VIDEO: John P. Mahoney interview with WJLA-TV’s “Good Morning Washington”
(Washington, D.C., Thursday, March 3, 2022) – On January 22, 2021, President Biden signed Executive Order (EO) 14003 on Protecting the Federal Workforce, which rescinded four prior EOs issued by former President Trump that adversely affected federal employees: (1) EO 13836 of May 25, 2018 – Developing Efficient, Effective, and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 Employees in the Excepted Service.
Thereafter, on March 5, 2021, the Office of Personnel Management (OPM) issued Guidance for Implementation of Biden’s Executive Order 14003 – Protecting the Federal Workforce, rescinding its prior guidance issued during the Trump Administration. This is welcome news. The negative impact of EO 13839 on federal sector employees attempting to settle EEOC complaints and MSPB appeals was that the Trump EO prohibited removing or revising documents in any employee’s personnel records, including their Official Personnel File (OPF). In other words, the Trump EO made often crucially important “clean record” settlement agreements impossible.
Top-rated and award-winning Washington, D.C.-based federal employee lawyer, John P. Mahoney, is thrilled that President Biden rescinded the EO outlawing clean record settlement agreements. However, the problem is that OPM has yet to rescind its Trump-Era regulations preventing “clean record” settlements in federal employment law cases, which fact has been relied upon by many federal agencies to drag their feet on agreeing to those often critical clean record settlements. Though the Trump EO has been revoked and new OPM Guidance has been issued authorizing clearn record settlement agreements, the question remains what steps are necessary to undo the Trump-Era regulations governing those 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 be simply revoked.
OPM must take the following steps to rescind or revise its 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. OPM needs to promptly revoke those harmful Trump-Era regulations, so that the Code of Federal Regulations matches up with the correlating EOs and Guidance, so that clean record settlement agreements are fully legal again.
John P. Mahoney, Esq., Attorneys at Law, is a top-rated and award-winning Washington, D.C.-based federal employee lawyer, former federal government agency Vice Chairman, executive, and administrative judge, devoting his entire nearly 30-year legal practice to representing federal employees, unions, employee associations, contractors, and agencies in federal employment law cases, including MSPB appeals. He has garnered the top rating of AV Preeminent® from Martindale-Hubbell® due to his recognized ethics and legal talent