This story has been updated with a comment from Sen. Ron Johnson.
The acting director of the Office of Personnel Management is not actually eligible for the job, the agency’s departing inspector general has determined.
Any decisions Beth Cobert made in her acting status since President Obama appointed her on Nov. 15, 2015, are null and subject to court challenge, IG Patrick McFarland added.
In a Feb. 10 letter to Cobert released by the IG on Wednesday, McFarland cited the 1998 Federal Vacancies Reform Act as interpreted by the Supreme Court last August in its ruling in SW General Inc. v. National Labor Relations Board.
Under the statute, the letter stated, an official named as acting agency head must be handled in one of three ways: the “first assistant” to the office automatically becomes the acting officer; the president appoints a Senate-confirmed officer from another agency; or the president appoints a senior employee from the same agency.
Cobert came over from the Office of Management and Budget, where she was deputy director for management, so does not fall into any of those categories or their prescribed minimum time periods. Most notably, the statute says a person may not serve in such acting capacity “if the president submits a nomination of such person to the Senate for appointment to such office,” McFarland wrote. “Importantly, actions taken by persons serving in violation of the FVRA ‘shall have no force and effect’ and may not be ratified.”
The White House is not backing down, however. "Beth Cobert was named by President Obama as the acting director of OPM consistent with the Federal Vacancies Reform Act," a spokesman told Government Executive. "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."
The Justice Department, in the NLRB case, had sought to challenge part of that reading in D.C. Circuit Court. Citing reasoning from its Office of Legal Counsel and historical practice, it argued that the limits on acting officer appointments apply only to those serving as acting director after having been the “first assistant.”
But the appeals court’s August ruling rejected that reasoning, and Justice’s petitions to appeal were exhausted this January. (Justice still has two more months to appeal to the Supreme Court.) “Due to the severity of the issue,” wrote McFarland, who earlier this month announced his retirement effective Friday, “we are expediting our notification process and sending it to the appropriate congressional committees tomorrow.”
The House Oversight and Government Reform Committee declined comment. Cobert is awaiting confirmation for the permanent director position; her nomination cleared the Senate panel on Feb. 10, the day of McFarland’s letter.
Sen. Ron Johnson, R-Wis., chairman of the Senate Homeland Security and Governmental Affairs Committee, said “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.”
The White House spokesman said Cobert has "overwhelming bipartisan support, and the Senate should move without delay to confirm her as director. She has received extensive praise for her leadership of OPM as acting director from members of Congress of both parties, and has strong support for her nomination from outside stakeholders ranging from the largest and oldest unions representing federal employees to leading information technology, communications, and defense industrial base companies. As acting director, Ms. Cobert has led OPM in strengthening cybersecurity and improving how our government serves American citizens, businesses, and the federal workforce."
Cobert faces several hurdles in the confirmation process. The chairman of the House Oversight and Government Reform Committee issued a subpoena to Cobert over documents related to the OPM data hack, and a senator has threatened to block her nomination because of issues related to the 2010 Affordable Care Act.