The Office of Personnel Management (OPM) has issued a final rule in the Federal Register to implement provisions of the Department of Veterans Affairs (VA) Accountability and Whistleblower Protection Act of 2017 (the Act). This rule, effective August 25, 2025, outlines the process for current and former VA employees to appeal decisions related to the recoupment of awards, bonuses, and relocation expenses.
Here’s what federal employees need to know about the purpose of this rule and its implications.
Purpose of the Final Rule
Under the Act, the Secretary of the VA is authorized to recoup awards, bonuses, and relocation expenses from federal employees for misconduct, poor performance, fraud, or malfeasance. Employees have the right to appeal these orders to the Director of the Office of Personnel Management. This final rule addresses these types of appeals.
The final rule aims to establish clear procedures for employees to appeal recoupment orders issued by the Secretary of the VA. Specifically, it addresses these situations:
- Awards or Bonuses: The VA seeks repayment if it determines that misconduct or poor performance occurred before the award or bonus was paid, and the payment wouldn’t have been made had this been known.
- Relocation Expenses: Repayment is required if the relocation expenses were authorized based on fraudulent actions or malfeasance.
This rule ensures that employees are afforded due process, including notification of proposed recoupments and the opportunity to respond before final decisions are made.
Key Provisions and Appeal Procedures
- Notification and Response:
- Employees will receive formal notice of any proposed recoupment.
- They have 10 business days to respond to this notice.
- Appeal Process:
- If a recoupment order is issued, the employee can appeal to the Director of OPM within seven business days.
- The appeal must be in writing, including relevant documents such as the original order and the employee’s response.
- Decision Timeline:
- OPM will review the appeal based on the written record and will issue a final decision within 30 business days.
- Finality of Decisions:
- OPM’s decisions on appeals are final and cannot be reconsidered within the agency.
- The law does not specify provisions for judicial review, meaning employees may need to consult legal counsel if they wish to pursue further action.
Implications for Federal Employees
The rule stresses that while it does give federal employees an appeal process, the burden of proof is on the employee. It states:
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 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.
Additionally, the rule reinforces the fact that OPM’s decision on these appeals is final. It states, “There will not be any further administrative review available within OPM, and thus this rule does not establish any process for requests for reconsideration.”
It adds, however, that the Act does not provide any details about judicial review of OPM’s decisions regarding appeals. The final rule states, “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.'”
Conclusion
OPM’s final rule provides a structured framework for appealing recoupment decisions in an effort to ensure fairness and accountability within the federal workforce. Federal employees within the VA impacted by these provisions should familiarize themselves with the appeal procedures to protect their rights effectively.
