Court ruling: OPM’s acting director prohibited from serving

The Office of Personnel Management’s acting Director Beth Cobert has been in violation of the Federal Vacancies Reform Act for the past three months, says OPM’s Inspector General, and any actions taken by Cobert since her nomination by President Barack Obama to permanently lead the agency are null and void.

The potentially legal snarl comes in a Feb. 10 memo from the IG’s office that was released this week that references an August decision by the U.S. Court of Appeals for the D.C. Circuit.

“I am compelled to bring to your immediate attention that the Federal Vacancies Reform Act (FVRA), as decided by the D.C. Circuit in SW General, Inc. v. National Labor Relations Board, prohibits your serving as the acting director of the U.S. Office of Personnel Management (OPM) as of Nov. 10, 2015, the date that the President nominated you to the Senate for appointment as director of OPM,” the memo stated. “Moreover, under the FVRA, any actions taken by you since the date of your nomination are void and may not be subsequently ratified.”

Among the guidance and directives issued from Cobert between Nov. 10 and February:

  • Guidance on Recruitment, Relocation, and Retention Incentives
  • Performance Management Guidance for End-of-Fiscal Year 2015 and Beginning-of-Fiscal Year 2016 Activities
  • Washington, D.C., Area Dismissal and Closure Procedures

In a statement from Frank Benenati, White House assistant press secretary, he said the administration “continues to rely upon” the FVRA.

“We firmly believe that acting Director Cobert is acting within the confines of the law,” he said.

An OIG spokesperson said in an email to Federal News Radio that the violation was discovered when auditors began researching responsibilities under the act in light of OPM Inspector General Patrick McFarland’s resignation.

“This issue involves how the President may temporarily staff certain high-level executive officer positions, specifically those positions requiring Presidential appointment and Senate-confirmation (PAS) positions. This process is governed by the FVRA,” the spokesperson said. “As mentioned in the memorandum, the D.C. Circuit recently addressed this situation. They examined whether a person who is currently holding an acting position may continue to be the acting officer while his or her nomination is pending in the Senate.  According to the court’s decision, people like Ms. Cobert, who had held a PAS position in another agency, may not serve as the acting official after they also have been nominated for that position.”

The OIG spokesperson said they could not speak to future litigation. The decision to appeal the D.C. Circuit’s decision falls to the Justice Department.

‘All acting officers’

According to the FVRA, certain guidelines apply when serving in an appointed position.

A person may not serve as an acting officer for an office if:

  • During the 365-day period preceding the date of the death, resignation, or beginning of inability to serve, the person:
    • Did not serve in the position of first assistant to the office of such officer
    • Served in the position of first assistant to the office of such officer for less than 90 days
  • The President submits a nomination of such person to the Senate for appointment to such office.

In early August, the court rejected NLRB’s argument, saying the acting officer section “applies to all acting officers and not just those officers who previously served as first assistants,” the memo said, referring to court documents. “The court squarely addressed the relevant FVRA sections: ‘[w]e therefore hold that the prohibition in subsection (b)(1) applies to all acting officers, no matter whether they serve pursuant to subsection (a)(1), (a)(2), or (a)(3).'”

Acting officers are generally limited to 210 days of service, according to the reform act, but this time can be extended “if they are formally nominated by the President to fill the position, in which case they may serve during the period that their nomination is pending in the Senate.”

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Cobert has held the position since July, when former OPM Director Katherine Archuleta resigned.

She also serves as deputy director for management at the Office of Management and Budget.  She joined OMB in October 2013 after a 29-year career as a consultant for McKinsey and Co.

Cobert stepped into her role one day after OPM announced that more than 21 million people had been impacted by a data hack.

OPM has been without a deputy director for more than three years.

In August, Retired Rear Adm. Earl L. Gay, Obama’s nominee for deputy OPM director, withdrew his own name from consideration after nearly a year waiting on Senate confirmation.

Gay was nominated to replace Christine Griffin, who left the agency in August 2011.

Obama nominated Andrew Mayock, a senior adviser in the Office of the Director at OMB, to replace Cobert as deputy director for management at OMB.

Accommodating oversight

Earlier this month Senate Homeland Security and Governmental Affairs Committee voted 15-0 to move Cobert’s nomination forward, which the full Senate now will consider.

Sen. Ron Johnson (R-Wis.), chairman of the Senate Homeland Security and Governmental Affairs Committee, said in an emailed statement to Federal News Radio that the “administration’s failure to follow the law when appointing officials to management positions at OPM doesn’t change my evaluation of Ms. Cobert’s qualifications to be the next director of the agency.”

“As I stated last week, when the committee voted to move her nomination forward, I believe that she must fulfill her commitments to me to cooperate with outstanding congressional oversight requests. Once she fulfills these commitments, I expect the Senate to consider her nomination promptly.”

During her appearance on Capitol Hill, Cobert pledged to work with the Senate and other congressional committees “to accommodate their oversight needs.”

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