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DOJ presses argument on acting service of agency officials

Wednesday, August 31, 2016

By Amanda Reilly

A federal court ruling last year threatens to upend the "settled understanding" of who can serve in acting roles in government positions, government attorneys are arguing to the Supreme Court in a closely watched case over agency vacancies.

The Department of Justice says that the lower-court ruling goes against the practice that's been in place through 100 presidential nominations and two decades' worth of Senate confirmations.

The acting service of several officials with pending nominations, including two U.S. EPA officials serving in acting roles, could be deemed unlawful under the decision, according to the DOJ, which filed an Aug. 12 opening brief in the case.

DOJ is urging the Supreme Court to overturn the decision in National Labor Relations Board v. SW General Inc. The high court in June agreed to take up the government's appeal (Greenwire, June 20).

The AFL-CIO and the Constitutional Accountability Center this month filed friends-of-the-court briefs in support of the government's appeal.

At issue is the U.S. Court of Appeals for the District of Columbia Circuit's decision finding last year that Lafe Solomon, the former acting general counsel of the National Labor Relations Board, had served in violation of the Federal Vacancies Reform Act (FVRA) after he was nominated for the job in 2011.

The D.C. Circuit said that the law prevents certain nominees from staying on the job after they are formally nominated to the post and that an unfair labor practice complaint issued by NLRB after Solomon was nominated hadn't been authorized.

In their brief, DOJ attorneys argue that the appeals court rejected a "straightforward reading" of the FVRA that presidents of both political parties have adopted.

"The court of appeals erred in setting aside the interpretation of the FVRA on which every President has acted, without objections from Congress, since the enactment of the statute" in 1998, DOJ's brief says.

DOJ says that the court wrongly interpreted the law to apply restrictions for first assistants to other officials whom the president has designated to serve in acting roles.

The court's decision would reduce the pool of individuals who are eligible for acting service in the first place and undermine the law's goal of enabling service by career government officials who are especially qualified, the DOJ brief says.

"It would undermine the statute's goal of enabling service by the career officials that Members of Congress had described as especially qualified — by preventing such individuals from serving if the President also regarded them as most qualified to occupy the ... position at issue on a permanent basis," DOJ says.

DOJ gave as an example the situation in the aftermath of Hurricane Katrina when the head of the Federal Emergency Management Agency resigned and President George W. Bush turned to R. David Paulison to be FEMA's acting chief. Paulison had previously served as the administrator of the Fire Administration, a Senate-confirmed position.

Bush later nominated Paulison to be FEMA's full-time chief, and the Senate confirmed his nomination unanimously.

Bush would have been barred from selecting Paulison in an acting role under the D.C. Circuit's ruling, DOJ said.

"The President either had to select someone else to lead FEMA through some or all of its significant post-Katrina challenges, or had to decline to nominate Paulison to the post on a permanent basis," DOJ said.

President Obama has nominated several high-level officials who performed their functions and duties temporarily during the duration of their nominations, including the deputy secretaries of the departments of Commerce, Transportation and Education, the DOJ brief notes.

Under the D.C. Circuit's decision, Stan Meiburg, who is serving as EPA's acting No. 2 official, and Karl Brooks, who is serving as the agency's acting administrator of administration and resources management, could be found to be serving illegally, DOJ said. Obama has nominated both to serve in the respective positions in permanent roles; the Senate has not yet confirmed either.

Senate Environment and Public Works Chairman Jim Inhofe has already used the court decision to question whether Meiburg is eligible to be on the job at EPA.

The Oklahoma Republican sent a letter to EPA Administrator Gina McCarthy in March, citing the D.C. Circuit's opinion and calling it "unclear" whether Meiburg had the legal authority to remain acting on the job since he had been nominated to permanently fill the post (Greenwire, March 8).

But DOJ noted in its brief that Senate leaders at confirmation hearings — including Inhofe — have often introduced nominees over the past two decades by citing their acting service as part of their qualifications.

"As far as the government is aware, the Executive's consistent and oft-invoked interpretation never prompted objection from the Senate — or even an individual Senator — prior to the decision below," the government brief says.

Oral arguments have not yet been scheduled in the case.