OK, it’s BIG NEWS if you have any employees hired under the authority of Title 42 (rather than under Title 5), the authority that allows agencies to appoint special consultants without regard to any civil service laws. 42 USC 209(f). Since the cooling of the Earth, the Board and OPM have concluded that this language means that a Title 42 employee is without civil service protections and may be removed summarily without Board appeal rights.
Well, no more. As of Wednesday last week, if an agency fires a Title 42 employee, that employee gets to file an appeal with MSPB, just as would a regular Title 5 employee who has more than a year of service. Lal v. MSPB, Fed. Cir. 2015-3140 (May 11, 2016). And as we read 5 USC Chapter 75 (adverse action procedures) and 5 USC Chapter 43 (unacceptable performance procedures), agencies will be required to use those procedures to effectuate a Title 42 removal. OPM has room for a say as to the coverage of Chapter 43 for Title 42 into the future, but as their regulations are currently written, our best legal guess is that there’s coverage unless there’s a regulatory change.
The court’s reason in large part was straight out of Law School 1-A. Title 42 says that individuals may be “appointed” under Title 42 without regard to the civil service laws. A different statute gives agencies in another context when dealing with certain non-Title 42 employees the authority to “appoint[ ]…and remove[ ]… without regard to the provisions of title 5…” Reasoning that Congress saw a significance in the latter situation to include the authority “to remove” and that Congress did not specifically include the authority “to remove” in Title 42, Congress did not intend for Title 42 removal authority to be without regard for civil service protections.
Most Title 42 employees work in HHS, with a few scattered among other agencies (e.g., EPA). Therefore, most of the civil service is unaffected by this decision. However, for those readers who employ Title 42 employees, it is a new day. Whether it is a bright new day or a dark one, we leave that up to you to decide.
Here at FELTG, we teach supervisors how to hold Title 42 employees accountable for their performance and conduct just as we teach how to do that for Title 5 employees. We hope you’ll consider us if you now feel you would benefit from a little procedural education. Wiley@FELTG.com