpretations; and Lucia created the practical impetus for Berryhill’s ALJ ratifications.

B. Legal Reasoning

Statutory Text Governs
The Court began with § 3346’s text. Subsection (a) authorizes an acting officer to serve either:
- (1) for 210 days after the vacancy arises, or
- (2) “once a first or second nomination … is submitted to the Senate,” for as long as that nomination is pending.
The disjunctive “or” signals two independent grants of authority. Subsection (a)(2) thus is not limited to tolling subsection (a)(1); it can revive (“spring back”) authority even after the original 210-day period ends.
Structural and Contextual Clues
Congress demonstrated that where it intended a continuous, tolling-only regime it used the phrase “may continue to serve,” e.g., § 3346(b)(1). The absence of that phrase in § 3346(a)(2) reinforces the Court’s reading that (a)(2) authorizes a new, freestanding period of service rather than merely extending the initial term.
Inclusive vs. Exclusive “Or”
Using ordinary English, “or” is presumptively inclusive (A or B or both). Nothing in § 3346 overcomes that presumption. Consequently, an individual may validly serve first under (a)(1) and later under (a)(2).
Rebutting Appellant’s Linguistic Argument
Gorecki placed heavy emphasis on the participle “serving” in § 3346(a)’s preface (“the person serving as an acting officer … may serve …”). The Court explained that the phrase merely distinguishes FVRA appointees from acting officials installed under some other statute (§ 3347), not that the individual must be in active service at the very moment the nomination is filed.
Supreme Court Dictum Not Controlling
SW General’s passing mention that § 3346 “tolls” time limits in “most cases” was dictum, concerned a different provision (§ 3345), and expressly limited by the phrase “in most cases.” It did not foreclose the spring-back reading adopted here.
Purposive Arguments Unavailing
Even assuming Congress sought to pressure presidents to nominate successors promptly, the spring-back reading still promotes that purpose: after the initial 210-day period lapses, the office remains vacant until a nomination is submitted. The President thus has an incentive to send a name to the Senate.

C. Impact of the Decision

The Eleventh Circuit’s alignment with its sister circuits effectively forecloses FVRA-based challenges to Social Security ALJ appointments within the entire federal judiciary. Key consequences include:

Administrative Stability: Tens of thousands of SSA disability decisions issued by ALJs ratified by Berryhill remain insulated from collateral attack based on her acting status.
Nationwide Uniformity: Claimants across all circuits now face a consistent rule, reducing forum shopping and litigation uncertainty.
Broader Agency Guidance: Other agencies may confidently rely on § 3346(a)(2) to reinstate acting officials upon submission of nominations, knowing courts will uphold the practice.
Separation-of-Powers Equilibrium: The decision confirms Congress’s choice to balance continuity in executive functions with Senate advice-and-consent by providing a limited but renewable acting authority once the President has acted.

Complex Concepts Simplified

Below is a brief glossary translating technical legal terminology used in the opinion:

PAS Officer: A principal officer who must be appointed by the President and confirmed by the Senate (“Presidential Appointment with Senate confirmation”).
FVRA (Federal Vacancies Reform Act): A statute that sets out who can temporarily perform the duties of a vacant PAS office, and for how long.
§ 3346(a)(1) Period: The initial 210-day window (300 days in a presidential transition year) during which an acting official may serve after a vacancy arises.
§ 3346(a)(2) Spring-Back Period: A period during which an acting officer may serve while a first or second nominee is pending in the Senate, regardless of whether (a)(1) time remains.
Tolling: Temporarily pausing a time limit so that the remaining period may resume later.
Spring-Back: Re-entering acting service after a hiatus when specified statutory conditions are triggered (here, the submission of a nomination).
Appointments Clause Challenge: A claim that a government decision is invalid because the officer issuing it was not appointed in a constitutionally permissible way.

Conclusion

The Eleventh Circuit’s decision in Gorecki completes a growing wall of circuit authority holding that § 3346(a)(2) of the FVRA provides a freestanding, nomination-based period of acting service. By endorsing the “spring-back” interpretation, the Court upholds the validity of Nancy Berryhill’s second tenure as Acting Commissioner, preserves countless SSA adjudications, and clarifies an important mechanism by which federal agencies maintain leadership continuity while the Senate considers nominations. In doing so, the Court affirms both statutory text and the pragmatic balance Congress struck between accountability and administrative necessity.