Michael Rigas, Acting Director
U.S. Office of Personnel Management
Theodore Roosevelt Federal Building
1900 E Street NW
Washington, DC 20415-1000

Submitted electronically via www.regulations.gov

Re: National Employment Lawyers Association (NELA)’s Comments on U.S. Office of Personnel Management NPRM Regarding Attorney Fees and Personnel Action Coverage under the Back Pay Act:  RIN 3206-AN83

Dear Acting Director Rigas:

The National Employment Lawyers Association (NELA) respectfully submits the following comments opposing issuance of the Office of Personnel Management’s (OPM’s) Proposed Regulation referenced above.

NELA is the largest professional membership organization in the country of lawyers who represent employees in labor, employment, wage and hour, and civil rights disputes.  NELA advances employee rights and serves 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 been illegally treated in the workplace.  NELA members frequently represent federal sector employees with claims under the Back Pay Act, and as a result have had ample experience in its practical operation and mechanics. Thus, NELA has both an interest in the proposed amendments and extensive expertise regarding the practical impact of any proposed modifications.

NELA strongly opposes OPM’s proposed revisions to its Back Pay Act regulations in its recent Proposed Rule, which was published in the Federal Register at 85 Fed.Reg.63218-63222 (October 7, 2020).  For more than fifty years, the Back Pay Act, 5 U.S.C. § 5596, has served as the foundation upon which employees of United States Executive Branch agencies, the Administrative Office of the United States Courts, the Library of Congress, the Government Publishing Office, the government of the District of Columbia, the Architect of the Capitol, and the United States Botanical Garden are able to enforce their right to  pay, allowances and differentials that they have earned under federal pay statutes.  The Back Pay Act provides the waiver of sovereign immunity necessary for these employees to bring claims for many types of pay violations against the Federal Government, and thus is vital to the operation of those claims.

OPM now seeks to render many legal pay entitlements effectively unenforceable, by declaring categories of federal sector pay statutes either outright unenforceable under the Back Pay Act or by denying the attorney fee-shifting presumption to successful Federal employee-litigants. OPM’s proposed changes are completely inconsistent with Congressional intent, overrides decades of settled judicial and administrative precedent, and will waste resources by shifting pay claims to other Executive Branch agencies and federal courts. OPM’s proposed regulation dramatically departs from widely accepted and settled application of the Back Pay Act. These changes will disproportionately impact coverage of lower paid front-line workers, including law enforcement officers, hospital workers, and food safety inspectors, The American public relies on these workers to provide critical services, NELA accordingly urges OPM to withdraw its proposed changes.

 OPM claims that Congress, in enacting the Civil Service Reform Act of 1978 (CSRA), “expanded” the definition of “personnel action” but only in the limited capacity of determining when a prohibited personnel practice occurred, and otherwise keeping the original definition contained in the Back Pay Act with “slight modification.”  85 Fed Reg.  at 63219.  OPM theorizes that this means that the CSRA did not “broaden” the Back Pay Act other than adding in “omissions”, and that the Back Pay Act should cover a narrower range of actions than those constituting prohibited personnel practices. This is error.

Even prior to the revisions of the CSRA, the Back Pay Act was intended to cover a wide range of personnel actions beyond “adverse actions” and including errors of procedure and other situations where an agency had violated federal pay law, thus causing “a reduction in their duly appointed emoluments or position.”  The Supreme Court in its pre-CSRA Testan decision recognized that this sort of violation was precisely the sort action to which “the Back Pay Act, as its words so clearly indicate, was intended to grant a monetary cause of action.”  See United States v. Testan, 424 U.S. 392, 407 (1976); see also id. at 406 (“Congress, of course, now has provided specifically […]  in the Back Pay Act for the award of money damages for a wrongful deprivation of pay.”).  The Back Pay Act’s intent is remedial and its scope is broad.  See, e.g., Bush v. Lucas, 462 U.S. 367, 385 fn.25 (1983) (characterizing the Back Pay Act as “extending the right to backpay and lost benefits to every employee affected by a personnel action subsequently found to be unjustified”); see also id. at 391 (Marshall, J., concurring) (“…Congress plainly intended to provide what it regarded as full compensatory relief when it enacted the Back Pay Act of 1966, 5 U. S. C. § 5596 (1982 ed.). The Act was designed to “pu[t] the employee in the same position he would have been in had the unjustified or erroneous personnel action not taken place.” See S. Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966). See H. R. Rep. No. 32, 89th Cong., 1st Sess., 5 (1965); cf. Sampson v. Murray, 415 U. S. 61, 82-83 (1974)”).

In enacting the CSRA (with its amendments of the Back Pay Act), Congress did not narrow the scope of the Back Pay Act (with the exception of excluding classification decisions and addressing annual leave).  Rather, in with the passage of the CSRA’s amendments to the Back Pay Act, Congress affirmed the broad purpose of the Back Pay Act of 1966 by clarifying that “personnel action” included acts or omissions and added a provision for attorney fees.   Had Congress intended to use the CSRA to limit the scope of covered actions under the Back Pay Act to adverse actions or prohibited personnel practices only, it could have done so by using or expressly incorporating the language of sections 101 or 205 of the CSRA (which enacted 5 U.S.C. §§ 2302, 7701).  Congress specifically chose not to do so—and under familiar canons of statutory interpretation, that Congressional decision is material.  “`[W]here Congress includes particular language in one section of a statute but omits it in another . . ., it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.'” Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (citing Russello v. United States, 464 U. S. 16, 23 (1983)).  Interpreting the scope of Back Pay Act coverage to matters presently in the jurisdiction of the MSPB, OSC or FLRA is further nonsensical, as the Back Pay Act expressly covers non-executive branch employees in the legislative and juridical branch who fall outside the jurisdiction of those tribunals.

The fact that the Back Pay Act is not, and was never, intended to be limited to appealable adverse actions is further reinforced by comparison to the pre-CSRA version of the Back Pay Act:

• Under the original 1966 Back Pay Act, the Civil Service Commission’s implementing regulations specified that back pay act extended to actions beyond Part 752 (“and includes, but is not limited to, separations for any reason (including retirement), suspensions, furloughs without pay, demotions, reductions in pay, and periods of enforced paid leave whether or not connected with an adverse action covered by Part 752 of this chapter”). 5 C.F.R. § 803(e) (1975)
• Pre-CSRA Comptroller General (CG) decisions also confirmed that the Back Pay Act extended to a wide range of personnel actions, including, for example, an action that resulted in a loss of one day of service credit due to an agency’s violation of procedures. Alex H. Stratton – Retroactive Correction of Employment Action, CG B-182877 (Jun. 9, 1975).  The CG explained that such an interpretation was consistent with the Back Pay Act’s legislative history, which “indicates that procedural errors that result in unjustified or unwarranted personnel actions occurring in connection with personnel status changes are covered by the Act.”  Id. at 7. The CG cited to the Senate Report, which states in part:
  4 H.R. 1647 does not prescribe the specific types of personnel actions covered. Separations, suspensions, and demotions constitute the great bulk of cases in which employees lose pay or allowances, but other unwarranted or unjustified actions affecting pay or allowances could occur in the course of reassignments and change from full-time to part-time work. If such actions are found to be unwarranted or unjustified, employees would be entitled to backpay benefits when the actions are corrected. (Emphasis added.)

Id. at 6, citing S. Rep. No. 1062, 89^th Cong., 2d Sess. 3 (1966).  OPM is incorrect when it suggests that the Comptroller General advocated for an overall more limited view of the Back Pay Act.[1]

OPM ignores extensive legislative history when it asserts that the “structure of the Back Pay Act reinforces [the] conclusion” that Congress intended for the Back Pay Act to cover only those actions appealable to the MSPB (prohibited personnel practices and adverse actions).  85 Fed.Reg. at 63219. OPM claims that because Congress provided that fees should be awarded in accordance with standards developed by the MSPB under section 7701(g) of the CSRA in the Back Pay Act, it is “dubious” that Congress meant for the Back Pay Act to apply in cases that “would never appear before the MSPB.”  Id.  OPM’s conclusions are completely unsupported and ignore the legislative history.

The legislative history is clear: the Back Pay Act’s reference to section 7701(g) was the result of a compromise and its purpose was not to limit the scope of remedies available under the Back Pay Act, but instead to ensure consistency in the standards used to determine when fees are warranted and to establish consistency in the type monetary relief available upon the reversal of an unjustified or unwarranted personnel action by an “appropriate authority” (which includes an arbitrator, the MSPB, and/or the FLRA).

The provisions of the Back Pay Act which allow awards of attorney fees were produced as the result of legislative compromise. The House and Senate versions of the CSRA included several different standards and authorities for fees.

• Senate Versions of the CSRA:
  There were several Senate versions of the CSRA.  The first version of the CSRA passed by the Senate, S. 2640, amended the Back Pay Act to reflect broader interpretations of the scope of relief, but did not include any provision for attorney fees under the Back Pay Act.  S. Rep. No. 969, 95TH Cong., 2d Sess. 60-61 (July 10, 1978) (hereinafter “Senate Report”), reprinted in 1978 U.S. Code Cong. & Admin. News 2723, 2833.[2]  The first Senate version provided for attorney fees only in section 7701(j) of S.2640, which provided the MSPB jurisdiction to award fees to a prevailing party in cases not involving discrimination if “the agency’s action was taken in bad faith.”  The July 1978 Senate version specifically prohibited arbitrators from awarding attorney fees, except in cases involving discrimination.  Id. at 2833, 35.In explaining the rationale for authorizing the Board to award fees, the report accompanying the July 1978 Senate bill states:

  Employees whose agencies have taken unfounded actions against them may spend a considerable amount of money defending themselves against these actions, they cannot be reimbursed for attorney fees upon prevailing in their appeals to the commission.  Instead, they must file civil actions against the government in order to obtain a review of their requests for reimbursement.

  The legislation remedies this problem by authorizing the board members and hearing officials to require payment, by agencies which are losing parties to proceedings before the board, of attorney fees to the employees who prevailed.

  S. Rep. No. 969, 95TH Cong., 2d Sess. 60-61 (1978) (hereinafter “Senate Report I”), reprinted in 1978 U.S. Code Cong. & Admin. News 2723, 2782-83.

  After additional conference and review of the bill, the Senate found that the same reasoning justifies providing for fees in grievance arbitrations.  In August 1978, the Senate amended the bill to include specific provisions for attorney fees in arbitration, which allowed for an award of fees by an arbitrator or the FLRA where an agency’s action was determined to be “in bad faith.”  Cong. Rec. – Senate, S 14292-93 (Aug. 24, 1978). (reprint p. 1657-58).  The purpose of the revision was explained as follows:

  PAYMENT OF ATTORNEY FEES IN ARBITRATION

  Mr. President, this revision provides for attorney fees incurred by an employee who is the prevailing party in an arbitration case. This amendment will be superseded by negotiated agreements where the agency and the representative of employees have agreed to alternative terms in a contract. The intent of this amendment is to provide a standard rule on such awards that is consistent with the provisions available to the Merit Systems Protection Board.

  The arbitrator shall decide the award of such payments if the Agency’s action is considered to have been taken in bad faith. The award should cover reasonable attorney fees and accepted court expense items such as filing fees and the cost of transcripts. It is our intention that these awards should reflect the actual costs incurred, realizing that costs in some States would be higher than others for the same case. The provisions of this amendment are consistent with the accepted awards authorized in the statutory process of appeals. Title VII of the civil service reform bill provides the employees working within negotiated agreements to have a choice between the statutory appeals process or the terms of the contract.  This amendment corrects an inequity that exists if the employee chooses arbitration.

  The amendment authorizes the Federal Labor Relations Authority to grant attorney fees in the same manner described for the arbitrator. Obviously, some arbitration decisions will be appealed to this new Authority. The intention of this revision is to provide relief equivalent to the statutory process when the employee decided on arbitration. Such fees will include those appropriate costs which had been incurred in the arbitration process.

  S. 14295-96 (Reprint pp. 1662-63). See Senate Conf. Report to Accompany S. 2640, Report No. 95-1717, p. 113 (Oct, 5, 1978) (Reprint p., 1995).

• U.S. House of Representatives Version:
  The U.S. House of Representatives’ version of the CSRA, H.R. 11280, proposed amendments to the Back Pay Act that would entitle an affected employee to receive, upon correction of a “personnel action”, attorney fees, and indicated that an award of fees in an action under a grievance procedure or ULP would be in accordance with standards to be developed by the Federal Labor Relations Authority. (Section 7105 of H.R. 11280). The House version also provided that the MSPB could award fees where an officer determined that fees were warranted.  This construct would have resulted in two separate standards for awards of fees.

The Conference Committee made a series of compromises to resolve these conflicting versions and ensure consistency in fee awards regardless of the authority issuing the award.  This included dropping the provision that allowed the FLRA to establish its own standards for fee awards in ULP and grievance cases.  Instead, the Committee provided a “middle ground” that would allow appropriate authorities, including the FLRA and arbitrators, the authority to award fees in conformity with fee standards applied in MSPB cases.  The House Conference Report confirms that Congress intended that appropriate authorities would have authority to order monetary remedies and attorney fees “whenever” an employee is successful.  See H.R. Cong. Rep. 95-1717, H.R. Conf. Rep. No. 1717, 95th Cong., 2nd Sess. 1978, 1978 U.S.C.C.A.N. 2860, 1978 WL 8637 (“Conference Report”) (Oct. 5, 1978).  The relevant provisions of the Conference Report reflect the final compromise on attorney fees:

Id. at 2876 (emphasis supplied).

The House Conference Report confirms that Congress intended that appropriate authorities would have authority to order monetary remedies and attorney fees and that this authority was not constrained by the nature of the “personnel practice.”  This language cannot credibly be read to say that Congress intended effectively that only the Board would have authority to grant attorney fees.  The FLRA and the grievance process were not intended as a substitute for the MSPB, but rather to provide a forum and remedies for a broad range of actions including, but not limited to, prohibited personnel practices and adverse actions appealable to the MSPB.

This compromise signals two key principles: (1) the reference to 7701(g) standards for fees has no bearing on the scope or applicability of the Back Pay Act nor does it limit the Back Pay Act to only those “personnel actions” appealable to the MSPB; (2) that arbitrators and the FLRA would have the authority to issue fee awards in cases involving actions not otherwise appealable to the MSPB.  The last point is further reinforced by the fact that the CSRA authorized the FLRA to rule on appeals of arbitrators’ fee awards, except in cases involving adverse actions appealable to the MSPB.   Appeals of an arbitrator award of attorney fees win cases involving an adverse action must be presented to the MSPB.  5 U.S.C. §§ 7122(a) 7121(f); 15 FLRA 245 (1984).

When Congress implemented the CSRA Act, it created § 7701 (g)(1) and simultaneously amended the Back Pay Act to include the attorney fees provision found at § 5596.  As demonstrated in legislative history and as courts, the MSPB, and the FLRA, consistently interpret, the purpose was to ensure that § 5596 fee awards be made in accordance with the standards in 7701(g) – not that the remedial scope of § 5596 be limited to only personnel actions over which the MSPB has jurisdiction.   See. e.g., Conference Report, H.R. Cong. Rep. 95-1717; Sims v. Department of the Navy, 711 F.2d 1578, 1580 (Fed. Cir. 1983) (examining the legislative history of the two attorney fee provisions and determining that they merged analytically, that Congress considered them to be together, and that, as a result, fee awards under both would be applied in the same manner).  Id. at 1579-81 (following Crowley v. Schultz, 704 F.2d 1269, 1274 (D.C.Cir.1983); see also Sacco, 452 F.3d at 1309 (“the various federal attorney’s fees statutes should be constructed to reach a uniform result”)).

NELA opposes OPM’s proposed revision to the definition of “Personnel action” in 5 C.F.R. § 550.803, which would fundamentally alter protections that Congress has provided in Title 5.  Title 5 of the United States Code relies on the Back Pay Act as an enforcement mechanism, and those protections include, but are not limited to, the following:

• Prevailing rate requirements for Wage Grade employees pursuant to 5 U.S.C. § 5343(a);
• Environmental Differential Pay for Wage Grade employees for working around “unusually severe working conditions or unusually severe hazards” pursuant to 5 U.S.C. § 5343(c)(4);
• Overtime for FLSA-exempt employees pursuant to 5 U.S.C. § 5542;
• Night Differential pursuant to 5 U.S.C. § 5545(a);
• Hazardous Duty Pay for “duty involving unusual physical hardship or hazard” pursuant to 5 U.S.C. § 5545(d); and
• Pay for working on Sundays and holidays pursuant to 5 U.S.C. § 5546.

The Back Pay Act is the mechanism necessary to enforce these statutory pay requirements.  See, e.g., U.S. Dep’t of Veterans Affairs, Central Arkansas Veterans Healthcare System and AFGE Local 2054, 71 F.L.R.A. 593 (2020) (Back Pay Act enforcement of Environmental Differential Pay for work in hazardous situations).

OPM’s proposed definition of “Personnel action” would deprive these employees of a remedy.  As the Supreme Court teaches, “A disregard of the command of the statute is a wrongful act, and where it results in damage to one of the class for whose especial benefit the statute was enacted, the right to recover the damages from the party in default is implied, according to a doctrine of the common law […] This is but an application of the maxim.  Ubi jus ibi remedium.”  Texas & Pacific R. Co. v. Rigsby, 241 US 33, 39-40 (1916).  Rendering these statutes unenforceable by the Back Pay Act would encourage federal agencies to flout federal pay mandates (as well as OPM’s own regulations on pay and benefits), flying in the face of the federal government’s longstanding commitment to be a model employer.  See, e.g., https://www.mspb.gov/mspbsearch/viewdocs.aspx?docnumber=384592&version=385338&application=ACROBAT.

OPM misconstrues the basis for fees under the Back Pay Act. 85 Fed.Reg. at 63220. The entitlement to an award of attorney fees under the Act shifts the responsibility for payment of fees from an employee to the Agency.  The Act does not address the contractual relationship between an employee and a representative nor does it limit or even address the type of attorney representative that can receive a payment of fees in an award under the Back Pay Act.  The Back Pay Act does not address the question of who can receive fees because the Back Pay Act is concerned with whether fees were incurred on behalf of an employee in obtaining relief under the Back Pay Act.  Where an employee prevails and fees were incurred, the responsibility for payment shifts to the Agency, regardless of the identity of counsel.  OPM’s reading of the Back Pay Act in this proposed regulation as limiting fees to those meeting the definition of “employee” under 5 U.S.C. 2105(a) is absurd and would theoretically prevent any recovery of fees under the Act, as a private law firm or counsel is not a “employee of an agency” under 5 U.S.C. 2105(a).

Additionally, it is absurd to claim that the Back Pay Act was not intended to apply to fees for union attorneys in grievance arbitrations.  First, this is clearly a matter that Congress contemplated, as Congress explicitly amended the Back Pay Act with the CSRA to add two provisions: that the Back Pay Act apply to grievance proceedings, and that the Back Pay Act include awards of attorney fees.  Early versions of the CSRA specifically excluded fee awards by arbitrators, and as explained above, Congress removed that exclusion in the final version of the bill.

Where Congress specifically amended the Back Pay Act to allow for remedies in grievances, and included provisions for the recovery of fees, it would follow that Congress would have envisioned unions pursuing claims on behalf of employees through the grievance procedure.  Had Congress only wanted fee shifting to apply where an employee had private counsel, Congress would have said so.  Because Congress did not differentiate entitlement to fees based on the type of attorney-client relationship, it is improper for OPM to effectively make fee shifting contingent on the nature of a fee agreement or the identity of the individual paying the attorney representative. When an employee succeeds in getting an unjustified personnel action reversed, the appropriate authority does not require proof that the employee was the person that actually paid the attorney’s bills (otherwise employees could not recover if they had a family member pay the bills, for example).  The only requirement is that an attorney-client relationship existed and that fees were incurred.

The FLRA recognized in Corpus Christi Army Depot that an agreement by unions or employees to pay fees to attorneys does not negate an agency’s obligation to pay attorneys’ fees when statutory requirements are met:

Corpus Christi Army Depot, 58 F.L.R.A. 87 (2002).

Notably, OPM has previously made clear that neither its regulations nor the statute limit fee awards to situations where the employee has actually personally incurred attorney fees:

See OPM 1981 rulemaking, at FR 58274 (Pay Administration (General); Back Pay Regulations, 46 Fed. Reg.  58271-02, 1981 WL 148359 (Dec. 1, 1981).

The Federal Service Labor-Management Relations Statute (FSLMRS), which was established as part of the Civil Service Reform Act of 1978, codified Congress’ position that “labor organizations and collective bargaining in the civil service are in the public interest” and articulated the importance of “facilitat[ing] and encourag[ing] the amicable settlement of disputes between employees and their employers involving conditions of employment[.]”  5 U.S.C. § 7101.  The FSLMRS established the framework for grievance procedures in federal sector collective bargaining agreements and provided for submitting disputes to binding arbitration, which may only be invoked by the union or the Agency.  5 U.S.C. § 7121(b)(1).  The FSLMRS intended for employees and unions to be able to file grievances and submit to binding arbitration a broad range of personnel actions with only a short list of enumerated exceptions.  See 5 U.S.C. § 7121(c) (excluding, for example, claims related to prohibited political activities; retirement, life insurance, or health insurance; or examinations, certifications, or appointments).  However, the FSLMRS does not contain its own waiver of sovereign immunity.  See Federal Aviation Admin., Detroit and Nat’l Air Traffic Controllers Ass’n, 64 F.L.R.A. 325 (2009).  For that, the FSLMRS explicitly relies on the Back Pay Act and states that any settlements and awards are subject to the Back Pay Act’s limitations.  5 U.S.C. § 7121(h).  For more than 40 years, the FSLMRS and the Back Pay Act have been interpreted together as Congress intended.

If OPM’s proposed changes are adopted, they would render meaningless Congress’ intent in the FSLMRS to provide a “fair and simple” and “expeditious” procedure for resolving numerous categories of employee disputes, including disputes over pay violations.  First, by redefining and significantly limiting the definition of “Personnel action” at 5 C.F.R. § 550.803, OPM would narrow the scope of actions capable of being addressed pursuant to the FSLMRS in a way that directly contradicts Congress’ stated intent in the statute for the grievance procedure to address all disputes except for those listed among the enumerated exclusions.  Expressio unius est exclusio alterius.  Second, by excluding unions from the definition of “Employee’s personal representative” at 5 C.F.R. § 550.803, it appears OPM is proposing to eliminate all attorneys’ fees from grievance arbitration pursuant to the FSLMRS, because by definition, only the union or the Agency may invoke arbitration (and not an employee or the executor of a deceased employee’s estate).  See 5 U.S.C. § 7121(b)(c)(iii).  It would be a perversion of Congressional intent to render the FSLMRS so toothless.

Additionally, the Proposed Rule effectively further undercuts the right of federal employees to a representative of their choosing by interfering with their option to seek union representation in matters covered by the Back Pay Act. The Proposed Rule does not exist in isolation, but instead is expected to operate in concert with several other anti-union provisions in E.O. 13,836, 13,837, 13, 839 (May 25, 2018) to severely limit the ability of union representatives to represent federal employees. If this proposed rule is finalized, this constraint would severely restrict the free choice of employees to pick their representatives.  The creation of one such restriction on choice of representatives gives rise to grave concern about potential future restrictions on who may represent employees in the federal sector pay issues covered by the Back Pay Act. It also raises serious concerns about particular groups’ access to the EEO process. Employees belonging to groups who are socially or economically disadvantaged (including, for example, employees geographically remote from areas where private counsel knowledgeable in federal sector employment law are readily located) are often those most in need of the support and representation of their unions.   For these employees, the meaningful choice of a union representative may make the difference between pursuing a remedy for a pay violation by their agency, or being forced to endure wage theft by the federal government.

The Proposed Rule does not take into account the impact of its proposed changes on other agencies and branches of government that stand to be affected.  If unions are no longer able to seek attorney fees pursuant to the Back Pay Act, OPM’s proposed changes will drive some litigation to federal court where attorneys (perhaps even the unions’ attorneys) could directly represent groups of employees.  This is a more expensive forum than arbitration. The United States would be responsible for greater attorneys’ fees and disavow labor arbitration as a swifter and more economical forum for both parties to resolve pay disputes, contrary to Congress’ intent in the FSLMRS to provide a “fair and simple” and “expeditious” procedure for resolving numerous categories of employee disputes.

Fundamentally, NELA objects to the basic effect of this amendment: expanding when federal agencies can, arbitrarily and with impunity, deprive their employees of earned pay and benefits to which they are entitled under federal law for work they have performed on the behalf of the public (and to ignore the mandates of Congress and its federal pay statutes in doing so).  In the over 50 years since the pre-CSRA version of the Back Pay Act was passed, and in the over 40 years since the CSRA, the Back Pay Act has provided a simple, straightforward and effective means for implementing federal law and holding federal agencies to account on pay issues, one well developed in precedent in the courts and in federal administrative fora.  NELA members have observed no problems that require the drastic changes that OPM now proposes to that settled practice, and to the contrary observes a risk of manifest injustice if the Proposed Rule were implemented.

Thank you for your consideration. If you have questions or wish to discuss these matters please contact Laura Flegel at lflegel@nelahq.org  or (202) 898-2880 ext. 115.

Sincerely yours,

Laura M. Flegel
National Employment Lawyers Association
Legislative & Public Policy Director

[1] OPM relies upon a 1984 CG Decision (Leland M. Wilson: Claim for Attorney Fees and Interest, CG B–205373 (April 24, 1984)), but that decision is not relevant to the instant discussion, as that case did not concern a personnel action that impacted the pay of a federal employee. The CG’s decision was explicitly limited to the withholding of retirement contributions based on post-employment matters.  Id. (“without enumerating what actions are or are not within the scope of the Back Pay Act, we conclude that this claim is not within its scope.”).  Next, the CG decision hinged on the fact that the individual’s claim did not involve any action that occurred during his employment or affected pay (“Mr. Wilson’s was not for money withheld from his pay or allowances while employed by the FAA nor for additional pay or allowances he would have received but for the FAA’s action.”), but instead was an attempt to garnish retirement funds to repay a debt which had been already discharged in bankruptcy.  The case did not involve a withholding of pay or benefits or other personnel action or omission, such as, for example, withholding an earned award, failing to pay locality pay, or suspending an employee for three days without pay.

[2] The Senate version amended the Back Pay Act “to reflect the broader interpretation of the statute” by the Comptroller General and the Civil Service Commission “in recent years.” It provided for back pay where an employee suffered a change or loss in pay or benefits due to a “unjustified or unwarranted action taken by an agency.”  Id. at 2837.  The Senate version defined ‘unjustified or unwarranted action’ ‘to include acts of commission as well as omission with respect to nondiscretionary provision of law, executive order, regulation or collective bargaining agreement.”  Id. at 2837.  The Senate version authorized arbitrators to award back pay in grievance arbitrations.  Id. at 2835.