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.

Rules and Regulations Federal Register

3601 

Vol. 90, No. 9 

Wednesday, January 15, 2025 

1See 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. 

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 

employeeaccountability@opm.gov 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. 


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3602 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

2See Id., Procedures for Recoupment of 

Relocation Expenses, Page VI–6. 

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. 

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. 

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 § 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 


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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 

employeeaccountability@opm.gov. 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 


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3604 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

3See Id., Procedures for Recoupment of Award or 

Bonus, Page VI–3. 

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 performancebased 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. 

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 § 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 


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4See Id., Procedures for Recoupment of 

Relocation Expenses, Page VI–6. 

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 

employeeaccountability@opm.gov. 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 performancebased 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. 

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. 


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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 decisionmaking, 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 


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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 


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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. 

■ 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. 

§ 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 


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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. 

§ 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 

employeeaccountability@opm.gov, 

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. 

§ 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. 

§ 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. 

§ 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. 

§ 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. 

§ 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 

employeeaccountability@opm.gov, 

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; 


lotter on DSK11XQN23PROD with RULES1
3610 Federal Register / Vol. 90, No. 9 / Wednesday, January 15, 2025 / Rules and Regulations 

1OGE has previously determined, after 

consultation with the Department of Justice, that 

the $200 late filing fee for public financial 

disclosure reports that are more than 30 days 

overdue (see 5 U.S.C. 13106(d) and 5 CFR 2634.704 

of OGE’s regulations thereunder) is not a CMP as 

defined under the Federal Civil Penalties Inflation 

Adjustment Act, as amended. Therefore, that fee is 

not being adjusted in this rulemaking (nor was it 

adjusted by OGE in previous CMP rulemakings). 

The late filing fee for public financial disclosure 

reports that are more than 30 days overdue will 

remain at its current amount of $200. 

(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. 

§ 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. 

§ 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. 

§ 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 

OFFICE OF GOVERNMENT ETHICS 

5 CFR Parts 2634 and 2636 

RIN 3209–AA71 

2025 Civil Monetary Penalties Inflation 

Adjustments for Ethics in Government 

Act Violations 

AGENCY: Office of Government Ethics. 

ACTION: Final rule. 

SUMMARY: In accordance with the 

Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015, the U.S. Office of Government 

Ethics is issuing this final rule to make 

the 2025 annual adjustments to the 

Ethics in Government Act civil 

monetary penalties. 

DATES: This final rule is effective 

January 15, 2025. 

FOR FURTHER INFORMATION CONTACT: 

Margaret Dylus-Yukins, Assistant 

Counsel, General Counsel and Legal 

Policy Division, Office of Government 

Ethics, Telephone: 202–482–9300; TTY: 

800–877–8339; FAX: 202–482–9237. 

SUPPLEMENTARY INFORMATION: 

I. Background 

In November 2015, Congress passed 

the Federal Civil Penalties Inflation 

Adjustment Act Improvements Act of 

2015 (sec. 701 of Pub. L. 114–74) (the 

2015 Act), which further amended the 

Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Pub. L. 101– 

410). The 2015 Act required Federal 

agencies to make annual inflationary 

adjustments to the civil monetary 

penalties (CMPs) within their 

jurisdiction, to be effective no later than 

January 15 of each year. 

The Ethics in Government Act as 

amended, chapter 131, title 5 of the 

United States Code, provides for five 

CMPs.1 Specifically, the Ethics in 

Government Act provides for penalties 

that can be assessed by an appropriate 

United States district court, based upon 

a civil action brought by the Department 

of Justice, for the following five types of 

violations: 

(1) knowing and willful failure to file, 

report required information on, or 

falsification of a public financial 

disclosure report, 5 U.S.C. 13106(a)(1), 5 

CFR 2634.701(b); 

(2) knowing and willful breach of a 

qualified trust by trustees and interested 

parties, 5 U.S.C. 13104(f)(6)(C)(i), 5 CFR 

2634.702(a); 

(3) negligent breach of a qualified 

trust by trustees and interested parties, 

5 U.S.C. 13104(f)(6)(C)(ii), 5 CFR 

2634.702(b); 

(4) misuse of a public report, 5 U.S.C. 

13107(c)(2), 5 CFR 2634.703; and 

(5) violation of outside employment/ 

activities provisions, 5 U.S.C. 13145(a), 

5 CFR 2636.104(a). 

In compliance with the 2015 Act and 

guidance issued by the Office of 

Management and Budget (OMB), the 

U.S. Office of Government Ethics (OGE) 

made previous inflationary adjustments 

to the five Ethics in Government Act 

CMPs, and is issuing this rulemaking to 

effectuate the 2025 annual inflationary 

adjustments to those CMPs. In 

accordance with the 2015 Act, these 

adjustments are based on the percent 

change between the Consumer Price 

Index for all Urban Consumers (CPI–U) 

for the month of October preceding the 

date of the adjustment, and the prior 

year’s October CPI–U. Pursuant to OMB 

guidance, the cost-of-living adjustment 

multiplier for 2025, based on the CPI– 

U for October 2024, not seasonally 

adjusted, is 1.02598. To calculate the 

2025 annual adjustment, agencies must 

multiply the most recent penalty by the 

1.02598 multiplier, and round to the 

nearest dollar. 

Applying the formula established by 

the 2015 Act and OMB guidance, OGE 

is amending the Ethics in Government 

Act CMPs through this rulemaking to: 

(1) Increase the three penalties 

reflected in 5 CFR 2634.702(a), 

2634.703, and 2636.104(a)—which were 

previously adjusted to a maximum of 

$24,496—to a maximum of $25,132; 


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