OPM Finally Answers the Question About Notice of Appeal Rights at the Proposal Stage

By Deborah Hopkins, December 15, 2020

During our recent webinar on implementing the new OPM regulations on performance and conduct (if you missed it, you can still view the recording), the following question came in:

There has been some discussion in my agency about providing employees with a notice of appeal rights in the proposal letter. Can you please help clarify whether this notice is now required, and if not when it will be required?

And here’s the FELTG response:

First, the notice of appeal rights is not required in actions taken under 5 USC 315 (probationary removals), 432 (performance-based actions), or 7515 (discipline for whistleblower reprisal). See the discussion on p. 127 of OPM’s regs:

As noted above, the amended regulation will not require that agencies include appeals rights information in a notice of proposed action taken under section 7515. Notwithstanding, it is important that the commenters understand that current and amended parts 315 and 432 do not require that agencies provide advance notice of appeal rights … Further, it is well established in statute, regulation, and case law that an employee cannot appeal a proposed action.

As far as chapter 75 removals, the 2018 NDAA (Pub. L 115-91, Section 1097) says:

(b)(2) INFORMATION ON APPEAL RIGHTS.— (A) IN GENERAL.—Any notice provided to an employee under section 7503(b)(1), section 7513(b)(1), or section 7543(b)(1) of title 5, United States Code, shall include detailed information with respect to— (i) the right of the employee to appeal an action brought under the applicable section; (ii) the forums in which the employee may file an appeal described in clause (i); and (iii) any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file an appeal. (B) DEVELOPMENT OF INFORMATION.—The information described in subparagraph (A) shall be developed by the Director of the Office of Personnel Management, in consultation with the Special Counsel, the Merit Systems Protection Board, and the Equal Employment Opportunity Commission.

Our understanding at the time this law was issued in 2017 was that OPM would provide the official language after consulting with the other agencies mentioned, and that until such language is developed, there was no requirement to include appeal rights at the notice stage. By the way, providing a notice of appeal rights at the proposal stage really doesn’t make sense, as the timing is preliminary (Bill Wiley wrote about this when the law first came out), but hey, we didn’t write that law.

But, then the regs were published and we started to think that maybe OPM was kicking this down to agencies because the regs, including this one, became effective last month: 

752.203(b) Notice of proposed action. “… The notice must further include detailed information with respect to any right to appeal the action pursuant to section 1097(b)(2)(A) of Pub. L. 115-91, the forums in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.”

There was no indication in the regulations or the response to the comments that OPM had consulted with MSPB, EEOC, and OSC to develop the appeal rights notification as required by law. In fact, as far as we know, none of the other agencies has acknowledged formally or informally that they have been consulted with regarding the development of appeal notification language.

But then last week OPM issued further guidance that does indeed leave the language development up to agencies.

Here are a few takeaways from the answer to this question:

Are agencies required to provide appeal rights information in an adverse action proposal notice?

• • The requirement to provide the appeal rights information at the proposal notice stage is a statutory requirement under section 1097(b)(2)(A) of Pub. L. 115-91.
  • Part 752 requires that a notice of proposed action under subparts B, D and F include detailed information about any right to appeal any action upheld, the forum in which the employee may file an appeal, and any limitations on the rights of the employee that would apply because of the forum in which the employee decides to file.
  • This regulatory change does not confer on an employee a right to seek redress at the proposal stage.
  • The appeal rights language included at the proposal stage specifically relating to choice of forum and limitations related to an employee’s choice of forum will vary depending on circumstances, the nature of a claim and the type of employee.
  • Appeal rights may include but are not limited to filing an Equal Employment Opportunity complaint with the Equal Employment Opportunity Commission; a prohibited personnel practice complaint with the U.S. Office of Special Counsel; a grievance under a negotiated grievance procedure; or an appeal with the Merit Systems Protection Board.
  • OPM does not view the addition of procedural appeal rights language in the regulation to constitute a requirement to provide substantive legal guidance at the proposal stage or to serve as a substitute for advice an employee may receive from an employee representative.
  • Agencies are encouraged and advised to consult closely with their agency counsel to develop the best course of action for implementation of this requirement.
  • Employees are encouraged to consult with their representatives to determine the best options available to them at the proposal and/or decision stage if an employee believes that an agency has taken an action which triggers the right to file a complaint, an appeal or a grievance.

Ugh. Seems like it could be a lot of work for no reason other than to comply with a law that requires notice at the wrong stage. OR, given the flexibility, it could also be interpreted that a general notice of potential appeal rights would satisfy this regulatory requirement since the proposal stage is preliminary.

The good news is that whatever notice is provided should not affect the merits outcome of the case on appeal. If the final decision contains a fulsome description of the employee’s appeal rights, any error in not providing an appeal rights notice with the proposal (or, alternatively, providing a notice not developed by OPM) would be harmless and the adverse action would not be set aside on procedural grounds. Hopkins@FELTG.com