On January 22, 2021, President Biden signed Executive Order (EO) 14003 on Protecting the Federal Workforce, which rescinded four prior EOs issued by former President Trump that adversely affected federal employees: (1) EO 13836 of May 25, 2018 – Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining; (2) EO 13837 of May 25, 2018 – Ensuring Transparency, Accountability, and Efficiency in Taxpayer-Funded Union Time Use; (3) EO 13839 of May 25, 2018 – Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles; and (4) EO 13957 of October 21, 2020 – Creating Schedule F in the Excepted Service. Earlier, the Office of Personnel Management (OPM) had issued guidance on implementing those EOs. On March 5, 2021, however, OPM issued Guidance for Implementation of Executive Order 14003 – Protecting the Federal Workforce, rescinding its prior guidance. This is welcome news.
We previously have written about the negative impact of EO 13839 on federal sector employees attempting to settle EEOC complaints and MSPB appeals, because that EO prohibited removing or revising documents in an employee’s personnel records. In other words, the EO made “clean record” agreements impossible. We also have discussed the problems raised by the creation of Schedule F through EO 13957, which sought to unravel the merit-based nature of the competitive federal civil service, allowing the removal of civil servants without appeal if they are insufficiently loyal. Though these two EOs (and the two other EOs noted above) have been revoked, the question remained what steps were necessary to undo the new regulations governing settlements, which OPM published on October 16, 2020, pursuant to EO 13839 after notice and comment. The regulations were effective November 16, 2020 (i.e., after the 2020 election). See 5 C.F.R. §§ 432.108 and 752.203(h).
Though EOs can revoke other EOs, regulations cannot simply be revoked. Agencies must take the following steps to rescind or revise regulations that already have been issued: (1) publish a notice of proposed rulemaking in the Federal Register; (2) allow stakeholders an opportunity to comment on the proposed regulation; and (3) after considering those comments, publish the final rule.
When it issued the new versions of 5 C.F.R. §§ 432.108 and 752.203(h) in October 2020, OPM stated that it was acting under the authority of EO 13839. When President Biden revoked that EO on January 22, these regulations arguably were no longer enforceable. Now, in its March 5 Guidance, OPM expressly directs that “Agencies shall immediately stop implementation of EO 13839” and “as soon as practicable, suspend, revise or rescind the actions covered in any agency policies implementing requirements pursuant to section 7(b) of EO 13839.” That Guidance also states that “Agency actions to implement any other requirements of EO 13839 must cease immediately.”
As for formal efforts to roll back 5 C.F.R. §§ 432.108 and 752.203(h), OPM’s new Guidance notes that the January 22, 2021, EO required OPM “to review, identify, revise and rescind OPM actions arising from” those regulations. In its March 5 Guidance, OPM announced that it is “preparing proposed rule changes for notice and comment in the Federal Register.” That Guidance also emphasizes that, in the meantime, “agencies should not delay” in implementing the requirements of EO 14003. In other words, agencies have been instructed to promptly reverse any policies they made as a result of former President Trump’s EOs and 5 C.F.R. §§ 432.108 and 752.203(h). Therefore, agencies should now be free to again offer settlements providing employees with a “clean record” or otherwise removing or revising documents in their personnel files. That will allow employees and agencies – in appropriate cases – to reach mutually beneficial settlements and avoid (or at least minimize) costly, time-consuming, and risky litigation.
If you have any questions about the impact of these Executive Orders, the attorneys at KCNF are available to assist you.