A day after the Office of Personnel Management inspector general said that acting director Beth Cobert was illegally serving as head of the agency, the White House is disputing the claim.
In a statement, assistant White House press secretary Frank Benenati said that the Nov. 10 Cobert nomination fits within the legal confines of the Federal Vacancies Reform Act, due to a Department of Justice interpretation of the law.
"Beth Cobert was named by President Obama as the acting director of OPM consistent with the Federal Vacancies Reform Act," he said.
"Since 1999, Presidents of both parties have relied upon the consistent guidance and interpretation of that act by the Department of Justice governing when individuals may serve in an acting capacity while their nominations are pending before the Senate, and the administration continues to rely upon that guidance. We firmly believe that acting director Cobert is acting within the confines of the law."
But the question is: Does the Department of Justice trump a federal court ruling?
OPM IG Patrick McFarland sent a letter to Cobert on Feb. 10, outlining a recent D.C. Circuit court ruling on the Federal Vacancies Reform Act that he said prevented Cobert from serving as both the acting OPM director and the nominee for the permanent role.
Federal court decisions overrule DOJ guidance, but the case that McFarland cited does not specifically address the Cobert nomination. It does address the limitations regarding acting officers and whether they can be nominated to serve in permanent roles.
The U.S. Court of Appeals for the D.C. Circuit ruled on that case, SW General, Inc. v. National Labor Relations Board, on Aug. 7, saying that nomination restrictions in the FVRA extended to all acting officers.
Therefore, McFarland reasoned that all actions Cobert took since Nov. 10 "may be open to challenges before the federal district court for the District of Columbia."
It was unclear whether the DOJ had specifically advised on the Cobert nomination's adherence with the FVRA. DOJ officials were unavailable for comment at the time of this posting.
The actions in question included lifting certain financial incentive caps for the first time in six years, instituting guidance for agencies to execute laws and presidential orders, new SES reforms and the creation of an entirely new office for background checks.
The legal question has recent precedent. In January, acting Army Secretary Eric Fanning stepped down after Sen. John McCain claimed he was in violation of FVRA for serving in his current role and as a nominee for the permanent job. Fanning stepped down as acting secretary so the nomination hearings could continue, with Acting Undersecretary Patrick Murphy replacing him.
It remains unclear whether Cobert will step down or what the status of her policies is. The acting OPM director was confirmed by the Senate Homeland Security and Governmental Affairs Committee on Feb. 10 and awaits a full Senate confirmation vote.
McFarland is set to retire on Feb. 19. Deputy Inspector General Norbert Vint will succeed him as acting inspector general.
