On July 28, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in support of the petitioners in Jackler & Jaroch v. MSPB & DOJ (Federal Circuit). Petitioners Megan Jackler and Brandon Jaroch were career civil servants, who were terminated in February 2025 without the minimal advance notice required by the Civil Service Reform Act (CSRA) of 1978. The Merit Systems Protection Board (MSPB), in reviewing an original reinstatement finding, held that Article II abrogates Petitioners’ protection under the CSRA and that the MSPB lacked jurisdiction to hear their appeals. The brief examines the importance of the CSRA and extreme danger to the politically neutral civil service if the President is allowed to have universal termination rights for all executive branch employees, with no appeal right to the MSPB. As the brief states, “(n)othing in Article II requires that inferior officers or career federal employees serve at will. The Supreme Court’s cases recognize that presidential accountability is preserved through supervision and direction, not through a rule of universal removability. And although the government will invoke modern removal precedent, those decisions do not authorize the Executive to disregard statutory protections, bypass due process, or dismantle the … Read More
MSPB
Comments Concerning the Office of Personnel Management (OPM)’s Proposed Rule Upholding Civil Service Protections and Merit System Principles
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 … Read More
Comments on OPM Proposed Rule on Recruitment and Selection Through Competitive Examination, and Employment in the Excepted Service
Submitted via www.regulations.gov
Kimberly A. Holden
Deputy Associate Director for Talent Acquisition, Classification, and Veterans Programs
U.S. Office of Personnel Management
Re: Proposed Rule with Request for Comments; RIN 3206-AN80; 88 Fed.Reg. 47059-47068 (July 21, 2023)
Dear Deputy Associate Director Holden:
The National Employment Lawyers Association (NELA) respectfully submits the following comments concerning the Office of Personnel Management’s (OPM) Proposed Rule with Request for Comments, as published in the Federal Register at 88 Fed.Reg. 88 Fed.Reg. 47059-47068 (July 21, 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 in both the public and private sector. 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 regularly on … Read More
NELA Urges Senate Leader Schumer to Bring MSPB Vacancy Nominations to Senate Floor
Dear Leader Schumer and Leader McConnell:
The undersigned civil society organizations urge you to allow the full Senate to consider and vote on pending nominations to all three vacancies on the Merit Systems Protection Board (MSPB), which serves millions of federal employees as the primary adjudicative agency for worker claims of whistleblower retaliation and other prohibited personnel practices.
While this letter does not take a position for or against specific Board nominations, we are united in our advocacy of whistleblower protections as a crucial safeguard against waste, fraud, and misconduct in government. That is why we are alarmed by the fact that since January 2017, the Board has been unable to perform critical functions and responsibilities due to the unfilled vacancies preventing a statutorily-required quorum of Senate-confirmed Members. These Board responsibilities include providing relief to whistleblowers, issuing final rulings, promulgating new regulations to address changes in the law, and overseeing U.S. Office of Personnel Management rules and activities. As a result, government whistleblowers waiting for Board review of their retaliation claims remain in limbo while the largest-ever backlog of more than 3,500 cases continues to grow.
We urge you to go beyond these abstract descriptions to consider the devastating impact … Read More
NELA Supports Nomination of Cathy Harris to Chair the Merit Systems Protection Board
Director of Office of Presidential Personnel
The White House
On behalf of the National Employment Lawyers Association (NELA), and our 4,000 circuit, state, and local affiliate members across the country, we write to express our strongest possible recommendation that Cathy Harris be nominated to fill the vacancy of the position of Chair of the Merit Systems Protection Board–the independent federal agency that protects federal employee workers from any abuses within the merit system.
NELA is the largest professional membership organization in the country comprised of lawyers who represent workers in labor, employment, and civil rights disputes. Founded in 1985, NELA advances employee rights and serves lawyers who advocate for equality and justice in the American workplace. Our members litigate daily in every federal district and circuit, and in the administrative courts, affording NELA a unique perspective on how employment cases actually play out on the ground and an accurate understanding of the profound impact of the courts on the daily lives and the rights of working people.
NELA offers its full and enthusiastic support to Cathy Harris for the position of Chair of the United States Merit Systems Protection Board (MSPB). Ms. Harris is an experienced practitioner in the niche … Read More
NELA Amicus Brief: Abernathy v. Dept. of the Army (MSPB)
On February 8, 2016, NELA filed an amicus brief in Abernathy v. Department of the Army, MSPB Docket No. DC-1221-14-0364-W-1, pending before the Merit Systems Protection Board (MSPB). NELA’s amicus brief was filed in response to the MSPB’s invitation for public amicus participation, published in the Federal Register at 81 Fed. Reg. 2,913-2,914 (January 19, 2016).
In its Federal Register notice, the MSPB had requested public input concerning whether both the protected activity and the reprisal had to occur while the victim was an employee or applicant for WPA coverage to apply. The MSPB also sought comments comparing the WPA’s coverage to coverage under USERRA, and whether or not WPA coverage of federal contractors would negatively impact coverage under certain other federal contractor whistleblower protection statutes.
The amicus brief was drafted by Alan R. Kabat of Bernabei & Kabat (Washington, DC); Andrew J. Perlmutter of Passman & Kaplan (Washington, DC); Kathryn S. Piscitelli of Kathryn S. Piscitelli, Attorney at Law (Orlando, FL) and Richard R. Renner of Kalijarvi, Chuzi, Newman & Fitch (Washington, DC). Matthew C. Koski, NELA Program Director (Oakland, CA), provided a detailed review of the draft amicus brief, which was also reviewed by Susan E. Jewell of … Read More
NELA Amicus Brief: Day v. Department of Homeland Security (MSPB)
On February 28, 2013, NELA filed an amicus brief urging the Merit Systems Protection Board (MSPB) to give retroactive effect to provisions of the Whistleblower Protection Enhancement Act (WPEA) in Day v. Dept. of Homeland Security, MSPB Docket No. DC-1221-12-0528-W-1. At issue in this case was whether provisions of the WPEA which clarified the definition of protected whistleblowing applied retroactively to Mr. Day’s July 2010 disclosures. Section 101 of the WPEA reversed prior decisions by the MSPB and the U.S. Court of Appeals for the Federal Circuit (in particular, Huffman v. Office of Personnel Management, 263 F.3d 1341 (Fed.Cir. 2001)) to exclude disclosures made to an employee’s supervisor and disclosures made by employees within the scope of their normal duties from whistleblower reprisal protection. The issue for Mr. Day was whether the WPEA definition applied to his July 2010 disclosures, or if the pre-WPEA Huffman standard applied. If the Huffman standard applies, Mr. Day’s whistleblower reprisal claim could likely be dismissed; if Section 101 of the WPEA applies, Mr. Day’s claim could then proceed to hearing. An MSPB Administrative Judge applied the Huffman standard, but certified the case for interlocutory appeal to the MSPB on the question of … Read More
