By William Wiley, December 5, 2017
OK, OK. We haven’t really sued them YET. And it’s not REALLY a law suit. Instead, we’re going to go after something called a “writ of mandamus.”
For those of you who a) did not go to law school, or b) went to law school, and flushed your brain of things like this right after the bar exam, a mandamus is a judicial writ (something issued by a court) that commands another government entity to do something that the entity is required to do, but is not doing. See Marbury v. Madison, 5 US 137 (1803) (more or less).
So, what possibly could OPM have failed to do that would make the crew at FELTG do something that takes time and effort other than presenting training and providing consultation services? Easy. On December 23, 2016, the Administrative Leave Act of 2016 became law. Among other things (inter alia, if you’re feeling all lawyerly and Latin-esque), that piece of legislation created a new type of life-saving paid leave for use by federal agencies when confronted with a bad employee. Prior to the enactment of the act, OPM through regulation was directing federal agencies to keep employees in the workplace for 30 days even after their supervisor had decided that they should be fired.
Every reasonable person in the civil service knew that this was stupid. Individuals who have their removal proposed are under a great deal of stress and have the potential to become irrational or violent. In our society, just about anyone can own a gun. Sometimes violent people use guns to kill people. Therefore, keeping a federal employee noticed of a proposed removal in the workplace for a month where he can kill people is just freaking stupid. But that’s what OPM says should be done. 5 CFR 752.404(b)(3).
Thank goodness, the folks on Capitol Hill realized that this was not the way to handle potentially dangerous employees who have been notified of a proposed removal. In this new legislation, Congress said that federal agencies now have the option of placing such employees on a new type of paid leave: Notice Leave. Therefore, effective on December 23, 2016, agencies had this right and some began to use it. Hand the employee a proposed removal letter, and in that notice, tell that employee that he will be paid until a decision is made, but he is not to come to work and is to stay away from the federal facility where he is employed. Regular readers of the FELTG Newsletter might remember how we celebrated the passage of this bill as a Holiday Gift from Congress to the good people of our civil service. No longer would you have to unnecessarily risk your life to come to work when a coworker is notified of an impending removal.
Congress realized that implementation of the Act would take some effort on the part of OPM to draft new leave regulations. Therefore, it wisely set a 270-day time limit for OPM to do so, perhaps knowing that sometimes OPM does not act promptly to update regulations (e.g., implementation of the Americans with Disabilities Act Amendments Act of 2008 still conflicts with outdated OPM regulations on medical exams).
That 270-day time limit expired on September 17, 2017. Today is the 347th day since the law became effective. We may not be too good with the math here at FELTG, but we think it’s fair to say that OPM has failed to comply with the requirements of the law.
So, who cares? Well, you should. A number of agencies have mistakenly concluded that the Notice Leave law cannot be implemented until OPM issues its regulations. That’s obviously wrong because every graduate of a high school civics class knows that laws become effective (unless specifically denoted in the bill otherwise) the day the President signs the legislation. If you work in an agency that is not taking advantage of Notice Leave to get potentially violent people out of the workplace because OPM has not issued regulations, your life is in danger.
So that brings us to this writ of mandamus. OPM was obligated by law to act by this past September. It has not. Therefore, the situation is ripe for a federal court to direct them to issue the darned regulations upon threat of a contempt of court order. All it takes is somebody to petition a federal court to make OPM do what it is required by law to do. Is your agency going to do it? No, OPM is your sister agency. We don’t (usually) have one federal agency challenging another federal agency in federal court. Are you going to do it? No, you’re too busy running the government. Are we here at FELTG going to do it?
Darned straight we are.
OPM, consider this your notice. You’ve got 30 days. Either issue the regulations that Congress directed you to issue by the end of the year, or we’re going to figure out how to petition our local federal district court for a writ of mandamus to order you to do it. And we do mean “figure out” because we have no idea how to do it. Fortunately, we have law books that have been sitting in boxes in the basement for years, and then there’s The Google. It can’t be that hard. And if we can convince a judge of the harm so that we have standing, it should be a slam-dunk legal decision. The Notice Leave law is specific and not discretionary. It is hard to imagine that OPM could muster an argument that it is not bound by a specific law.
We don’t want to do this. We’d much prefer to see federal agencies follow the law. However, when that is not being done, and when the lives of civil servants are at stake, we spring into action. OK, OK; maybe “spring” is not exactly the verb we are looking for, but you get the idea. If we have to do this, if we can get a court to issue a mandate, then along with Marbury v. Madison, law students might someday have to study the historical case FELTG v. OPM.
And if a writ of mandamus works to get us some new OPM regulations, maybe it’ll also work to get us some new Board members over at MSPB. We are shameless when it comes to protecting the civil service. Wiley@FELTG.com
Errata: A few weeks ago, we published a little article about the impact of the new law that allows DVA to fire bad employees more easily than in other agencies. Within that article, we hypothesized that with the new law making it so much easier to hold bad employees accountable, the DVA employee relations practitioners might now have the opportunity to take up golf and spend time with their families. Well, man-o-man, did that light up the old in-box. We now stand informed that the staff at DVA is still working endless hours to hold employees accountable, declining hobbies, and ignoring their kids and spouses, just like before. The main difference is that they are now able to hold EVEN MORE employees accountable, and have yet to cut back on their time commitments. We stand corrected, and take our hats off to our DVA colleagues for your hard-working commitment to a greater civil service.