Attorney Fees and Personnel Action Coverage Under the Back Pay Act; Withdrawal

Attorney Fees and Personnel Action Coverage Under the Back Pay Act

SUPPLEMENTARY INFORMATION:

On October 7, 2020, the Office of Personnel Management (OPM) published a notice of proposed rulemaking (NPRM or proposed rule) titled "Attorney Fees and Personnel Action Coverage Under the Back Pay Act" in the Federal Register ("2020 NPRM"). See 85 FR 63218. The 2020 NPRM proposed to revise OPM's regulations governing the coverage of, and attorney fee awards under, the Back Pay Act. The proposed regulations would have added a definition of "employee's personal representative" for purposes of the payment of attorney fees. The rule also would have clarified the actions qualifying for back pay, added a definition of "personnel action," and revised the definition of "unjustified or unwarranted personnel action."

In response to the 2020 NPRM, OPM received approximately 38 comments during the 30-day comment period which ended on November 6, 2020. Some commenters raised significant legal and policy concerns with the proposal. The comments received raised a number of issues that warrant further attention and suggest that OPM should further assess the best regulatory approach.

On March 12, 2021, OPM withdrew its 2020 NPRM from its regulatory agenda (see https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202104&RIN=3206-AN83 ) to pursue other agency priorities. Nevertheless, in an abundance of caution, OPM hereby clarifies that the 2020 NPRM is withdrawn. OPM continues to consider the best means of addressing some or all of the issues addressed in the 2020 NPRM. OPM believes that it would benefit from seeking comments on any new proposal that might account for the specific issues raised in the comments received; accordingly, OPM plans to issue a new proposal under a new RIN.