Hiring Freezes?? Forum

[zot1]

The language says "no vacant position may be filled." This is different language from the Reagan era freezes. When a position has been accepted, the vacancy has been filled. Now, could the agencies individually still renege on offers using a more narrow interpretation? Sure. But short of further guidance from OPM, agencies will use the broader interpretation because they want to get those people on board.

[forumsleuth]

Vacancy means a vacant position in the competitive service, regardless of whether the position will be filled by permanent or time-limited appointment, for which an agency is seeking applications from outside its current permanent competitive service workforce.

5 C.F.R. § 330.101

[zot1]

Most attorney positions are excepted positions, not competitive.

I can't look at the CFR right now, but even if there's a similar definition for excepted service employees, I stand with what I said. But also, as I said before, my opinion is worth nothing, so take it for what it is.

[andythefir]

The language says "no vacant position may be filled." This is different language from the Reagan era freezes. When a position has been accepted, the vacancy has been filled. Now, could the agencies individually still renege on offers using a more narrow interpretation? Sure. But short of further guidance from OPM, agencies will use the broader interpretation because they want to get those people on board.

You have way more experience than me, but this resonates with me. 1 most people with accepted offers should be fine, but 2 individual agencies could pull offers if they wanted to. It seems to me there are so many exceptions here that it really turns almost all of the discretion over to the agency heads. For the DOJ, as an example, I would think that criminal AUSAs would be fine, civil rights much less so.

[zot1]

The language says "no vacant position may be filled." This is different language from the Reagan era freezes. When a position has been accepted, the vacancy has been filled. Now, could the agencies individually still renege on offers using a more narrow interpretation? Sure. But short of further guidance from OPM, agencies will use the broader interpretation because they want to get those people on board.

You have way more experience than me, but this resonates with me. 1 most people with accepted offers should be fine, but 2 individual agencies could pull offers if they wanted to. It seems to me there are so many exceptions here that it really turns almost all of the discretion over to the agency heads. For the DOJ, as an example, I would think that criminal AUSAs would be fine, civil rights much less so.

Based on the language, it seems agency heads pretty much have wide discretion for interpretation. A broad interpretation could still be applied to civil rights, but it depends. The acting USAO might want to use narrow reading to rescind civil and please new administration.

Look, I know it seems hard to believe (not necessarily for you Andy), but agencies don't just make vacancies or honors programs for no reason. They need to hire these people and they will use whatever legal available resource to do it.

I definitely know my agency specifically sped up hiring to ensure they could fill positions. I don't see why they would not use the broad language of the leaked EO (have we even confirmed the language is official) to their advantage in bringing people on board. The agency has already spent the resources in reviewing resumes, interviewing, and background checks for some. It would be so fucking stupid (and irresponsible to the public) to let those hirees go to then start from zero to get those positions filled after the hiring freeze.

[Anonymous User]

You all seem much more into the know than I, but just saw this language from the WaPost

"Earlier this month, The Washington Post reported that the Obama administration was accelerating hiring to get employees in place before Trump took over. But individuals hired, but who have not yet started working, still could be affected by a freeze.

In an August 1981 decision by the U.S. Court of Appeals for the D.C. Circuit in National Treasury Employees Union v. Ronald Reagan, the court ruled that anyone who had been appointed after Election Day, but had not yet started work, were affected by the retroactive freeze because they had not actually become federal employees. It found that a small number of workers among the plaintiff group, however, had begun to perform official work functions and therefore could make a claim based on the standard civil service protections that federal employees hold."

Have no idea if this will be the case but just pointing out the newest piece by the WaPost. https://www.washingtonpost.com/news/pow ... cd60485f3f

I would imagine if the Post has that language correct in the current iteration of the freeze, that would affect Honors hires made anytime after the election?

[zot1]

This is the RR freeze language: http://www.presidency.ucsb.edu/ws/?pid=43601.

It is "strict" and instructions were delegated to OMB not to agency heads.

[Anonymous User]

Recent AUSA hire, before the election but during election mania. I'm not technically permanent since my background check won't officially clear until about a year after I start (assuming everything is fine). That said, I filled a vacancy and have a clearance to work and they're not hiring for my position so I think I'm fine.

Anyways I seriously doubt my department would get cut considering I'm in violent crimes/gangs/dope.

People are going to be excited to start aggressively charging 851 enhancements again I'm sure

[Big Red]

I mean, I spoke with someone fairly senior at DOJ Office of Attorney Recruitment, and their position is going to be this exempts HPs. They could, of course, get shut down when new political appointees get a footing.

This was the understanding I got speaking to DoJ people about honors last summer at least, although back then it was this crazy hypothetical where Trump actually won

[Anonymous User]

You all seem much more into the know than I, but just saw this language from the WaPost

"Earlier this month, The Washington Post reported that the Obama administration was accelerating hiring to get employees in place before Trump took over. But individuals hired, but who have not yet started working, still could be affected by a freeze.

In an August 1981 decision by the U.S. Court of Appeals for the D.C. Circuit in National Treasury Employees Union v. Ronald Reagan, the court ruled that anyone who had been appointed after Election Day, but had not yet started work, were affected by the retroactive freeze because they had not actually become federal employees. It found that a small number of workers among the plaintiff group, however, had begun to perform official work functions and therefore could make a claim based on the standard civil service protections that federal employees hold."

Have no idea if this will be the case but just pointing out the newest piece by the WaPost. https://www.washingtonpost.com/news/pow ... cd60485f3f

I would imagine if the Post has that language correct in the current iteration of the freeze, that would affect Honors hires made anytime after the election?

I can confirm the WaPo report. My agency pushed early one of my friend's start date by one month to be ahead of 1/20.

[FSK]

Is there case law on the interpretation of the text of executive orders?

There has to be a reason to give the word "vacancy" its technical meaning within existing federal regulations, right?

If not, the orders language would give interpretation final authority to to head of the agency

[champ33]

Any other fed attorneys know if this freezes pay as in only the general 1-2% increases government-wide each year or automatic promotions as well, i.e. from GS11-12 or 12-13?

[zot1]

Any other fed attorneys know if this freezes pay as in only the general 1-2% increases government-wide each year or automatic promotions as well, i.e. from GS11-12 or 12-13?

The leaked EO did not mention pay and WaPo posted an article correcting previous statements about pay increases. Therefore, I think pay increases are safe.

[A. Nony Mouse]

You all seem much more into the know than I, but just saw this language from the WaPost

"Earlier this month, The Washington Post reported that the Obama administration was accelerating hiring to get employees in place before Trump took over. But individuals hired, but who have not yet started working, still could be affected by a freeze.

In an August 1981 decision by the U.S. Court of Appeals for the D.C. Circuit in National Treasury Employees Union v. Ronald Reagan, the court ruled that anyone who had been appointed after Election Day, but had not yet started work, were affected by the retroactive freeze because they had not actually become federal employees. It found that a small number of workers among the plaintiff group, however, had begun to perform official work functions and therefore could make a claim based on the standard civil service protections that federal employees hold."

Have no idea if this will be the case but just pointing out the newest piece by the WaPost. https://www.washingtonpost.com/news/pow ... cd60485f3f

I would imagine if the Post has that language correct in the current iteration of the freeze, that would affect Honors hires made anytime after the election?

I think WaPo doesn't have any idea. "Still could be affected" is pretty vague. Lots of things "could" happen.

IMO, it still boils down to what "vacant position" means. Does it mean a position for which an agency is still hiring, or has open but hasn't yet started the hiring process for? Does it mean a position for which an agency has hired someone but they haven't entered on duty yet? If it means the former, hires after the election but before Jan 22 are probably okay. If it means the latter, people who haven't started working as of Jan. 22 probably aren't. There might a gray area depending on how far the hiring process has gone (at what point do you become a federal employee?). And then it all depends on how willing/able agency heads will be to make cases for exemptions. Despite strong statements in this thread, I don't think we have the answers for any of this yet. (I find analogies to the Reagan freeze only so useful, since that was over 35 years ago.)

To be honest, I find going back to Election Day just weird, because there's no question that Trump wasn't president then, and I don't see how he can make his action retroactive to a time under a previous president. But I would imagine that may have had to do with the specifics of that particular case.

[Anonymous User]

The Reagan freeze plaintiffs were appointed after Nov. 4th, but had not yet started work. For whatever reason, they did not include people who were appointed before Nov. 4th and did not start work. I cannot find any information about people in that situation. For whatever reason, the Trump memorandum, so far, is not retroactive, it says: "This memorandum does not revoke any appointment to Federal service made prior to January 22, 2017." Can we infer those who accepted offers with start dates after January 22nd are safe? If anyone hears anything from their agency, please post!

[zot1]

Nony... my statements ain't strong. I've said more than once my opinion is worth nothing .

[A. Nony Mouse]

Yeah, in addition to not knowing what "vacant position" means, we probably need to know what "appointment" means (does appointment = entry on duty or not?).

zot, I was more thinking of bjohnsobf

[MrT]

For those asking, the "leaked" language I posted yesterday was accurate: https://www.whitehouse.gov/the-press-of ... ing-freeze

[zot1]

Yeah, in addition to not knowing what "vacant position" means, we probably need to know what "appointment" means (does appointment = entry on duty or not?).

zot, I was more thinking of bjohnsobf

I think is totally feasible to separate the two concepts.

1. "No vacant position ... may be filled." Again, if you've accepted the offer, the vacancy has been filled.

2. "This memorandum does not revoke any appointment..." Appointment, according to Title 5 of USC and some case law seems to mean someone who has been notified of the offer, has accepted, and has taken the oath. Nevertheless, I don't think this provision has to be read in conjunction with number 1 as using both separately does not contradict the purpose of each individually.

I believe this language gives agencies a shit ton of discretion, which is good news. But of course the better news would have been no freeze at all.

Anyway, this is the last I'll comment on here. Good luck to everyone waiting!

[FSK]

Yeah, in addition to not knowing what "vacant position" means, we probably need to know what "appointment" means (does appointment = entry on duty or not?).

zot, I was more thinking of bjohnsobf

I think is totally feasible to separate the two concepts.

1. "No vacant position ... may be filled." Again, if you've accepted the offer, the vacancy has been filled.

2. "This memorandum does not revoke any appointment..." Appointment, according to Title 5 of USC and some case law seems to mean someone who has been notified of the offer, has accepted, and has taken the oath. Nevertheless, I don't think this provision has to be read in conjunction with number 1 as using both separately does not contradict the purpose of each individually.

I believe this language gives agencies a shit ton of discretion, which is good news. But of course the better news would have been no freeze at all.

Anyway, this is the last I'll comment on here. Good luck to everyone waiting!

Yeah this is basically my take after digging through title 5 regs a bit.

[andythefir]

Yeah, in addition to not knowing what "vacant position" means, we probably need to know what "appointment" means (does appointment = entry on duty or not?).

zot, I was more thinking of bjohnsobf

I think is totally feasible to separate the two concepts.

1. "No vacant position ... may be filled." Again, if you've accepted the offer, the vacancy has been filled.

2. "This memorandum does not revoke any appointment..." Appointment, according to Title 5 of USC and some case law seems to mean someone who has been notified of the offer, has accepted, and has taken the oath. Nevertheless, I don't think this provision has to be read in conjunction with number 1 as using both separately does not contradict the purpose of each individually.

I believe this language gives agencies a shit ton of discretion, which is good news. But of course the better news would have been no freeze at all.

Anyway, this is the last I'll comment on here. Good luck to everyone waiting!

Yeah this is basically my take after digging through title 5 regs a bit.

This also resonates with the politics of it. Trump gets to make headlines looking tough, agencies can do whatever they want. Will Perry go to the mat defining EPA attorneys as public safety? Will Sessions, drug enforcement czar, turn down staffing criminal USAO missions?

[FSK]

Also re HP: The agencies know that their work force is aging, and that they wont even be able to carry out critical services unless they onramp entry level folks. Even the political appointees will understand that. So I bet that they're, today, fighting tooth & nail to ensure that they can come on.

[Anonymous User]

Well my agency let me know today they can't proceed with my second interview because of the freeze... womp womp.

[Anonymous User]

Well my agency let me know today they can't proceed with my second interview because of the freeze... womp womp.

I'm so sorry.

[Anonymous User]

This was posted in the Facebook group created for those that have accepted DOJ HP offers. Apparently it was forwarded to one of the students from their career services office:

Update: I spoke with Rena Cervoni, Deputy Director, Office of Attorney Recruitment and Management at DOJ. She, like everyone else, is waiting to review the executive order and for the further guidance that DOJ will issue. She reminded me that historically DOJ Honors Program offers have been honored. That has been true for other agencies as well. While we don't know what will happen this time, there have been hiring freezes under several administrations, and we can take solace from those experiences where offers were honored. I know this administration change feels different, and because of the campaign rhetoric, there is a greater urgency to vigilant. But, I think we can share with students that what has historically happened in other hiring freezes for the class immediately following the freeze is that DOJ offers have been honored. I will share with you information from other agencies as I get it.
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Christina Jackson
Director of Public Service Initiatives and Fellowships
NALP
Washington DC
(202) 835-1001