[Federal Register Volume 85, Number 195 (Wednesday, October 7, 2020)]
[Proposed Rules]
[Pages 63218-63222]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-20428]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 85, No. 195 / Wednesday, October 7, 2020 / 
Proposed Rules  

[[Page 63218]]



OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 550

RIN 3206-AN83


Attorney Fees and Personnel Action Coverage Under the Back Pay 
Act

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Office of Personnel Management (OPM) is issuing proposed 
regulations governing the coverage of, and attorney fee awards under, 
the Back Pay Act. The proposed regulations would add a definition of 
``employee's personal representative'' for purposes of the payment of 
attorney fees and, clarify the actions qualifying for back pay, add a 
definition of ``personnel action'' and revise the definition of 
``unjustified or unwarranted personnel action''.

DATES: Comments must be received on or before November 6, 2020.

ADDRESSES: You may submit comments, identified by the docket number 
and/or Regulation Information Number (RIN) and title by the following 
method:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    All submissions must include the agency name and docket number or 
RIN for this document. The general policy for comments and other 
submissions from members of the public is to make these submissions 
available for public viewing at http://www.regulations.gov as they are 
received without change, including any personal identifiers or contact 
information.

FOR FURTHER INFORMATION CONTACT: John York by telephone at (202) 606-
2858 or by email at [email protected].

SUPPLEMENTARY INFORMATION: The Office of Personnel Management (OPM) is 
proposing revisions to regulations governing the coverage of the Back 
Pay Act (5 U.S.C. 5596). The Back Pay Act waives the United States' 
sovereign immunity and allows employees who are ``found by appropriate 
authority under applicable law, rule, regulation, or collective 
bargaining agreement, to have been affected by an unjustified or 
unwarranted personnel action which has resulted in the withdrawal or 
reduction of all or part of the[ir] pay, allowances, or differentials'' 
to obtain redress in the amount of pay, allowances, or differentials 
they would have received, but for such unjustified or unwarranted 
personnel actions (5 U.S.C. 5596(b)(l)). The Back Pay Act also permits 
payment of reasonable attorney fees in some circumstances, generally 
when in ``the interest of justice'' (5 U.S.C. 5596(b)(l)(A)(ii) and 
7701(g)).
    OPM has authority under 5 U.S.C. 5596(c) to issue regulations 
carrying out the Back Pay Act. These regulations are found at 5 CFR 
part 550, subpart H. In December 1981, OPM finalized regulations 
implementing the Civil Service Reform Act changes at 5 CFR part 550, 
subpart H, Sec. Sec.  550.803 and 550.807 (46 FR 58275). OPM has not 
substantively revised its attorney fee regulations since.
    OPM proposes modifying Sec.  550.803 of these regulations to add a 
definition of the term ``personnel action'' and revise the definition 
of ``unjustified or unwarranted personnel action'' to clarify that an 
unjustified or unwarranted personnel action must involve a personnel 
action such as a suspension, change in grade, or removal, and that the 
Back Pay Act does not cover pay actions unrelated to personnel actions. 
OPM also proposes defining the term ``employee's personal 
representative'' to clarify who can request payment of attorney fees on 
behalf of an employee.

5 CFR Part 550, Subpart H--Back Pay

Sec.  550.803 Definitions

Meaning of Personnel Action
    The Back Pay Act of 1966 (Pub. L. 89-390, March 30, 1966) provided 
for paying back pay to Federal employees who undergo an ``unjustified 
or unwarranted personnel action.'' The Civil Service Reform Act of 1978 
(CSRA) modified the Back Pay Act to allow recovery of attorney fees, to 
cover personnel actions of omission as well as commission, and to cover 
unfair labor practices or grievances. The Back Pay Act now applies to 
an employee who is found by appropriate authority under applicable law, 
rule, regulation, or collective bargaining agreement, to have been 
affected by an unjustified or unwarranted personnel action which has 
resulted in the withdrawal or reduction of all or any part of the pay, 
allowance, or differentials of the employee (5 U.S.C. 5596(b)(1)). CSRA 
further defined a personnel action to include ``the omission or failure 
to take an action or confer a benefit'' (5 U.S.C. 5596(b)(5)).
    OPM prescribed regulations defining ``unjustified or unwarranted 
personnel action'' on December 1, 1981 (see 46 FR 58275) and has not 
revised the definition since. The regulations at 5 CFR 550.803 state 
define ``unjustified or unwarranted personnel action'' as an act of 
commission or an act of omission (i.e., failure to take an action or 
confer a benefit) that an appropriate authority subsequently 
determines, on the basis of substantive or procedural defects, to have 
been unjustified or unwarranted under applicable law, Executive order, 
rule, regulation, or mandatory personnel policy established by an 
agency or through a collective bargaining agreement. Such actions 
include personnel actions and pay actions (alone or in combination).
    OPM is concerned that this current regulatory definition is in 
tension with the text of the Back Pay Act, which only discusses 
personnel actions and makes no reference to pay actions unrelated to 
personnel actions. It is also in tension with legislative history and 
Supreme Court precedent indicating that Congress intended the term 
``personnel action'' in the Back Pay Act to have a substantially 
narrower scope.
    When Congress passed the Back Pay Act in 1966, it understood the 
term ``personnel action'' to mean a suspension, removal, or demotion. 
As the Senate Report accompanying the legislation stated:

    The statute's language was intended to provide a monetary remedy 
for wrongful reductions in grade, removals, suspensions, and other 
unwarranted or unjustified actions affecting pay or allowances that 
could occur in the course of reassignments and change from full-time 
to part-time work. (S. Rep. No. 1062, 89th Cong., 2d Sess., 
reprinted in 1966 U.S. Code Cong. & Ad. News 2097, 2099)

    In 1976, the Supreme Court unanimously interpreted the term 
``personnel actions'' to apply only to such actions and rejected the 
contention

[[Page 63219]]

that the Back Pay Act applied to other actions affecting employee pay:

    ``[T]he Back Pay Act, as its words so clearly indicate, was 
intended to grant a monetary cause of action only to those who were 
subjected to a reduction in their duly appointed emoluments or 
position.'' (United States v. Testan, 424 U.S. 392, 407 (1976))

    During the CSRA debate Congress considered expanding the Back Pay 
Act's coverage beyond personnel actions to any action affecting 
employee pay. The Senate passed version of the CSRA would have applied 
the Back Pay Act to an ``unjustified or unwarranted action taken by the 
agency'' (Section 702 of S. 2640 as passed the Senate, August 24, 
1978). The Senate committee report noted that this change was intended 
to ``reflect the broader interpretation of the statute that has been 
given the Back Pay Act in recent years by the Comptroller General and 
the Civil Service Commission through decision and regulations'' (S. 
Rep. No. 969, 95th Cong., 2d Sess., p. 114). The House passed version 
retained the Back Pay Act's original ``unjustified or unwarranted 
personnel action'' language but expanded the definition of personnel 
action to include actions of omission as well as commission. (Section 
702 of HR. 11208, as passed the House, September 13, 1978). The House 
Committee report makes no reference to broadening the Back Pay Act's 
application beyond this (H. Rep. No. 1403, 95th Cong., 2d Sess., pp. 
60-61) final version that passed into law retained the House language, 
not the broader Senate language.
    Notably, in the CSRA Congress included two substantially expanded 
definitions of ``personnel action'', but expressly limited the 
application of these definitions to determining when a prohibited 
personnel practice (PPP) has occurred in the FBI or the rest of the 
Federal government (5 U.S.C. 2302(a)(2)(A) and 2303(a)). Congress did 
not give either of these definitions general applicability across the 
rest of title 5, United States Code (Title 5), including the Back Pay 
Act.
    The legislative history indicates Congress understood the Back Pay 
Act's definition of personnel action was limited in scope and 
considered broadening it to cover all actions that affect Federal 
employee pay but, outside the context of defining prohibited personnel 
practices, decided to retain the original definition with only slight 
modification. OPM's regulatory definition, which extends the Back Pay 
Act to cover pay actions unrelated to personnel actions, appears to 
contravene OPM's statutory authority and Congressional intent.
    The structure of the Back Pay Act reinforces this conclusion. The 
enacted version of the CSRA ties the standards for awarding Back Pay 
Act attorney fees in grievance cases to the ``interest of justice'' 
standards in Merit Systems Protection Board (MSPB) cases (5 U.S.C. 
5596(b)(l)(A)(ii)). OPM believes this makes sense if the Back Pay Act 
covers personnel actions similar to those appealable to the MSPB (i.e., 
adverse actions). Congress required employees to choose either a 
grievance procedure or MSPB appeal but prohibited pursuing redress in 
both forums. Connecting Back Pay Act attorney fee awards in grievance 
cases to MSPB standards for attorney fees ensures the same standards 
apply no matter which forum the employee choses. This structure makes 
much less sense if the Back Pay Act also covers pay actions that are 
not appealable to the MSPB. It is dubious that Congress meant to grant 
the MSPB a role in setting attorney fee standards in cases that would 
never appear before the MSPB.
    Other authorities reviewing Back Pay Act liability have concluded 
its coverage is more limited than OPM's regulations currently provide. 
While these agencies aren't provided the same deference as OPM on 
interpretation of the Back Pay Act, their decisions are notable and 
worthy of consideration. In 1984 the Comptroller General considered 
whether the Back Pay Act authorized attorney fees when an employee 
successfully challenged an agency's garnishing his retirement payments. 
The Comptroller General examined the legislative history showing that 
``personnel actions'' meant ``reductions in grade, removals, 
suspension, and other unwarranted or unjustified actions affecting pay 
or allowances that could occur in the course of reassignments and 
change from full-time to part-time work.'' The Comptroller General 
concluded that the action was ``a money claim for which relief under 
the Back Pay Act is not available'' (Leland M. Wilson: Claim for 
Attorney Fees and Interest, CG B-205373 (April 24, 1984)).
    The Civilian Board of Contract Appeals (CBCA) came to a similar 
conclusion more recently. In 2013 the CBCA heard a case from a claimant 
applying for interest on funds improperly collected from him, in 
addition to the funds themselves (see In the Matter of JEFFREY E. 
KOONTZ, Civilian Board of Contract Appeals, No. 3436-TRAV (July 23, 
2013)). The claimant argued that while the Debt Collection Act did not 
waive sovereign immunity and allow such interest to be paid, the Back 
Pay Act did. The Board analyzed the Back Pay Act's text and legislative 
history and concluded that the Back Pay Act did not apply to pay 
actions unrelated to personnel actions:

    [O]ne of this Board's predecessor boards analyzed the origin and 
purpose of the Back Pay Act with regard to the issue of whether 
interest could be paid when relocation expenses were not timely paid 
by the employee's agency. In that decision, the Board stated:
    The Senate Report accompanying the Back Pay Act says that the 
bill ``would consolidate and liberalize existing law'' S. Rep. No. 
1062, 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N. 2097. The 
consolidation applied to laws dealing with separation, suspension, 
and demotion. 1966 U.S.C.C.A.N. at 2098. The liberalization was to 
``allow credit for pay increases and accumulation of annual leave.'' 
Id at 2097. In either event, the law was supposed to pertain only to 
``the restoration of an employee to his position after an adverse 
action against him has been found.'' Id
    It is clear that the collection of the debt from claimant 
pursuant to the Debt Collection Act of 1982 was not an action 
contemplated within the scope of the Back Pay Act. Claimant's 
position was not affected by the collection of the debt, as he was 
neither separated, suspended, nor demoted, and the payment of the 
refund was therefore not the result of restoring the claimant to his 
position. We find no authority in law or contract that would permit 
payment of interest on the refund received by claimant.

    The Federal Labor Relations Authority (FLRA) recently reached a 
similar conclusion, holding that ``Agency attempts to recoup monies 
that it actually overpaid grievants, however, do not constitute 
unwarranted and unjustified personnel actions that resulted in the 
withdrawal or withholding of pay under [Back Pay Act]'' (See DoDEA and 
FEA, 70 FLRA 718 (2018)).
    Furthermore, the Back Pay Act waives the United States' sovereign 
immunity. The Supreme Court has made it clear that, ``a waiver of the 
Government's sovereign immunity will be strictly construed, in terms of 
its scope, in favor of the sovereign . . . when confronted with a 
purported waiver of the Federal Government's sovereign immunity, the 
Court will 'constru[e] ambiguities in favor of immunity' '' (see Lane 
v. Pena, 518 U.S. 187, 192 (1996)). To the extent the meaning of 
``personnel action'' is open to multiple interpretations, the Supreme 
Court has directed that it be construed to narrow the United States' 
waiver of sovereign immunity.
    Based upon a review of these decisions, the text and legislative 
history of the Back Pay Act, and Supreme Court precedent, the

[[Page 63220]]

regulatory definition of ``unjustified or unwarranted personnel 
action'' now appears to have exceeded OPM's statutory authority. The 
text of the Back Pay Act only mentions personnel actions, which 
Congress expressly understood to mean changes in grade, suspensions, 
removals or separations, reassignments, or changes to full- or part-
time work. In the CSRA Congress expanded the definition of ``personnel 
action'' but only with regard to defining prohibited personnel 
practices, such as coercing political activities or retaliation against 
a whistleblower. The term ``personnel action'' does not refer to other 
actions that could, outside the context of a PPP, affect employee pay, 
such as debt collections, improper overtime payments, rejections for 
cash awards, leave denials, or denials of taxpayer-funded union time. 
In addition, Congress has expressly provided alternative means of 
redress for employees affected by many of these actions. For example, 
the Fair Labor Standards Act requires agencies to make employees denied 
overtime payments whole. The Debt Collection Act similarly prescribes 
procedures for employees to appeal potentially improper debt 
collections.
    OPM does not have regulatory authority to extend the definition of 
``personnel actions'' to include pay actions that Congress expressly 
declined to cover under the Back Pay Act's waiver of sovereign 
immunity.
    OPM also has policy concerns with the existing regulations. By 
extending the Back Pay Act's coverage beyond personnel actions they 
encourage and subsidize expensive litigation over any matter that 
affects employee pay, such as non-selection for a performance award. 
For example, on January 12, 2020, an arbitrator held that the Jesse 
Brown VA hospital should have given an employee a $1,000 performance 
award. In addition to ordering the Department of Veterans Affairs to 
pay the performance award, the arbitrator also ordered $30,387.50 in 
attorney fees under the Back Pay Act. Requiring agencies to pay tens of 
thousands of dollars in attorney fees in litigation over much smaller 
performance awards wastes agency resources. It also encourages agencies 
to broadly distribute performance awards, to avoid litigation. This 
undermines the purpose of performance awards, which is to recognize, 
reward, and incentivize high performance.
    OPM accordingly proposes changing its regulations at Sec.  550.803 
to clarify that pay actions that do not involve personnel actions do 
not constitute unjustified or unwarranted personnel actions under the 
Back Pay Act. For the same reason OPM proposes defining a personnel 
action as an appointment, a prohibited personnel practice under chapter 
23 of title 5, United States Code, an action based on unacceptable 
performance under chapter 43 of title 5, United States Code, an adverse 
action taken under chapter 75 of title 5, United States Code, any other 
removal or suspension, a promotion or demotion, a change in step or 
grade, a transfer or reassignment, or a change from full-time to part-
time work.
    This definition encompasses the actions that the legislative 
history of the Back Pay Act indicates Congress understood ``personnel 
action'' meant. It includes the related acts of omission that the CSRA 
extended the Back Pay Act to cover, such as non-selection for a 
promotion or failure to increase an employee's step or grade. It also 
reflects the CSRA's expanding the definition of personnel action for 
the purpose of defining prohibited personnel practices.
Personal Representative
    OPM also proposes adding a definition of the term ``employee's 
personal representative'' to Sec.  550.803. This term does not appear 
in the Back Pay Act itself but appears in OPM's regulations at Sec.  
550.807 in the context of individuals who may request attorney fee 
payments. OPM proposes clarifying that an employee's personal 
representative is defined as the executor or administrator of a 
deceased employee. It should not refer to other potential 
representatives in administrative or legal proceedings. This definition 
tracks the commonly used meaning of ``personal representative'' among 
the Code of Federal Regulations, e.g., 28 CFR 104.4, 38 CFR 38.600, 42 
CFR 2.15.
    OPM believes this clarification is necessary because the courts 
have interpreted OPM's use of this term to include labor organizations. 
Courts have then granted Chevron deference to this construction of 
OPM's regulations and interpreted the Back Pay Act to authorize 
attorney fees to labor organizations. See American Federation of 
Government Employees v. Federal Labor Relations Authority, 944 F.2d 922 
(D.C. Circuit 1991) and Chevron v. Natural Resources Defense Council, 
467 U.S. 837 (1984) (Chevron)).
    This is not what OPM meant by ``personal representative'' in its 
regulations. The term ``personal representative'' is a term of art the 
meaning of which follows OPM's proposed definition (see Black's Law 
Dictionary, 5th Edition, 1170 (1979)). It does not encompass other 
potential representatives, to include a collective bargaining 
representative.
    The text of the Back Pay Act clearly prohibits paying attorney fees 
to any entity other than an individual employee. 5 U.S.C. 5596(b)(l) 
only authorizes back pay and attorney fee payments to ``an employee of 
an agency.'' 5 U.S.C. 2105(a) defines the term ``employee'' as an 
officer or individual who has ia--

1. Appointed in the civil service by one of the following acting in an 
official capacity:
    [cir] The President;
    [cir] a member or members of Congress, or the Congress;
    [cir] a member of the uniformed service;
    [cir] an individual who is an ``employee'' under 5 U.S.C. 2105
    [cir] the head of a Government controlled corporation; or
    [cir] the adjutant general designated by the Secretary concerned 
under 32 U.S.C. 709(c);
2. Engaged in the performance of a Federal function under authority of 
law or an Executive act; and
3. Subject to the supervision of an individual named in 5 U.S.C. 
2105(a)(1) while engaged in the performance of the duties of his 
position.

    Title 5's definition of ``employee'' refers only to employees as 
individuals and says nothing about groups or organizations. In addition 
to this plain text, the Federal Service Labor-Management Relations 
Statute (FSLMRS) expressly differentiates between ``persons''--which 
may include agencies and labor organizations as well as individuals--
and ``employees'' which are only individuals (5 U.S.C.: 7103(a)(l) and 
(a)(2)). OPM believes that, if Congress wanted the Back Pay Act to 
permit attorney fee awards to unions or other organizations, Congress 
would have used the term ``person'' in section 5596(b)(l) instead of 
``employee'', which in the context of title 5 only refers to 
individuals. OPM included the term ``personal representative'' as a 
term of art in its regulations to provide for rare circumstances in 
which an agency owes funds under the Back Pay Act to a deceased 
employee. OPM expressly noted in its 1981 rulemaking that the 
regulatory reference to ``personal representative'' does not address 
the question of who may receive payment for reasonable attorney fees. 
Rather, it provides that an employee's personal representative may 
request payment of reasonable attorney fees on the employee's behalf 
(46 FR 58274, December 1, 1981). OPM did not intend this term to extend 
entitlement to

[[Page 63221]]

attorney fees to organizations and believes this construction is 
contrary to the statutory framework Congress established. Since courts 
have interpreted this term beyond its intended meaning, OPM proposes 
revising Sec.  550.803 to make the definition of ``personal 
representative'' clear and thereby clarify that other potential 
representatives are not entitled to attorney fees under the Back Pay 
Act.
    OPM recognizes that the courts have construed the Back Pay Act to 
authorize attorney fee awards to labor organizations, and not just the 
employee or employees they represent. As discussed, this judicial 
holding rests on a misinterpretation of OPM regulations. The D.C. 
Circuit held in its' interpretation that OPM's definition of personal 
representative encompassed labor organizations and that Supreme Court 
precedent required deferring to this construction: ``OPM's regulation 
is significant as an authoritative interpretation of the Back Pay Act . 
. . when, as here, `the legislative delegation to an agency on a 
particular question is implicit rather than explicit[,] . . . a court 
may not substitute its own construction of a statutory provision for a 
reasonable interpretation made by the administrator of an agency.' '' 
See AFGE at 930, quoting Chevron.
    The Supreme Court has held that ``a court's prior judicial 
construction of a statute trumps an agency construction otherwise 
entitled to Chevron deference only if the prior court decision holds 
that its construction follows from the unambiguous terms of the statute 
and thus leaves no room for agency discretion.'' See National Cable & 
Telecommunications Assn. v. BrandX internet Services, 545 U.S. 967, 982 
(2005). Where the Court's prior construction rested on a misreading of 
agency regulations there is no legal impediment to the agency modifying 
its regulations to comport with its understanding of the statute.
Severability
    OPM also proposes adding a severability clause to Sec.  550.803. 
This would clarify that the provisions of the section are severable and 
that if any portion of this proposed regulation is held to be invalid 
that shall not affect the operability of the remaining portions.

Regulatory Impact Analysis

    Executive Orders 13563 and 12866 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. While this rule has been designated a ``significant 
regulatory action,'' under Executive Order 12866, it is not 
economically significant.

Reducing Regulation and Controlling Regulatory Costs

    This proposed rule is not expected to be subject to the 
requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this 
proposed rule is expected to be no more than de minimis costs.

Regulatory Flexibility Act

    I certify that this proposed regulation will not have a significant 
impact on a substantial number of small entities because it applies 
only to Federal agencies and Federal employees.

Federalism

    This rulemaking regulation will not have substantial direct effects 
on the States, on the relationship between the National Government and 
the States, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with Executive 
Order 13132, it is determined that this rule does not have sufficient 
federalism implications to warrant preparation of a Federalism 
Assessment.

Civil Justice Reform

    This proposed regulation meets the applicable standard set forth in 
section 3(a) and (b)(2) of Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    This proposed rule will not result in the expenditure by State, 
local or tribal governments of more than $100 million annually. Thus, 
no written assessment of unfunded mandates is required.

Paperwork Reduction Act of 1995

    This proposed regulatory action will not impose any additional 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act.

List of Subjects in 5 CFR Part 550

    Administrative practice and procedure, Claims, Government 
employees, Wages.

Office of Personnel Management.
Alexys Stanley,
Regulatory Affairs Analyst.

    Accordingly, for the reasons stated in the preamble, OPM proposes 
to amend 5 CFR part 550, subpart H as follows:

PART 550--PAY ADMINISTRATION (GENERAL)

Subpart H--Back Pay

0
1. The authority citation for 5 CFR part 550, subpart H, continues to 
read as follows:

    Authority: 5 U.S.C. 5596(c); Pub. L. 100-202, 101 Stat. 1329.

0
2. Amend Sec.  550.803 as follows:
0
a. Designate the introductory text as paragraph (a);
0
b. Add a definitions in alphabetical order for ``employee's personal 
representative'' and personnel action in newly designated paragraph 
(a).
0
c. Amend the definition for unjustified or unwarranted personnel 
action; and
0
d. Add paragraph (b).
    The revisions and additions read as follows:


Sec.  550.803  Definitions.

* * * * *
    Employee's personal representative means only the executor or 
administrator of a deceased employee. It does not encompass other 
potential employee representatives.
* * * * *
    Personnel action means an appointment, an action based on a PPP 
under chapter 23 of title 5, United States Code, an action based on 
unacceptable performance under chapter 43 of title 5, United States 
Code, an adverse action taken under chapter 75 of title 5, United 
States Code, any other removal or suspension, a promotion or demotion, 
a change in step or grade, a transfer or reassignment, or a change from 
full-time to part-time work.
* * * * *
    Unjustified or unwarranted personnel action means a personnel 
action of commission or of omission (i.e., failure to take an action or 
confer a benefit) that an appropriate authority subsequently 
determines, on the basis of substantive or procedural defects, to have 
been unjustified or unwarranted under applicable law, Executive order, 
rule, or mandatory personnel policy established by an agency or through 
a collective bargaining agreement. It does not include pay actions that 
do not involve personnel actions.
* * * * *

[[Page 63222]]

    (b) The definitions in this section are severable. If any 
definition in this section is held to be invalid that shall not affect 
the operability of the remaining definitions.

[FR Doc. 2020-20428 Filed 10-6-20; 8:45 am]
BILLING CODE 6325-39-P