Employer Religious Accomodations

The No FEAR Act: What Department of Justice Attorneys Need to Know

Carlotta Wells Senior Counsel Federal Programs Branch Civil Division Department of Justice I. Introduction

Title II of the No FEAR Act at a future time). The interim final rule, which will appear at 5 C.F.R. Part 724, describes agency obligations and the procedure for reimbursement and compliance with section 201 of the No FEAR Act. The interim final rule further incorporates the statute's requirement that agencies must reimburse the Judgment Fund for payments covered by the No FEAR Act "within a reasonable time." 5 C.F.R. § 724.103. Section 201(b) requires that an agency's reimbursement be paid out of operating expenses, but allows agencies to extend the reimbursement over several years in order to avoid reductions in force, furloughs, other reductions in employee benefits or compensation, or an adverse effect on the mission of the agency. In other words, agencies cannot make work force related changes in order to satisfy the reimbursement requirement. No FEAR Act § 102(3)-(4). Rather, Congress intended agencies to face some tough decisions in determining how to make the reimbursements under the statute. As discussed later, the difficulties agencies will face in allocating funds to reimburse the Judgment Fund may impact attorney-client interactions between the Department of Justice (Department) and federal agencies, particularly with respect to settlement considerations. Consistent with the statute, the interim final rule does not explicitly provide the Department of the Treasury (Treasury), which administers the Judgment Fund, with any authority to compel an agency to comply with the reimbursement requirement. The rule provides that the Financial Management Service (FMS) within Treasury will send a notice to an agency's Chief Financial Officer within fifteen business days after payment from the Judgment Fund. 5 C.F.R. § 724.104(a). Within forty-five business days of the notice from FMS, agencies must either remit a reimbursement or "contact FMS to make arrangements in writing for reimbursement." Id . at § 724.104(b). An agency's failure to either reimburse the Judgment Fund or contact FMS within forty-five business days of receiving notice of a payment "will be recorded on an annual basis and posted on the FMS Web site." Id . at § 724.105. In addition, under the reporting requirements set forth in section 203(a)(3), agencies shall have to include, in an annual report submitted to Congress, the

On May 15, 2002, Congress enacted the Notification and Federal Employee Anti discrimination Act (the No FEAR Act), Pub. L. No. 107-174, 116 Stat. 566. The purpose of the Act, which became effective October 1, 2003, is to hold federal agencies more accountable for discrimination and retaliation against employees, former employees, and applicants for employment (hereinafter collectively referred to as "federal employees"). The principal means by which the statute effectuates this purpose is twofold: (1) through a requirement that federal agencies reimburse the Judgment Fund for payments made to federal employees as a result of settlements, court judgments, or awards; and (2) by imposition of reporting requirements regarding the nature and disposition of discrimination and retaliation claims. II. Questions and answers This article provides an overview of the statute through a question and answer format. The questions are derived from the topics on which Assistant United States Attorneys (AUSAs) and agency counsel have sought frequent advice. A. What is No FEAR's reimbursement requirement? Section 201 of the Act provides that agencies shall reimburse the Judgment Fund for payments made from the Fund as a result of judgments, awards, or settlements in discrimination and retaliation cases. Significantly, the statute does not authorize federal agencies to make payments directly to federal employees. Consequently, the Judgment Fund continues to pay the amount of a judgment, award, or settlement to the plaintiff(s) in the first instance. In an interim final rule, the Office of Personnel Management (OPM) addresses the reimbursement requirement. See 69 Fed. Reg. 2997 (Jan. 22, 2004) (OPM will promulgate regulations implementing the other provisions of

UNITED STATES ATTORNEYS ' B ULLETIN

M AY 2004

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