```

[Federal Register Volume 90, Number 9 (Wednesday, January 15, 2025)]
[Rules and Regulations]
[Pages 3601-3610]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-00583]

========================================================================
Rules and Regulations
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains regulatory documents 
having general applicability and legal effect, most of which are keyed 
to and codified in the Code of Federal Regulations, which is published 
under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by the Superintendent of Documents. 

========================================================================


Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / 
Rules and Regulations

[[Page 3601]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 755

[Docket ID: OPM-2025-0003]
RIN 3206-AO71

Appeal Procedures for Recoupment of Awards, Bonuses, or 
Relocation Expenses Awarded or Approved for All Employees of the 
Department of Veterans Affairs

AGENCY: Office of Personnel Management.

ACTION: Interim final rule; request for comments.

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

SUMMARY: The Office of Personnel Management (OPM) is issuing an interim 
final rule to implement provisions of the Department of Veterans 
Affairs Accountability and Whistleblower Protection Act of 2017 that 
permit current and former employees of the Department of Veterans 
Affairs (VA) to appeal the recoupment of awards, bonuses, or relocation 
expenses awarded or approved for these individuals. This regulation 
prescribes general procedures applicable to appeals to the Director of 
OPM regarding an order by the Secretary of the VA, or designee, 
directing the employee or former employee to repay the amount, or a 
portion of the amount, of any award or bonus paid to the employee. This 
regulation also prescribes general procedures applicable to appeals 
regarding an order by the Secretary of the VA, or designee, directing 
the employee or former employee to repay the amount, or a portion of 
the amount, paid to or on behalf of an employee for relocation 
expenses.

DATES: 
    Effective date: This rule is effective on January 15, 2025.
    Comment date: OPM must receive comments on the rule on or before 
March 17, 2025.

ADDRESSES: You may submit comments by the following method:
    Federal eRulemaking Portal: https://www.regulations.gov. Follow the 
instructions for submitting comments. All submissions received must 
include the agency name and docket number or RIN for this document. All 
comments must be received by the end of the comment period for them to 
be considered. All comments and other submissions received generally 
will be posted on the internet at https://www.regulations.gov as they 
are received, without change, including any personal information 
provided. However, OPM retains discretion to redact personal or 
sensitive information, including but not limited to, personal or 
sensitive information pertaining to third parties.

FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at 
[email protected] or by telephone at (202) 606-2930.

SUPPLEMENTARY INFORMATION:

Background

    The Department of Veterans Affairs (VA) Accountability and 
Whistleblower Protection Act of 2017, Public Law 115-41 (June 23, 
2017), authorizes the Secretary of the VA to issue an order directing a 
VA employee to repay, in whole or in part, any award or bonus paid on 
or after June 23, 2017, to an employee under title 5, United States 
Code, including chapters 45 or 53, or title 38, United States Code, if 
it is determined the employee engaged in misconduct or poor performance 
prior to the payment of the award or bonus, and the award or bonus 
would not have been paid, in whole or in part, had the misconduct or 
poor performance been known prior to payment. Furthermore, the law 
authorizes the Secretary of the VA to issue an order to an employee to 
repay the amount, or a portion of the amount, paid to or on behalf of 
an employee under title 5, United States Code, for relocation expenses, 
including 5 U.S.C. 5724 and 5724a, or title 38, United States Code, if 
it is determined the relocation expenses were paid on or after June 23, 
2017, following an act of fraud or malfeasance that influenced the 
authorization of the relocation expenses. Finally, the law authorizes 
the Secretary of the VA to reduce retirement benefits of employees 
convicted of certain crimes and removed for performance or misconduct. 
In all cases, the law provides that, upon issuance of an order by the 
Secretary, the individual has the right to appeal the order to the 
Director of the Office of Personnel Management (OPM). However, this 
rulemaking will only address appeals to the Director of OPM regarding 
recoupment of awards, bonuses, and relocation expenses. Appeals of 
orders regarding reduction of retirement benefits of employees 
convicted of certain crimes will be addressed in a future rulemaking.

Legislative Requirements

    Section 204 of Public Law 115-41 amended subchapter I of chapter 7 
of title 38, United States Code, by adding a new section 721. 
Specifically, 38 U.S.C. 721 outlines procedural requirements for 
recoupment of awards or bonuses paid to VA employees. If the Secretary 
determines an individual has engaged in misconduct or poor performance 
prior to payment of the award or bonus and that such award or bonus 
would not have been paid, in whole or in part, had the misconduct or 
poor performance been known prior to payment, the Secretary must 
provide certain procedural protections before issuing an order for 
repayment. Before such repayment, the employee is afforded (A) notice 
of the proposed order; and (B) an opportunity to respond to the 
proposed order by not later than 10 business days after the receipt of 
such notice. If the individual responds to the proposed order, the 
Secretary will issue an order not later than five business days after 
receiving the individual's response. If the individual does not respond 
to the proposed order, the Secretary will issue an order not later than 
15 business days after the Secretary provides notice to the individual. 
These procedures are outlined in VA policies \1\ and are not part of 
this rulemaking. It is important to note that neither the law nor VA 
policies require the VA to have taken a disciplinary action, adverse 
action, or performance-based action for the Secretary to seek 
recoupment of any awards or bonuses, nor do they prohibit recouping an 
award or bonus in addition to taking a disciplinary, adverse, or 
performance-based action.

[[Page 3602]]

The order by the Secretary only needs to show that the Secretary has 
determined the employee has engaged in misconduct or poor performance 
and that the award or bonus would not have been paid had the misconduct 
or poor performance been known at the time of the award. Upon the 
issuance of an order by the Secretary, the individual may appeal the 
order to the Director of OPM before the date that is seven business 
days after the date of such issuance. This rulemaking establishes the 
appeal procedures to OPM.
---------------------------------------------------------------------------

    \1\ See VA Handbook 5017/20, January 29, 2024, Procedures for 
Recoupment of Award or Bonus, Page VI-3, available at https://www.va.gov/vapubs/viewPublication.asp?Pub_ID=1483.
---------------------------------------------------------------------------

    Section 205 of Public Law 115-41 amended subchapter I of chapter 7 
of title 38, United States Code, by adding a new section 723. 
Specifically, 38 U.S.C. 723 outlines procedural requirements for 
recoupment of relocation expenses paid to or on behalf of VA employees. 
If the Secretary determines that relocation expenses were paid 
following an act of fraud or malfeasance that influenced the 
authorization of the relocation expenses, the Secretary must provide 
certain procedural protections before the Secretary decides to issue an 
order directing an individual to repay the amount, or a portion of the 
amount, paid to or on behalf of the individual for relocation expenses. 
Before such repayment, the employee is afforded (A) notice of the 
proposed order; and (B) an opportunity to respond to the proposed order 
by not later than 10 business days after the receipt of such notice. If 
the individual responds to the proposed order, the Secretary will issue 
an order not later than five business days after receiving the 
individual's response. If the individual does not respond to the 
proposed order, the Secretary will issue an order not later than 15 
business days after the Secretary provides notice to the individual. 
These procedures are also outlined in VA policies \2\ and are not part 
of this rulemaking. It is important to note that neither the law nor VA 
policies require the VA to have taken a disciplinary action or adverse 
action for the Secretary to seek recoupment of relocation expenses, nor 
do they prohibit recouping relocation expenses in addition to taking a 
disciplinary, adverse, or performance-based action. The order by the 
Secretary only needs to show that the Secretary has determined the 
employee has engaged in an act of fraud or malfeasance that influenced 
the authorization of the relocation expenses. Upon the issuance of an 
order by the Secretary, the individual may appeal the order to the 
Director of OPM before the date that is seven business days after the 
date of such issuance. As noted earlier, this rulemaking addresses the 
appeal procedures to OPM.
---------------------------------------------------------------------------

    \2\ See Id., Procedures for Recoupment of Relocation Expenses, 
Page VI-6.
---------------------------------------------------------------------------

Interim Final Rule With Request for Comments

    This interim final rule establishes a new part in the Code of 
Federal Regulations at 5 CFR part 755 with subparts A and B. Subpart A 
outlines appeal procedures for recoupment of awards and bonuses for all 
employees of the VA. Subpart B outlines appeal procedures for 
recoupment of relocation expenses for all employees of the VA. In 
addition to the statutory requirements guiding OPM in the development 
of this interim final rule, OPM was informed by the procedures 
established by the VA regarding recoupment of awards, bonuses, or 
relocation expenses outlined in VA Handbook 5017/20, Employee 
Recognition and Awards.

5 CFR Part 755: Appeal Procedures for Recoupment of Awards, Bonuses, or 
Relocation Expenses Awarded or Approved for All Employees of the 
Department of Veterans Affairs

    OPM is adding a new part at 5 CFR part 755 to implement the appeals 
procedures for recoupment of awards, bonuses, and relocation expenses 
for employees of the VA. This new part is entitled ``Appeal Procedures 
for Recoupment of Awards, Bonuses, or Relocation Expenses Awarded or 
Approved for All Employees of the Department of Veterans Affairs.'' The 
following sections discuss the scope and procedures within the subparts 
of part 755.

Subpart A: Awards and Bonuses

    Under part 755, OPM is adding a new subpart A which will be known 
as ``Awards and Bonuses.'' These new procedures are outlined below.

Section 755.101 Scope of Subpart and Definitions

    Subpart A applies to a current or former civil service employee of 
the Department of Veterans Affairs (VA). OPM has concluded that a 
``current employee'' is an individual appointed in the civil service as 
outlined in 5 U.S.C. 2105 or under title 38 regarding VA civil service 
employees. This subpart does not apply to contractor employees 
performing work at the VA on behalf of a contractor because contractor 
employees are not appointed in the civil service. In recognition of the 
possibility that VA may issue a recoupment order after an employee has 
left the VA, for example through transfer to another agency, removal, 
resignation, or retirement from Federal service, former VA employees 
are also covered by this appeal process.
    Specifically, subpart A is limited to appeals filed pursuant to 38 
U.S.C. 721 by an ``employee'' of the VA to the Director of OPM, or 
designee, regarding an order by the Secretary of the VA, or designee, 
directing the employee to repay the amount, or a portion of the amount, 
of any award or bonus paid to the employee under title 5, United States 
Code, including chapters 45 or 53 of such title, or title 38, United 
States Code. OPM has determined this includes, among other provisions 
under title 5, awards and bonuses paid pursuant to 5 U.S.C. chapter 45 
(Awards); 5 U.S.C. 5336 (Additional Step Increases commonly known as 
Quality Step Increases); 5 U.S.C. 5384 (Performance awards in the 
Senior Executive Service); 5 U.S.C. 5753 and 5754 (Recruitment, 
Relocation, and Retention Bonuses); and any title 38 authorities 
regarding awards and bonuses.
    OPM's review on appeal is limited to whether the procedures in VA's 
policies on recoupment were followed or, in the absence of any such 
policies, the VA's order was otherwise in compliance with 38 U.S.C. 
721. As discussed in more detail elsewhere in this rule (see, e.g., 
discussion regarding Sec.  755.103), OPM believes the statutory 
timeframes established by Congress suggest that Congress did not intend 
for OPM to conduct a more fulsome or comprehensive review of the merits 
concerning the VA's order. Furthermore, Congress did not provide OPM 
the authority to adjudicate the underlying decisions by the VA 
regarding any disciplinary or adverse action or any performance-based 
action. Accordingly, subpart A does not cover appeals regarding any 
disciplinary or adverse action, or any performance-based action taken 
by the VA, even if such action serves as the basis for the Secretary of 
the VA, or designee, to order recoupment of a bonus or award paid to an 
employee of the VA. Likewise, OPM will not review any discrimination 
claim or prohibited personnel practice claim raised in any appeal. 
Depending on the employee, VA may have multiple legal authorities 
available for addressing misconduct and performance issues, such as 5 
U.S.C. chapter 75 (Adverse Actions); 5 U.S.C. 4303 (Actions based on 
unacceptable performance); 5 U.S.C. 3592 (addressing unacceptable 
performance for SES); and various title 38, United States Code, 
authorities for addressing misconduct or unacceptable performance. 
These statutory authorities have separate appeals or grievance

[[Page 3603]]

procedures to address any adverse actions or performance-based actions 
taken by the VA and may serve as the basis for the Secretary of the VA, 
or designee, to order recoupment of awards or bonuses. Employees may 
file discrimination complaints to the Equal Employment Opportunity 
Commission (EEOC) and prohibited personnel practice complaints with the 
U.S. Office of Special Counsel (OSC). VA employees should consult with 
their servicing human resources office with questions regarding 
applicable grievance or appeal rights regarding any disciplinary or 
adverse action, or performance-based actions, that may be taken against 
an employee.
    To implement the statutory timeframes established by Congress, OPM 
is defining the term ``business days'' to mean weekdays, which are 
Monday through Friday, except when such a day is designated as a 
Federal holiday by OPM, or the employee's assigned facility or OPM is 
closed for regular business, e.g., inclement weather, lapse in 
appropriations. OPM notes that this definition is similar to the 
definition of ``Business Days'' outlined in VA's policy regarding the 
recoupment of awards and bonuses but notes that the calculation of 
business days is slightly different from that established in VA's 
policy. VA's definition of a business day is based upon the employee's 
receipt of an order, whereas OPM defines a business day, for the 
purposes of an appeal to OPM, as beginning on the first business day 
after the issuance of the order to the employee. OPM's approach to 
calculating business days mirrors the statutory language in 38 U.S.C. 
721(b)(1), promotes consistent use of an objective timeframe, and 
avoids the risk of presumption of delivery.

Section 755.102 Procedures for Submitting Appeals

    This section describes the procedures for VA employees to follow 
when submitting an appeal regarding a VA order for recoupment of an 
award or bonus under 38 U.S.C. 721. An employee may file an appeal to 
the Director of OPM by U.S. mail or by email, within seven business 
days after the date of issuance of the order pursuant to 38 U.S.C. 
721(a)(3). This time limit is established in law. Appeals which are 
untimely filed may be dismissed resulting in the VA's decision being 
upheld. OPM, for good cause shown, may accept an untimely appeal. OPM 
adopts the approach taken by the Merit Systems Protection Board in 
Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180 
(1980), in determining whether an employee establishes good cause for 
the untimely filing of an appeal.
    If the employee elects to file by the U.S. mail, it must be 
addressed to Director, U.S. Office of Personnel Management, 1900 E 
Street NW, Room 7H28 (Attention: Accountability and Workforce 
Relations), Washington, DC 20415. OPM will rely upon the postmark to 
determine timeliness for filing the appeal. If the employee elects to 
file by email, it must be sent to [email protected]. OPM 
will rely upon the date the email was sent to determine timeliness for 
filing the appeal.
    The law does not specify the content for any appeal filed with OPM. 
Therefore, OPM has determined what information OPM needs to adequately 
consider the appeal. OPM is requiring that minimum information to be 
included in any appeal to reflect the narrow grant of authority 38 
U.S.C. 721 gives to OPM. The appeal must be submitted in writing and 
must be signed by the employee or their representative. OPM is not 
requiring a specific form be used in filing the appeal, but any appeal 
must include the specified information for OPM to properly adjudicate 
the appeal. The written appeal must include (1) a copy of the notice of 
proposed order received pursuant to 38 U.S.C. 721(a)(2)(A); (2) a copy 
of the employee's response to the proposed order, if any; (3) a copy of 
the order received pursuant to 38 U.S.C. 721(a)(3); (4) a statement 
explaining why the employee believes the order received pursuant to 38 
U.S.C. 721(a)(3) is in error; (5) the name, mailing address, telephone 
number, and email address of the employee and, if applicable, the same 
information for their representative; and (6) the name, mailing 
address, telephone number, and email address of the VA official who 
issued the order pursuant to 38 U.S.C. 721(a)(3). OPM will notify the 
VA upon receipt of a complete, timely appeal. The VA must provide OPM a 
copy of the evidence file relied upon in proposing and deciding its 
recoupment order as soon as possible but no later than five business 
days after OPM sends its notice to the VA. For OPM to make an 
appropriate decision, OPM must have all necessary facts and evidence 
relied upon by the VA when making its recoupment decision. If 
necessary, OPM may request VA provide information in addition to the 
evidence file. For example, OPM may need additional information to 
address the employee's belief the order by the VA was in error. Any 
additional information requested by OPM must be provided to OPM within 
five business days after OPM's request. VA must also furnish a copy of 
any additional information requested by and provided to OPM to the 
employee. VA's failure to provide the evidence file or any requested 
additional information to OPM will result in a finding against the VA.
    An employee covered by this subpart is entitled to be represented 
by an attorney or other representative. OPM may disallow as an 
employee's representative an individual whose activities as 
representative would cause a conflict of interest or position, or an 
employee of any agency whose release from their official position would 
give rise to unreasonable costs or whose priority work assignments 
preclude their release. This is consistent with other complaint 
processes regulated by OPM.
    Finally, it is unclear to OPM whether the appeal rights to OPM are 
the exclusive process for bargaining unit employees to challenge a VA 
order on recoupment of awards or bonuses or whether VA bargaining unit 
employees may file a grievance under any applicable negotiated 
grievance procedure which ends in binding arbitration. OPM requests 
comment on whether bargaining unit employees may use the negotiated 
grievance process under 5 U.S.C. 7121 to challenge a VA order in lieu 
of filing an appeal with OPM. OPM also requests comment on whether this 
determination is impacted by whether the award or bonus was originally 
paid under title 5 authority or under title 38 authority.

Section 755.103 Basis of Appeal Decision

    The law provides that, upon the issuance of an order by the 
Secretary, an individual shall have an opportunity to appeal the order 
to the Director of OPM within seven business days after the date of 
such issuance. The law further provides that the Director shall make a 
final decision regarding the appeal within 30 business days after 
receiving the appeal. Therefore, due to this compressed timeline, OPM 
has determined the best way to fulfill its obligations to render a 
timely decision on any appeal is to base the decision on the written 
record only, which will include the submissions by the employee and the 
agency. There will be no formal hearing procedures for this appeal.
    The burden is upon the employee to establish the timeliness of the 
appeal and to explain why the VA's order is in error as to one or both 
of the bases found in 38 U.S.C. 721(a)(1). OPM may uphold the VA order 
if the employee or

[[Page 3604]]

their designated representative fails to provide required information. 
As noted previously, OPM will also uphold the VA order if the appeal 
was untimely filed without good cause shown for the delay.
    Since Congress did not provide OPM the authority to adjudicate 
decisions by the VA regarding any disciplinary or adverse action, or 
any performance-based action, OPM's review of the VA order is limited 
to whether the procedures in VA's policies on recoupment of awards and 
bonuses \3\ pursuant to 38 U.S.C. 721 were followed, or, in the absence 
of such policies, whether the order was otherwise in compliance with 
the statute. In other words, OPM will not review whether any 
disciplinary or adverse action, or performance-based action, which may 
have been relied upon by the VA in its recoupment order, was 
appropriate. OPM will accept the facts found by the VA regarding the 
disciplinary or adverse action, performance-based action, or other type 
of finding or action, if any, which was relied upon by the VA in making 
its recoupment decision. As noted earlier, OPM will not review any 
discrimination claim or prohibited personnel practice claim raised in 
any appeal. Employees may file complaints with the EEOC or OSC, where 
appropriate.
---------------------------------------------------------------------------

    \3\ See Id., Procedures for Recoupment of Award or Bonus, Page 
VI-3.
---------------------------------------------------------------------------

Section 755.104 Form of Appeal Decision

    Within 30 business days after receiving an appeal, OPM will make a 
decision on the employee's appeal. OPM will then send a written appeal 
decision to the employee or to the employee's representative, if any, 
advising whether the VA order is upheld by OPM. OPM will send the VA a 
copy of the appeal decision. This time limit is consistent with the 
statutory requirements.

Section 755.105 Finality of Appeal Decision

    Pursuant to 38 U.S.C. 721(b)(2), the OPM decision on appeal is 
final. There will not be any further administrative review available 
within OPM, and thus this rule does not establish any process for 
requests for reconsideration. The law is silent regarding any statutory 
right to judicial review of an OPM appeal decision. Accordingly, 
although OPM will send its appeal decision to the employee, OPM will 
not provide an accompanying statement of ``appeal rights.'' OPM 
requests comment on whether a VA employee may seek judicial review of 
an OPM final decision. If so, where would judicial review occur? OPM 
may revise its procedures to address appeals based on comments 
received.

Subpart B: Relocation Expenses

    Under part 755, OPM is adding a new subpart B which will be known 
as ``Relocation Expenses.'' These new procedures are outlined below.

Section 755.201 Scope of Subpart and Definitions

    Like subpart A, subpart B applies to a current or former civil 
service employee of the Department of Veterans Affairs (VA). OPM has 
concluded that a ``current employee'' is an individual appointed in the 
civil service as outlined in 5 U.S.C. 2105 or under title 38, United 
States Code, regarding VA civil service employees. This subpart does 
not apply to contractor employees performing work at the VA on behalf 
of a contractor because contractor employees are not appointed in the 
civil service. In recognition of the possibility that VA may issue a 
recoupment order for relocation expenses after an employee has left the 
VA, for example through transfer to another agency, resignation from 
Federal service, removal, or retirement from Federal service, former VA 
employees are covered by this appeal process.
    Specifically, subpart B is limited to appeals filed pursuant to 38 
U.S.C. 723 by an ``employee'' of the VA to the Director of OPM, or 
designee, regarding an order by the Secretary of the VA, or designee, 
directing the employee to repay the amount, or a portion of the amount, 
paid to or on behalf of the employee for relocation expenses under 
title 5, United States Code, including any expenses under section 5724 
or 5724a of title 5, or under title 38, United States Code.
    OPM's review on appeal is limited to whether the procedures in VA's 
policies on recoupment of relocation expenses were followed or, in the 
absence of any such policies, whether the VA's order was otherwise in 
compliance with 38 U.S.C. 723. As discussed in more detail elsewhere in 
this rule (see, e.g., discussion regarding Sec.  755.203), OPM believes 
the statutory timeframes established by Congress suggest that Congress 
did not intend for OPM to conduct a more fulsome or comprehensive 
review of the merits concerning the VA's order. Furthermore, as 
previously discussed in subpart A, Congress did not provide OPM the 
authority to adjudicate the underlying decisions by the VA regarding 
any disciplinary or adverse action or any performance-based action. 
Accordingly, subpart B does not cover appeals regarding any 
disciplinary or adverse action, or any performance-based action taken 
by the VA and which can serve as the basis for the Secretary of the VA, 
or designee, to order recoupment of relocation expenses paid to an 
employee of the VA. Likewise, OPM will not review any discrimination 
claim or prohibited personnel practice claim raised in any appeal. 
Depending on the employee, VA may have multiple legal authorities for 
addressing misconduct and performance issues such as 5 U.S.C. chapter 
75 (Adverse Actions); 5 U.S.C. 4303 (Actions based on unacceptable 
performance); 5 U.S.C. 3592 (addressing unacceptable performance for 
SES); and any title 38 authorities for addressing misconduct or 
unacceptable performance. These statutory authorities have separate 
appeals or grievance procedures which address any adverse actions or 
performance-based actions taken by the VA and which may happen to serve 
as the basis for the Secretary of the VA, or designee, to order 
recoupment of relocation expenses. Employees may file complaints with 
the EEOC or OSC, where appropriate. VA employees should consult with 
their servicing human resources office with questions regarding 
applicable grievance or appeal rights regarding any disciplinary or 
adverse action, or performance-based actions that may be taken against 
an employee.
    OPM is defining ``business days'' to mean weekdays, which are 
Monday through Friday, except when such a day is designated as a 
Federal holiday by OPM, or the employee's assigned facility or OPM is 
closed for regular business, e.g., inclement weather, lapse in 
appropriations. OPM notes that this definition is similar to the 
definition of ``Business Days'' outlined in VA's policy regarding the 
recoupment of relocation expenses but notes that the calculations of 
business days is slightly different from that established in VA's 
policy. VA's definition of a business day is based upon the employee's 
receipt of an order, whereas OPM defines a business day, for the 
purposes of an appeal to OPM, as beginning on the first business day 
after the issuance of the order to the employee. OPM's approach to 
calculating business days mirrors the statutory language in 38 U.S.C. 
721(b)(1), promotes consistent use of an objective timeframe, and 
avoids the risk of presumption of delivery.

Section 755.202 Procedures for Submitting Appeals

    This section describes the procedures for VA employees to follow 
when

[[Page 3605]]

submitting an appeal regarding a VA order for recoupment of relocation 
expenses as provided by 38 U.S.C. 723. An employee may file an appeal 
to the Director of OPM by U.S. mail or by email, within seven business 
days after the date of issuance of the order pursuant to 38 U.S.C. 
723(a)(3). Like the time limit established for recoupment of awards and 
bonuses, this time limit is established in law. Appeals which are 
untimely filed may be dismissed resulting in the VA's decision being 
upheld. OPM, for good cause shown, may accept an untimely appeal. OPM 
adopts the approach taken by the Merit Systems Protection Board in 
Alonzo v. Department of the Air Force, 4 MSPB 262, 4 M.S.P.R. 180 
(1980), in determining whether an employee establishes good cause for 
the untimely filing of an appeal.
    If the employee elects to file by the U.S. mail, it must be 
addressed to Director, U.S. Office of Personnel Management, 1900 E 
Street, NW, Room 7H28 (Attention: Accountability and Workforce 
Relations), Washington, DC 20415. OPM will rely upon the postmark to 
determine timeliness for filing the appeal. If the employee elects to 
file by email, it must be sent to [email protected]. OPM 
will rely upon the date the email was sent to determine timeliness for 
filing the appeal.
    The law does not specify the content for any appeal filed with OPM. 
Therefore, OPM has determined what information OPM needs to adequately 
consider the appeal. The appeal must be submitted in writing and must 
be signed by the employee or their representative. OPM is not requiring 
a specific form be used in filing the appeal, but any appeal must 
include the specified information for OPM to properly adjudicate the 
appeal. The written appeal must include (1) a copy of the notice of 
proposed order received pursuant to 38 U.S.C. 723(a)(2)(A); (2) a copy 
of the employee's response to the proposed order, if any; (3) a copy of 
the order received pursuant to 38 U.S.C. 723(a)(3); (4) a statement 
explaining why the employee believes the order received pursuant to 38 
U.S.C. 723(a)(3) is in error; (5) the name, mailing address, telephone 
number, and email address of the employee and their representative if 
the employee has elected to be represented; and (6) the name, mailing 
address, telephone number, and email address of the VA official who 
issued the order pursuant to 38 U.S.C. 723(a)(3). OPM will notify the 
VA upon receipt of a complete, timely appeal. The VA must provide OPM a 
copy of the evidence file relied upon in proposing and deciding its 
recoupment order as soon as possible but no later than five business 
days after OPM sends its notice to the VA. For OPM to make an 
appropriate decision, OPM must have all necessary facts and evidence 
relied upon by the VA when making its recoupment decision. If 
necessary, OPM may request VA provide information in addition to the 
evidence file. For example, OPM may need additional information to 
address the employee's belief the order by the VA was in error. Any 
additional information requested by OPM must be provided to OPM within 
five business days after OPM's request. VA must also furnish a copy of 
any additional information requested by and provided to OPM to the 
employee. VA's failure to provide the evidence file or any requested 
additional information to OPM will result in a finding against the VA.
    An employee covered by this subpart is entitled to be represented 
by an attorney or other representative. OPM may disallow as an 
employee's representative an individual whose activities as 
representative would cause a conflict of interest or position, or an 
employee of any agency whose release from their official position would 
give rise to unreasonable costs or whose priority work assignments 
preclude their release. This is consistent with other complaint 
processes regulated by OPM.
    Finally, like the appeal process for recoupment of awards and 
bonuses, it is unclear to OPM whether the appeal rights to OPM are the 
exclusive process for bargaining unit employees to challenge a VA order 
on recoupment of relocation expenses or whether VA bargaining unit 
employees may file a grievance under any applicable negotiated 
grievance procedure which ends in binding arbitration. OPM requests 
comment on whether bargaining unit employees may use the negotiated 
grievance process under 5 U.S.C. 7121 to challenge a VA order in lieu 
of filing an appeal with OPM. OPM also requests comment on whether this 
determination is impacted by whether the relocation expense was 
originally paid under title 5 authority or under title 38 authority.

Section 755.203 Basis of Appeal Decision

    The law provides that, upon the issuance of an order by the 
Secretary, an individual shall have an opportunity to appeal the order 
to the Director of OPM within seven business days after the date of 
such issuance. The law further provides that the Director shall make a 
final decision regarding the appeal within 30 business days after 
receiving the appeal. Therefore, due to this compressed timeline, OPM 
has determined the best way to fulfill its obligations to render a 
timely decision on any appeal is to base the decision on the written 
record only, which will include the submissions by the employee and the 
agency. Like the appeal process for recoupment of awards and bonuses, 
there will be no formal hearing procedures for this appeal.
    The burden is upon the employee to establish the timeliness of the 
appeal and to explain why the VA's order is in error under 38 U.S.C. 
723. OPM may uphold the VA order if the employee or their designated 
representative fails to provide required information. As noted 
previously, OPM will also uphold the VA order if the appeal was 
untimely filed without good cause shown for the delay.
    Since Congress did not provide OPM the authority to adjudicate 
decisions by the VA regarding any disciplinary or adverse action, or 
any performance-based action, OPM's review of the VA order is limited 
to whether the procedures in VA's policies on recoupment of relocation 
expenses \4\ pursuant to 38 U.S.C. 723 were followed, or, in the 
absence of such policies, compliance with the statute. In other words, 
OPM will not review whether any disciplinary or adverse action, or 
performance-based action, which may have been relied upon by the VA in 
its recoupment order was appropriate. OPM will accept the facts found 
by the VA regarding the disciplinary or adverse action, or performance-
based action, which was relied upon by the VA in making its recoupment 
decision. OPM will not review any discrimination claim or prohibited 
personnel practice claim raised in any appeal. Employees may file 
complaints with the EEOC or OSC, where appropriate.
---------------------------------------------------------------------------

    \4\ See Id., Procedures for Recoupment of Relocation Expenses, 
Page VI-6.
---------------------------------------------------------------------------

Section 755.204 Form of Appeal Decision

    Within 30 business days after receiving an appeal, OPM will make a 
decision on the employee's appeal. OPM will then send a written appeal 
decision to the employee or to the employee's representative, if any, 
advising whether the VA order is upheld by OPM. OPM will send the VA a 
copy of the appeal decision. This time limit is consistent with the 
statutory requirements.

[[Page 3606]]

Section 755.205 Finality of Appeal Decision

    Pursuant to 38 U.S.C. 723(b)(2), the OPM appeal decision is final. 
There will not be any further administrative review available within 
OPM, and thus this rule does not establish any process for requests for 
reconsideration. Like appeals of recoupment of awards and bonuses, the 
law is silent regarding any statutory right to judicial review of an 
OPM appeal decision. Accordingly, although OPM will send its appeal 
decision to the employee, OPM will not provide an accompanying 
statement of ``appeal rights.'' OPM requests comment on whether a VA 
employee may seek judicial review of an OPM final decision. If so, 
where would judicial review occur? OPM may revise its procedures to 
address appeals based on comments received.

Waiver of Notice of Proposed Rule Making

    OPM is issuing this rulemaking as an interim final rule because it 
has determined that, under the Administrative Procedure Act (APA), 5 
U.S.C. 553(b)(B), it would be impracticable to delay a final regulation 
until a public notice and comment process has been completed. VA 
finalized its internal policies regarding implementation of the 
authority to recoup awards, bonuses, and relocation expenses on January 
29, 2024. Following the issuance of that policy, VA began using the 
authority to pursue recoupment actions, which could be appealed to OPM 
imminently if an order to recoup is issued. Therefore, OPM must be 
ready to receive and adjudicate appeals from VA employees. As explained 
in further detail below, OPM was unable to develop procedures until it 
had a better understanding of what process VA would provide and what 
record would be available for OPM review. VA finalized its internal 
policies regarding implementation of the authority to recoup awards, 
bonuses, and relocation expenses on January 29, 2024. OPM developed 
this interim final rule after review of VA's policies and procedures, 
consideration of legal and policy options, and consultation with VA. 
OPM also believes that waiver of notice and comment is in the public 
interest. Although OPM has statutory authority to hear appeals, the 
public is better served to have clear, established procedures that are 
easily accessible in the Code of Federal Regulations than for OPM to 
operate under uncodified procedures that could be variable or haphazard 
pending a final rule. This interim final rule is intended to provide 
near-term appellants with certainty with respect to the process for 
appealing a decision of the VA. OPM will seek to finalize this rule 
with the benefit of public insight as soon as possible. Accordingly, to 
ensure the regulations accurately reflect the current state of the law 
and to provide clear procedures for an employee seeking OPM review of a 
VA recoupment order, OPM finds that good cause exists to waive the 
general notice of proposed rulemaking pursuant to 5 U.S.C. 553(b)(B). 
Expeditious issuance of this interim final regulation is required to 
prevent confusion and promote fairness as VA exercises its statutory 
authority resulting in appeals to OPM. OPM will promulgate a final 
rule, reflecting consideration of public comments, as soon as practical 
after receiving public comments on the interim final rule. In addition 
to welcoming comment on the provisions codified in this interim final 
rule, OPM invites comment on a number of additional procedural topics 
outlined below that OPM could address in the final rule.

Waiver of Delay in Effective Date

    Pursuant to 5 U.S.C. 553(d)(3), OPM finds that good cause exists to 
waive the 30-day delay in effective date and make these procedural 
regulations effective in upon publication. The delay in effective date 
is being waived because the provisions of the law regarding recoupment 
of bonuses, awards, or relocation expenses (see 38 U.S.C. 721 and 723) 
became effective upon enactment, June 23, 2017, and the VA finalized 
its internal procedures regarding this law on January 29, 2024. In 
crafting this rule, OPM considered the VA's internal procedures, first, 
to ensure it designed an effective and efficient process for 
adjudicating appeals given the limited period of time afforded OPM by 
sections 721(b) and 723(b) to issue a decision. Additionally, OPM's 
jurisdiction is limited to a review of whether the procedures in VA's 
policies on recoupment of relocation expenses were followed or, in the 
absence of any such policies, whether the VA's order was otherwise in 
compliance with section 721 or 723. To issue a rule before VA 
established its internal procedures would have been unworkable and may 
have created inefficiencies that would either delay or rush OPM in 
reaching a decision; both of which would unnecessarily prejudice VA 
employees and the VA.
    OPM also believes that after VA finalized its policy, the VA began 
exercising its authority under this statute and, if an order to recoup 
is issued, that OPM could receive an appeal prior to the standard 30-
day effective date. A delay in the effective date could result in 
confusion and inconsistency in how to file an appeal with OPM and the 
content needed for such an appeal. In the interest of fairness and 
timely resolution for any VA employee who is subjected to a recoupment 
order in the near future, it is imperative to give effect to this rule 
as soon as practicable.

Regulatory Impact Analysis

A. Statement of Need

    This interim final rule implements portions of sections 204 and 205 
of Public Law 115-41, the Department of Veterans Affairs Accountability 
and Whistleblower Protection Act of 2017, which provides VA employees 
certain appeal rights to the Director of OPM regarding decisions by the 
VA to recoup awards, bonuses, or relocation expenses. These sections of 
Public Law 115-41 amend chapter 7 of title 38, United States Code. 
Under these authorities, OPM is prescribing additional details of the 
appeal process to provide consistency and transparency.

B. Regulatory Alternatives

    An alternative to this rulemaking is to not issue a regulation or 
any procedures regarding the appeals process. The law is silent on 
whether OPM must issue any policies or rules governing the appeals 
process. However, if OPM does not issue any policies or rules on the 
appeals process, this likely will result in confusion regarding how OPM 
will administer the appeals process as the law only outlines the right 
to appeal to the Director of OPM; the time limit for a VA employee to 
file an appeal; and a time limit for the Director to issue a decision 
regarding any appeal. The rule includes procedural protections for both 
the VA and employees during the appeal process that are not included in 
the statute that help inform OPM's decision-making and protect against 
prejudice. We view these risks in the absence of this rule as 
particularly elevated given the VA's past use of recoupment authority 
and stated intention to continue its use. Without further clarification 
of and inclusion of additional procedures OPM, the VA, and VA employees 
will follow, there will likely be confusion on procedural requirements, 
less-informed decision-making, and procedural prejudice to the parties.
    Another alternative is to publish these procedures on OPM's public 
facing website. This provides some transparency regarding how OPM will 
administer the process. However, the

[[Page 3607]]

public and interested stakeholders would not be provided an opportunity 
to review and provide comments and recommendations regarding the 
procedures since the procedures would not be published through a 
rulemaking process. Furthermore, 5 U.S.C. 552(a)(1) requires agencies 
to publish administrative adjudicatory procedures in the Federal 
Register. Moreover, given that the regulations apply only to VA 
employees, publishing these procedures on OPM's public facing website 
may cause confusion for the many non-VA employees who visit OPM's 
website for information.
    Finally, another alternative is to publish this as a proposed rule 
seeking public comment instead of an interim final rule seeking public 
comment. This would mean the public and interested stakeholders would 
be provided an opportunity to review and provide comments and 
recommendations regarding the procedures in the traditional rulemaking 
process. However, following issuance of its final policy, VA began 
exercising its authority to recoup awards, bonuses, and relocation 
expenses. If the VA issues an order to recoup a bonus, award, or 
relocation expense before any final rule is published, the employee has 
a right under the law to appeal to the Director of OPM. This means OPM 
would be obligated to render a decision on any appeal before OPM has 
finalized and publicized any appeal process. As discussed in greater 
detail above in the sections on Waiver of Notice of Proposed Rule 
Making and Waiver of Delay in Effective Date and in the interest of 
fairness and transparency to all VA employees, OPM believes it is 
imperative to publish procedures as soon as possible now that VA has 
finalized its internal policies on these matters.

C. Impact

    OPM is issuing this interim final rule to provide consistency and 
transparency regarding appeals by VA employees regarding orders by the 
VA to recoup awards, bonuses, or relocation expenses previously paid to 
these employees. Congress provided VA employees appeal rights regarding 
such orders by the VA. OPM's interim final rule provides more clarity 
regarding this appeal process. It provides VA employees with structure 
and an explanation of what to expect and provides employees with 
security that they will receive fair, consistent treatment in the 
consideration of an appeal.

D. Costs

    The costs associated with the interim final rule are minimal. Most 
costs of this rule are expected to only impact OPM with some minor 
costs to the VA as it relates to the appeal process. No other Federal 
agencies are affected by this rule. We do not believe this rule will 
substantially increase the ongoing administrative costs to OPM or the 
VA. We anticipate OPM will leverage existing staff and resources to 
administer the appeal process. To a lesser extent, we anticipate VA 
will leverage existing staff and resources to respond to requests from 
OPM for information regarding decisions by the VA to recoup awards, 
bonuses, or relocation expenses. For VA employees appealing to OPM, we 
view the costs imposed upon these employees by this interim rule as 
minimal and limited to submitting existing information and a statement 
supporting any appeal.
    With the above in mind, we estimate this rule will involve such 
activities as reviewing and analyzing VA employee appeals by OPM 
subject matter experts; requesting additional information from the VA 
as necessary; drafting a recommended appeal decision for the OPM 
Director or designee; meeting between OPM subject matter experts with 
the OPM Director or designee, if needed, regarding the recommended 
appeal decision; and taking steps to communicate the appeal decision by 
the OPM Director or designee to the employee or their representative 
and the VA. For this cost analysis, the assumed staffing for Federal 
employees performing the work required by the regulation is one 
executive; one GS-15, step 5; one GS-14, step 5; and one GS-13, step 5, 
in the Washington, DC, locality area. The 2024 basic rate of pay for an 
executive at an agency with a certified SES performance appraisal 
system is $246,400 annually, or $118.06 per hour. For General Schedule 
employees in the Washington, DC, locality area, the 2024 pay table 
rates are $185,824 annually and $89.04 hourly for GS-15, step 5; 
$157,982 annually and $75.70 hourly for GS-14; and $133,692 annually 
and $64.06 hourly for GS-13, step 5. We assume that the total dollar 
value of labor, which includes wages, benefits, and overhead, is equal 
to 200 percent of the wage rate, resulting in assumed hourly labor 
costs of $236.13 for an executive; $178.08 for a GS-15, step 5; $151.40 
for a GS-14, step 5; and $128.12 for a GS-13, step 5. While OPM has no 
baseline data to estimate how many appeals will be filed with OPM, OPM 
is estimating that each appeal received will require an average of 40 
hours of work by employees with an average hourly cost of $173.43. This 
would result in estimated costs of about $6,937.20 for OPM for each 
appeal filed with OPM.
    As already noted, the VA will provide OPM a copy of the evidence 
file for the appeal process. OPM anticipates a negligible cost to the 
VA for providing the requested file. While VA may incur some costs 
regarding decisions it makes regarding recoupment of awards, bonuses, 
or relocation expenses, such matters are not covered by this interim 
final rule and are covered by VA policies.
    Finally, the costs to VA employees appealing an order will be 
limited to the submission of the required information necessary for 
processing an appeal. All required information of an appeal is limited 
and readily available to the employee as nearly all of the required 
information is provided to the employee by VA or previously submitted 
by the employee to the VA. The only new information required of the 
employee is a statement supporting an appeal to OPM which we anticipate 
repeats much of the information previously provided to VA and which is 
required to be submitted as part of any appeal.

E. Benefits

    This interim final rule will benefit VA employees. This interim 
rule will provide consistency and transparency regarding the procedures 
OPM will follow when processing appeals by VA employees regarding 
decisions by the VA regarding recoupment of awards, bonuses, or 
relocations expenses. This final rule provides clarity regarding the 
procedural protections Congress has provided VA employees on such 
matters.

F. Request for Comment

    In addition to the questions posed in the description of the 
procedural regulations (repeated below) and given the unique nature of 
OPM's responsibility for adjudicating employee appeals on matters 
unique to only one Federal agency, OPM requests comments on the 
implementation and impact of this interim final rule. The types of 
information on which OPM is interested in public comments includes, but 
is not limited to, the following:
     If a disciplinary or adverse action, or performance-based 
action, relied upon by the VA in recoupment of an award, bonus, or 
relocation expense is subject to a grievance or appeal in a separate 
process and the grievance or appeal is still pending, how should this 
impact any decision by OPM? What if the disciplinary or adverse action, 
or

[[Page 3608]]

performance-based action, relied upon by the VA is later overturned in 
the separate process after any decision by OPM regarding the recoupment 
by the VA?
     May VA bargaining unit employees use the negotiated 
grievance process under 5 U.S.C. 7121 to challenge a VA recoupment 
order in lieu of filing an appeal with OPM? Or do 38 U.S.C. 721 and 723 
provide the sole method to challenge a VA recoupment order?
     Does coverage by the negotiated grievance procedure depend 
on whether the award or bonus was paid under title 5 authority or by 
title 38 authority?
     May a VA employee seek judicial review of an OPM final 
decision? If so, where would judicial review occur?
     Should OPM publish its appeal decisions and make them 
publicly available?
    OPM welcomes comments on the answers to these questions and 
recommendations regarding whether and how these questions should be 
addressed in OPM regulations in a final rule. OPM may adopt additional 
procedures to address these and other issues identified in public 
comments in a final rule.

Executive Orders 14094, 13563 and 12866, Regulatory Review

    OPM has examined the impact of this rulemaking as required by 
Executive Orders 12866 (Sept. 30, 1993), 13563 (Jan. 18, 2011), and 
14094 (Apr. 6, 2023), which 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). A regulatory impact 
analysis must be prepared for major rules with effects of $200 million 
or more in any one year. This rulemaking does not reach that threshold 
but has otherwise been designated as a ``significant regulatory 
action'' under section 3(f) of Executive Order 12866, as amended by 
Executive Order 14094.

Regulatory Flexibility Act

    The Director of OPM certifies that this regulation will not have a 
significant impact on a substantial number of small entities.

Executive Order 13132, Federalism

    This 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 (Aug. 10, 1999), it is determined that this interim final 
rule does not have sufficient federalism implications to warrant 
preparation of a Federalism Assessment.

Executive Order 12988, Civil Justice Reform

    This regulation meets the applicable standard set forth in 
Executive Order 12988.

Unfunded Mandates Reform Act of 1995

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires that agencies assess anticipated costs and benefits before 
issuing any rule that would impose spending costs on State, local, or 
Tribal governments in the aggregate, or on the private sector, in any 1 
year of $100 million in 1995 dollars, updated annually for inflation. 
That threshold is currently approximately $183 million. This regulation 
will not result in the expenditure by State, local, or Tribal 
governments, in the aggregate, or by the private sector, in excess of 
the threshold. Therefore, no actions were deemed necessary under the 
provisions of the Unfunded Mandates Reform Act of 1995.

Congressional Review Act

    The Office of Information and Regulatory Affairs in the Office of 
Management and Budget has determined that this rule does not satisfy 
the criteria listed in 5 U.S.C. 804(2).

Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required 
to respond to, nor shall any person be subject to a penalty for failure 
to comply with a collection of information subject to the requirements 
of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), 
unless the collection of information displays a currently valid Office 
of Management and Budget (OMB) Control Number. This rule does not 
result in a collection of information subject to the PRA.
    OPM anticipates that the case records would be subject to the 
Privacy Act and will be covered by the new OPM System of Records Notice 
(SORN) ``OPM/Internal-29, VA Recoupment and Reduction Appeals to OPM,'' 
which is published elsewhere in this issue of the Federal Register.

List of Subjects in 5 CFR Part 755

    Administrative practices and procedures, Government employees.

Kayyonne Marston,
Federal Register Liaison. Office of Personnel Management.

0
Accordingly, for the reasons stated in the preamble, OPM adds part 755 
to title 5 of the Code of Federal Regulations to read as follows:

PART 755--APPEAL PROCEDURES FOR RECOUPMENT OF AWARDS, BONUSES, OR 
RELOCATION EXPENSES AWARDED OR APPROVED FOR ALL EMPLOYEES OF THE 
DEPARTMENT OF VETERANS AFFAIRS (VA)

Sec.
Subpart A--Awards and Bonuses
755.101 Scope of subpart and definitions.
755.102 Procedures for submitting appeals.
755.103 Basis of appeal decision.
755.104 Form of appeal decision.
755.105 Finality of appeal decision.
Subpart B--Relocation Expenses
755.201 Scope of subpart and definitions.
755.202 Procedures for submitting appeals.
755.203 Basis of appeal decision.
755.204 Form of appeal decision.
755.205 Finality of appeal decision.

    Authority: 5 U.S.C. 1103; 38 U.S.C. 721 and 723.

Subpart A--Awards and Bonuses

    Authority: 38 U.S.C. 721.

Sec.  755.101  Scope of subpart and definitions.

    (a) Employees covered. A current or former civil service employee 
of the Department of Veterans Affairs (VA) as defined by title 38 of 
the U.S. Code, or by 5 U.S.C. 2105.
    (b) Appeals covered. This subpart prescribes general procedures 
applicable to appeals, pursuant to 38 U.S.C. 721, by a covered employee 
to the Director of the Office of Personnel Management (OPM), or 
designee, regarding an order by the Secretary of the VA, or designee, 
directing the employee to repay the amount, or a portion of the amount, 
of any award or bonus paid to the employee under title 5 of the U.S. 
Code, including 5 U.S.C. chapter 45 or 53, or under title 38 of the 
U.S. Code.
    (c) Appeals not covered. Any disciplinary or adverse action, or any 
performance-based action taken by the VA (including any such action 
that may have served as a basis for the Secretary of the VA, or 
designee, to order recoupment of an award or bonus paid to an employee 
of the VA) is not

[[Page 3609]]

appealable under this subpart. Discrimination claims or prohibited 
personnel practice claims raised in an appeal are not subject to OPM 
review.
    (d) Business days. Weekdays, which are Monday through Friday, 
except when such a day is designated as a Federal holiday by OPM, or 
the employee's assigned facility or OPM is closed for regular business, 
e.g., inclement weather, lapse in appropriations.

Sec.  755.102  Procedures for submitting appeals.

    (a) Filing an appeal and time limits. An employee may file an 
appeal to the Director, U.S. Office of Personnel Management, 1900 E 
Street NW, Room 7H28 (Attention: Accountability and Workforce 
Relations), Washington, DC 20415 or by email to 
[email protected], within seven business days after the 
date of issuance of the order pursuant to 38 U.S.C. 721(a)(3). OPM, for 
good cause shown, may accept an untimely appeal.
    (b) Content of appeals. An appeal must be submitted by the employee 
in writing and must be signed by the employee or their representative. 
While no specific form is required, the appeal must include:
    (1) A copy of the notice of proposed order received pursuant to 38 
U.S.C. 721(a)(2)(A);
    (2) A copy of the employee's response to the proposed order, if 
any;
    (3) A copy of the order received pursuant to 38 U.S.C. 721(a)(3);
    (4) A statement explaining why the employee believes the order 
received pursuant to 38 U.S.C. 721(a)(3) is in error;
    (5) The name, mailing address, telephone number, and email address 
of the employee and their representative (if applicable); and
    (6) The name, mailing address, telephone number, and email address 
of the VA official who issued the order pursuant to 38 U.S.C. 
721(a)(3).
    (c) VA submission of evidence file. OPM will notify the VA upon 
receipt of a complete, timely appeal. The VA must provide OPM a copy of 
the evidence file as soon as possible but no later than five business 
days. If necessary, OPM may request VA provide information in addition 
to the evidence file. Any additional information requested by OPM must 
be provided to OPM within five business days after OPM's request. VA 
must also furnish a copy of any additional information requested by and 
provided to OPM to the employee. VA's failure to provide the evidence 
file or any requested additional information to OPM will result in a 
finding against VA.
    (d) Employee representative. An employee may select a 
representative of their choice to assist in the preparation and 
submission of an appeal. An appeal filed by their representative must 
be supported by a duly executed power of attorney or other written 
documentation by the employee designating the representative. OPM may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position; an 
employee of any agency who cannot be released from official duties 
because of the priority needs of the Government; or an employee of any 
agency whose release would give rise to unreasonable costs to the 
Government.

Sec.  755.103  Basis of appeal decision.

    The burden is upon the employee to establish the timeliness of the 
appeal and to explain why the VA's order is in error. OPM's decision is 
based upon the written record only, which will include the submissions 
by the employee and the agency. OPM will accept the facts found by the 
VA regarding the disciplinary or adverse action, or performance-based 
action, or other type of finding or action, if any, which was relied 
upon by the VA in making its recoupment decision. OPM may uphold the VA 
order if the employee or their designated representative fails to 
provide requested information. OPM's review of the VA order is limited 
to whether the procedures in VA's policies on recoupment of awards and 
bonuses pursuant to 38 U.S.C. 721 were followed. In the absence of such 
policies, OPM's review is limited to compliance with 38 U.S.C. 721.

Sec.  755.104  Form of appeal decision.

    Within 30 business days after receiving an appeal, OPM will make a 
decision on the employee's appeal. OPM will then send a written appeal 
decision to the employee or their representative advising whether the 
VA order is upheld by OPM. OPM will send the VA a copy of the appeal 
decision.

Sec.  755.105  Finality of appeal decision.

    Pursuant to 38 U.S.C. 721(b)(2), the OPM appeal decision is final; 
no further administrative review is available within OPM.

Subpart B--Relocation Expenses

    Authority:  38 U.S.C. 723.

Sec.  755.201  Scope of subpart and definitions.

    (a) Employees covered. A current or former civil service employee 
of the Department of Veterans Affairs (VA) as defined by title 38 of 
the U.S. Code, or by 5 U.S.C. 2105.
    (b) Appeals covered. This subpart prescribes general procedures 
applicable to appeals, pursuant to 38 U.S.C. 723, by a covered employee 
to the Director of the Office of Personnel Management (OPM), or 
designee, regarding an order by the Secretary of the VA, or designee, 
directing the employee to repay the amount, or a portion of the amount, 
paid to or on behalf of an employee for relocation expenses under title 
5 of the U.S. Code, including any expenses under 5 U.S.C. 5724 or 
5724(a), or under title 38 of the U.S. Code.
    (c) Appeals not covered. Any disciplinary or adverse action, or any 
performance-based action taken by the VA (including any such action 
that may have served as a basis for the Secretary of the VA, or 
designee, to order repayment of a relocation expense by an employee of 
the VA) is not appealable under this subpart. Discrimination claims or 
prohibited personnel practice claims raised in an appeal are not 
subject to OPM review.
    (d) Business days. Weekdays, which are Monday through Friday, 
except when such a day is designated as a Federal holiday by OPM, or 
the employee's assigned facility or OPM is closed for regular business, 
e.g., inclement weather, lapse in appropriations.

Sec.  755.202  Procedures for submitting appeals.

    (a) Filing an appeal and time limits. An employee may file an 
appeal to the Director, U.S. Office of Personnel Management, 1900 E 
Street NW, Room 7H28 (Attention: Accountability and Workforce 
Relations), Washington, DC 20415 or by email to 
[email protected], within seven business days after the 
date of issuance of the order pursuant to 38 U.S.C. 723(a)(3). OPM, for 
good cause shown, may accept an untimely appeal.
    (b) Content of appeals. An appeal must be submitted by the employee 
in writing and must be signed by the employee or their representative. 
While no specific form is required, the appeal must include:
    (1) A copy of the notice of proposed order received pursuant to 38 
U.S.C. 723(a)(2)(A);
    (2) A copy of the employee's response to the proposed order, if 
any;
    (3) A copy of the order received pursuant to 38 U.S.C. 723(a)(3);
    (4) A statement explaining why the employee believes the order 
received pursuant to 38 U.S.C. 723(a)(3) is in error;

[[Page 3610]]

    (5) The name, mailing address, telephone number, and email address 
of the employee and their representative (if applicable); and
    (6) The name, mailing address, telephone number, and email address 
of the VA official who issued the order pursuant to 38 U.S.C. 
723(a)(3).
    (c) VA submission of evidence file. OPM will notify the VA upon 
receipt of a complete, timely appeal. The VA must provide OPM a copy of 
the evidence file-as soon as possible but no later than five business 
days. If necessary, OPM may request VA provide information in addition 
to the evidence file. Any additional information requested by OPM must 
be provided to OPM within five business days after OPM's request. VA 
must also furnish a copy of any additional information requested by and 
provided to OPM to the employee. VA's failure to provide the evidence 
file or any requested additional information to OPM will result in a 
finding against VA.
    (d) Employee representative. An employee may select a 
representative of their choice to assist in the preparation and 
submission of an appeal. An appeal filed by their representative must 
be supported by a duly executed power of attorney or other written 
documentation by the employee designating the representative. OPM may 
disallow as an employee's representative an individual whose activities 
as representative would cause a conflict of interest or position; an 
employee of any agency who cannot be released from official duties 
because of the priority needs of the Government; or an employee of any 
agency whose release would give rise to unreasonable costs to the 
Government.

Sec.  755.203  Basis of appeal decision.

    The burden is upon the employee to establish the timeliness of the 
appeal and to explain why the VA's order is in error. OPM's decision is 
based upon the written record only, which will include the submissions 
by the employee and the agency. OPM will accept the facts found by the 
VA regarding the disciplinary or adverse action, performance-based 
action, or other type of finding or action, if any, which was relied 
upon by the VA in making its recoupment decision. OPM may uphold the VA 
order if the employee or their designated representative fails to 
provide requested information. OPM's review of the VA order is limited 
to whether the procedures in VA's policies on recoupment of relocation 
expenses pursuant to 38 U.S.C. 723 were followed. In the absence of 
such policies, OPM's review is limited to compliance with 38 U.S.C. 
723.

Sec.  755.204  Form of appeal decision.

    Within 30 business days after receiving an appeal, OPM will make a 
decision on the employee's appeal. OPM will then send a written appeal 
decision to the employee or their representative advising whether the 
VA order is upheld by OPM. OPM will send the agency a copy of the 
appeal decision.

Sec.  755.205  Finality of appeal decision.

    Pursuant to 38 U.S.C. 723(b)(2), the OPM appeal decision is final; 
no further administrative review is available within OPM.

[FR Doc. 2025-00583 Filed 1-14-25; 8:45 am]
BILLING CODE 6325-39-P
```