EPA Defends Acting Deputy Administrator's Eligibility

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By Anthony Adragna

April 29 — A case pending before the U.S. Supreme Court provides the “best explanation” for why the Environmental Protection Agency believes A. Stanley Meiburg is legally serving as acting deputy administrator while awaiting Senate action on his nomination, the agency's general counsel said in a letter obtained by Bloomberg BNA.

That case, for which the U.S. solicitor general sought certiorari in early April, involves whether some acting officials in federal agencies can continue to serve under the Federal Vacancies Reform Act while awaiting Senate action on their nominations (NLRB v. S.W. Gen. Inc. , U.S., 15-1251, 4/6/16).

A federal appeals court previously ruled they could not.

But regardless of whether the nation's top court ultimately hears the case, “Dr. Meiburg has not performed any function and duty” to which the Federal Vacancies Reform Act applies, Avi Garbow, the EPA's general counsel, said in the letter to Sen. James Inhofe (R-Okla.).

Inhofe questioned in early March whether Meiburg was legally serving as acting deputy administrator to the EPA. Were Meiburg found to be impermissibly serving, any actions taken by him would have no force or effect and could not be ratified, the chairman of the Senate Environment and Public Works Committee argued (46 DEN A-7, 3/9/16).

Broader Question

Meiburg's nomination has been caught up in the broader question of acting federal officials that arose following U.S. Court of Appeals for the District of Columbia Circuit's decision last fall that the general counsel for the National Labor Relations Board improperly filled that position while awaiting Senate confirmation.

In its petition to the Supreme Court, the solicitor general outlined the consequences of not reviewing and reversing the appeals court's decision (S.W. Gen. Inc. v. NLRB, 796 F.3d 67, 2015 BL 254014 (D.C. Cir. 2015)).

“If left in place, the decision will cast a cloud over the service of past and current officers at high levels of governments,” the petition said. “The decision below, if left in place, will pose a significant impediment to the ability of any president going forward to temporarily fill important posts in the executive branch.”

The petition said a number of high-ranking officials across multiple federal agencies, including the EPA, Department of Treasury, Department of Health and Human Services and Department of Transportation, would be affected by the lower court's decision.

A response in the case is due May 9.

Meiburg's ‘Position of Record.'

Outside of his service as acting deputy administrator, Garbow's letter said Meiburg's “position of record” is entitled “senior advisor to the administrator.”

“Dr. Meiburg's position of record carries with it a great deal of responsibility, authority, and independence,” the letter said.

According to a position description provided to Inhofe, Meiburg has “broad general direction and guidance” from Administrator Gina McCarthy and “is allowed wide latitude in the exercise of initiative and judgment in performing assigned duties in a highly independent manner.”

Those statements appear to be an effort to blunt the impact of any adverse ruling about Meiburg's eligibility to serve as acting deputy administrator by asserting his actions were conducted under official position of “senior advisor to the administrator.”

Meiburg came back to EPA in October 2014 after having previously retired from the agency as the deputy regional administrator for Region 4 in Atlanta. President Barack Obama formally directed him to “perform the duties of the office of deputy administrator” on Oct. 3, 2014, and nominated him to position in January 2015.

Senate Confirmations Possible?

Outside of the squabble over acting officials, Inhofe told Bloomberg BNA April 27 he still expects the Senate to fill eight of the 14 positions at the EPA requiring confirmation that are currently vacant or staffed by acting officials.

“I'm sure we will” get other nominations through the Senate, Inhofe said.

Kristina Baum, a spokeswoman for the Senate Environment and Public Works Committee, later told Bloomberg BNA that the committee had not yet agreed upon a time for Meiburg and other EPA nominees to have a nomination hearings before the panel.

Despite that, “we do expect EPA nominees to get confirmed” before the end of the Obama administration, Baum said.

To contact the reporter on this story: Anthony Adragna in Nashville at aadragna@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com

For More Information

A copy of the EPA's response to Inhofe is available at http://src.bna.com/exu.

A copy of the solicitor general's petition in NLRB v. SW General Inc. to the Supreme Court is available at http://1.usa.gov/21jsIKB.

Timeline of Meiburg's Time as Acting Deputy Administrator

Oct. 3, 2014: President Obama asks Meiburg to come out of retirement to “perform the duties of the office of deputy administrator” at EPA.

January 2015: Obama formally nominates Meiburg to the position of acting administrator.

Aug. 7, 2015: The D.C. Circuit rules certain acting officials in federal agencies cannot continue to serve while awaiting Senate action on their nominations.

Jan. 20, 2016: The D.C. Circuit denies a petition for en banc rehearing in that case.

March 8, 2016:Sen. Inhofe writes EPA asking the agency to explain why Meiburg is eligible to serve as acting deputy administrator in light of the D.C. Circuit decision.

April 6, 2016:The U.S. Solicitor General files a petition for writ of certiorari in the case, arguing “if left in place, the [D.C. Circuit] decision will cast a cloud over the service of past and current officers at high levels of governments.”