A Supreme Court ruling three years in the making has cleared up the question of whether Beth Cobert was prohibited from serving as director of the Office of Personnel Management after being formally nominated by President Barack Obama. This doesn’t necessarily invalidate her actions during that time, but it may open future similar situations up to challenges.
A 2013 lawsuit to a decision made by the National Labor Relations Board argued that the acting general counsel at the time became ineligible to serve once the President nominated him to fill the position permanently. The Supreme Court validated that argument March 21 under the Federal Vacancies Reform Act.
Heather White, a lawyer with the Federal Practice Group specializing in federal sector employment litigation, said this doesn’t necessarily mean every decision by the NLRB general counsel in question is automatically invalidated.
“I don’t know if they’re going to apply this retroactively or if it’s only going to apply going forward,” she said.
White pointed out a specific footnote in the court’s opinion that said decisions made by the NLRB while in violation of the FVRA would not be considered “void ab initio,” or void from the outset. Instead, the court considers the actions “voidable.”
“I think this means that not everything is being ruled invalid,” White said. “The implications of this is that a lot of employers may be able to get out of unfair labor findings. There’s going to be a lot of litigation in this going forward.”
This looming decision took on greater significance in February 2016, when outgoing OPM Inspector General Patrick McFarland issued a report saying that the FVRA prohibited then-acting OPM Director Cobert from fulfilling that role after President Obama nominated her to permanently fill the position in November 2015. The Senate never confirmed Cobert.
The FVRA states a person may not serve as an acting officer for an office if they, during the 365-day period preceding the date of the death, resignation, or beginning of inability to serve:
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.
NLRB argued, based on interpretations from the Department of Justice’s Office of Legal Counsel, that these restrictions only applied to acting officers who achieved that status because they were the “first assistant,” or most senior officer when the agency’s leader left.
“The decision is based on a misreading of the FVRA’s text and structure, and produces results at odds with the Act’s purposes,” DoJ’s petition said. “The decision casts an unwarranted cloud over the designations and service in an acting capacity of many past and present senior officers. And it threatens the ability of future Presidents to fill important posts temporarily with the individuals most suited to carry out those offices’ responsibilities, and to nominate such individuals to permanently fill offices, thereby undermining efficiency and continuity in government operations and programs.”
But the Supreme Court disagreed with this argument.
“Subject to one narrow exception, [the FVRA] prohibits anyone who has been nominated to fill a vacant [presidentially appointed, Senate confirmed] office from performing the duties of that office in an acting capacity. … It is not limited to first assistants who automatically assume acting duties,” the Court’s opinion said.
Otherwise, it continued, the President could appoint a first assistant immediately before or after an agency’s leader leaves, effectively putting the President’s nominee in charge of the agency without being confirmed by the Senate.
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.”
Presumably, Cobert’s actions while both acting director and nominee would similarly be “voidable” if challenged, but not automatically void.
Among the guidance and directives issued from Cobert during the period in question were:
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.
Moving forward, this means that if the President decides to nominate the acting leader of an agency, that individual would have to relinquish control until such time as they are confirmed.
According to the December 2012 Plum Book, about 1,200 positions out of the roughly 4,000 presidential appointee positions require Senate confirmations.
The Senate so far has confirmed 24 presidential nominees in this administration.