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The Office of Personnel Management is issuing regulations governing the coverage of, and attorney fee awards under, the Back Pay Act to reduce administrative burdens and better comport with Congressional intent.

Statement of Need:

On February 25, 2025, President Trump issued Executive Order 14219 titled Ensuring Lawful Governance and Implementing the President’s ‘Department of Government Efficiency’ Deregulatory Initiative (90 FR 10583). The Executive order directed agencies to review all regulations subject to their jurisdiction for consistency with law and Administration policy. In this review, OPM found that the back pay regulations did not align with the best interpretation of the relevant laws or restrictions. While the Civil Service Retirement Act of 1978 broadened the meaning of personnel action to include the omission or failure to take an action or confer a benefit, the focus of the Back Pay Act is on unjustified or unwarranted personnel actions, not every action. OPM used its regulatory authority to define unjustified or unwarranted personnel actions as including pay actions alone (without a corresponding personnel action). However, this is not consistent with legislative history. OPM proposes narrowing the definition consistent with the underlying statutory authority.

While the law allowed for the payment of attorney fees, it specified that the attorney fees were to be reasonable. It is appropriate for OPM to limit the payment of attorney fees to ensure that taxpayer dollars are spent wisely and effectively. OPM proposes reforms to ensure attorney fee awards do not exceed prevailing market rates for legal work of similar complexity.  OPM also proposes clarifying who may request attorney fees.

Summary of the Legal Basis:

OPM is issuing this proposed rule pursuant to its authority to issue regulations governing back pay under 5 U.S.C. 5596(c).

Alternatives:

An alternative to this proposed rule would be to leave the current rules for personnel actions and attorney fees in place. However, OPM believes sensible changes are needed.

Anticipated Costs and Benefits:

This proposed rule would affect the operations of more than 90 Federal agencies ranging from cabinet-level departments to small independent agencies that have employees covered by the Back Pay Act. We estimate that this rule would require individuals employed by these agencies to spend time updating agency back pay policies and procedures to implement the changes. However, over the long term, we anticipate that the overall costs to federal agencies will decrease because of the reduction in the types of actions covered by the back pay regulations and a decrease in the amount of attorney fees agencies are required to pay.

Risks:

While some may be concerned that these revisions could diminish employees’ ability to seek compensation under the back pay law, it is important to note that supervisors and human resources staff will be held accountable for achieving all expectations for their positions under OPM’s guidance on performance management for Federal employees. This would include correctly approving and processing personnel actinons that impact an employee's pay for supervisors and human resources staff with the authority to do so.