If that sent a shock wave through OPM, it also could be felt in other agencies. A decision by a panel of the U.S. Court of Appeals for the District of Columbia “casts a legal cloud over a wide variety of acting government officers, past and present,” the Justice Department said in a petition filed with the court in October.
“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 [the General Services Administration], would be viewed as having improperly served as acting officers under the panel decision’s reasoning,” the petition said. “And the service of approximately a dozen current acting officers would be subject to question under the panel’s opinion, including senior officials in the Departments of Justice, Treasury, Health and Human Services, and Defense, and the EPA (Environmental Protection Agency).”
But Cobert doesn’t appear worried.
“Let me be clear,” she said in a message to OPM employees Thursday. “My service as Acting Director comes at the direction of the President, based on decades of bipartisan precedent and longstanding legal guidance from the Department of Justice. All of this gives me and the White House great confidence in my legal status as Acting Director.”
She cited a White House statement that said “We firmly believe that Acting Director Cobert is acting within the confines of the law.”
McFarland, who leaves office Friday, disagrees.
McFarland said a court decision on the Federal Vacancies Reform Act “prohibits your serving as the Acting Director of the U.S. Office of Personnel Management (OPM) as of November 10, 2015, the date that the President nominated you to the Senate for appointment as Director of OPM. Moreover, under the FVRA, any actions taken by you since the date of your nomination are void…”
Samuel Schumach, the OPM press secretary, said the Justice Department can still seek a Supreme Court review of the case, so the administration does not consider it closed.
This problem was discovered after McFarland’s office began researching the reform act in preparation for his departure. There is no indication this was fueled by any backstory of intrigue involving McFarland and Cobert. Before she took office, his office was critical of events leading to the cybertheft of personal information of about 22 million federal employees and others.
IG reports helped push Katherine Archuleta, the former OPM director, from office. When Archuleta quit under pressure in July, Obama appointed Cobert as acting director.
The inspector general’s letter has not sidetracked her nomination, though it already was facing difficulties. Her nomination was approved the Senate Homeland Security and Governmental Affairs Committee before McFarland’s letter was released. The Republican chairman and the top Democrat on the committee indicated the letter will not affect their view of her.
But Chairman Ron Johnson (R-Wis.) continues to press her to provide information requested by Congress and Sen. David Vitter (R-La.) has threatened to block her nomination until she does. Cobert might face tough questioning when she appears before the House Oversight and Government Reform Committee next week.
Despite McFarland’s view that Cobert is not eligible to be the acting director and that her actions since her nomination are void, they appear to be on good terms.
In fact, in his resignation letter to Obama, McFarland said he was “comforted by the fact that Acting OPM Director Beth Cobert appears to have wrapped her arms around the multitude of challenges currently facing OPM. Further, she seems to be arduously striving to institute high standards of professionalism as she works to reinvigorate this great agency.”
If McFarland is right about the law, Cobert’s striving now will be to stay in office.