Complex Background for FLRA General Counsel Operations
Legally filling the job of General Counsel at the Federal Labor Relations Authority (FLRA) has proved to be difficult in recent years. Here is a very brief background.
The position became vacant on November 16, 2017.
Under the Vacancies Act, there was an Acting General Counsel through November 16, 2017. After that, the job was not filled for more than three years.
As a result of the vacancy, there was a backlog of hundreds of unfair labor practice appeals and complaint recommendations pending. That made life easier in some federal agencies as union filed unfair labor complaints were not being processed. My observation: The Trump administration did not have a problem with that situation.
On March 24, 2021, President Biden announced the appointment of Charlotte A. Dye as the
Acting General Counsel of the Federal Labor Relations Authority (FLRA). She is still there today in an acting capacity. That is a problem, according to the GAO.
Ms. Dye is a career federal employee with about 30 years of experience at the FLRA. The GAO has concluded she has been improperly serving in the position since November 26, 2021.
GAO Decision Concludes Acting FLRA General Counsel Ineligible to Serve
Filling the job of General Counsel at the FLRA has obviously been problematic.
The recent GAO decision concluded that “we are reporting that the service of Charlotte A. Dye as Acting General Counsel from November 16, 2021, through the present day is in violation of the (Federal Vacancies Reform Act of 1998).”
The GAO explained its rationale for this decision in this way:
We were recently asked to consider whether the Vacancies Act also authorizes acting service for the pendency of a third or successive nomination to a vacant office where the first and second nominations were made by a different president. We concluded that the Vacancies Act does not authorize such additional acting service, and therefore, the first or second nominations to an office, regardless of whether the nominations were made by a prior president, will count as the first and second nominations under the Vacancies Act.
Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998:
General Counsel, Federal Labor Relations Authority
The FLRA disagreed with this conclusion. GAO noted the FLRA’s disagreement:
[U]ntil President Biden appointed Ms. Dye to act as General Counsel on March 23, 2021, there were no nominations to the position for purposes of calculating the time limitations…. Therefore, according to FLRA, the two nominations that occurred prior to Ms. Dye’s designation should not count as nominations to the position for purposes of section 3346(a)(2), making Mr. Rumsfeld’s nominations the first and second nominations under such section.
The GAO took this argument into consideration but, nevertheless, concluded, “Ms. Dye’s service as Acting General Counsel from November 16, 2021, through the present day violates the Vacancies Act’s time limitations.”
In a footnote, the GAO noted the FLRA also offered an alternative theory that would allow the existing Acting General Counsel to remain in office. FLRA contended that a “spring back” provision in 5 U.S.C. § 3346 would allow the current Acting General Counsel to remain in the job.
That theory did not lead to a different conclusion. Instead, concluded the GAO, “This argument is not persuasive. GAO has previously held that the practical effect of this special timing rule is simply to afford an incoming administration an additional 300 days of acting service beginning on the transitional inauguration day.”
Unlawful Biden Appointments Not Limited to FLRA General Counsel
This problem is not limited to the FLRA general counsel’s position. Other Biden administration appointees have the same problem.
The GAO also concluded that Deidre Harrison, the acting controller at the Office of Management and Budget and Allison Randall, the acting director of the Department of Justice’s Office of Violence Against Women, are improperly working in government jobs in violation of the Vacancies Act.
The GAO decision notes that it has notified President Biden and Congress of the violations. GAO sent letters reporting its conclusions to the chairs and ranking members of the Senate Committee on Homeland Security and Governmental Affairs, the House Committee on Oversight and Accountability, the Senate and House Committees on Appropriations, and the Director of the Office of Personnel Management.
At the moment, it is not known how the FLRA and other agencies will respond.
FedSmith has asked the FLRA for comments and any actions the agency will take in response to the GAO decision. No doubt, there are on-going discussions and we have not yet received any response.
The underlying problem is that the appointments may lead to lawsuits seeking to invalidate decisions or policies issued by government officials whom the GAO has concluded are working in their positions contrary to the requirements of the Vacancies Reform Act.
In the meantime, will the FLRA ignore the decision? Will processing cases be halted as happened for several years when there was a vacancy in this job? Will previous decisions be vacacted when involving a person now found to have been occupying the job in violation of law?
Stay tuned. There could be some interesting impact on the federal labor relations program (and other programs involving other officials found to be occupying positions in violation of the Vacancies Act) in coming weeks.
