“Under the Vacancies Act, when you are doing the job through delegating as opposed to the acting title you can only perform what are known as nonexclusive or delegable functions of the job,” said Anne Joseph O’Connell, a professor at Stanford Law School who specializes in administrative law and the federal bureaucracy.

O’Connell said if an acting director is no longer in place, that task cannot be delegated to another senior official and can only go up to Kennedy, who is over the CDC as the head of the HHS.

“I think the Third Circuit came to the wrong conclusion about the Vacancies Act and delegation, but I do think the Third Circuit serves as a beacon for potential litigants to what seems to be coming at the CDC,” O’Connell said.