Wednesday, January 25, 2017

What is a Suitability Determination?

No matter what kind of job you do, if you’re working for the federal government in a competitive service position, you will have to be reviewed for “suitability”. What that means in practice is that OPM or your agency will use your application form, interviews, pre-employment inquiries, investigative data forms, and personal subject interviews to discover whether you have any derogatory information that might make your hire harmful to the “integrity or efficiency of the federal service.”

5 C.F.R. §731 contains the regulations governing suitability for federal employment. It lists eight specific factors that may be used in making a suitability determination:
(1) Misconduct or negligence in employment;

(2) Criminal or dishonest conduct;

(3) Material, intentional false statement, or deception or fraud in examination or appointment;

(4) Refusal to furnish testimony as required by §5.4 of this chapter;

(5) Alcohol abuse, without evidence of substantial rehabilitation, of a nature and duration that suggests that the applicant or appointee would be prevented from performing the duties of the position in question, or would constitute a direct threat to the property or safety of the applicant or appointee or others;

(6) Illegal use of narcotics, drugs, or other controlled substances without evidence of substantial rehabilitation;

(7) Knowing and willful engagement in acts or activities designed to overthrow the U.S. Government by force; and

(8) Any statutory or regulatory bar which prevents the lawful employment of the person involved in the position in question.

5 C.F.R. § 731.202(b). These are the only factors that may be considered in making a suitability determination. However, the regulations also offer a list of seven considerations that “must” be considered if the agency finds them to be pertinent:
(1) The nature of the position for which the person is applying or in which the person is employed;

(2) The nature and seriousness of the conduct;

(3) The circumstances surrounding the conduct;

(4) The recency of the conduct;

(5) The age of the person involved at the time of the conduct;

(6) Contributing societal conditions; and

(7) The absence or presence of rehabilitation or efforts toward rehabilitation.

5 C.F.R. § 731.202(c). The standard for determining suitability is simply whether “the action will protect the integrity or promote the efficiency of the service.” 5 C.F.R. § 731.201. That is, OPM or the agency may determine a new employee, i.e., one who has worked for the government for less than a year, is “unsuitable,” if they can show that doing so “will protect the integrity or promote the efficiency of the service.” 5 C.F.R. § 731.201.

OPM has developed a chart for evaluating suitability for new employees. At the top, and requiring referral to an adjudicator, is “Any evidence of dishonesty or fraud in the competitive examination or appointment process (such as falsification of application).” The chart below is divided into Major and Substantial Issues, for which referral is required if within the last three years; Moderate Issues, for which referral is required when there are two or more issues; and Minor Issues, for which referral is required if there are three or more within the last three years. This referral process is straightforward.

Agencies can begin suitability considerations at any point in the hiring process, although the investigation does not typically begin until after the employee is hired, and a determination under 5 C.F.R. § 731 must be completed within the first year of a federal employee’s employment.

If the agency (or OPM) determines to take a suitability action under 5 C.F.R. § 731, it may remove the new hire from federal employment or even debar them for up to three years. However, a person subject to a suitability action has procedural rights. The Agency must give reasonable notice in writing, stating the specific reasons for the decision. It must give notice that the employee has a right to review “the materials relied upon”; to an attorney; and to time to prepare a response. The response must be in writing and may be accompanied by documents and affidavit in support. The agency must retain the individual in pay status during the response time.

Applicants and new hires may appeal an unfavorable suitability determination to the Merit Systems Protection Board, which will ensure that the procedural requirements (notice, answer, etc.) have been met.

Employees who have passed their probationary period are also subject to the suitability procedures. Prior to 2015, OPM’s suitability regulations had held that non-probationary employees whom OPM removed (or ordered an agency to remove) on suitability grounds were not entitled to appeal their removal to the Merit Systems Protection Board. In Archuleta v. Hopper, the U.S. Court of Appeals for the Federal Circuit held that OPM could not issue regulations that modified a statute. Because non-probationary employees are permitted to appeal their removal to the MSPB, the Court rejected OPM’s regulation. As the result, a non-probationary employee who is removed on suitability grounds may appeal that removal, and not just the procedures, to the MSPB.

This blog was written by Mary Kuntz.

This blog is provided to our readers for informational purposes only. It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Thursday, January 19, 2017

Important New Rules for Federal Employees Created by the National Defense Authorization Act for Fiscal Year 2017

Each fiscal year, for the past 50 years, Congress has passed a National Defense Authorization Act (“NDAA”). Primarily a budgeting and expenditures authority for the U.S. Department of Defense, the Act also often serves as a vehicle for numerous other provisions that have wide-ranging impact on all aspects of the federal government. The following is a concise list of changes in Title XI of the 2017 NDAA, which contains new provisions that concern federal employees.

1.  The two-year limitation on noncompetitive appointments for military spouses is eliminated. This means that a relocating spouse can now serve in a noncompetitive appointment until the end of his or her spouse’s service.

2.  Select employees—those serving under a time-limited appointment in the competitive service for a domestic defense industrial base facility or the Major Range and Test Facilities Base—are now eligible to compete for permanent positions in specialized circumstances. Additionally, benefits for such employees will be comparable to those employees who are not serving under time-limited appointments in the same facilities.

3.  There is a one-year extension for: 1) (from 2017 to 2018) the authority to grant allowances, benefits, and gratuities to civilian employees in combat zones; and 2) (from 2016 to 2017) the authority to waive the annual limitation on premium pay and the aggregate limitation on pay for overseas civilian employees.

4.  An advance of basic pay for up to four pay periods is permitted for employees relocated to an agency position outside of their commuting area.

5.  Time-limited appointed employees may now compete for permanent appointments at any federal agency.

6.  Official personnel files of former federal employees must be reviewed when they are being considered for rehire into the competitive or excepted service. Specifically, the appointing authority is now required to review and consider merit-based information relating to such employee’s former period(s) of service, e.g., official personnel actions, employee performance ratings, and disciplinary actions, if any, prior to making a determination with respect to the appointment or reinstatement of such employee.

7. The Office of Personnel Management (“OPM”) and all other agencies have 270 days to reform their administrative leave policies and procedures to be consistent with the following significant changes:
a. Administrative leave is now capped at 10 workdays per calendar year.

b. Investigative leave can be granted in 30-day increments (for a total of 90 days) if an investigation could not be completed within the initial 10 days of administrative leave. If an investigative entity certifies that additional time still is needed to complete the investigation, an agency can further extend this period for up to 30 days at a time. No extensions are permitted after the investigation is completed.

c. Notice leave cannot exceed the duration of the notice period.

d. Both investigative and notice leave are subjected to greater scrutiny; they are reserved only for occasions when the employee’s continued presence in the workplace would (i) pose a threat to the employee or others, (ii) result in the destruction of evidence relevant to an investigation, (iii) result in loss of or damage to Government property or (iv) otherwise jeopardize legitimate Government interests. Additionally, agencies must first consider whether other options, such as telework or a reassignment, would be viable.

e. Agencies must provide the employee with a written explanation of whether the employee was placed in investigative or notice leave and the limitations of the leave placement.

f. Placement on investigative leave in excess of 70 days will constitute a personnel action under § 2302(b)(8), (9) for which the employee may seek relief before the Office of Special Counsel.

g. Excused absences should still be granted to federal employees who cannot travel to work sites because of safety issues, weather issues, or other “acts of God.”
8.  Permanent notations must now be made in the employee’s official personnel file (“OPF”) if he/she was subject to an adverse finding pursuant to an investigation (by an Inspector General or an adverse personnel action as a result of performance, misconduct, or for such cause as will promote the efficiency of the service), even if he/she resigned prior to resolution of such investigation. However, the employee will be afforded an opportunity to respond to the adverse finding, and he/she may appeal the agency’s decision to make the permanent notation to the Merit Systems Protection Board (“MSPB”).
a. If an employee appeals the agency’s decision to the MPSB, the agency will notate in the employee’s OPF that an appeal disputing the notation is pending.

b. If the agency prevails, the agency must remove the pending notation within two weeks of the MSPB’s decision.

c. If the employee prevails, the agency must remove all notations of the adverse finding within two weeks of the MSPB’s decision.
The new year promises many changes for all employees, whether federal or private. This firm will be carefully monitoring for forthcoming developments that may impact our clients. Stay tuned.


This blog was written by Aaron Herreras and Nina Ren.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Tuesday, January 17, 2017

Congress Seeks to Curb Federal Employees’ Rights

A large contingent of the 115th United States Congress, which convened on January 3, 2017, has made no secret that it plans to take steps to reduce employment protections for federal employees over the coming months.

First, the House of Representatives revived a 19th century rule, first adopted in 1876, that was dropped from its procedures over 30 years ago.  This rule, called the Holman Rule, gives each Representative the power to target the funding of specific government agencies and their employees by proposing an amendment to any appropriations bill to slash funding to particular federal program or to entirely eliminate certain positions within agencies.

While the Holman Rule originally was on the books, Congress used it sparingly.  However, in today’s increasingly partisan environment, there are concerns that Representatives may use the Rule to make civil servants and public programs susceptible to political influence by allowing elected officials to remove funding from departments that they disapprove of.  In this scenario, certain non-partisan federal employees, for example, those working on climate change, could find themselves in the cross-hairs of Congress’ political whims.

Next, there are reports that Representative Todd Rokita will reintroduce his bill from last October, called the Promote Accountability and Government Efficiency (“PAGE”) Act. If passed, this law would make all new federal hires at-will employees and allow agencies to immediately suspend or remove current civil servants without warning and – possibly – without the right to appeal.

Unlike their counterparts in the private sector who are mostly employed “at-will” – meaning the terms and conditions of those workers’ employment can be changed at the will of the employer for no reason – the majority of full-time federal government workers are protected by civil service laws, which guard them from unreasonable and unfair terminations and demotions.

Currently, civil servants, through the Due Process Clause of the 5th Amendment to the Constitution and various federal laws, must be given notice and an opportunity to be heard before the government can fire them, reduce their pay, or take other adverse employment actions.  Groups representing federal employees are concerned that Representative Rokita and other lawmakers want to make it easier to bypass these laws and fire competent civil servants in order to reduce the footprint of the federal government.


It is not clear exactly how Representatives could legally get around the nation’s civil service laws with either the Holman Rule or the PAGE Act to remove a particular civil servant, but federal employees should be aware that Congress has set its sights on reducing workers’ employment protections and contact an attorney at the first sign of trouble.

This blog was written by Sarah Martin.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.

Friday, January 13, 2017

KCNF files Supreme Court amicus brief supporting WPEA claims for EEO retaliation

On September 6, 2016, the Ninth Circuit U.S. Court of Appeals affirmed the dismissal of Leslie Kerr’s whistleblower retaliation claim against the Department of the Interior. The court held that federal employees who comply with the administrative exhaustion requirements governing EEO claims in mixed cases, cannot include in their subsequent district court suits claims alleging reprisal arising under the Whistleblower Protection Enhancement Act (WPEA).   The court recognized that its holding is in conflict with Wells v. Shalala, 228 F.3d 1137 (10th Cir. 2000), setting up a circuit split that only the Supreme Court can resolve.

Indeed, Leslie Kerr has petitioned the Supreme Court to grant review of the Ninth Circuit’s decision. The Government Accountability Project and Felecia Redding filed an amicus brief in support of Ms. Kerr’s petition.  KCNF, which represents Ms. Redding, drafted the brief for her and GAP.

Leslie Kerr worked for the Fish and Wildlife Service (FWS or the Agency) as director of the Kodiak National Wildlife Refuge (the photo shows protected auklets).  In the early 2000’s, Kerr raised concerns about alcohol abuse by other employees at the Refuge. In 2005, her supervisor asked her, “This is going to sound sexist as hell, but couldn’t you learn to be more feminine?” The supervisor gave Kerr a low performance rating, and Kerr complained. The supervisor transferred her, and she refused the transfer. The agency fired her for refusing the transfer, and she filed an EEO complaint alleging that the transfer and removal were discriminatory.  Although it was not a basis of her EEO complaint, Kerr believed that her disclosures about alcohol abuse were also a factor in the decision to fire her.

The Agency’s Office of Civil Rights rejected Kerr’s complaint, and she filed suit in the U.S. District Court in Alaska. That court dismissed her WPEA claims and tried her EEO claims to a jury.  The jury found in favor of the Agency, and Kerr appealed the dismissal of her WPEA claims. The Ninth Circuit’s decision affirming the dismissal is now pending before the Supreme Court.
On behalf of the GAP and Ms. Redding, we argued to the Supreme Court that the “mixed case” statute, 5 U.S.C. § 7702(f), permits federal employees to file a lawsuit raising both discrimination and civil service claims after exhausting through only one agency process.  However, the decision below flies in the face of these statutory provisions and requires victims of retaliation to exhaust at least two administrative procedures to give the district court jurisdiction of all their claims.

As the Supreme Court has recognized, the public’s interest in protecting from reprisals employees who file complaints allowed by statute is so strong that the Supreme Court has imputed such protection into laws that have no words creating it. See, Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005) (Title IX); CBOCS West, Inc. v. Humphries, 553 U.S. 442, 128 S. Ct. 1951 (2008) (42 U.S.C. § 1981); Gomez-Perez v. Potter, 553 U.S. 474 (2008) (ADEA).  The Ninth Circuit erred when it held that § 7702(a)(2) does not authorize Kerr to bring her Whistleblower Protection Act (WPA) claim directly from the EEO office to district court.

The Ninth Circuit was primarily concerned with the “practical import” of the Tenth’s Circuit’s interpretation of § 7702 in Wells, in particular the additional number of cases that could be brought to district court.  This “practical import” argument, however, places a higher priority on protecting the courts from having to decide more cases than on protecting victims of whistleblower reprisals. That is docket control, and it is an impermissible basis upon which to decline jurisdiction granted by Congress. The number of cases that can be filed is irrelevant to the question of jurisdiction. The Supreme Court has reaffirmed that “a federal court’s obligation to hear and decide cases within its jurisdiction is virtually unflagging.”  Congress emphasized at 5 U.S.C. § 7702(e)(1) that an employee has a right to bring a civil action in a mixed case after 120 days of agency processing “[n]otwithstanding any other provision of law[.]” In that statute, Congress declared that there are no other barriers to federal court jurisdiction, yet the Ninth Circuit in Kerr has erected such a barrier based primarily on its perception of “practical import.”

The requirement that an employee exhaust mixed-case EEO retaliation claims through the Office of Special Counsel (OSC) and MSPB is particularly ironic because OSC’s own policy states that it “will normally avoid” investigating such claims because employees can raise them separately in the agency EEO process. See 5 C.F.R. § 1810.1. Also, the MSPB has been less than consistent about applying the WPEA to protect EEO concerns.

Other circuit courts that have addressed this issue have concluded that district courts possess juris-diction to decide non-discrimination claims in mixed cases when agencies fail to meet the time limits in § 7702(e)(1)(B).  Employees may bring “mixed cases” to district court, even if the original administrative EEO complaint did not expressly articulate the legal theory underlying the “mixed case.” Generally, there is no requirement that a complaint set out the legal theory that permits relief for the facts alleged.

It is critical that employees know that they protected when they disclose wrongdoing, and that this protection is extremely broad and will not be narrowed retroactively by future MSPB or court opinions. Without that assurance, whistleblowers will hesitate to come forward. The interest at stake is as much the public’s interest in receiving allegations of wrongdoing as it is protecting employees who disseminate it. “Congress passed the whistleblower statute precisely because it did not trust agencies to regulate whistle-blowers within their ranks.”

The decision in Kerr runs counter to the administrative economy of the mixed case statute, which allows whistleblowers to preserve all of their claims by using just one of the available agency proceedings. It also runs counter to the remedial purpose of the 2012 WPEA, which explicitly extends protection both to “any disclosure” of violations of law and federal employees’ participation in official proceedings. Finally, it places federal employees in the dilemma of having to waive all of their civil service remedies (including their WPA remedies), just to bring their retaliation claim to district court.

The Amicus Brief urges the Supreme Court to grant Kerr’s petition and reverse the decision of the Ninth Circuit.


Richard Renner authored the amicus brief discussed in this blog.

Update: On March 20, 2017, the Supreme Court denied Ms. Kerr's petition for certiorari.

This blog is provided to our readers for informational purposes only.  It is not offered as legal advice. Communication of information through this blog does not create an attorney-client relationship. You should not rely upon information contained in this blog without first seeking professional legal advice. If you would like a telephone screening or consultation with a KCNF attorney, you are welcome to call 202-331-9260 to begin our intake process, or submit your legal issue at http://www.kcnlaw.com/Contact.shtml.