USDA Quietly Modifies Policies on Approval of Settlement Agreements

On December 21, 2017, the U.S. Department of Agriculture released a recorded message from Secretary Sonny Perdue in which he set out “a broad new vision” called OneUSDA.  Secretary Perdue announced various policy changes under OneUSDA “to make USDA the most effective, the most efficient, the most customer-focused department in the entire federal government.”
When the Department rolled-out Phase One of OneUSDA on January 4, 2018, the policy change that got the most attention was the Secretary’s decision to cut back the maximum number of telework days for employees to two per pay period. This understandably caused tremendous confusion and anger for employees throughout the USDA – including those in its sub-agencies, like Forest Service and Rural Development – who only occasionally worked from an official office. However, tucked away in the roll-out was another policy change that is important to anyone pursuing an administrative personnel action, like an EEO complaint or MSPB appeal, against the USDA or one of its sub-agencies.
Going forward, settlements in these administrative personnel actions will be handled differently than in the past. Previously, USDA’s Office of General Counsel only needed to get involved in EEO cases where the action involved a political appointee or any payout totaling $200,000 or more (including back pay, compensatory damages, and attorneys’ fees).
Under the new regulations implemented in January, the General Counsel must investigate and sign off on a deal in a much wider set of circumstances: if the case is at the Equal Employment Opportunity Commission, Office of Special Counsel, or Merit Systems Protection Board and involves a political appointee or a payout of more than $50,000 – a quarter of the previous triggering amount. The new regulations also call for the Office of General Counsel to be more involved in providing litigation advice and counsel to the sub-agencies in cases before the EEOC or MSPB.
USDA assertsthat it is making these policy changes to ensure “all personnel complaints… are resolved expeditiously, cost efficiently, and at the lowest possible level.” However, at this point, it is unclear what impact these changes will have on employees involved in an administrative personnel action against USDA.  For example, it is logical that USDA has mandated that a Resolving Official (“RO”) assigned to a particular administrative personnel action should not be the matter’s Responsible Management Official (“RMO”) – that is, the manager involved with the facts and allegations of the case (i.e., a bullying manager should not decide how much money his aggrieved employee gets for emotional distress).  It is frustrating that something this obvious needs to be codified, but clearly formalizing this logic is a step that helps employees.
These new directives further take power and discretion out of the hands of RO’s within the USDA’s sub-agencies and moves it to the centralized USDA General Counsel.  For example, if the settlement is under $5,000, inclusive all compensatory damages and attorney fees’, the RO does not need to seek any outside advice or counsel to approve the agreement.  If the amount is more than $5,000, but less than $50,000, the Agency head (such as the Chief of the Forest Service or Administrator of the Farm Service Agency) must approve the agreement. However, settlement agreements over $50,000 now require approval by a USDA Under Secretary and concurrence by the General Counsel, as explained above. The centralization of this review could mean that settlements come to be more equitably distributed throughout USDA or it may simply create a bottleneck that makes settlement processing take longer.
Also found in the OneUSDA instructions is a positive – if obvious – step to encourage settlements: an official necessary to settlement (like the Agency head or Under Secretary), must be immediately accessible during any settlement efforts.  It is a pragmatic requirement that more agencies should adopt.
Time will tell if these OneUSDA changes actually speed administrative personnel actions as intended or if the centralization of approval will cause an unbearable bottleneck. If you have an EEOC, MSPB, or OSC case against USDA and would like to speak to an attorney about how these regulations affect your ability to settle your case, please call 202-331-9260 to begin our intake process, or submit your legal issue here.
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