Interim OPM director's actions 'void', IG says

The Office of Personnel Management’s inspector general said Wednesday that the agency’s interim director is ineligible to serve while her nomination to hold the position permanently is pending before the Senate.


Inspector General (IG) Patrick McFarland also wrote in a letter to acting director Beth Cobert that any actions she has taken "since the date of your nomination are void.”

The administration claims that Cobert’s position is legitimate under the Federal Vacancies Reform Act (FVRA), passed in 1998. The law provides a legal framework for acting officers to fulfill presidentially appointed positions that require Senate confirmation.

“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,” a White House spokesman told The Washington Post.

But McFarland argues that a recent decision in the U.S. Court of Appeals for the D.C. Circuit rejected the Department of Justice’s interpretation of the law, effectively narrowing the conditions under which a nominee may serve in an interim capacity.

Specifically, the ruling states that a nominee may only fulfill the position on an acting basis if that person has served as “first assistant” to the office for at least 90 days. Cobert came to the OPM directly from a role as deputy director of the Office of Management and Budget.

“Because you were never a ‘first assistant’ to the OPM Director, the FVRA, as decided by the D.C. Circuit, prohibits you from serving as the Acting Director as of the date of your nomination,” McFarland wrote.

Absent a Supreme Court review, McFarland claims, the D.C. court’s ruling is final.

But the OPM is pushing back on the decision.

“OPM and the Administration continue to follow the Justice Department view on the lawfulness of nominees serving in an acting capacity,” OPM spokesman Sam Schumach told The Hill in an email. “The Justice Department filed a petition for rehearing en banc, which makes clear that the government does not agree with the panel opinion.”

He noted that the time for seeking Supreme Court review has not expired.

The IG’s reading of the law would impact only Cobert’s eligibility to fulfill the role on an acting basis, not her nomination to the permanent position.

Cobert has been the OPM’s acting director since June, when former Director Katherine Archuleta resigned in the wake of the data breaches that exposed more than 22 million people’s personal information.

In November, President Obama tapped Cobert to take over the agency full time.

In her first few months on the job, Cobert received praise from both sides of the aisle for her work to overhaul the OPM’s archaic networks.

The Senate Homeland Security and Governmental Affairs Committee earlier this month approved Cobert’s nomination to head the agency, bringing her one step closer to confirmation.

The IG’s findings don’t appear to have damaged Cobert’s chances of Senate approval, at least with the chairman and ranking member of the committee.

“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,” Sen. Ron JohnsonRonald (Ron) Harold JohnsonFauci calls Ron Johnson's AIDS comment 'preposterous': 'I don't have any clue of what he's talking about' Wisconsin senators ask outsiders not to exploit parade attack 'for their own political purposes' It's time to bury ZombieCare once and for all MORE (R-Wis.) said in a statement.

“It is my understanding that her nomination and appointment to her current position were made in accordance with the longstanding legal interpretations that have been relied on by current and former Democratic and Republican Administrations,” Sen. Tom CarperThomas (Tom) Richard CarperThe Hill's Morning Report - Presented by Uber - New vaccine mandate in NYC; Biden-Putin showdown The Hill's Morning Report - Presented by Uber - Omicron tests vaccines; Bob Dole dies at 98 Overnight Energy & Environment — Presented by ExxonMobil — Dems seek to preserve climate provisions MORE (D-Del.) said in a statement.

“The Senate needs to follow our Committee’s lead and confirm this highly qualified nominee as soon as possible,” Carper said.