Submitted via: https://www.regulations.gov/commenton/OPM-2022-0001-0001
To Whom It May Concern:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule, as published in the Federal Register at 87 Fed.Reg. 200-209 (January 4, 2022). 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. 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 on relevant Notices of Proposed Rulemaking (NPRMs). NELA also engages in legislative advocacy on behalf of workers throughout the United States. A substantial number of NELA members’ clients are federal employees. Thus, NELA has both an interest in any potential modifications to federal sector personnel regulations issued by OPM and extensive expertise regarding the practical impact of any proposed modifications.
NELA notes that the primary purpose of the present rulemaking is to effectuate Executive Order 14,003 (January 22, 2021), which revoked Executive Order 13,839 (May 25, 2018) and directed OPM and other agencies to “as soon as practicable, suspend, revise, or rescind, or publish for notice and comment proposed rules suspending, revising, or rescinding” those rules which implemented E.O. 13,839, among other regulations. See E.O. 14,003 (January 22, 2021) at § 3f. Among the rules whose rescission are required by E.O. 14,003 are the rules proposed by OPM at 84 Fed.Reg. 48,794-48,806 (September 17, 2019) and implemented by OPM at 85 Fed.Reg. 65,940-65,988 (October 16, 2020). NELA had submitted comments to OPM on October 17, 2019 (available at https://www.nela.org/wp-content/uploads/2020/06/NELA-OPM-October-2019-Comments-Final.pdf), stating NELA’s staunch opposition to E.O. 13,839.
NELA stands by its prior comments, and generally supports President Biden’s revocation of E.O. 13,839 through issuance of E.O. 14,003. As a result, NELA welcomes OPMs’ compliance with E.O. 14,003 in the present rulemaking, and looks forward to the striking of the harmful provisions of E.O. 13,839 from the Code of Federal Regulations at the earliest practicable date. NELA members have observed the damaging effects that were predicted in NELA’s 2019 comments. NELA members have observed that the rules against clean record settlement provisions greatly impaired the ability of the government and employees to settle cases, forcing the continuance of litigation in matters which — prior to May 25, 2018 — would likely have settled, and overall resulted in innumerable cases of manifest injustice. Similarly, the rules which set fixed durations for Performance Improvement Periods (PIPs) resulted in arbitrarily inflexible PIP timeframes rather than the prior tailoring of PIPs to the nature of the work involved, and the restrictions on response periods and decisional periods for adverse actions similarly hobbled employees’ ability to organize responses, impairing their exercise of due process rights and producing inferior rushed disciplinary decisions on less than full information by agencies. By restoring agencies’ reasonable discretion in these matters, E.O.14,003 and this proposed rule bring to a close a misguided policy.
As noted in NELA’s October 17, 2019 comments, the sole provision of E.O. 13,839 that NELA supported was the formal inclusion of the Douglas factor analysis into the C.F.R. NELA understands that E.O. 14,003 required rescission of all regulations specified in E.O. 13,839, which required OPM to rescind this rule as well. NELA is glad that OPM has recognized the importance of continuing application of Douglas in the text of the present proposed rule, and hopes that OPM will consider future rulemaking activity to re-include Douglas factor analysis in its regulations when the occasion permits.
NELA objects to OPM’s statement in the proposed rule (87 Fed.Reg. at 203-204) that, “In addition, agencies are advised that, in any such agreement, they have an obligation to speak truthfully to Federal investigators performing future background investigations with respect to the employee and may not agree to withhold information about the circumstances of an individual’s departure from the agency.” This statement stands contrary to the President’s policy in E.O. 14,003 of rescinding restrictions on agencies’ discretion to enter into clean record settlements in disputed cases. NELA members have observed that agencies are often guilty of giving incomplete information to background investigators in a fashion skewed to denigrate targeted employees, selectively including information adverse to subject employees while materially omitting the employees’ counterarguments (in particular, if the employee challenged agency actions against them as unlawful discrimination, unlawful EEO reprisal or whistleblower reprisal, etc.). Efficiency of the federal service is not promoted by giving license to continuing retaliation through providing negatively skewed information to future employers; to the contrary, doing so represents further retaliatory action in violation of 5 U.S.C. § 2302(b)(1, 8, 9, 10) and other statutes.
NELA has long advocated in favor of robust protection for whistleblowers, which necessarily includes disciplinary consequences for those federal managers who abuse their authority to retaliate against whistleblowers in defiance of federal law. NELA thus supports the policy behind 5 U.S.C. § 7515 and 5 C.F.R. Part 752 Subpart A, and encourages OPM to continue in their enforcement.
NELA supports the extension of civil service protections to National Guard technicians under Pub.L. 114-328, and accordingly supports OPM’s inclusion of an implementing regulation for that statute in this proposed rule.
Finally, NELA opposes OPM’s comments concerning the decision of the Court of Appeals for the Federal Circuit in Santos v. National Aeronautics and Space Administration, 990 F.3d 1355 (Fed. Cir. 2021). The Federal Circuit’s decision in Santos was fundamentally grounded not in OPM’s regulations, but instead in the unambiguous underlying statutory text of 5 U.S.C. § 4302(c)(6). See Santos, 990 F.3d at 1360-1361. OPM is bound to obey the command of Congress, and it is not within OPM’s power to implement a policy flatly contrary to the clear statutory text through rulemaking proceedings. If Congress disagrees with the decision of the Santos court, Congress is free to legislatively overrule the decision by amending the statute — but it is within Congress’ power, not OPM’s power. Until Congress so acts, OPM is constrained to act in conformity with the statute, which has been construed in Santos by the Federal Circuit, the primary reviewing court for adverse actions in the federal sector.
Thank you for your consideration. If you have questions or wish to discuss these matters, please contact Laura Flegel at email@example.com or (202) 674-6552.
Laura M. Flegel
Director of Legislative & Public Policy