With No One to Do Paperwork, Top Hires Stall at U.S. Agencies

Jan. 11, 2019, 9:03 PM

The Trump administration can’t fill a growing list of vacancies in key political-appointment posts because there’s no one to process the paperwork during the partial government shutdown.

Appointments to agencies that the administration can make without Senate confirmation are largely on hold because the Office of Personnel Management is closed, OPM General Counsel Mark Robbins told Bloomberg Law. Federal law prevents the office, which acts as a government human resources shop, from processing payroll and other paperwork for those positions unless there’s a national security or similar emergency, or another urgent reason.

The political appointment process has been going slowly since well before the OPM and some other agencies ran out of funding earlier this month. But the shutdown threatens to exacerbate the situation by creating a new bottleneck. Pending and new appointees for such key roles as principal deputy commissioner of the Food and Drug Administration will have to wait until the shutdown ends to take their new jobs—assuming they can wait that long.

“The effect is you’ve got less boots on the ground who are committed to the president’s agenda and are willing to dig into substance,” said Randy Johnson, a labor lobbyist for Seyfarth Shaw. “The career people may still be running the show in some cases, and that causes paralysis.”

A number of vacancies in leadership positions have been blamed for handcuffing regulatory moves across agencies including the departments of Labor, Homeland Security and Veterans Affairs. Those include 100 in posts requiring Senate confirmation for which President Donald Trump made nominations that lawmakers didn’t take up during the last Congress. Trump has to renominate those picks or tap new nominees.

Below the Senate confirmation level are more than 2,000 politically appointed positions meant to help the administration put its stamp on public policy.

A White House spokeswoman didn’t respond to a request for comment.

Parts of the federal government have been shuttered since Dec. 22. The White House and Congress continue to debate Trump’s demand for $5.7 billion in southern border wall funding as part of an appropriations bill.

Drug Data Chief on Hold

Amy Abernethy, who was tapped in December to join the FDA as its principal deputy commissioner, is among the appointees sidelined.

Abernethy is expected to help lead the FDA’s precision medicine push and oversee a shift toward drug development based on patients’ biological and genetic information, she told Bloomberg Law shortly after her appointment was announced. Now the chief medical officer for oncology data company Flatiron Health, she said she wants to focus on updating regulations to allow for the use of electronic health records and data from mobile apps like Apple Watches and Fitbits to test drug effectiveness.

Abernethy has been set to leave Flatiron at the end of January but is still going through an ethics review, a company spokesperson said.

OPM’s closure also means government agencies can’t hire career employees. That could mean headaches for agencies like the FDA that hire scientists and other high-skill employees in specialized and competitive fields.

“They can’t follow through on offers they otherwise would have made,” Steven Grossman, Deputy Executive Director for the Alliance for a Stronger FDA, told Bloomberg Law. “They will undoubtedly lose recruits.”

Slow Going

The hitch in getting political appointees installed is magnified by slow pace of filling Senate-confirmed positions that has existed for much of Trump’s presidency. Non-confirmation appointees have been asked to fill those positions on a temporary basis because so many of Trump’s picks were stalled in the previous Congress and the president has yet to renominate them.

Political appointees are filling leadership openings in three of the seven Labor Department sub-agencies that don’t currently have Senate-confirmed officials, for example. The DOL has spots for nearly 200 political appointees and Senate-confirmed officials. It’s not clear how many of those jobs are currently filled.

Even when the OPM and other agencies reopen for business, the process for bringing in new leadership officials is expected to continue to lag. That’s especially true for those that require Senate confirmation, a process that eats up valuable floor time.

“If the shutdown wasn’t going on, it’s unlikely that the Senate would be acting on the nominations anyway,” Paul DeCamp, a lawyer who ran the Labor Department’s Wage and Hour Administration during the George W. Bush administration, told Bloomberg Law. “We are talking about nominations that have been sitting for many months or even well over a year.”

—With contributions from Jeannie Baumann and Jacquie Lee

To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Louis C. LaBrecque in Washington at llabrecque@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editors responsible for this story: Bernie Kohn at bkohn@bloomberglaw.com; Nora Macaluso at nmacaluso@bloomberglaw.com

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