Correction: This story has been updated to correctly reflect the precedent set by the ruling at the heart of questions about the legality of the actions of Office of Personnel Management Director Beth Cobert.

The Office of Personnel Management faced a litany of questions last week, when its outgoing inspector general said that its acting director was serving illegally.

But despite a federal ruling to the contrary, OPM chief Beth Cobert's legal standing may not matter, unless someone wants to take it to court.

The case in question, SW General v. National Labor Relations Board, strikes at the heart of a common practice in the Obama administration, the promotion of acting agency heads to permanent status.

The August 2015 decision by the D.C. Circuit Court ruled, per the Federal Vacancies Reform Act, that unless the acting agency head was initially a "first officer" for 90 days in the agency, they could not serve as both acting chief and the nominee for the permanent job.

The decision drew the notice of outgoing OPM Inspector General Patrick McFarland, who penned a Feb. 10 letter to Cobert informing her that because she assumed the acting director role after coming from another agency, she was not allowed to hold that role and be a nominee.

The practice is so common that in an October 2015 petition to rehear the case, Department of Justice lawyers argued that the ruling would have a wide-ranging impact on the leaders of multiple federal agencies.

"The panel decision casts a legal cloud over a wide variety of acting government officers, past and present, from every administration that has been subject to the FVRA," the petition said.

"Many former acting officers, including senior officials in the Department of Health and Human Services' Centers for Medicare and Medicaid Services, OPM, the Department of Justice, the Department of Defense and the Air Force, the Export-Import Bank and GSA, would be viewed as having improperly served as acting officers under the panel decision's reasoning."

But according to the court, FVRA violations resulting from the decision won't cast a wealth of agency actions into a chasm of chaos, but could make them ripe for litigious action.

In the August ruling, the court says NLRB's FVRA violations make its actions "voidable, not void" due to an exemption in subsection 3348(e) of the FVRA that applies only to the general counsel for that office, the general counsel for the Federal Labor Relations Authority or an inspector general appointed by the president and confirmed by the Senate.

The exemption does not apply to OPM, which means Cobert's actions since her Nov. 10 nomination remain void, according to the IG.

But because the White House has claimed those actions are legal, per a DOJ interpretation of the law, it appears that there's no one to enforce the illegality of the actions, barring a challenge in court.

"We [the OIG] have no legal enforcement authority – we can only report the violation," said Susan Ruge, senior counsel for Legislative & External Affairs at OPM's inspector general's office, in an email.

"If the administration does not wish to take action to address the situation, the matter will be left with the courts.  Similar to the SW General situation, if someone has legal standing, they may bring a suit against the government in court seeking to challenge a specific action as void and therefore unenforceable."

As for the "legal cloud" DOJ said would result from the case, the August ruling was deemed so narrow that the court shot down the department and others' October bid for an en banc appeal.

"Here, the decision will neither dramatically impact the purpose of the FVRA nor overly restrict the president's power to fill vacancies temporarily. The decision merely corrects a misinterpretation of the FVRA," the court said in its ruling.

So it appears that unless a plaintiff comes forward to challenge Cobert in court, or her actions since her Nov. 10, OPM could remain unaffected by its latest flap.

Share:
In Other News
Load More