Submitted via www.regulations.gov

Timothy Curry
Deputy Associate Director, Accountability and Workforce Relations
U.S. Office of Personnel Management

Re: Proposed Rule; RIN 3206-AO56; 88 Fed.Reg. 63,862-63,885 (September 18, 2023)

Dear Deputy Associate Director Curry:

The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management (OPM)’s Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 63,862-63,885 (September 18, 2023).

NELA is the largest professional membership organization in the country comprised of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes. Our mission is to advance worker’s rights and serve lawyers who advocate for equality and justice in the American workplace. NELA and its 69 circuit, state, and local affiliates have a membership of over 4,000 attorneys who are committed to working on behalf of those who have faced illegal treatment in the workplace in both the public and private sector. NELA has filed numerous amicus curiae briefs before the United States Supreme Court and other federal appellate courts regarding the proper interpretation of federal civil rights and worker protection laws and comments regularly on relevant proposed rules. NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees and applicants for federal employment. NELA, therefore, has an interest in regulations affecting federal hiring.

NELA has long opposed the attempts by the prior Administration to truncate the civil service protections of federal employees. Civil service protections for federal employees serve as a check against the return of the evils of the spoils system, as OPM correctly elucidated in the current Proposed Rule. In particular, NELA advocated for the abolition of “Schedule F”, which was created under E.O. 13,957 (October 1, 2020) and thankfully never fully implemented. See, e.g., National Employment Lawyers Association’s Department of Labor Proposals for First 100 Days, December 9, 2020, available at https://www.nela.org/proposals-first-100-days/. NELA accordingly welcomed President Biden’s rescission of Schedule F in E.O. 14,003 (January 22, 2021), and now strongly supports OPM’s efforts in this Proposed Rule to further prevent the return of Schedule F.

NELA sees wisdom in ensuring that employees have a remedy for seeking reinstatement of their general adverse action appeal rights prior to an adverse action occurring, and in taking reasonable steps such as those found in this Proposed Rule to help prevent employees from inadvertently losing their previously-accrued MSPB adverse action appeal rights when changing jobs or being coerced into “volunteering” to surrender the MSPB adverse action appeal rights in such situations. OPM should take the opportunity in the Final Rule to make clear that appeals under proposed 5 C.F.R. § 302.603 should fall within the ambit of 5 U.S.C. § 7701 (specifically 5 U.S.C. § 7701(g), so that prevailing employees in such appeals are not burdened with bearing the attorneys’ fees and costs of the litigation).

NELA also supports OPM’s clarification of the properly narrow definition of “Schedule C” employees. This clarification is consistent with the general understanding that Schedule C was really intended to only cover so-called “Plum Book” political appointees and was not intended to extend to all federal employees with policy-related positions (which, if read at broadest, could encompass a substantial portion of the federal civil service). Given the actions of the prior Administration, the potential for abusively turning Schedule C into the metaphorical “exception that eats the rule” is obvious, and the Proposed Rule is a sensible approach to prevent such future abuses.

Further, in response to OPM’s Request for Comments included in this Proposed Rule, NELA comments as follows:

Issue for Comment: Whether the regulatory changes proposed under part 752 are sufficiently protective of employees’ rights in their continued employment.

NELA Comment: In an ideal world, NELA would prefer that employees who have gained MSPB appeal rights, either through the competitive or excepted service, simply retain those appeal rights for as long as they remain in the civil service without break in service (including reinstatements for improper personnel actions that are later retroactively rescinded). If that option is not practicable, then the approach in the Proposed Rule perhaps represents a next-best solution.

Issue for Comment: Whether the proposed definition for the terms “confidential, policy-determining, policy-marking, or policy-advocating” and “confidential or policy-determining” is appropriate or whether it should be expanded or limited with the understanding that it should satisfy the aims of the CSRA (including congressional intent), civil service protections, and merit system principles.

NELA Comment: The proposed definition is sound and should not be expanded beyond its present scope.

Issue for Comment: Whether the procedures for moving positions from the competitive service to the excepted service or from one excepted service schedule to another are appropriate or whether they should be expanded or limited with the understanding that they should satisfy the aims of the CSRA (including congressional intent), civil service protections, and merit system principles.

NELA Comment: As discussed above, NELA would prefer that employees who have gained MSPB appeal rights, either through the competitive or excepted service, simply retain those appeal rights for as long as they remain in the civil service without break in service (including reinstatements for improper personnel actions that are later retroactively rescinded). If that option is not practicable, then the approach in the Proposed Rule perhaps represents a next-best solution.

Issue for Comment: Whether the proposed MSPB appeal rights under part 302 are needed and, if so, whether they are sufficiently protective of employees’ rights.

NELA Comment: MSPB appeal rights are absolutely necessary, although they are not necessarily “sufficiently protective of employees’ rights”; a more sufficient protection would involve simple retention of appeal rights during continuous federal service, as discussed in greater detail above.”

Issue for Comment: Whether this rulemaking should include additional mechanisms for enforcing the protections set forth in this proposal, and if so, what those mechanisms should be.

NELA Comment: OPM should consider requiring that, in the event that an employee files an appeal under proposed Section 302.603, the existence of the appeal should serve to stay implementation of any changes in the subject employee’s MSPB appeal rights pending adjudication of the appeal, so that the employee’s prior level of MSPB appeal rights remain in force temporarily until any appeals are resolved. In other words, the employing agency should not be permitted to shift an employee with 1.5 years of service from the competitive service to the excepted service and then immediately proceed to impose adverse action against the employee, in order to take an end-run around the employee’s previously-accrued MSPB adverse action appeal rights.

Thank you for your consideration. If you have questions or wish to discuss these matters, please contact Ashley Westby at awestby@nelahq.org.

Sincerely yours,
Ashley Westby
Program Director
National Employment Lawyers Association