Upholding Civil Service Protections and Merit System Principles, 24982-25049 [2024-06815]
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VI. Procedural Issues and Regulatory Review
A. Severability
B. Regulatory Flexibility Act
C. Regulatory Review
D. Executive Order 13132, Federalism
E. Executive Order 12988, Civil Justice
Reform
F. Unfunded Mandates Reform Act of 1995
G. Congressional Review Act
H. Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35)
VII. Regulatory Amendments
OFFICE OF PERSONNEL
MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432,
451, and 752
[Docket ID: OPM–2023–0013]
RIN 3206–AO56
Upholding Civil Service Protections
and Merit System Principles
I. Executive Summary
Office of Personnel
Management.
ACTION: Final rule.
AGENCY:
The Office of Personnel
Management (OPM) is issuing final
regulations to reinforce and clarify
longstanding civil service protections
and merit system principles, codified in
law, as they relate to the involuntary
movement of Federal employees and
positions from the competitive service
to the excepted service, or from one
excepted service schedule to another. In
this final rule, OPM adopts many of the
provisions from the proposed rule with
some modifications and clarifications
based on comments received from the
public. The final regulations will better
align OPM regulations with relevant
statutory text, congressional intent,
legislative history, legal precedent, and
OPM’s longstanding practice.
DATES: Effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT:
Timothy Curry by email at
employeeaccountability@opm.gov or by
phone at (202) 606–2930.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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Table of Contents
I. Executive Summary
II. Digest of Public Comments
III. Background and Related Comments
A. The Career Civil Service, Merit System
Principles, and Civil Service Protections
B. Conduct and Performance Under the
Civil Service Reform Act of 1978
C. The Competitive, Excepted, and Senior
Executive Services
D. The Prior Schedule F
E. General Comments
F. OPM’s Authority To Regulate
IV. Regulatory Amendments and Related
Comments
A. Retention of Status and Civil Service
Protections Upon a Move
B. Positions of a Confidential, PolicyDetermining, Policy-Making, or PolicyAdvocating Character
C. Agency Procedures for Moving
Employees
V. Regulatory Analysis and Related
Comments
A. Statement of Need
B. Regulatory Alternatives
C. Impact
D. Costs
E. Benefits
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The Office of Personnel Management
(OPM) is issuing final regulations
governing competitive service and
competitive status, employment in the
excepted service, and adverse actions.
The final rule also makes conforming
changes to the regulations governing
performance-based actions and awards.
This rule clarifies and reinforces
longstanding civil service protections
and merit system principles, reflected in
the passage of the Pendleton Civil
Service Reform Act of 1883. The Act
ended the patronage, or ‘‘spoils,’’ system
for Federal employment and initiated
the competitive civil service. For the
past 140 years, Congress has enacted
statutes and agencies have promulgated
rules that govern the civil service,
beginning with laws that limited
political influence in employment
decisions and growing over the years to
establish comprehensive laws regulating
many areas of Federal employment.
These changes were designed to further
good government. Subsequent statutes,
including, among others, the Lloyd-La
Follette Act of 1912, the Veterans’
Preference Act of 1944, as amended, the
Civil Service Reform Act of 1978
(CSRA), and the Civil Service Due
Process Amendments Act of 1990,
extended and updated these civil
service provisions.
Whereas the Pendleton Act
eliminated the spoils system and
introduced a merit-based civil service as
a key pillar of our democratic system,
the CSRA was the signature, bipartisan
reform that has most shaped the system
we have today.1 It created an elaborate
‘‘new framework’’ 2 of the modern civil
service, protected career Federal
employees from undue partisan political
influence, and extended adverse action
rights by statute to a larger cohort of
employees, so that the business of
government can be carried out
efficiently and effectively, in
compliance with the law, and in a
1 See Lindahl v. OPM, 470 U.S. 768, 773 (1985)
(explaining that the CSRA ‘‘overhauled the civil
service system’’).
2 Id. at 774; see United States v. Fausto, 484 U.S.
439, 443 (1988).
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manner that encourages individuals to
apply to participate in the civil service.
The 2.2 million career civil servants
active today are the backbone of the
Federal workforce. They are dedicated
and talented professionals who provide
the continuity of expertise and
experience necessary for the Federal
Government to function optimally
across administrations. These
employees take an oath to uphold the
Constitution and are accountable to
agency leaders and managers who, in
turn, are accountable to the President,
Congress, and the American people for
their agency’s performance. At the same
time, these civil servants must carry out
critical tasks requiring that their
expertise be applied objectively
(performing data analysis, conducting
scientific research, implementing
existing laws, etc.).
Congress has dictated a wellestablished way in which agencies can
control their workforces. If a Federal
employee refuses to implement lawful
direction from leadership, there are
mechanisms for agencies to respond
through discipline, up to and including
removal, as appropriate, under chapter
75 of title 5, U.S. Code. If a Federal
employee’s performance has been
determined to be unacceptable, the
agency may respond under chapter 75
(on the basis that action is necessary to
promote the efficiency of the service) or
pursue a performance-based action
under chapter 43 of title 5, U.S. Code,
at the agency’s discretion. Under the
law, however, a mere difference of
opinion with leadership does not
qualify as misconduct or unacceptable
performance or otherwise implicate the
efficiency of the service in a manner
that would warrant an adverse action.
Career civil servants have a level of
institutional experience, subject matter
expertise, and technical knowledge that
incoming political appointees have
found to be useful and may lack
themselves. Such civil servants’ ability
to offer their objective analyses and
educated views when carrying out their
duties, without fear of reprisal or loss of
employment, contribute to the reasoned
consideration of policy options and thus
the successful functioning of incoming
administrations and our democracy.
These rights and abilities must continue
to be protected and preserved, as
envisioned by Congress when it enacted
the CSRA, and expanded and
strengthened those protections through
subsequent enactments such as the Civil
Service Due Process Amendments Act.3
3 Public Law 101–376, 104 Stat. 461, H.R. 3086
(Aug. 17, 1990); see also H.R. Rep. 101–328 (Nov.
3, 1989).
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Congress has generally charged the
OPM Director with executing,
administering, and enforcing the laws
governing the civil service.4 In chapter
75, Congress provided certain Federal
employees with specified procedural
rights and provided OPM with broad
authority to prescribe regulations to
carry out the chapter’s purposes.5
Moreover, OPM regulations govern the
movement of positions from the
competitive service to the excepted
service.6 Pursuant to its authority, OPM
issues this rule to clarify and reinforce
longstanding civil service protections
and merit system principles as codified
in the CSRA. OPM amends its
regulations in 5 CFR chapter I,
subchapter B, as follows:
First, the rule amends 5 CFR part 752
(Adverse Actions) to clarify that civil
servants in the competitive service or
excepted service who qualify as
‘‘employees’’ under 5 U.S.C. 7501,
7511(a)—meaning they have fulfilled
their probationary or trial period
requirement or durational requirement
and are not excluded from the definition
of ‘‘employee’’ by 5 U.S.C. 7511(b) 7—
will retain the rights previously accrued
upon an involuntary move 8 from the
competitive service to the excepted
service, or from one excepted service
schedule to another, or any subsequent
involuntary move, unless the employee
relinquishes such rights or status by
voluntarily encumbering a position that
explicitly results in a loss of, or
different, rights.9 The rule also conforms
the regulation for non-appealable
adverse actions with statutory language
in 5 U.S.C. 7501 and Federal Circuit
precedent to clarify which employees
are covered. The rule amends 5 CFR
part 212 (Competitive Service and
Competitive Status) to further clarify a
4 See
5 U.S.C. 1103(a)(5)(A).
5 U.S.C. 7504, 7514.
6 See, e.g., 5 CFR part 212.
7 OPM notes that employees appointed pursuant
to Schedule C have no expectation of accruing such
rights, considering the longstanding interpretation
of 5 U.S.C. 7511(b)(2) and E.O. 10577, Rule VI,
Schedule C, as amended. There are a small number
of additional, discrete, positions for which the
appointing authority similarly precludes the accrual
of such rights, by the appointing authority’s own
terms.
8 The final rule further discusses the differences
between voluntary and involuntary moves in
Section IV(A).
9 As explained further infra, an individual can
voluntarily relinquish rights when moving to a
position that explicitly results in the loss of, or
different, rights. An agency’s failure to inform an
employee of the consequences of a voluntary
transfer cannot confer appeal rights to an employee
in a position which has no appeal rights by statute.
This is distinguishable from situations where the
individual was coerced or deceived into taking the
new position with different rights. See Williams v.
MSPB, 892 F.3d 1156 (Fed. Cir. 2018).
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competitive service employee’s status in
the event the employee and/or their
position is moved involuntarily to an
excepted service schedule. OPM also
updates the regulations to reflect the
repeal of 10 U.S.C. 1599e, effective
December 31, 2022, and restores a oneyear probationary period for covered
Department of Defense employees
appointed to permanent positions
within the competitive service in the
Department of Defense on or after
December 31, 2022.
Second, the rule amends 5 CFR part
210 (Basic Concepts and Definitions
(General)) to interpret the phrases
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’
and ‘‘confidential or policydetermining’’ 10 in 5 CFR 210.102. These
terms of art—which would apply
throughout OPM’s Civil Service
Regulations in 5 CFR chapter I,
subchapter B 11—describe positions of
the character generally excepted from
chapter 75’s protections. OPM
reinforces the longstanding
interpretation that, in creating this
exception in 5 U.S.C. 7511(b)(2),
Congress intended to except noncareer
political appointees 12 from civil service
protections.
Third, the rule amends 5 CFR part 302
to provide specific procedures that
apply when moving individuals or
positions from the competitive service
to the excepted service, or from one
excepted service schedule to another,
for the purposes of good administration,
to add transparency, and to provide a
right of appeal to the Merit Systems
Protection Board (MSPB or Board) to the
extent any such move is involuntary
and characterized as stripping
10 See 5 CFR 213.3301, 302.101, 432.102, 451.302,
752.202, 752.401.
11 The relevant regulatory language currently
varies slightly. For instance, 5 CFR part 752 refers
to positions ‘‘of a confidential, policy-determining,
policy making, or policy-advocating character.’’ But
5 CFR part 213 describes these positions as being
‘‘of a confidential or policy-determining character,’’
5 CFR part 302 uses ‘‘of a confidential, policydetermining, or policy-advocating nature,’’ and 5
CFR part 451 uses ‘‘of a confidential or policymaking character.’’ In this final rule, OPM adopts
‘‘confidential, policy-determining, policy making,
or policy-advocating’’ and ‘‘confidential or policydetermining’’ as two, interchangeable alternatives to
describe these positions.
12 The term ‘‘career employee,’’ as used here,
refers to appointees to competitive service
permanent or excepted service permanent
positions. The terms ‘‘noncareer political
appointee’’ and ‘‘political appointee,’’ as used here,
refer to individuals appointed by the President or
his appointees pursuant to Schedule C (or similar
authorities) who serve at the pleasure of the current
President or his political appointees and who have
no expectation of continued employment beyond
the presidential administration in which the
appointment occurred.
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individuals of any previously accrued
civil service status and protections.
On September 18, 2023, OPM issued
a notice of proposed rulemaking, which
was published at 88 FR 63862. After
consideration of public comments on
the proposed regulatory amendments,
OPM has determined that the issuance
of these revised regulations is essential
to strengthen and protect the
foundations of the civil service and its
merit system principles.13 These
principles were critical to the Pendleton
Act’s repudiation of the spoils system;
essential to continued compliance with
the statutory schemes for performance
management, as enacted by Congress
(and subsequently expanded) to extend
procedural entitlements to most career
employees following a specified period
of service; and essential to the creation
of the modern civil service on which
this country depends and under which
it has thrived for 140 years.14 The final
rule is also critical to the Federal
Government’s ability to recruit and
retain the talent that agencies need to
deliver on their complex missions.
Individuals considering whether to
accept a career civil service position
need to know that they will be valued
for their knowledge, skills, and abilities;
evaluated based on merit; and not only
protected from retribution for offering
their candid opinions but encouraged to
do so. Policies that cast doubt on these
fundamental characteristics of a career
civil service job restrict the pool of
applicants interested in Federal
Government jobs and disadvantage
agencies in competing for top talent.
OPM may set forth policies,
procedures, standards, and
supplementary guidance for the
implementation of this final rule.
13 OPM’s authorities to issue regulations only
extend to title 5, U.S. Code. A position may be
placed in the excepted service by presidential
action, under 5 U.S.C. 3302, by OPM action, under
authority delegated by the President pursuant to 5
U.S.C. 1104, or by Congress. These proposed
regulations apply to any situation where an agency
moves positions or people from the competitive
service to the excepted service, or between excepted
services, whether pursuant to statute, Executive
order, or an OPM issuance, to the extent that these
provisions are not inconsistent with applicable
statutory provisions. For example, to the extent that
a position is placed in the excepted service by an
act of Congress, an OPM regulation will not
supersede a statutory provision to the contrary.
However, an OPM regulation may prescribe the
procedures by which agencies would be required to
move positions unless inconsistent with that
statutory provision. Similarly, these regulatory
provisions also apply where positions previously
governed by title 5 will be governed by another title
going forward, unless the statute governing the
exception provides otherwise.
14 E.O. 14003, sec. 2.
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II. Digest of Public Comments
In response to the proposed rule,
OPM received 4,097 comments during
the 60-day public comment period from
a variety of individuals (including
current and former civil servants),
organizations, and Federal agencies. At
the conclusion of the public comment
period, OPM reviewed and analyzed the
comments. In general, the comments
ranged from enthusiastic support of the
proposed regulations to categorical
rejection. Approximately 67 percent of
the overall comments were supportive
of the proposed regulatory
amendments.15 Of the approximately 33
percent of comments that were opposed,
more than 95 percent of those comments
consisted of one of four form letters.16
In the proposed rule, OPM requested
comments on a variety of topics
regarding the implementation and
impacts of this rulemaking.17 OPM
received many comments in response
and incorporated them in the relevant
sections that follow. Such information
was useful for better understanding the
effect of these final revisions on civil
service protections, merit system
principles, and the effective and
efficient business of government, in
compliance with the law.
In the next section, we address the
background for these regulatory
amendments and related comments. In
subsequent sections, we address the
specific amendments, provide a
regulatory analysis, and list procedural
considerations. OPM concludes with the
amended regulatory text.
III. Background and Related Comments
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A. The Career Civil Service, Merit
System Principles, and Civil Service
Protections
It is critical to our government that
career Federal employees be protected
from undue partisan influence so that
business can be carried out efficiently
and effectively, in compliance with the
law.
President George Washington based
most of his federal appointments on
merit. Subsequent presidents, though,
deviated from this policy, to varying
degrees.18 ‘‘By the time Andrew Jackson
was elected president in 1828,’’ the
patronage or ‘‘ ‘spoils system,’ . . . was
in full force.’’ Under this system,
15 Approximately five of the 4,097 comments
could be considered neutral—neither supportive
nor opposed.
16 The form letters are described below where
relevant.
17 See 88 FR 63862, 63881.
18 See, e.g., Nat’l Archives, Milestone Documents,
‘‘Pendleton Act (1883),’’ https://www.archives.gov/
milestone-documents/pendleton-act.
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Federal employees were generally
appointed, retained, or removed based
on their political affiliations and
support for the political party in power
rather than their capabilities or
competence.19 A change in
administration often triggered the
widespread removal of Federal
employees to provide jobs for the
supporters of the new President, his
party, and party leaders.20 This spoils
system often resulted in party managers
‘‘pass[ing] over educated, qualified
candidates and distribut[ing] offices to
‘hacks’ and ward-heelers who had done
their bidding during campaigns and
would continue to serve them in
government.’’ 21 Theodore Roosevelt,
who served as a Civil Service
Commissioner before becoming the Vice
President and then President of the
United States, described the spoils
system as ‘‘more fruitful of degradation
in our political life than any other that
could possibly have been invented. The
spoilsmonger, the man who peddled
patronage, inevitably bred the votebuyer, the vote-seller, and the man
guilty of misfeasance in office.’’ 22
George William Curtis, a reformer and
proponent of a merit-based civil service,
described that, under the spoils system,
‘‘[t]he country seethe[d] with intrigue
and corruption. Economy, patriotism,
honesty, honor, seem[ed] to have
become words of no meaning.’’ 23
Ethical standards for Federal employees
were at a low ebb under this system.
‘‘Not only incompetence, but also graft,
corruption, and outright theft were
common.’’ 24
To protect career Federal employees
from undue partisan influence, civil
service advocates and then Congress
sought to establish a Federal
nonpartisan career civil service that
would be selected based on merit rather
than political affiliation.25 Such a
workforce, though initially limited in
19 U.S. Merit Sys. Prots. Bd., ‘‘What is Due
Process in Federal Civil Service,’’ p. 4. (May 2015),
https://www.mspb.gov/studies/studies/What_is_
Due_Process_in_Federal_Civil_Service_
Employment_1166935.pdf.
20 U.S. Off. of Pers. Mgmt., ‘‘Biography of an
Ideal,’’ p. 83 (2003), https://
dml.armywarcollege.edu/wp-content/uploads/2023/
01/OPM-Biography-of-an-Ideal-History-of-CivilService-2003.pdf.
21 See Anthony J. Gaughan, ‘‘Chester Arthur’s
Ghost: A Cautionary Tale of Campaign Finance
Reform,’’ 71 Mercer L. Rev. 779, at pp. 787–78
(2020), https://digitalcomons.law.mercer.edu/cgi/
viewcontent.cgi?article=1313&context=jour_mlr.
22 U.S. Off. of Pers. Mgmt., supra note 20 at pp.
182–83.
23 Id. at p. 182. In 1871, Curtis was appointed by
President Ulysses S. Grant to chair the first Civil
Service Commission. See id. at p. 196.
24 Id. at pp. 183–84.
25 See Gaughan, supra note 21 at p. 787; U.S.
Merit Sys. Prots. Bd., supra note 19 at pp. 3–5.
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scope, would reinvigorate government,
making it more efficient and
competent.26 This reform movement
came to a head in 1881 when President
James Garfield was shot by a
disappointed office seeker who believed
he was entitled to a Federal job based
on the work he had done for Garfield
and his political party.27
The Pendleton Act of 1883 28 ended
this patronage system for covered
positions and created the competitive
civil service. Coverage has grown as a
proportion of the Federal workforce
over time to cover nearly all career
positions.29 The Pendleton Act required
agencies to appoint Federal employees
covered by the Act based on
competency and merit.30 It also
established the Civil Service
Commission (CSC) to help implement
and enforce the government’s adherence
to merit-based principles.31
Commenters generally agreed 32 with
this background,33 especially the point
that the corruption of the spoils era and
evolving complexity of government
necessitated a nonpartisan career civil
service. A professor concurred with
OPM’s contention that the growing
complexity of issues facing the United
States in the late nineteenth century,
‘‘combined with the pathologies
engendered by the Jacksonian spoils
system (culminating in the assassination
of President Garfield) led to the creation
of a competitive civil service.’’
Comment 42.34 Other commenters noted
that the Pendleton Act was intended to
eliminate the influence of personal
loyalty and partisan activity as the key
qualifications for career appointees, and
replace them with ‘‘fitness, capacity,
26 See
Gaughan, supra note 21 at p. 787.
U.S. Merit Sys. Prots. Bd., supra note 19
at pp. 4–5; U.S. Off. of Pers. Mgmt., supra note 20
at pp. 198–201.
28 Public Law 16; Civil Service Act of 1883, (Jan.
16, 1883) (22 Stat. 403).
29 Nat’l Archives, supra note 18.
30 22 Stat. 403–04 (stating that hiring should be
based on an ‘‘open, competitive examination’’ of the
employee’s ‘‘relative capacity and fitness . . . to
discharge the duties of the service into which they
seek to be appointed.’’).
31 Id. at 403.
32 One notable dissent comes in Comment 4097,
from an advocacy nonprofit organization.
Commenter opposed the rule and did not dispute
the factual bases of the Pendleton Act but argued
that its limited treatment of removal rights supports
a view that modern removal protections can now
be eliminated for certain career civil servants. OPM
disagrees with this argument as explained in later
sections.
33 See 88 FR 63862, 63863–67 (detailing
background in proposed rule).
34 Comments filed in response to this rulemaking
are available at https://www.regulations.gov/
comment/OPM-2023-0013-nnnn, where ‘‘nnnn’’ is
the comment number. Note that the number must
be four digits, so insert preceding zeroes as
appropriate.
27 See
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honesty [and] fidelity.’’ Comment 2816;
see also Comments 2822, 3029.
The contours of the civil service and
merit system principles that resulted
were borne of extensive debates in
which one view clearly prevailed. A
former federal official commented that
‘‘Congress decided to target the threats
of increased incompetence and
patronage in a spoils system, and
decided that the benefits of a
professionalized civil service
outweighed concerns about bureaucratic
inertia.’’ Comment 2816. Commenter
noted that ‘‘opponents of the Pendleton
Act argued [at the time] that civil
service protections were ‘one step in the
direction of the establishment of an
aristocracy in this country, the
establishment of another privileged
class.’ ’’ Id. Commenter concluded that
‘‘arguments that the civil service should
be responsive to, rather than insulated
from, the churn of partisan politics are
echoed by contemporary critics of civil
service protections. But these arguments
against a professional civil service were
soundly rejected with the passage of the
Pendleton Act and have been proven to
have been incorrect over more than a
century of experience.’’ Id.
A legal nonprofit organization
similarly commented that the features of
the ‘‘civil service that frustrate its
critics—fealty to Congressional
programs, dedication to government
institutions, consideration of the public
interest, and a mission broader than
simply serving political appointees—are
core components of the system
established by an elected Congress
almost 150 years ago.’’ Comment 2822.
Congress ‘‘has spoken clearly about its
vision for the civil service for a century
and a half, and consistently rejected a
civil service that is merely an extension
of a President’s will.’’ Id.
Several commenters noted that the
Pendleton Act was extraordinarily
successful in establishing the
foundation for the modern civil service.
A former federal official explained that
the Act had the qualitative benefit of
improving targeted employees’
professional backgrounds. Comment
2816. As discussed further in Section
III(E), the nonpartisan civil service
ensured that the United States
government would be capable of
combating problems ‘‘unimagined when
the Pendleton Act was passed,
including auto safety, climate change,
and the airworthiness of planes.’’ See
Comment 42.
Even with respect to the enactment of
the Pendleton Act, a subsequent
President saw the need to address
removals more specifically not long
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afterward.35 In 1897, President William
McKinley addressed removals by
issuing Executive Order 101, which
mandated that ‘‘[n]o removal shall be
made from any position subject to
competitive examination except for just
cause and upon written charges filed
with the head of the Department, or
other appointing officer, and of which
the accused shall have full notice and
an opportunity to make defense.’’ 36
Congress, far from objecting to this
Order, later essentially codified these
requirements in the Lloyd-La Follette
Act of 1912 37 to establish that covered
Federal employees were to be both hired
and removed based on merit.
Specifically, section 6 of the Act
provided no person in the ‘‘classified
civil service’’ 38 of the United States can
be removed ‘‘except for such cause as
will promote the efficiency of said
service’’ and for reasons given in
writing. The Act also mandated
providing notice to the person whose
removal is sought and ‘‘of any charges
[proffered] against him, and be
furnished with a copy thereof, and also
be allowed a reasonable time for
personally answering the same in
writing; and affidavits in support’’ of the
removal.
Congress, over time, has codified,
renewed, and expanded protections to
civil servants. A former federal official
quoted Rep. James Tilghman Lloyd, one
of the Lloyd-La Follette Act’s
namesakes, as saying the Act sought to
‘‘do away with the discontent and
suspicion which now exists among the
employees [of the civil service] and [ ]
restore that confidence which is
necessary to get the best results from the
employees.’’ Comment 2816. It would,
according to Rep. Lloyd, ensure that
civil servants ‘‘being dismissed from
service would have the benefit of a
written record of charges against them,
with reports made to Congress, and the
ability to have Congress subject their
dismissal to ‘special inquiry’ if
department heads ‘trump up charges’ to
dismiss civil servants.’’ 39 Id.
Thereafter, Congress enacted further
requirements and reforms. In 1944,
Congress passed the Veterans’
Preference Act,40 which, among other
35 The Pendleton Act does specify that ‘‘no person
in the public service is . . . under any obligations
to contribute to any political fund, or to render any
political service, and that he will not be removed
or otherwise prejudiced for refusing to do so.’’ 22
Stat. at 404.
36 U.S. Merit Sys. Prots. Bd., supra note 19 at p.
5.
37 37 Stat. 555 (1912).
38 The ‘‘classified civil service’’ refers to the
competitive service. See 5 U.S.C. 2102.
39 Citing 48 Cong. Rec. 2653–54 (1912).
40 58 Stat. 387 (1944).
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things, granted federally employed
veterans extensive rights to challenge
adverse employment actions, including
the right to file an appeal with the CSC
and provide the CSC with
documentation to support the appeal.
Based on the evidence presented, the
CSC would issue findings and
recommendations regarding the adverse
employment action. In short, the
Veterans’ Preference Act provided
eligible veterans with adverse action
protections and access to an appeals
process.41 Then, in 1962, President John
F. Kennedy issued Executive Order
10988 to extend similar adverse action
rights to a broader swath of the civil
service, specifically, employees in the
competitive service.42
B. Conduct and Performance Under the
Civil Service Reform Act of 1978
To synthesize, expand upon, and
further codify the patchwork of
processes that had developed over
almost a century, and to protect a
broader group of civil servants and
govern personnel actions, Congress in
1978 passed the CSRA 43—the most
comprehensive Federal civil service
reform since the Pendleton Act.
One factor that led to the CSRA, as a
whistleblower protection nonprofit
organization explained, was that
‘‘whistleblowers at the Senate Watergate
hearings’’ showed that the Nixon
Administration ‘‘tried to implement the
Malek Manual, a secret blueprint to
replace the civil service merit system
with a political hiring scheme’’ that
would have begun ‘‘by purging all
Democrats from federal employment.’’
Comment 3340.44 Those abuses led to
passage of the CSRA ‘‘to shield the merit
system with enforceable rights against
similar future abuses.’’ Id.45
41 Agencies initially were not required to comply
with the CSC’s recommendations in adverse action
appeals, but Congress amended the Veterans’
Preference Act in 1948 to require compliance. See
67 Stat. 581 (1948); see also U.S. Merit Sys. Prots.
Bd., supra note 19 at pp. 7–8.
42 E.O. No. 10988, 27 FR 551 (Jan. 19, 1962) (‘‘The
head of each agency, in accordance with the
provisions of this order and regulations prescribed
by the Civil Service Commission, shall extend to all
employees in the competitive civil service rights
identical in adverse action cases to those provided
preference eligibles under section 14 of the
Veterans’ Preference Act of 1944, as amended.’’)
(emphasis added).
43 92 Stat. 1111 (1978); see. Fausto, 484 U.S. at
455 (‘‘The CSRA established a comprehensive
system for reviewing personnel action taken against
federal employees.’’).
44 Citing Dobrovir, Gebhardt and Devine,
‘‘Blueprint for Civil Service Reform,’’ Fund for
Constitutional Government (1976).
45 That these concerns have been ongoing can be
seen in Congress’ enactment of the Presidential
Transitions Improvements Act of 2015 referenced in
note 155, infra.
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The CSRA made significant
organizational changes to civil service
management, adjudications, and
oversight. It replaced the CSC, dividing
its duties among OPM 46 and the MSPB,
which initially encompassed the Office
of Special Counsel (OSC).47 OSC later
became a separate agency to which
specific duties were assigned.48 OPM
inherited the CSC’s policy, managerial,
and administrative duties, including the
obligation to establish standards,
oversee compliance, and conduct
examinations as required or requested.49
OPM was also obligated to, among other
things, advise the President regarding
appropriate changes to the civil service
rules, administer retirement benefits,
adjudicate employees’ entitlement to
these benefits, and defend adjudications
at the Board.50 The MSPB adjudicates
challenges to personnel actions taken
under the civil service laws,51 among
other things, and OSC investigates and
prosecutes prohibited personnel
practices.52 Other, more specific
enactments confer upon these entities
the obligations or authorities to
promulgate regulations on specific
topics.
The CSRA codified fundamental merit
system principles, which had developed
since 1883.53 These principles are
summarized here:
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Merit System Principles 54
1. Recruit, select, and advance on
merit after fair and open competition.
2. Treat employees and applicants
fairly and equitably.
3. Provide equal pay for equal work
and reward excellent performance.
4. Maintain high standards of
integrity, conduct, and concern for the
public interest.
46 Congress envisioned that: ‘‘OPM would be the
administrative arm of Federal personnel
management, serve as Presidential policy advisor,
. . . promulgate regulations, set policy, run
research and development programs, implement
rules and regulations, and would manage a
centralized, innovative Federal personnel
program.’’ 124 Cong. Rec. S27538 (daily ed. Aug.
24, 1978) (bill summary of the CSRA of 1978, S.
2540).
47 U.S. Gov’t Accountability Off., ‘‘Civil Service
Reform—Where it Stands Today,’’ at p. 2 (May 13,
1980), https://www.gao.gov/assets/fpcd-80-38.pdf.
The Equal Employment Opportunity Commission
and Office of Government Ethics also handle duties
previously covered by the CSC.
48 See Cong. Rsch. Serv., ‘‘Merit Systems
Protection Board (MSPB): A Legal Overview,’’ p. 4
(March 25, 2019), https://crsreports.congress.gov/
product/pdf/R/R45630.
49 See 5 U.S.C. 1103(a)(5), (a)(7).
50 Id.; see 5 U.S.C. 8461.
51 See 5 U.S.C. 1204, 7513(d).
52 See 5 U.S.C. 1212.
53 See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat.
403.
54 See 5 U.S.C. 2301.
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5. Manage employees efficiently and
effectively.
6. Retain or separate employees on the
basis of their performance.
7. Educate and train employees if it
will result in better organizational or
individual performance.
8. Protect employees from improper
political influence.
9. Protect employees against reprisal
for the lawful disclosure of illegality
and other covered wrongdoing.
The CSRA also established an
‘‘elaborate new framework’’ related to
civil service protections for employees
in the competitive and excepted
services. Challenges to non-appealable
adverse actions, appealable adverse
actions, and ‘‘prohibited personnel
practices’’ are channeled into separate
procedural tracks.55 The procedures an
agency must follow in taking an adverse
action and whether the agency’s action
is appealable to the MSPB depend on
the action the agency seeks to impose.
Suspensions of 14 days or less are not
directly appealable to the MSPB.56 But
an employee against whom such a
suspension is proposed is entitled to
certain procedural protections,
including notice, an opportunity to
respond, representation by an attorney
or other representative, and a written
decision.57
More rigorous procedures apply
before agencies may pursue removals,
demotions, suspensions for more than
14 days, reductions in grade and pay,
and furloughs for 30 days or less, if the
subject of the contemplated action
meets the definition of an ‘‘employee’’
under 5 U.S.C. 7511(a) by satisfying
probationary or length of service
conditions.58 These employees, other
than those who are statutorily excepted
from chapter 75’s protections, receive
the civil service protections outlined in
5 U.S.C. 7513.59 Under section
7511(a)(1), ‘‘employee’’ refers to an
individual who falls within one of three
groups: (1) an individual in the
competitive service who either (a) is not
serving a probationary or trial period 60
55 See Fausto, 484 U.S. at 443, 445–47; see 5
U.S.C. 1212, 1214, 2301, 2302, 7502, 7503, 7512,
7513; see also 5 U.S.C. 4303 (review of actions
based on unacceptable performance).
56 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
57 5 U.S.C. 7503(b)(1)–(4); 5 CFR part 752, subpart
B.
58 See 5 CFR 752.401, 404, and 1201.3; see also
5 U.S.C. 7512(1)–(5), 7514; Fausto, 484 U.S. at 446–
47.
59 5 U.S.C. 7513(d), 7701(a).
60 The term ‘‘probationary period’’ generally
applies to employees in the competitive service.
‘‘Trial period’’ applies to employees in the excepted
service and some appointments in the competitive
service, such as term appointments, which have a
1-year trial period set by OPM. A fundamental
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under an initial appointment; or (b) has
completed 1 year of current continuous
service under other than a temporary
appointment limited to 1 year or less;
(2) a preference eligible 61 in the
excepted service who has completed 1
year of current continuous service in the
same or similar positions in an
Executive agency, or in the United
States Postal Service or Postal
Regulatory Commission; or (3) an
individual in the excepted service (other
than a preference eligible) who either (a)
is not serving a probationary or trial
period under an initial appointment
pending conversion to the competitive
service; or (b) has completed 2 years of
current continuous service in the same
or similar positions in an Executive
agency under other than a temporary
appointment limited to 2 years or less.62
In the event of a final MSPB decision
adverse to the employee, employees
may seek judicial review by petitioning
to the appropriate Federal appellate or
district court.63
Excepted from these procedural
protections and rights to appeal
conferred on other employees under
chapter 75 are certain civil servants
described in 5 U.S.C. 7511(b), including,
among other categories not relevant
here, those officers appointed by the
President with the advice and consent
of the Senate and other officers whom
the President is permitted to appoint
himself or herself. Also excepted are
individuals ‘‘whose position has been
determined to be of a confidential,
policy-determining, policy-making, or
policy-advocating character.’’ 64 These
determinations must be made by ‘‘(A)
the President for a position that the
President has excepted from the
competitive service; (B) the Office of
Personnel Management for a position
difference between the two is the duration in which
employees must serve. The probationary period is
set by law to last 1 year. When the trial period is
set by individual agencies, it can last up to 2 years.
See 5 CFR 315.801 through 806; see also U.S. Merit
Sys. Prots. Bd., Navigating the Probationary Period
After Van Wersch and McCormick, (Sept. 2006),
https://www.mspb.gov/studies/studies/Navigating_
the_Probationary_Period_After_Van_Wersch_and_
McCormick_276106.pdf.
61 The term ‘‘preference eligible’’ refers to
specified military veterans and family members
with derived preference pursuant to statute, such as
an unmarried widow, and the wife or husband of
a veteran with a service-connected disability. See 5
U.S.C. 2108(3).
62 5 U.S.C. 7511(a)(1).
63 5 U.S.C. 7513(d), 7701–7703, 7703(a)(1), (b)(2).
The appropriate federal appellate court will
generally be the U.S. Court of Appeals for the
Federal Circuit but, in some instances, where
appellant asserts whistleblower retaliation,
employees may appeal to the Federal Circuit or
another circuit court. Cases that include claims
under certain discrimination statutes are appealable
to Federal district courts. See 5 U.S.C. 7703(b)(2).
64 5 U.S.C. 7511(b)(2)(A), (B), and (C).
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that the Office has excepted from the
competitive service; or (C) the President
or the head of an agency for a position
excepted from the competitive service
by statute.’’ 65 As detailed further in
Section IV(B), it is evident that
Congress, in using this and similar
language in various parts of title 5, U.S.
Code, intended this exception to apply
to the voluntary filling of noncareer
political appointments that carry no
expectation of continued employment
beyond the presidential administration
during which the appointment
occurred.66
The unique responsibilities of
politically appointed employees, many
of whom are listed under excepted
service Schedule C, allow hiring and
termination to be done purely at the
discretion of the President or the
President’s political appointees. This is
a specific exception from the
competitive service and, for that reason,
each position listed in Schedule C is
revoked immediately upon the position
becoming vacant.67 Agencies may
terminate political appointees at any
time. This also means that, absent any
unique circumstance provided in law 68
or a request to stay by an incoming
administration, these positions are
vacated following a presidential
transition.
Prior to the CSRA, agencies relied
only on provisions codified at chapter
75 to remove Federal employees or to
change an employee to a lower grade,
even if the reason for removal was for
unacceptable performance. The CSRA
created chapter 43 of title 5, U.S. Code,
as an additional process for empowering
supervisors to address performance
65 5
U.S.C. 7511(b)(2).
infra, Sec. IV.(B); see also 5 CFR 6.2
(‘‘Positions of a confidential or policy-determining
character shall be listed in Schedule C’’); 213.3301
Schedule C (‘‘positions which are policydetermining or which involve a close and
confidential working relationship with the head of
an agency or other key appointed officials’’).
Political appointees serve at the pleasure of the
President or other appointing official and may be
asked to resign or be dismissed at any time. They
are not covered by civil service removal procedures,
have no adverse action rights, and generally have
no right to appeal terminations. See, e.g., 5 U.S.C.
7511(b)(2) (excluding noncareer, political
appointees from definition of ‘‘employees’’ eligible
for adverse action protections); 5 CFR 317.605 (‘‘An
agency may terminate a noncareer or limited
appointment at any time, unless a limited appointee
is covered under 5 CFR 752.601(c)(2).’’); 734.104
(listing employees who are appointed by the
President, noncareer SES members, and Schedule C
employees as ‘‘employees who serve at the pleasure
of the President.’’); 752.401(d)(2) (excluding
noncareer, political appointees under Schedule C
from adverse action protections).
67 See 5 CFR 213.3301.
68 Such as 5 CFR 212.401, discussed further in
Section IV.
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concerns.69 Accordingly, in addition to
using the provisions of chapter 75,
agencies can address performance
concerns under chapter 43. Under this
scheme established by Congress, the
decision of which chapter to use is left
to the discretion of the manager tasked
with pursuing the action.
Through various enactments currently
reflected in chapters 43 and 75,
Congress has created conditions under
which certain employees—i.e., those
with the requisite tenure in continued
employment—may earn a property
interest in that continued employment.
For such employees, Congress has
mandated that removal and the other
actions described in subchapter II of
chapter 75 may be taken only ‘‘for such
cause as will promote the efficiency of
the service.’’ 70 This property interest in
continued employment has been a
feature of the Federal civil service since
at least 1912, when the Lloyd-La
Follette Act required just cause to
remove a Federal employee. The
Supreme Court in Board of Regents of
State Colleges v. Roth, recognized that
restrictions on loss of employment, such
as tenure, can create a property right.71
In Cleveland Board of Education v.
Loudermill,72 the Court also held:
Property cannot be defined by the
procedures provided for its deprivation any
more than can life or liberty. The right to due
process is conferred, not by legislative grace,
but by constitutional guarantee. While the
legislature may elect not to confer a property
interest in public employment, it may not
constitutionally authorize the deprivation of
such an interest once conferred, without
appropriate procedural safeguards.73
In short, once a government requires
cause for removals, constitutional due
process protection will attach to that
property interest and determine the
minimum procedures by which a
69 U.S. Merit Sys. Prots. Bd., ‘‘Addressing Poor
Performers and the Law,’’ p. 4. (Sept. 2009), https://
www.mspb.gov/studies/studies/Addressing_Poor_
Performers_and_the_Law_445841.pdf.
70 See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a),
752.202(a).
71 408 U.S. 564, 576–77 (1972). The Court
described three earlier decisions—Slochower v. Bd.
of Educ., 350 U.S. 551 (1956), Wieman v. Updegraff,
344 U.S. 183 (1952), and Connell v. Higginbotham,
403 U.S. 207 (1971)—where the Court held that
public employees had due process rights. Before the
Court explicitly recognized that restrictions on the
loss of employment could create a property right,
the Court protected statutorily-conferred public
employment rights under other legal theories. See,
e.g., United States v. Wickersham 210 U.S. 390,
398–399 (1906); Keim v. United States, 177 U.S.
290, 296 (1900); see also Indiana ex rel. Anderson
v. Brand (303 U.S. 95 (1938); Hall v. Wisconsin, 103
U.S. 5 (1880) (enforcing statutory rights to public
employment benefits under theories of contractual
entitlement, even when legislatures changed those
statutory entitlements).
72 470 U.S. 532 (1985).
73 Id. at 541.
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24987
removal may be carried out. Any new
law addressing the removal of a Federal
employee with a vested property
interest in the employee’s continued
employment must, at a minimum,
comport with due process. This
obligation drives some of the procedures
in both chapters 43 and 75, while other
procedures have been developed in
accordance with Congress’ assessments
of what is good policy.74 Regardless of
the nature of the particular action
specified, agencies must follow the
procedures specified by Congress to
effectuate a removal under those
chapters, as a matter of law, unless they
are changed by Congress.
An advocacy nonprofit organization
opposed to this rule argued that the
Lloyd-La Follette Act and predecessor
executive orders ‘‘were not understood
(or applied)’’ to give federal employees
a property right to their jobs before ‘‘the
Supreme Court interpreted the Act as
having that effect in Arnett v. Kennedy
(1974).’’ Comment 4097. Commenter’s
point is incorrect, and, in any event,
irrelevant. As observed in note 71
above, the Supreme Court recognized in
earlier cases that due process rights
could attach to public employment. And
Congress, far from limiting or ending
such rights, has enacted new statutes
since Arnett, notably the CSRA and the
Civil Service Due Process Amendments
Act, conferring robust procedural rights
on broader groups of Federal employees.
In any event, although Congress has,
from time to time, tinkered with the
procedures required in various agency
settings, it has done nothing since
Arnett purporting to remove due
process rights from incumbents who
have accrued them, which suggests
approval of the Supreme Court’s
approach in that case.
Finally, in addition to establishing the
requirements and procedures for
challenging adverse actions and
performance-based actions, the CSRA
includes a mechanism for an employee
in a ‘‘covered position’’ to challenge a
‘‘personnel action’’ that constitutes a
‘‘prohibited personnel practice’’ because
it has been taken for a prohibited
reason.75 ‘‘Covered position’’ means any
position in the competitive service, a
career appointee in the Senior Executive
Service, or a position in the excepted
service unless ‘‘conditions of good
administration warrant’’ a necessary
74 The exact procedures required will turn on the
factual situation and may be different from instance
to instance.
75 5 U.S.C. 2302(a)(1), (a)(2), (b). Challenges to a
personnel action on the basis that it constitutes a
prohibited personnel practice may be brought by
anyone in a covered position, regardless of their
entitlement to adverse action rights.
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exception on the basis that the position
is of a ‘‘confidential, policydetermining, policy-making, or policyadvocating character.’’ 76
At 5 U.S.C. 2302(a)(2)(A), Congress
lists personnel actions that can form the
basis of a prohibited personnel practice
under 5 U.S.C. 2302(b). The CSRA, as
described in the proposed rule,77 also
codified a comprehensive list of
prohibited personnel practices.78
C. The Competitive, Excepted, and
Senior Executive Services
The CSRA also established a new
service—the Senior Executive Service,
or SES—‘‘to ensure that the executive
management of the Government of the
United States is responsive to the needs,
policies, and goals of the Nation and is
otherwise of the highest quality.’’ 79 As
described further below, the SES is
distinct from the competitive service
and the excepted service.80 It consists of
senior government officials, both
noncareer and career, who share a broad
set of responsibilities to help lead the
work of the Federal Government.
In the competitive service,
individuals must complete a
competitive hiring process before being
appointed. This process may include a
written test or an equivalent evaluation
of the individual’s relative level of
knowledge, skills, and abilities
necessary for successful performance in
the position to be filled.81
Although most government
employees are in the competitive
service, about one-third are in the
excepted service.82 The excepted
service includes all positions in the
76 5
U.S.C. 2302(a)(2)(B), 3302.
88 FR 63862, 63866.
78 5 U.S.C. 2302(b). OSC investigates allegations
of prohibited personnel practices brought by
employees in covered positions and may investigate
in the absence of such an allegation, to determine
if a prohibited personnel practice occurred. 5 U.S.C.
1214(a)(1)(A), (a)(5). If OSC concludes that a
prohibited personnel practice has occurred and, if
OSC is unable to obtain a satisfactory correction
from an agency responsible for a prohibited
personnel practice, OSC may petition the MSPB to
grant corrective action. If OSC proves its claim, the
MSPB may order the corrective action it deems
appropriate. See 5 U.S.C. 1214(b)(2)(B), (C),
(b)(4)(A).
79 5 U.S.C. 3131.
80 5 U.S.C. 2101(a) (definition of civil service),
2102(a)(1) (competitive service), 2103(a) (excepted
service) 3132(a)(2) (Senior Executive Service).
81 See 5 U.S.C. 3304 (‘‘An individual may be
appointed in the competitive service only if he has
passed an examination or is specifically excepted
from examination under section 3302 of this title.’’);
see also U.S. Off. of Pers. Mgmt., ‘‘Competitive
Hiring,’’ https://www.opm.gov/policy-dataoversight/hiring-information/competitive-hiring/.
82 See Cong. Rsch. Serv., ‘‘Categories of Federal
Civil Service Employment; A Snapshot,’’ at p. 4
(May 26, 2019), https://sgp.fas.org/crs/misc/
R45635.pdf.
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Executive Branch that are specifically
excepted from the competitive service
by statute, Executive order, or by OPM
regulation.83 For positions excepted
from the competitive service by statute,
selection must be made pursuant to the
provisions Congress enacted for those
positions. Applicants for excepted
service positions under title 5, U.S.
Code, like applicants for the competitive
service, are to be selected ‘‘solely on the
basis of relative ability, knowledge, and
skills, after fair and open competition
which assures that all receive equal
opportunity.’’ 84 Agencies filling
positions in the excepted service ‘‘shall
select . . . from the qualified applicants
in the same manner and under the same
conditions required for the competitive
service.’’ 85 This means that agencies
should generally afford veterans’
preference in the same manner they
would have for the competitive service,
though, in a few situations 86 where the
reason for the exception makes this
essentially impossible, OPM (or the
President) has exempted the position
from regulatory requirements and
imposed a less stringent standard.87
The President is authorized by statute
to provide for ‘‘necessary exceptions of
positions from the competitive service’’
when warranted by ‘‘conditions of good
administration.’’ 88 The President has
delegated to OPM—and, before that, to
its predecessor, the CSC—concurrent
authority to except positions from the
competitive service when it determines
that appointments thereto through
competitive examination are not
practicable.89 The President has further
delegated authority to OPM to ‘‘decide
whether the duties of any particular
position are such that it may be filled as
an excepted position under the
appropriate schedule.’’ 90
OPM has exercised its delegated
authority, and implemented exercises of
presidential authority, by prescribing
five schedules for positions in the
excepted service, which are currently
listed in 5 CFR part 213:
83 See
5 U.S.C. 2103; 5 CFR parts 213, 302.
U.S.C. 2301(b)(1).
85 5 U.S.C. 3320. Part 302 of title 5 of OPM’s
regulations establishes the mechanisms by which
compliance with section 3320 can be achieved.
86 See infra notes 357–361.
87 5 CFR 302.101(c).
88 5 U.S.C. 3302.
89 E.O. 10577, sec. 6.1(a) (1954); 5 CFR 6.1(a)
(1988) (‘‘The Commission is authorized to except
positions for the competitive service whenever it
determines that appointments thereto through
competitive examination are not practicable’’ and
that ‘‘[u]pon the recommendation of the agency
concerned, it may also except positions which are
of a confidential or policy-determining character.’’).
90 E.O. 10577, sec. 6.1(b); 5 CFR 6.1(b); see 28 FR
10025 (Sept. 14, 1963) (reorganizing the civil
service rules).
84 5
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• Schedule A—Includes positions
that are not of a confidential or policydetermining character for which it is not
practicable to examine applicants, such
as attorneys, chaplains, and short-term
positions for which there is a critical
hiring need.
• Schedule B—Includes positions
that are not of a confidential or policydetermining character for which it is not
practicable to examine applicants.
Unlike Schedule A positions, Schedule
B positions require an applicant to
satisfy basic qualification standards
established by OPM for the relevant
occupation and grade level. Schedule B
positions engage in a variety of
scientific, professional, and technical
activities.
• Schedule C—Includes positions
that are policy-determining or which
involve a close and confidential
working relationship with the head of
an agency or other key appointed
officials. These positions include most
political appointees below the cabinet
and subcabinet levels.
• Schedule D—Includes positions
that are not of a confidential or policydetermining character for which
competitive examination makes it
difficult to recruit certain students or
recent graduates. Schedule D positions
generally require an applicant to satisfy
basic qualification standards established
by OPM for the relevant occupation and
grade level. Positions include those in
the Pathways Programs.
• Schedule E—Includes positions of
administrative law judges.91
As described supra, competitive and
excepted service incumbents, except
those in Schedule C—and others
excluded under 5 U.S.C. 7511(b)—
become ‘‘employees’’ for purpose of
civil service protections after they
satisfy the probationary or length of
service requirements in 5 U.S.C.
7511(a). Excepted service employees,
except those in Schedule C and others
excluded under section 7511(b),
maintain the same notice and appeal
rights for adverse actions and
performance-based actions as
competitive service employees.92
91 5
CFR 6.2.
5 U.S.C. 4303, 7513(d). There are, however,
some notable differences between non-removal
protections afforded to competitive service and
excepted service employees, such as assignment
rights in the event of a reduction in force. See 5 CFR
351.501 and 502. Employees who are reached for
release from the competitive service during a
reduction in force are entitled to an offer of
assignment if they have ‘‘bump’’ or ‘‘retreat’’ rights
to an available position in the same competitive
area. ‘‘Bumping’’ means displacement of an
employee in a lower tenure group or a lower
subgroup within the same tenure group.
‘‘Retreating’’ means displacement of an employee in
92 See
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However, and as noted here, excepted
service employees must satisfy different
durational requirements before these
rights become available. So-called
‘‘preference eligibles’’—specified
military veterans and family members
with derived preference pursuant to
statute 93—in an executive agency, the
Postal Service, or the Postal Regulatory
Commission must complete 1 year of
current continuous service to avail
themselves of the relevant notice and
appeal rights.94 Employees in the
excepted service who are not preference
eligibles and (1) are not serving a
probationary or trial period under an
initial appointment pending conversion
to the competitive service, or (2) have
completed 2 years of current or
continuous service in the same or
similar position, have the same notice
and appeal rights as qualifying
employees in the competitive service.95
Likewise, any employee who is (1) a
preference eligible; (2) in the
competitive service; or (3) in the
excepted service and covered by
subchapter II of chapter 75, and who has
been reduced in grade or removed under
chapter 43, is entitled to appeal the
action to the MSPB.96 However, these
appeal rights do not apply to (1) the
reduction to the grade previously held
of a supervisor or manager who has not
completed the probationary period
under 5 U.S.C. 3321(a)(2); (2) the
reduction in grade or removal of an
employee in the competitive service
who is serving a probationary or trial
period under an initial appointment or
who has not completed 1 year of current
continuous employment under other
than a temporary appointment limited
to 1 year or less; or (3) the reduction in
grade or removal of an employee in the
excepted service who has not completed
1 year of current continuous
employment in the same or similar
positions.97
Finally, the SES is a service separate
from the competitive and excepted
services.98 The SES has a separate
the same tenure group and subgroup. Meaning, they
are entitled to the positions of employees with
fewer assignment rights. Employees in excepted
service positions have no assignment rights to other
positions unless their agency, at the agency’s
discretion, chooses to offer these rights to positions.
Even with these differences, merit system
principles are at the core of civil service protections
relating to hiring, conduct, and performance matters
as applied to both career competitive and excepted
service employees.
93 See 5 U.S.C. 2108(3); see also supra note 61.
94 See 5 U.S.C. 7511(a)(1)(B).
95 See 5 U.S.C. 7511(a)(1)(C).
96 See 5 U.S.C. 4303(e).
97 See 5 U.S.C. 4303(f).
98 See 5 U.S.C. 2102 (competitive service does not
include SES), 2103 (excepted service does not
include SES),
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system for hiring executives, managing
them, and compensating them.99 The
SES is also governed by separate
adverse action procedures, in
Subchapter V of chapter 75. As
described more fully in Section IV, the
adverse action processes in 5 U.S.C.
7501–7515 and the exclusion from such
rights and coverage in 5 U.S.C. 7511(b),
do not apply to the SES. The SES
adverse action procedures, unlike the
rules governing the competitive and
excepted services, make no mention—
let alone an exception—for positions of
‘‘a confidential, policy-determining,
policy-making, or policy-advocating
character.’’ 100
A member of the SES can be a career
appointee, noncareer appointee, limited
term appointee or limited emergency
appointee. These terms are defined at 5
U.S.C. 3132(a).101 Congress established
rules restricting noncareer
appointments, as well as limited term
and limited emergency
appointments.102 The adverse action
rights for SES set out in Subchapter V,
5 U.S.C. 7541–7543, apply only to
career appointees to the SES. Removal
of career employees for less than fully
successful executive performance is
governed by a separate provision at 5
U.S.C. 3592. By contrast, none of these
provisions affect an agency head’s
ability to remove a member of the
noncareer SES.
D. The Prior Schedule F
On October 21, 2020, President
Donald Trump issued Executive Order
13957, ‘‘Creating Schedule F in the
Excepted Service,’’ which risked
altering the carefully crafted legislative
balance that Congress struck in the
CSRA.103 That Executive Order, if fully
implemented, could have transformed
the civil service by purportedly
stripping adverse and performancebased action grievance and appeal rights
from large swaths of the Federal
workforce—thereby turning them into
at-will employees. It could have also
sidestepped statutory requirements built
into the Federal hiring process intended
to promote the objective of merit-based
hiring decisions. It would have upended
the longstanding principle that a career
Federal employee’s tenure should be
linked to their performance and
conduct, rather than to the nature of the
position that the employee encumbers.
It also could have reversed longstanding
requirements that, among other things,
99 See
5 U.S.C. 5131–5136.
5 U.S.C. 7541–7543.
101 5 U.S.C. 3393, 3394.
102 5 U.S.C. 3134.
103 85 FR 67631 (Oct. 21, 2020).
100 See
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prevent political appointees from
‘‘burrowing in’’ to career civil service
jobs in violation of merit system
principles.
Before it could be implemented,
however, Executive Order 13957 was
revoked, and Schedule F abolished, by
President Biden through Executive
Order 14003, ‘‘Protecting the Federal
Workforce.’’ 104
OPM received many comments
related to Schedule F from both
proponents and critics of it and
Executive Order 13957. The lawfulness
and wisdom of the policy choices
embodied in now-revoked Schedule F
are in most respects outside the scope
of this rulemaking. Regardless of
whether Executive Order 13957 was a
valid exercise of authority, it is not
directly at issue here. Nonetheless,
numerous commenters addressed the
topic and OPM has determined that it
would be prudent to set forth its views
in response to those comments. The
various parts of the Executive Order,
Schedule F, and related comments are
thus addressed below. The validity of
this rule does not depend on the legality
or wisdom of Executive Order 13957.
1. Adverse Action Rights, PerformanceBased Action Rights, and Appeals
Section 5 of Executive Order 13957
directed agency heads to review their
entire workforces to identify any
employees covered by chapter 75’s
adverse action rules (which apply
broadly to employees in the competitive
and excepted services) who occupied
positions of a ‘‘confidential, policydetermining, policy-making, or policyadvocating character.’’ These included
positions the agency assessed for the
first time, without guidance or
precedent, to allegedly include these
characteristics. Agencies were then to
petition OPM for its approval to place
them in Schedule F, a newly-created
category of positions to be excepted
from the competitive service. If these
positions had been placed in Schedule
F, the employees encumbering them
would have, according to the text of the
Executive Order, been stripped of any
adverse action procedural rights and
MSPB appeal rights under chapter 75
discussed supra. Thus, the Order
attempted to subject employees to
removal, at will, by virtue of the
involuntary placement of the positions
they occupied in this new schedule (and
regardless of any rights they had already
104 86
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accrued or any reliance on those
rights).105
An express rationale of this action
was to make it easier for agencies to
‘‘expeditiously remove poorly
performing employees from these
positions without facing extensive
delays or litigation.’’ 106 This new
sweeping authority was purportedly
necessary for the President to have
‘‘appropriate management oversight
regarding’’ the career civil servants
working in positions deemed to be of a
‘‘confidential, policy-determining,
policy-making, or policy-advocating
character,’’ and to incentivize
employees in these positions to display
what presidential appointees at an
agency would deem to be ‘‘appropriate
temperament, acumen, impartiality, and
sound judgment,’’ in light of the
importance of these functions.107
Executive Order 13957 did not
acknowledge existing mechanisms to
provide ‘‘appropriate management
oversight,’’ such as chapter 43 and
chapter 75 procedures, or the multiple
management controls that agencies have
in place to escalate matters of
importance to agency administrators.108
Executive Order 13957 instructed
agency heads to review existing
positions to determine which, if any,
105 Since performance-based actions under 5
U.S.C. 4303 are tied, in part, to subchapter II of
chapter 75, employees would purportedly have also
been stripped of performance-based action
procedural rights and MSPB appeal rights, had an
agency chosen to proceed with an action under
chapter 43.
106 E.O. 13957, sec. 1.
107 The Executive Order stated that ‘‘[c]onditions
of good administration . . . make necessary
excepting such positions from the adverse action
procedures set forth in chapter 75 of title 5, United
States Code.’’ E.O. 13957, sec. 1. The ‘‘conditions
of good administration’’ language appears in 5
U.S.C. 3302. We note that Section 3302 is placed
in Subchapter I of chapter 33, a subchapter
addressing examination, certification, and
appointment. It relates only to exclusions of
positions from the competitive service requirements
relating to those topics when conditions of good
administration warrant and does not purport to
confer authority on the President to except
positions from the adverse action provisions of
chapter 75. Similarly, chapter 75 does not itself
purport to confer authority on the President to
except positions from the scope of chapter 75. The
authority to regulate under chapter 75 is conferred
directly upon OPM unlike the authority to regulate
under section 3302, which is conferred upon the
President. Compare 5 U.S.C. 7514 (‘‘The Office of
Personnel Management may prescribe regulations to
carry out the purpose of this subchapter . . .) to 5
U.S.C. 3302 (‘‘The President may prescribe rules
governing the competitive service.’’). Of course, a
President could order the Director of OPM to
promulgate regulations relating to chapter 75. Any
such rule, however, would then be subject to the
requirements of the Administrative Procedure Act.
108 Matters of importance can be raised to agency
administrators in various ways, such as by filing a
complaint with an agency’s Inspector General,
raising concerns with an agency’s human resources
office, and filing a grievance.
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should be placed into Schedule F. The
Order also instructed that, after agency
heads conducted their initial review,
they were to move quickly and petition
OPM by January 19, 2021—the day
before the Inauguration—to place
positions within Schedule F. After that,
agency heads had another 120 days to
petition OPM to place additional
positions in Schedule F.
In contrast to past excepted service
schedules designed to address unique
hiring needs upon a determination that
appointments through the competitive
service was ‘‘not practicable,’’ 109
movement into Schedule F was
designed to be broad and numerically
unlimited, potentially affecting a
substantial number of jobs across all
Federal agencies. For example,
according to the Government
Accountability Office, the Office of
Management and Budget petitioned to
place 68 percent of its workforce within
Schedule F.110 Moreover, the Executive
Order did not make the underlying
determination that particular positions
were ‘‘of a confidential, policydetermining, policy-making or policyadvocating character.’’ 111 In essence,
the exception was created in advance of
any determination. The Executive Order
instead announced that any position
that could be described in these terms,
and which was not encumbered by an
appointee under Schedule C, should be
placed in a separate and new excepted
service schedule. The Executive Order
then directed agencies to determine
which of their positions met that
criterion and compile a list of
individuals for OPM to consider placing
in Schedule F.
2. Hiring
Section 3 of Executive Order 13957
provided that ‘‘[a]ppointments of
individuals to positions of a
confidential, policy-determining,
policy-making, or policy-advocating
character that are not normally subject
to change as a result of a presidential
transition shall be made under Schedule
109 See
infra notes 355–359.
Accountability Off., ‘‘Civil Service—
Agency Responses and Perspectives on Former
Executive Order to Create a New Schedule F
Category for Federal Positions,’’ (Sept. 2022),
https://www.gao.gov/assets/gao-22-105504.pdf.
111 5 U.S.C. 7511(b)(2) (‘‘This subchapter does not
apply to an employee . . . (2) whose position has
been determined to be of a confidential, policydetermining, policy-making or policy-advocating
character by—(A) the President for a position that
the President has excepted from the competitive
service.’’); see also E.O. 13957, sec. 5 (only listing
broad duties—including ‘‘viewing’’ or ‘‘circulating’’
proposed regulations and other non-public policy
proposals—that agency heads should consider
when petitioning the OPM Director to place
positions in Schedule F).
110 Gov’t
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F.’’ 112 The stated rationale for removing
these positions from the competitive
hiring process (or from other excepted
service schedules in which some of
these positions were previously placed)
was, again, because of the importance of
their corresponding duties and the need
to have employees in these positions
that display ‘‘appropriate temperament,
acumen, impartiality, and sound
judgment.’’ 113 The stated purpose was
to ‘‘provide agency heads with
additional flexibility to assess
prospective appointees without the
limitations imposed by competitive
service selection procedures’’ 114 or,
presumably, for positions already in the
excepted service, without the
constraints imposed by 5 CFR part 302.
The Order indicated that this change
was intended to ‘‘mitigate undue
limitations on their selection’’ and
relieve agencies of ‘‘complicated and
elaborate competitive service processes
or rating procedures that do not
necessarily reflect their particular
needs.’’ 115 These changes were to give
agencies ‘‘greater ability and discretion
to assess critical qualities in applicants
to fill these positions, such as work
ethic, judgment, and ability to meet the
particular needs of the agency.’’ 116
The Executive Order did not address
that the competitive hiring process
permits agencies to assess all
competencies that are related to
successful performance of the job,
including appropriate temperament,
acumen, impartiality, and sound
judgment. They also permit agencies to
fulfill the congressional policy to confer
a preference on eligible veterans or their
family members entitled to derived
preference. The qualifications
requirements, specialized experience,
interview process, and other assessment
methodologies available to hiring
managers facilitate an agency’s ability to
identify the best candidate. The Order
also did not address the existence of
longstanding rules, grounded in the
need to establish lack of unlawful bias
in proceedings under Federal antidiscrimination statutes, that require
assessment of any such
competencies.117 The summary
112 85
FR 67631, 67632.
FR 67631.
113 85
114 Id.
115 85 FR 67631, 67632. The procedures Congress
has adopted for hiring in the competitive service
were designed, in part, to implement the stated
congressional policy of veterans’ preference. See 5
U.S.C. 1302. How this congressional mandate
would be realized in these circumstances was not
addressed.
116 85 FR 67632.
117 See 5 CFR part 300. Validation generally
requires that the criteria and methods by which job
applicants are evaluated have a rational
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imposition of new competencies would
be contrary to existing statutory
requirements and could potentially be
discriminatory in application, even if
that were not the agency’s intent.
Finally, the Order recited that the
normal statutory veterans’ preference
requirements that would have applied
to identified positions 118 would not
apply, and that agencies would be
required to apply veterans’ preference
requirements only ‘‘as far as
administratively feasible.’’ 119
As noted above, OPM received many
comments about the prior Schedule F
and its potential impacts on adverse
action rights, performance-based action
rights, appeals, and hiring.
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Comments Regarding Departure of
Schedule F From Precedents
Many individuals and organizations
commented that Schedule F represented
an unprecedented departure from
Congressional intent, longstanding legal
interpretations, and past practices. A
joint comment by a nonprofit
organization and former federal official
agreed that Schedule F was ‘‘an
aberration, divorced from established
legal interpretation and historical
precedent’’ and ‘‘there can be no
doubting that it would have disrupted
the functions of government, even if
ultimately overturned by the courts.’’
Comment 2134. The comment
continued that ‘‘even a small movement
of positions into Schedule F would have
amounted to presidential usurpation of
the role of Congress, which has firmly
enshrined the merit system in law to
protect Americans and preserve
democracy against authoritarian
overreach.’’ Id. Other commenters
argued that the process in which
Schedule F was created was deficient
because it intended to significantly alter
longstanding statutory protections.
Comment 1316 argued that ‘‘[i]f the
executive, or one of its appointees,
wishes to change the operation of an
agency, they must do so by lobbying for
a change in the law that authorizes it or
implement[ ] changes in accordance
with those laws and the constraints of
the Administrative Procedure Act.’’ A
comment from Members of Congress
stated that Schedule F not only would
have ‘‘jeopardize[d] the livelihoods of
tens of thousands of hard-working,
career civil servants,’’ but also would
‘‘upend civil service precedent.’’
Comment 48. As explained in the
proposed rule 120 and here, OPM agrees
that Schedule F risked altering the
carefully crafted legislative balance that
Congress struck in the CSRA and the
history of protections leading up to it.
To be clear though, this rulemaking
takes no position on whether Executive
Order 13957 was based on legal error,
nor is this rulemaking premised on such
a conclusion. Instead, as OPM explained
in the proposed rule,121 there were a
number of existing mechanisms that
would address the policy concerns
identified in the Executive Order
without establishing a new schedule,
and the creation of Schedule F risked
undermining other objectives of the
civil service laws.122 The basis for this
rulemaking, as explained herein, is to
clarify and reinforce the retention of
accrued rights and status following an
involuntary move to or within the
excepted service and promulgate a
definition of what it means to be a
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’
position consistent with decades of
practice and how the Executive Branch,
Congress, and the courts have
understood that phrase to encompass
political appointees.
A few commenters opposed to this
rule argued that the President has the
authority to issue civil service reform in
a manner like Schedule F. An advocacy
nonprofit organization stated that the
order was ‘‘grounded on firm legal
authority’’ because title 5 specifically
authorizes the President to exempt
policy-influencing positions from civil
service appeals. Comment 4097.
Commenter argued that ‘‘statutory
context makes clear’’ this authority
extends to both political appointees and
career officials. Commenter continued
that the ‘‘fact that prior presidents have
restrained themselves in their dealings
with subordinates does not imply they
lacked this authority.’’ Id. Commenter
asserted that the ‘‘Supreme Court has
already concluded that ‘policymaking
positions in government may be
excepted from the competitive service to
ensure presidential control, see 5 U.S.C.
2302(a)(2)(B), 3302’ (Free Enterprise
Fund v. Public Company Accounting
Oversight Board, 2010).’’ 123
The ‘‘confidential, policydetermining, policy-making or policyadvocating’’ provision was intended to
permit agency heads to directly appoint
a cadre of political appointees who have
120 88
relationship to performance in the position to be
filled.
118 See 5 U.S.C. 3320.
119 85 FR 67631, 67632–33 (sec. 4(i) (Schedule
F)); see also 5 CFR part 302.
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FR 63862, 63867–69.
121 Id.
122 See also E.O. 14003 at 2 (providing a similar
assessment).
123 The full cite to this opinion is 561 U.S. 477
(2010).
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a close and confidential working
relationship with the President’s
appointees to further and support the
priorities of the President and the
President’s appointees. As discussed
extensively throughout this final rule,
the term of art, ‘‘confidential, policydetermining, policy-making or policyadvocating,’’ has a longstanding
meaning that equates to political
appointments, typically made under
Schedule C. OPM, in this rulemaking, is
defining that phrase as it is used in the
statutory exception in 5 U.S.C.
7511(b)(2) for the reasons explained in
the proposed rule 124 and in Section
IV(B).125
Comment 4097 also argued that a
separate provision, 5 U.S.C
2302(a)(2)(B), defining a ‘‘covered
position’’ for the purposes of protections
from prohibited personnel practices,
similarly excludes from protections
positions excepted from the competitive
service because of their ‘‘confidential,
policy-determining, policy-making, or
policy-advocating character.’’
Commenter claimed this demonstrates
that ‘‘policymaking positions in
government may be excepted from the
competitive service to ensure
presidential control.’’ Although this
final rule does not directly amend
regulations dealing with prohibited
personnel practices, OPM construes this
statutory language in 5 U.S.C
2302(a)(2)(B) as aligning with the
reasoning in OPM’s final rule with
respect to chapter 75. It simply means
that positions of a ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ character have long been
understood to be political appointees
and, in addition to not having adverse
action rights, are not covered by
protections against prohibited personnel
practices.126 That is perfectly consistent
with the nature of Schedule C
employees. Congress has chosen to
extend these protections only to the
career civil service as described further
in Section IV(B).
This commenter also cited 5 U.S.C.
3302, which says a President may make
necessary exceptions of positions from
the competitive service if ‘‘conditions of
good administration warrant,’’ to
support the assertion that career
policymaking positions in government
124 88
FR 63862, 63871–73.
also Comment 2134 (‘‘The preamble and
the regulation accurately reflect the executive
branch’s historical understanding that Congress
intended for the competitive service exception for
‘confidential, policy-determining, policy-making, or
policy-advocating’ positions to apply only to a
small class of political appointee positions.’’).
126 OPM notes, though, that the rule does not
amend regulations related to prohibited personnel
practices.
125 See
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may be excepted from the competitive
service to ensure presidential control.
Again, OPM’s rule does not change this
Presidential authority to except
positions from the competitive service
where necessary and where conditions
of good administration warrant such
action. But, as explained above, OPM
disagrees that the authority to make
exceptions in section 3302 also allows
for the removal of incumbents’ accrued
adverse action rights under chapter
75.127 Section 3302 and the
‘‘warrant[ed]’’ by ‘‘conditions of good
administration’’ standard relates to
whether positions should be excepted
from the competitive service. Congress
did not suggest—in chapter 33 or
chapter 75—that the same standard also
be used in determining whether to
remove civil service protections for the
incumbents of such positions. Further,
as explained in Sections IV.(A)–(B),
OPM does not believe the exception in
5 U.S.C. 7511(b)(2) can remove the
previously accrued adverse action rights
of the incumbents of such positions.
As noted above, commenter also cited
Free Enterprise Fund to support its
assertion that the President can issue an
action like Schedule F. The application
of Free Enterprise Fund and other
Appointments Clause and removal cases
to this rulemaking are addressed further
at Section III(F), but in short,
commenter’s reliance on this case is
beside the point and inapt. Whether a
president can lawfully enact Schedule F
by executive order does not affect the
ability of OPM to promulgate this rule
pursuant to its authority. In any event,
in Free Enterprise Fund, the Supreme
Court examined the constitutionality of
multiple layers of removal restrictions
for select positions at an independent
agency (one layer of removal protections
for the commissioners of the SEC and
the next layer of protections for
members of the Public Company
Accounting Oversight Board (PCAOB or
Board)). As an initial matter, most of the
agencies that hire and fire subject to title
5 are not independent agencies, so they
would not have multiple for-cause
limitations on removal (i.e., most
Secretaries, Directors, and other agency
heads can be removed at will by the
President). But even in most
independent agencies, the removal
restrictions at issue in Free Enterprise
Fund are of limited relevance. There,
the Supreme Court focused specifically
on the removal protections of Board
members, whom the Court held were
executive officers ‘‘as the term is used
in the Constitution’’ and who exercise
‘‘significant authority.’’ It clarified that
127 See
supra note 107.
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‘‘many civil servants within
independent agencies would not
qualify’’ as executive officers and none
of the civil servants or corresponding
protections addressed by the dissenting
opinion introduce the same
constitutional problems as those of the
Board. One group the dissent
specifically mentions are employees in
the Senior Executive Service.128 Even
though SES employees work on policy
and have significant leadership
responsibilities, they also have civil
service protections. The majority states
that ‘‘none of the positions [the dissent]
identifies,’’ which would include SES
positions, ‘‘are similarly situated to the
Board.’’ 129 ‘‘Nor do the employees
referenced by the dissent enjoy the same
significant and unusual protections
from Presidential oversight as members
of the Board,’’ the majority added. In
other words, Free Enterprise Fund
explicitly declined to hold that career
SES positions, which have adverse
action protections under 5 U.S.C. 7541–
7543, pose constitutional concerns in
and of themselves. Commenter invokes
Free Enterprise Fund to argue that a
lower-level strata of career civil servants
(with fewer responsibilities and
authority) cannot have civil service
protections if they keep confidences or
work on policy. But the Court stressed
that ‘‘[n]othing in our opinion,
therefore, should be read to cast doubt
on the use of what is colloquially
known as the civil service system
within independent agencies.’’ If
nothing in Free Enterprise Fund casts
doubt on the civil service system within
independent agencies, it does not cast
any doubt on the civil service system
within the Executive Branch
generally.130
Further, in Free Enterprise Fund, the
Supreme Court crafted a narrow remedy
to address the unique problem the
statute presented, holding that members
of the Board would have to be
removable at will by the Commission to
render the statutory scheme consistent
with the Constitution. More recently, in
United States v. Arthrex,131 the
Supreme Court crafted a different
remedial solution for another statutory
scheme presenting employees with
significant responsibilities who enjoyed
statutory removal protections. Arthrex
concerned Administrative Patent Judges
561 U.S. at 541.
at 506.
130 Free Enterprise Fund notes that civil service
statutes in section 7511 contain an exception from
adverse action rights for positions of a confidential,
policy-determining, policy-making, or policyadvocating character, but it did not define what
those phrases mean. See 561 U.S. at 506.
131 141 S. Ct. 1970 (2021).
(APJs), whose duties included sitting on
the Patent Trial and Appeal Board and
issuing binding decisions. The Federal
Circuit, sitting en banc, had held that
APJs were principal officers whose
appointments were unconstitutional
because neither the Secretary nor
Director could review their decisions or
remove them at will. To remedy this
constitutional violation, the Federal
Circuit invalidated the APJs’ tenure
protections, making them removable at
will by the Secretary. The Supreme
Court, however, vacated and remanded,
concluding that it was preferable to
reform the statute to require the
Director, a Presidential appointee who
already oversaw APJs for other
functions, to serve as a final reviewing
and issuing official for decisions
rendered by the Patent Trial and Appeal
Board. The Court left the APJs’ tenure
provisions intact. The limited solutions
adopted by the Supreme Court in Free
Enterprise Fund and Arthrex are far
removed from a proposal to remove
previously accrued adverse action rights
from thousands of traditional civil
servants simply because, for example,
some of their work might touch on
policymaking. Nothing in this
rulemaking is contrary to Free
Enterprise Fund or any other binding
precedent. On the other hand, an
overwhelming number of precedents are
contrary to commenter’s positions, as
described in this final rule.
Comment 4097 argued that ‘‘[t]he
CSRA also allows the President to
except positions from the competitive
service for the purpose of nullifying
removal restrictions.’’ The Supreme
Court has cautioned against using vague
statutory provisions to alter
‘‘fundamental details of a regulatory
scheme,’’ stating that Congress ‘‘does
not hide elephants in mouseholes.’’ 132
Commenter seems to suggest that
Congress did just that when it enacted
the CSRA, even though that authority
went undiscovered and unexercised for
these purposes in over 40 years. Under
this assertion, all a President would
have to do is proclaim by unilateral
order that ‘‘good administration
warrants’’ a change and the carefully
balanced and longstanding civil service
protections provided by Congress would
fall away if the positions could be
characterized as having a
‘‘confidential’’ 133 or ‘‘policy’’
128 See
129 Id.
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132 See Whitman v. Am. Trucking Assocs., Inc.,
531 U.S. 457, 468 (2001).
133 In describing positions with confidential or
policy characteristics, E.O. 13957 states ‘‘The heads
of executive departments and agencies (agencies)
and the American people also entrust these career
professionals with non-public information that
must be kept confidential.’’ If that were the sole
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character—terms commenter argued
require no further elaboration. That
would be contrary to the very purpose
of the CSRA, a result that Congress
could not have possibly intended.
As explained in Comment 2134, a
joint comment by a nonprofit
organization and a former federal
official, and further in Section IV(B),
Congress, courts, and the Federal
Government have parsed the meaning of
the term of art ‘‘confidential, policydetermining, policy-making or policyadvocating’’ over at least the past 90
years and consistently viewed it as
applying to noncareer political
appointees.134 Further, competitive
service employees have in the past been
moved involuntarily to excepted service
schedules that do not contain adverse
action rights, but those incumbents have
kept rights they have accrued (as
detailed in Section IV(A)). Executive
Order 13957 and Schedule F’s attempt
to strip accrued rights by moving
positions into the excepted service
would run contrary to longstanding
precedent, including Roth v.
Brownell,135 as explained in Section
IV(A). See Comment 2134. OPM
therefore disagrees with commenter’s
broad assertion that the CSRA allows
the President to except positions from
the competitive service ‘‘for the purpose
of nullifying removal restrictions.’’
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Comments Regarding Schedule F’s Use
of an Exception To Broadly Eliminate
Adverse Action Rights
Commenters supportive of the rule
agreed with OPM and argued that,
because the terms ‘‘confidential’’ and
‘‘policy-making, policy-determining, or
policy-advocating’’ are so broad,
Schedule F had no limiting principle
and used the exception in 7511(b)(2) to
broadly swallow adverse action rights.
A professor commented that the ‘‘lack of
standard for a ‘‘confidential’’ position, it would be
hard to think of a career position that would not
have been ‘‘confidential,’’ since the incumbents of
virtually all positions have this obligation regarding
non-public information. Such a novel reading of the
adverse action exclusion could have led to
untenable results. Of course, Congress, the courts,
and the Federal Government have historically not
read these and similar terms so broadly and have
instead long given them, as used in 5 U.S.C.
7511(b)(2), a much narrower meaning.
134 Comment 2134, as detailed in Section IV(B),
explained that the phrase ‘‘confidential, policy
determining, policy-making or policy-advocating’’
was first used in the CSRA in 1978. Before then,
though, phrases such as ‘‘confidential or policydetermining’’ and ‘‘policy-making and confidential’’
were used. Those phrases were interchangeable and
had the same meaning.
135 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub
nom, Brownell v. Roth, 348 U.S. 863 (1954)
(confirming that employees with competitive status
retained their appeal rights upon involuntary
movement to the excepted service).
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clear definition and breadth of Schedule
F allows it to serve as a promise for
wide scale partisan retribution for any
federal employee who might raise
concerns about the legality of [a] policy
agenda.’’ Comment 50. A labor union
argued that ‘‘the plain purpose of
Schedule F was to create an exception
so broad, it swallowed the rule of
apolitical, merit based Federal
employment and rendered meaningless
the protections afforded to career
Federal employees by the CSRA.’’
Comment 2640. As described in the
proposed rule 136 and in this final rule,
OPM shares some of these concerns.
One commenter opposed to this rule
argued that the statutory exceptions in
7511(b)(2) are broad enough to include
career positions. Comment 4097 argued
that ‘‘[n]othing in the words
‘confidential, policy-determining,
policy-making, or policy-advocating’
hints at covering only political
appointments or references the duration
of an employee’s tenure. Instead, the
CSRA makes clear these terms cover
both career and noncareer positions.’’
OPM disagrees that these words can be
read in isolation or separated from their
historical context and development. As
explained in Section IV(B) and shown
in Comment 2134, which extensively
details the context, history, and
meaning of these terms of art, they have,
except in Executive Order 13957,
always meant noncareer political
appointees. Section 7511 was amended
as part of the Civil Service Due Process
Amendments of 1990, in which
Congress, for the first time, extended the
ability to accrue adverse action rights
(and for certain adverse actions, appeal
rights) to individuals in the excepted
service other than preference eligibles,
who already had the ability to accrue
such rights. Congress did not intend to
undercut this extension of rights by
permitting broad exclusions. In
discussing what positions would be
excluded from such rights, Congress
stated that the bill ‘‘explicitly denies
procedural protections’’ to these types
of political appointees—‘‘presidential
appointees, individuals in Schedule C
positions [which are positions of a
confidential or policy-making character]
and individuals appointed by the
President and confirmed by the Senate,’’
and that ‘‘[e]mployees in each of these
categories have little expectation of
continuing employment beyond the
administration during which they were
appointed’’ because they ‘‘explicitly
serve at the pleasure of the President or
136 88
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the presidential appointee who
appointed them.’’ 137
We also discuss below the argument
that Congress did not distinguish
between career and noncareer positions
in the SES in discussing the possibility
that SES positions could involve policyinfluencing duties. In brief, the SES was
a new service, created in the CSRA and
has its own distinct rules, rather than
building on the existing structure of the
competitive and excepted services. In
the SES scheme, Congress did not need
to address exclusions because the only
SES appointees covered by the sections
addressing procedural and appeal rights
were career appointees. There was no
attempt to distinguish between those
whose duties could be regarded as
policy-influencing and those whose
duties could not be so characterized.
Congress included separate provisions
limiting the number of noncareer
appointees.
Comment 4097 also suggested that
concerns about Schedule F are
misguided because the schedule would
have been limited to a small group of
senior policy-influencing positions.
There are approximately 4,000 political
positions in the civil service (though
some commenters noted between 20–25
percent of those usually remain
unfilled). See Comment 2134.138 Of
these, between 1,000 to 1,500 positions
are Schedule C political appointees—a
number that has stayed relatively steady
since the 1950s. See id. Comment 4097
estimates Schedule F would have
covered between two and three percent
of the federal workforce, which would
have grown the positions vulnerable to
political favor (even if not explicitly
‘‘subject’’ to such favor) by over an order
of magnitude, from 4,000 to 50,000
positions. Comment 4097 attempts to
137 H.R. Rep. No. 101–328, at 4–5, as reprinted in
1990 U.S.C.C.A.N. at 698–99.
138 See also U.S. Civil Serv. Comm’n,
‘‘Maintaining the Integrity of the Career Civil
Service,’’ p. 10 (1960), https://babel.hathitrust.org/
cgi/pt?id=uc1.aa0005815857
&seq=20&q1=%22competitive+status%22; U.S. Off.
Of Pers. Mgmt., ‘‘General, Questions and Answers’’
(detailing the different types of political
appointments, including presidential appointments
requiring senate confirmation (PAS), presidential
appointments not requiring senate confirmation
(PA), noncareer Senior Executive Service positions,
Schedule C positions, and others), https://
www.opm.gov/frequently-asked-questions/politicalappointees-and-career-civil-service-positions-faq/
general/which-types-of-political-appointments-aresubject-to-opmrsquos-pre-hiring-approval/; P’ship
for Pub. Serv., Center for Presidential Transition,
‘‘Frequently Asked Questions About the Political
Appointment Process,’’ (estimating there are 1,200
PAS positions, 750 noncareer SES positions, 450
PA positions, and 1,550 Schedule C positions),
https://presidentialtransition.org/appointeeresources/ready-to-serve-prospective-appointees/
frequently-asked-questions-about-the-politicalappointment-process/.
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rationalize the scope of Schedule F by
contending it would have been limited
to ‘‘senior policy-influencing
officials’’—a term that does not appear
in Executive Order 13957. But as
explained above and in the proposed
rule,139 the GAO found that Schedule F
was interpreted by agencies to have a
broad reach, with one agency, for
example, petitioning to place 68 percent
of its workforce within Schedule F,
including positions at the GS–9 level.140
Confirming that the number of
employees that would have been subject
to Schedule F extends beyond senior
positions responsible for agency policy,
Comment 4097 included a spreadsheet
labelling a career line attorney at an
agency’s general counsel’s office as a
‘‘policy’’ employee. OPM notes that
government attorneys are generally
Schedule A employees, and therefore,
by definition, are specifically ‘‘not of a
confidential or policy-determining
character,’’ 141 but in any event,
whatever limiting principles commenter
may have in mind for justifying
Schedule F, they remain unclear. While
commenter states that two to three
percent of the federal workforce would
have been impacted by Schedule F,
commenter then suggests that up to 10
percent of jobs 142 could fit its
interpretation of confidential and policy
positions, which would equate to
approximately 250,000 employees. The
number of positions that could be
covered by a Schedule F-type action is
thus indeterminate and without
meaningful boundary.
Commenter added that, because of
Schedule F’s allegedly limited scope,
OPM’s recruitment concerns are
‘‘meritless.’’ It claimed that ‘‘Schedule F
would have virtually no applicability to
technical positions such as IT and
cybersecurity that OPM cites as ongoing
recruitment challenges.’’ This statement
certainly does not capture the nature of
cybersecurity and other technical
positions which require the
maintenance of confidences while
fending off cyberattacks from foreign
countries or domestic bad actors with
respect to data breaches, for example. It
is difficult to imagine situations where
139 88
FR 63862, 63868.
supra note 110. A former OPM official
involved in the Schedule F approval process told
GAO that ‘‘positions above GS–11 were generally
included’’ but OMB’s approved petition ‘‘also
included positions at the GS–9 and GS–10 levels.’’
Id. at p. 19 & n.14.
141 5 CFR 213.3101 (describing Schedule A
positions).
142 See Comment 4097, p. 24 (surmising that 90%
of jobs are not policy-influencing). Because there
are millions of civil servants, each percentage point
in this estimate equates to a significant number of
potentially impacted employees.
the requirement to maintain confidences
would be more important. Commenter
concluded that OPM does not ‘‘offer any
evidence that making confidential and
policy-influencing career positions atwill—as opposed to converting them to
political appointments—would create
recruitment challenges.’’ As detailed
further in Section V.(B), regarding the
impact of politicization on recruitment,
hiring, and retention, OPM received a
significant number of comments
concerned about the negative impacts of
Schedule F, or a similar effort, on
federal civil service recruitment.
Because of Schedule F’s unprecedented
treatment of the confidential and policy
exception in 5 U.S.C. 7511(b), the
concerns about such a schedule were
broad and not isolated to discrete parts
of the workforce. For instance,
concerned commenters included
academic researchers showing the
negative impact of politicization on
recruitment to individuals, including
those in IT and technical positions who
expressed that the existence of an action
like Schedule F would dissuade them
from seeking federal employment.
Comments Regarding Schedule F and
Politicization in Hiring and Firing
Comment 4097 also argued that,
contrary to widespread opinion,
Schedule F rejected the spoils system
and was sufficiently protective from the
dangers of politicization. Commenter
contended that ‘‘if E.O. 13957 was
intended to fill the bureaucracy with
political loyalists, President Trump
chose an extremely odd way of doing it.
He could have directly converted career
positions to political positions,
dismissed career incumbents through a
reduction in force, and filled the roles
with political appointees.’’ None of
these alternatives is simple or free of
costs. For instance, additional Schedule
C positions would require an agency to
budget for and create new slots, obtain
OPM’s approval of such slots, and
pursue a variety of other procedural
steps designed to sustain civil service
protections and merit system principles.
Reductions in force are complex and the
outcomes are unpredictable. They have
often been the subject of extended
litigation.143
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140 See
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143 See, e.g., James v. Von Zemensky, 284 F.3d
1310 (Fed. Cir. 2002) (construing whether a ‘‘staff
adjustment’’ resulting in the separation of a
physician in the Veterans Health Administration of
the Department of Veterans Affairs, could be
appealed under the reduction-in-force statute and
regulations, notwithstanding Congress’ placement
of VHA positions under title 38, U.S. Code, for at
least some purposes); Harants v. U.S. Postal Serv.,
130 F.3d 1466 (Fed. Cir. 1997) (construing a
reassignment during a Postal Service reorganization
that the employee had accepted as an appealable
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Commenter argued that the White
House Office of Presidential Personnel
would not have been involved in
Schedule F appointments, but
commenter does not address why that
would promote efficiency or lead to less
agency politicization. The prior
administration was slow to fill even the
political slots at its disposal and many
remained unfilled. See, e.g., Comment
2124 (‘‘Increasing [politically-based
appointments] by a factor of 5 or more
will certainly mean that more jobs will
go unfilled and more tasks will go
uncompleted.’’). Under Schedule F,
agency political and career leadership
could target, interview, and/or select
politically-aligned applicants just as
well as PPO.
Regarding Schedule F’s purported
protections from the dangers of
politicization, an advocacy nonprofit
organization argued that ‘‘Schedule F
made sure to protect these policymaking
employees from discriminatory firing
based on political beliefs or party
allegiance.’’ See Comment 3892; see
also Comment 2346. Once hirings and
firings are at-will, however, the
employee might not have an entitlement
to written notice of the reasons for the
adverse action, an opportunity to
respond, or a written decision.144 Nor
would the decision generally be
appealable.145 It would thus be, at a
minimum, difficult for employees to
protect themselves from actions based
on political beliefs or party allegiance
because no cause (or evidence) would
be required prior to such an action.
Under Schedule F, because such an
employee would be at-will, the
employer would need to give little or no
reason prior to a termination. In short,
Schedule F leaves innumerable ways for
politics to factor into these traditionally
merit-based decisions in a manner that
would be difficult to detect or remedy.
Comment 4097 contended that
‘‘OPM’s concerns about a return to the
patronage system also ignore the
evidence that the Federal Government
ended patronage because it had become
obsolete’’ and passed the Pendleton Act
because ‘‘patronage no longer served
their interests.’’ Although the influence
of politics in the civil service was
greatly diminished following the
Pendleton Act, it has taken consistent
legislative, executive, and regulatory
action to stem the tide of patronage over
the past 140 years. For instance,
reduction-in-force action in the context of complex
developments, including intervening MPSB
opinions, cancellations, and restorations, a stay of
enforcement, and a subsequent reduction-in-force
notice).
144 5 U.S.C. 7513(b).
145 5 U.S.C. 7513(d).
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Comment 2134 gave an overview of the
election of 1936, which featured
concerns about the return of the spoils
system, and executive action in the
1950s to create Schedule C due to
concerns that political actors were
burrowing in as career civil servants. As
previously mentioned, the CSRA was
enacted in the aftermath of the Nixon
Administration’s plan to implement the
Malek Manual, a blueprint to replace
the civil service merit system with a
political hiring scheme that would begin
by purging all Democrats from federal
employment.
Comment 4097 also contended that
today’s rank-and-file government jobs
are not enticing enough to invite
patronage and that ‘‘the really big bucks
aren’t in the political appointments
game.’’ At the same time, commenter
argued that confidential and policy
positions are so important to the
functioning of government that the
President should have unfettered
control over these positions. Executive
Order 13957 likewise justified removing
protections from these positions because
the ‘‘importance of the functions they
discharge.’’ Commenter seems to
recognize the threat of unqualified
individuals discharging important
functions. OPM agrees that qualified
individuals should discharge important
functions, and this rule is based on
OPM’s determination that injecting
politicization into the nonpartisan
career civil service (or creating the
conditions where it can be injected by
individual actors) runs counter to merit
system principles and would not only
harm government employees, agencies,
and services, but also the American
people that rely on them, as discussed
in the proposed rule 146 and further
below.
Comments Regarding Schedule F as a
Performance Management Tool
One of the justifications for Schedule
F was that it allegedly allowed agencies
to address poor performance, but many
commenters asserted that this rationale
was flawed and a pretext for removing
protections and culling the civil service
of dissenting opinions. Comment 13, a
former OMB official, commented that
‘‘[t]he proponents of Schedule F claim
that it is needed for accountability and
to be able to fire poor performers. Yet
they offer little or no support for their
claims. Thousands of poor performers
are dismissed annually, and even more
are transferred to other positions.’’ This
commenter argued that the last
Administration’s ‘‘own presidential
appointees [were the ones] who most
146 88
FR 63862, 63881.
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visibly resisted his directives, not career
civil servants.’’ 147 Comment 2816, a
former federal official, argued that
Schedule F ‘‘relied on vague and
conclusory assertions that competitive
selection procedures inhibit the hiring
of candidates with appropriate ‘work
ethic, judgment, and ability to meet the
particular needs of the agency,’ and that
more ‘flexibility to expeditiously
remove poorly performing employees’
was needed without any consideration
of the countervailing considerations that
favor strong employee protections.’’ See
also Comment 3803. A professor argued
that it was not civil service
incompetence that spurred Schedule F,
but competence. Comment 42. ‘‘This
competence insisted on following
scientific consensus on climate change.
It insisted that cures such as ivermectin
and hydroxyquinoline would not treat
Covid-19. The legal expertise in the
federal bureaucracy insisted that
impounding funds that Congress had
explicitly delegated for Ukraine was
illegal. These are some of the most
prominent examples of bureaucratic
competence coming into conflict with
the preferences’’ of the previous
Administration. Id. Finally, commenters
noted that, while some want to
‘‘eliminate incompetent people or
redundant roles—[ ] allowing elected
officials to hand-pick civil service
members prevents neither.’’ Comment
2828.
OPM agrees that Schedule F was
poorly designed as an effort to
meaningfully improve performance
management or allow managers to more
effectively address performance issues.
Agencies were directed to move
employees occupying ‘‘confidential,
policy-determining, policy-making, or
policy-advocating’’ positions into
Schedule F, thereby purportedly making
them at-will employees who could be
terminated without any adverse action
procedures. But the characteristics of an
employee’s job—including whether the
employee works on policy—has nothing
to do with an employee’s performance.
Schedule F sought to streamline
terminations based on the type of work
that an employee performs, not based on
how well the employee performs. It is
therefore difficult to understand how
Schedule F can be reconciled with its
purported aim of addressing poor
performance.
If the concern is that managers face
some difficulties in attempting to take
actions under chapter 75 or chapter 43,
147 Citing James P. Pfiffner, ‘‘President Trump and
the Shallow State: Disloyalty at the Highest Levels,’’
Presidential Studies Quarterly, Vol. 53, Issue 3
(Sept. 2022), https://doi.org/10.1111/psq.12792.
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the solution is not for the Executive
Branch to issue an executive order
seeking to undermine those statutory
provisions. Nor would such an
executive order effectively address the
complexity of the various remedial
schemes Congress has created. For
example, creating Schedule F will do
nothing to prevent a particular
employee from lodging a complaint of
unlawful discrimination under the
various civil rights statutes; will do
nothing to stop administrative judges of
the Equal Employment Opportunity
Commission from presiding over
discovery in relation to such claims and
adjudicating them; and may result in
decisions adverse to managers that will
then be non-reviewable in a Federal
court. Similarly, excepting individuals
from adverse action rights would likely
lead to attempts to file constitutional
claims in the Federal district courts,
thereby defeating the benefits of the
claim-channeling provisions of the
CSRA.148
Still, some commenters argued that
Schedule F was a valid tool to remove
poor performers and increase
accountability. For instance, Comment 7
contended that ‘‘Schedule F and similar
tools ‘aim[ ] to increase accountability
and efficiency in the Federal
government by removing ‘poorperforming employees.’ ’’ See also
Comments 45, 1811, 3130; 4097.
Comment 4097, an advocacy nonprofit
organization, argued that civil service
protections and merit-based hiring
procedures ‘‘make it difficult to hire the
best candidates and prohibitively
difficult to dismiss employees for all but
the worst offenses.’’ With respect to
merit-based hiring procedures, we
observe that even if we accepted this
premise as true, which OPM does not,
commenter ignores the fact that meritbased hiring procedures contained in
title 5 are the law of the land. If a
commenter believes they ‘‘make it
difficult to hire the best candidates’’ the
solution is to make this argument to
Congress, not attempt to evade the
requirements established in title 5. We
also note that many of the ‘‘difficulties’’
commenter observes arise from the
Veterans’ Preference Act, as amended,
which is codified throughout title 5’s
provisions on hiring. An observer might
argue that there should be no veterans’
preference, but that would seem a grave
disservice to the sacrifice and
commitment of veterans across the
Nation. And even if a persuasive policy
argument in favor of veterans’
preference reform could be made, it
148 OPM discusses performance management
further in Section V.(B).
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would have to be made to Congress.
Finally, the merit-based hiring
procedures are one of the ways agencies
can defend themselves from
unsupported assertions of illegal
discrimination. Attempts to create
unwarranted exceptions to avoid legal
requirements have been
counterproductive and resulted in
substantial litigation.149
As to difficulties dealing with ‘‘poor
performers,’’ there already exist a
variety of tools to address inappropriate
conduct and unacceptable performance
and civil servants are removed using
these tools, as described above and
explored further below in the Section
V.(B). Commenter also does not address
civil servants who are terminated during
their probationary/trial periods or before
they have met their durational
requirements when their civil service
protections would attach. The purpose
of probation is to permit observation of
new appointees on the job before their
appointments became permanent. It is
sometimes described as the final stage of
the examining process. Such filtering,
when done properly, addresses many
performance issues early and grants the
agency wide latitude to remove that
worker.150
Commenter attributes any
misalignment with a President’s
149 See, e.g., Nat’l Treasury Employees Union v.
Horner, 854 F.2d 490 (D.C. Cir. 1988), which
overturned OPM’s decision to place all Professional
and Administrative Career positions in Schedule B
of the excepted service after entering into a consent
decree that required OPM to develop a new
examination for such positions. The Federal court
of appeals, on review from a district court
determination that OPM had violated the
Administrative Procedure Act in excepting this
broad category from the competitive service, noted
that filling positions through the competitive
process was the norm and OPM could depart from
that norm only when ‘‘necessary’’ for ‘‘conditions
of good administration,’’ quoting 5 U.S.C. 3302. The
court also noted that OPM, while asserting that the
cost of developing a new examination was
prohibitive, did not present evidence that would
meet the standard of review. Cf. Gingery v. Dept. of
Defense, 550 F.3d 1547 (Fed. Cir. 2008) (holding
that President Clinton’s creation of the Federal
Career Intern Program, a Schedule B appointing
authority, did not permit the agency to use OPM’s
modified process for agency pass-overs of
preference eligibles in an excepted service hiring
process, in light of Congress’ command, at 5 U.S.C.
3320, to apply the same procedures used for the
competitive service, i.e., the procedures specified in
5 U.S.C. 3318).
150 On December 13, 2023, OPM issued guidance
to agencies on Maximizing Effective Use of
Probationary Periods, available at https://
www.chcoc.gov/content/maximizing-effective-useprobationary-periods. This guidance advises
agencies to periodically remind supervisors and
managers about the value of the probationary period
and to make an affirmative decision regarding the
probationer’s fitness for continued employment.
The guidance also provides practical tips for
supervisors and recommends good management
practices for supervisors and managers to follow
during this critical assessment opportunity.
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political agenda (or ‘‘policy resistance’’)
as ‘‘misconduct’’ which justifies
termination, even if such conflict cannot
be proved. But a mere difference of
opinion with leadership does not
qualify as misconduct or unacceptable
performance or otherwise implicate the
efficiency of the service in a manner
that would warrant an adverse action.
To the contrary, identifying objections
to government action early in internal
discussions ultimately strengthens
government policy by addressing
meritorious considerations and
explaining why other objections are
unwarranted. Moreover, Executive
branch employees have an affirmative
obligation to report waste, fraud, and
abuse to appropriate authorities, which
could fall under commenter’s broad
notion of ‘‘policy resistance’’ 151 and is
another reason this notion is
unworkable
Comment 4097 cited some examples
of what commenter considers to be poor
performance, misconduct, or other
justifications for Schedule F. Comment
2822, a legal nonprofit organization,
examined many of those examples and
those in Tales from the Swamp, written
by the same author as Comments 3156
and 4097 and cited throughout those
two comments. It concluded that Tales
from the Swamp ‘‘regularly engages in
cherry-picking, slanted interpretation,
and outright inaccuracy to justify its
conclusions in support of Schedule F.’’
Regarding Tales from the Swamp’s
complaints about agency losses in court,
Comment 2822 stated it ‘‘makes a
substantial and baseless leap’’ from the
previous Administration’s ‘‘loss rate in
court (true) to career staff sabotage being
the culprit (unsupported).’’ Comment
2822 explained that ‘‘the most thorough
report prepared on the’’ previous
Administration’s ‘‘record in court found
that the Administration regularly
‘ignored clear-cut statutory and
regulatory duties,’ with losses on
statutory interpretation grounds making
up the bulk (117) of the administration’s
losses in court.’’ 152 In many of these
cases, ‘‘the Administration lost ‘because
the agency had acted outside of the
bounds of its authority or had adopted
an interpretation that blatantly
contradicted the statute at issue.’ These
losses were the result of unlawful policy
efforts by political decisionmakers, not
the product of agency staff doing a poor
job of building a rulemaking record.’’
Comment 2822 criticized Tales from the
151 See
5 CFR 2635.101(b)(11).
152 Citing Bethan A. Davis Noll, ‘‘ ‘Tired of
Winning’: Judicial Review of Regulatory Policy in
the Trump Era,’’ 73 Admin. L. Rev. 353, 397–98,
397 fig.5 (2021), https://www.law.nyu.edu/sites/
default/files/DavisNoll-TiredofWinning_0.pdf.
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Swamp’s other examples of alleged poor
performance 153 and finds ‘‘many of the
anecdotes relied on by TFTS lack
crucial context, or mischaracterize
important facts about agencies’ work’’
and the ‘‘only thing these anecdotes
consistently show is that some political
appointees’’ during the last
Administration ‘‘occasionally found it
challenging to implement their
regulatory goals. But that experience is
not unique to Trump-era political
appointees, and it does not justify
reorienting the civil service towards
political fealty.’’
Many commenters argued that,
instead of poor performance or
accountability, Schedule F was
motivated by a desire to increase
political loyalty in nonpartisan career
civil servants. A professor argued that
the previous administration has touted
the prior Schedule F as a way ‘‘to
impose personal loyalty tests, and to use
government as an instrument of his
power. This is at odds with the purpose
and traditions of the American state.’’
Comment 50; see also Comments 448,
1779. Other commenters pointed to
numerous public statements which,
they argue, demonstrate the intent
behind Schedule F, including calls from
the previous Administration to ‘‘root
out’’ political opponents, referring to
civil servants as the ‘‘deep state’’ that
needs to be ‘‘destroyed’’ or ‘‘brought to
heel,’’ and statements that they would
‘‘pass critical reforms making every
executive branch employee fireable by
the president of the United States.’’ See
Comments 50, 668, 2512 (citing news
articles documenting the previous
Administration and its supporters’
desire to purge the civil service), 3398.
Such firings would likely be at odds
with statutory, regulatory, or
constitutional protections and rights as
explained in this final rule.
3. Political Appointees in Career Civil
Service Positions
Executive Order 13957 could have
facilitated burrowing in. ‘‘Burrowing in’’
occurs when a current (or recently
departed) political appointee is hired
into a permanent competitive service,
nonpolitical excepted service, or career
SES position without having to compete
for that position or having been
appropriately selected in accordance
with merit system principles and the
normal procedures applicable to the
153 These include Department of Education
enforcement against for-profit colleges, FDA
laboratory test oversight, USDA attempts to narrow
food stamp eligibility, the rollback of offshore
drilling safety requirements, re-issuance of the
school nutrition rule, and the classical architecture
mandate.
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position under civil service law. OPM
has long required that ‘‘politics play no
role when agencies hire political
appointees for career Federal jobs.’’ 154
OPM adopted procedures to review
appointments of such individuals for
compliance and Congress has now
essentially codified that procedure by
requiring OPM to submit periodic
reports of its findings.155 Executive
Order 13957, interpreted broadly, could
have opened the door for agency heads
to move current political appointees
into new Schedule F positions, or
transferred vacancies in existing
positions to Schedule F, without
competition and in a manner not based
on merit system principles. In effect,
this would have allowed political
appointees on Schedule C
appointments, who would normally
expect to depart upon a presidential
transition, to ‘‘burrow’’ into permanent
civil service appointments.
Comments Regarding Schedule F and
Burrowing In
One commenter argued that Schedule
F would have reduced burrowing in
because the burrowed employee would
be removable at will anyway. See
Comment 4097. That view overlooks the
ability of burrowed employees to obtain
a job in the first place because these
employees could be hired into Schedule
F without the usual filters for
qualifications currently in place in the
competitive civil service. Schedule F
would have allowed unqualified
employees to be hired, albeit at will,
who may never have been able to enter
the competitive service. Regardless of
whether employees moved would be
ultimately removable, the opening of the
door to the conversion of Schedule C
political appointees to Schedule F
positions—or, indeed, the hiring of any
number of new candidates because they
were politically aligned with the
existing administration—increased the
risk of burrowing in. We discuss
burrowing further in Section IV(A).
4. Additional Comments Regarding the
Potential Impacts of Schedule F
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Comments Regarding Potential Negative
Outcomes of Schedule F
Several former and current civil
servants, individuals, organizations, and
154 U.S. Off. of Pers. Mgmt., ‘‘Guidelines on
Processing Certain Appointments and Awards
During the 2020 Election Period,’’ https://
chcoc.gov/sites/default/files/
2020%20Appointments%20and%20Awards%20
Guidance%20Attachments_508.pdf.
155 See The Edward ‘‘Ted’’ Kaufman and Michael
Leavitt Presidential Transitions Improvement Act of
2015, Public Law 114–136 (Mar. 18, 2016), which
requires OPM to submit these reports to Congress.
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Members of Congress commented on
what they perceived as the negative
aspects of Schedule F. A former OMB
official contended that Schedule F
would inhibit, if not prevent, successful
presidential transitions and would
degrade the performance of government
employees by replacing career civil
servants with political appointees.
Comment 13. A professor contended
that ‘‘[t]aking qualified and even expert
civil servants and making them weigh
the tradeoff between voicing the views
based on their expertise and keeping
their jobs would utterly undermine their
expertise.’’ Comment 42. Also ‘‘it would
mean that presidents would not be
getting advice based on expertise but on
what employees thought they wanted to
hear’’ and ‘‘Congressional will as
expressed in the statutes that enable the
executive branch to make policy would
be discounted.’’ Not only would career
civil servants and institutional expertise
be harmed (see Comment 2267), but
commenters, including Members of
Congress, detailed the potential impact
of Schedule F to communities, small
businesses, and families across America
(Comment 48); the environment
(Comment 33); National Park Service
personnel, national parks, and the
public who values them (Comment
1094); critical infrastructure (Comment
2501); federal investigations and
prosecutions (Comment 2616); and the
SNAP program and other hunger safety
nets (Comment 3149); to name a few.
Several commenters expressed
concerns about the potential impact of
Schedule F on whistleblowers.
Comment 3340, a whistleblower
protection nonprofit organization,
argued that ‘‘Schedule F would have
given the President blank check
discretion to cancel the Whistleblower
Protection Act by removing employees
from the competitive service,’’ removing
their civil service protections, and then
firing them. See also Comments 3466,
3894. If Schedule F allowed removals at
will, commenters claimed that it would
be difficult to prove an employee was
removed because of protected and
important whistleblowing activities.
Also, if an incumbent was in a
‘‘confidential, policy-making, policydetermining, or policy-advocating’’
position for the purposes of adverse
action protections and excluded from
such protections under section
7511(b)(2), as Schedule F attempted,
then such a position would also
presumably be excluded from the
definition of ‘‘covered position’’ for the
purposes of the prohibited personnel
practices under section 2302(a)(2)(B)(i).
A professor commented that Schedule
F would also have weakened legislative
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power. Comment 50 expressed that
‘‘[t]he Founders were deeply concerned
with the amassing of centralized power,
and Schedule F frustrates the
institutional design of checks and
balances. In particular, it weakens
legislative power. The creation of the
civil service system was a response to a
spoils system that led to abuses of state
resources and power.’’
Another commenter identified
possible costs of Schedule F.
Commenter argued that ‘‘a likely
consequence of Schedule F would be a
greater reliance on private contractors to
carry out the work of federal
government agencies’’ and a ‘‘[g]reater
reliance on contractors would, almost
certainly, be more expensive than our
current system.’’ Comment 2109.
Commenter further noted that ‘‘the
federal government is the source of a
considerable amount of scientific and
economic data that both businesses and
researchers around the world trust and
rely upon’’ and argued that this ‘‘data is
trusted precisely because it is curated by
career civil servants who are free from
political influence. If concerns about
political influence in the generation of
this data begin to seep into the public
consciousness, enormous amounts of
social value will be lost.’’ Id.
Comments Regarding Schedule F and
the Pendleton Act
One commenter who opposed the rule
argued that the 19th-century reformers
who created America’s civil service
believed that tenure and job protections
were ‘‘inimical to merit’’ and that ‘‘[t]he
Pendleton Act consequently deliberately
made minimal changes to the dismissal
process’’ besides prohibiting removal for
making or failing to make ‘‘political
contributions.’’ Comment 4097.
Commenter, an advocacy nonprofit
organization, argued that Schedule F
would have ‘‘returned the federal civil
service to its foundations.’’ While the
Pendleton Act focused on merit-based
hirings, Congress did address removals
even at this early stage in the
development of the career civil
service—it forbade removals on political
or religious grounds.156
156 See Ari Hoogenboom, ‘‘The Pendleton Act and
the Civil Service,’’ The Am. Historical Rev., Vol. 64,
No. 2c, p. 307 (Jan. 1959) (‘‘The Pendleton Act
forbade removals on political or religious
grounds.’’); see also Nat’l Archives, supra note 18,
quoting Pendleton Civil Service Reform Act of
1883, sec. 2 (‘‘[I]t shall be the duty of [the
commissioners of the Civil Service Commission]:
First. To aid the President, as he may request, in
preparing suitable rules for carrying this act into
effect, . . . Second. And, among other things, said
rules shall provide and declare, as nearly as the
conditions of good administration will warrant, as
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Commenter adds that the reformers
who created the civil service feared that
requiring ‘‘a virtual trial at law’’ to
dismiss an employee would ‘‘entrench
incompetence and intransigence in the
federal workforce’’ and that ‘‘[n]ot until
the 1960s did the general federal
workforce gain the ability to appeal
dismissals. The experience of the past
six decades has demonstrated the folly
of that decision.’’ This may be
commenter’s conclusion, but Congress
has concluded otherwise and repeatedly
strengthened employee rights during the
period in question—through the CSRA,
the Civil Service Due Process
Amendments Act of 1990, and the
Whistleblower Protection Act and its
amendments.157 Moreover, at the time
of the Pendleton Act’s enactment, there
was a rigorous debate about the extent
of merit-based hirings and removals
protections and the compromise
position on the latter was that further
removal protections were unnecessary
at the time because hiring based on
merit would ‘‘remov[e] the temptation
to an improper removal.’’ 158
Commenter quotes from George William
Curtis, one of the drafters of the
Pendleton Act, regarding the ‘‘fear’’ of
‘‘virtual trial[s] at law,’’ but further
context is important here too. Curtis’
longer quote starts ‘‘[h]aving annulled
all reason from the improper exercise of
the power of dismissal, we hold that it
is better to take the risk of occasional
injustice from passion and prejudice,
which no law or regulation can control,
than to seal up incompetency,
negligence, insubordination, insolence,
and every other mischief in the service,
by requiring a virtual trial at law before
an unfit or incapable clerk can be
removed.’’ 159 Removing improper bases
for removals was a key antecedent to the
statement regarding virtual trials at law.
Curtis added, ‘‘If the front door [is]
properly tended, the back door [will]
take care of itself.’’ 160 At the time, this
follows: . . . [T]hat no person in the public service
is for that reason under any obligations to
contribute to any political fund, or to render any
political service, and that he will not be removed
or otherwise prejudiced for refusing to do so.’’
157 Public employees have been challenging their
removals in court since at least the 1800s. See, e.g.,
Ex Parte Hennen, 38 U.S. (13 Pet.) 230 (1839);
United States. v. Wickersham, 201 U.S. 390, 398–
399 (1906).
158 See, e.g., Debate in the Senate on the Civil
Service Reform Act of 1883, December 14th, 1882,
https://digital.lib.niu.edu/islandora/object/niugildedage%3A24020.
159 George William Curtis, President, Address at
the Annual Meeting of the National Civil-Service
Reform League, Nat’l Civil-Serv. Reform League
(Aug. 1, 1883), in Proceedings at the Annual
Meeting of the National Civil Service Reform
League, pp. 3, 24–25.
160 Paul P. Van Riper, ‘‘History of the United
States Civil Service,’’ at p. 102 (1958).
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meant that, if civil service restrictions
prevented the President from appointing
a hand-picked replacement for a person
he removed, his incentive to remove for
political reasons would be
diminished.161
Regardless of how the Pendleton Act
should be best interpreted, Congress has
since established procedures set out in
the CSRA and other laws, which
channels employee appeals to an
administrative agency, the MSPB, and
reviewing courts.
Comments Regarding Comparison of
Schedule F to State-Level Civil Service
Reforms
Comment 4097 also argued that
several states have adopted policies like
Schedule F and that such efforts have
proven successful. Commenter asserted
that Arizona, Florida, Georgia, Indiana,
Mississippi, Missouri, Texas, and Utah
have instituted Schedule F-type reforms
and concluded that ‘‘[e]valuations
generally show positive results, while
fears of a return to patronage failed to
materialize.’’
As explained in the following
sections, OPM received comments from
civil servants in these states that
described the various ways in which
they believe that their jobs have
worsened because of these reforms.
Also, a former federal official counters
Comment 4097’s assertion about the
benefits of these state reforms. See
Comment 2816. The former federal
official cited a ‘‘lengthy survey of statelevel civil service changes that reduced
civil service protections in the 2000s’’
which found that ‘‘in many cases,
reforms were politically driven efforts to
establish and defend political actors’
capacities . . . to carry out the agendas
of elected executives, legislators, and
other policy makers.’’ The study notes
that some State governors ‘‘aggressively
pushed reforms designed to remove
merit system barriers to direct and
tighten policy control over state
agencies and their employees.’’ These
types of initiatives, as with Schedule F,
‘‘are often ‘sold’ in terms of a need to
enhance executive leadership and
accountability for results and,
inevitably, to allow the removal of the
legions of ‘unresponsive, incompetent,
insulated, bureaucrats’ who the public
is easily convinced lurk in the shadows
of state agencies.’’ The report continues
that ‘‘there has been ‘[g]rowing
awareness among policy makers, public
employees and their organizations, and
human resource professionals that’
161 David Rosenbloom, ‘‘Federal Service and the
Constitution,’’ at pp. 87–88; Van Riper, supra note
160, at p. 102.
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state-level reforms to weaken civil
service protections ‘have not delivered
the benefits they promised and may
well dampen enthusiasm for [similar]
initiatives by the states that contemplate
sudden, wholesale, changes in existing
arrangements.’ ’’ Comment 2816
continued that, in their study of civil
service employee responses to Georgia’s
reforms, ‘‘these authors found
measurable decline in the number of
employees saying they liked their jobs
and an increase in those intending to
leave employment within the coming
year. Employees did not believe the
reforms would result in high-performing
employees being rewarded, did not trust
that performance would take
precedence over office politics, and did
not believe as much as before the
changes that performance appraisals
were conducted fairly and believing
they understood their job expectations.’’
The study concludes that ‘‘[o]ver 75
percent of state employees disagreed
that the reforms ‘had resulted in a state
workforce that is now more productive
and responsive to the public.’ ’’ OPM
finds this comment and study
persuasive as a more rigorous
examination than Comment 4097’s
conclusions that some HR professionals
believe at-will status is useful and an
‘‘essential piece of modern government
management.’’ It also undercuts
Comment 4097’s argument that OPM
‘‘ignore[s] the evidence from the states
that at-will employment is both
consistent with a merit system and can
improve government performance.’’
Comment 4097 does not show that these
changes are consistent with merit
system principles nor that they improve
performance. It also did not identify the
metrics by which performance could
improve; it just stated that they make
employees more responsive and give
management more flexibility.
Comments Regarding Potential Effect of
Schedule F on the Number of Political
Appointees
Commenters opposed to the rule
argued that the civil service does not
have enough political appointees and
Schedule F would have given
administrations greater control over the
federal workforce and priorities.
Comment 3190, a law school clinic,
contended that ‘‘Schedule F proposed to
expand the class of political appointees
from roughly 4,000 positions to 20,000–
50,000 positions’’ and that ‘‘[u]nder
such a modest change, political
appointees would still constitute only
2.5 percent of the federal workforce.’’ As
explained further below and in
Comment 2134, a joint comment by a
nonprofit organization and former
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federal official, the number of political
appointees has stayed relatively stable
for 70 years, so such a change would be
anything but ‘‘modest.’’ 162 Also, this
comment appears to concede that a
possible, and perhaps desired, effect of
Schedule F was to create a new category
of ‘‘political appointees.’’ This runs
counter to Comment 3156, written by
the same author as Comment 4097.
Comment 3156 takes issue with
Comment 50, saying Comment 50’s
characterization of Schedule F positions
as ‘‘political appointees is simply
wrong.’’ Comment 4097 then argued
that Schedule F was designed to ‘‘keep
these policy-influencing positions in the
career civil service,’’ such that they
would not be political appointees. Even
amongst proponents of Schedule F and
opponents of this rulemaking, there are
disagreements regarding what Schedule
F meant and the breadth of its potential
effects on the civil service. And one
aspect of a ‘‘career’’ appointment, as
that term has long been understood, is
the opportunity to serve the United
States across administrations with the
concomitant accrual of career status and
adverse action rights—an opportunity
Schedule F would have jeopardized.
Ultimately, President Biden rescinded
Executive Order 13957 before any
positions could be placed into Schedule
F. As noted above, on January 22, 2021,
President Biden issued Executive Order
14003, ‘‘Protecting the Federal
Workforce,’’ rescinding Executive Order
13957, stating that ‘‘it is the policy of
the United States to protect, empower,
and rebuild the career Federal
workforce,’’ and that the Schedule F
policy ‘‘undermined the foundations of
the civil service and its merit system
principles.’’ 163
If a future Administration concludes
that a policy that implements the
principles of Schedule F is preferable to
this rule and seeks to rescind this rule
and replace it with such a policy, a
future Administration would need to
comply with the Administrative
Procedure Act and principles of
reasoned decision-making.164 For
162 The overall number of federal employees has
also remained relatively stable. In fact, there were
more federal employees during the last years of the
Reagan Administration than there are today. See,
e.g., U.S. Off. of Pers. Mgmt., ‘‘Executive Branch
Employment Since 1940,’’ https://www.opm.gov/
policy-data-oversight/data-analysis-documentation/
federal-employment-reports/historical-tables/
executive-branch-civilian-employment-since-1940/.
163 E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021),
https://www.federalregister.gov/documents/2021/
01/27/2021-01924/protecting-the-federal-workforce.
164 See, e.g., Perez v. Mortgage Bankers Ass’n, 575
U.S. 92, 101 (2015) (agencies under the
Administrative Procedure Act must ‘‘use the same
procedures when they amend or repeal a rule as
they used to issue the rule in the first instance’’).
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example, to rescind this rule and
replace it with a new Schedule F-type
policy, a future Administration would
need to, among other things: explain
how the new policy is consistent with
the carefully crafted legislative balance
that Congress struck in the CSRA; set
forth reasons for why it is departing
from OPM’s prior determination,
reconfirmed here, that creating a new
schedule for at-will employees who are
not political appointees—similar to
Schedule F—is inconsistent with that
balance; justify the departure from the
fundamental principle that career
Federal employees’ tenure should be
linked to their performance rather than
to the nature of their position; address
whether that departure is consistent
with the accrued property interests of
employees, the settled expectations of
career Federal employees’ tenure, and
the decisions individuals have made in
response to those expectations; explain
why any novel definition of
‘‘confidential, policy-determining,
policy-making, or policy-advocating
character’’ is consistent with the CSRA;
discuss why that novel definition is
being adopted even though it departs
from long-established understandings—
reconfirmed in this preamble—of what
that phrase means; and explain how a
new policy would (1) ensure that new
hires formerly required to go through
the competitive hiring process have the
knowledge, ability, expertise, and skills
necessary to work effectively; (2)
adequately protect career Federal
employees against potential political
retaliation or coercion; and (3) make
certain that critical positions in the
federal workforce currently and ably
held by career Federal employees will
continue to function even if they may be
replaced by individuals regardless of
qualification or suitability.
E. General Comments
As explained in Section II, OPM
received more than 4,000 comments
regarding this rulemaking whereby
commenters provided useful insights
into various aspects of these regulatory
amendments. The comments below
relate to general concepts regarding the
civil service, civil service protections,
and merit system principles that inform
this rulemaking. In the following
sections, OPM considers comments
related to specific provisions of this
final rule, the need for this rule,
regulatory alternatives, and the costs
and benefits of this rule.
Comments Regarding Why Civil
Servants Should Be Nonpartisan
As a baseline concept, many
commenters agreed with OPM that
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career civil servants should be
nonpartisan. An association of
administrative law judges cited
Alexander Hamilton in Federalist No.
79, as saying ‘‘[i]n the general course of
human nature, a power over a man’s
subsistence amounts to a power over his
will.’’ Comment 1042. The association
argued that ‘‘[t]he principles of merit
service require the federal government
to base hiring decisions upon
experience and expertise, and serve to
ensure a nonpartisan, expert federal
workforce.’’ An individual commenter
cited research that politicization of the
civil service ‘‘has significant
consequences for the proper functioning
of government.’’ Comment 1427. This
research included that of David Lewis
(2008) on increased politicization of
OPM during the 1980s and the resulting
ill effects. Commenter argued that this
report shows that politicization had
‘‘severe consequences for agency
competence.’’ Experienced career
professionals left the agency and it was
hard to replace them. These
developments, in turn, discouraged
promising entry-level candidates from
applying to work in the agency, which
resulted in decreased morale and
difficulty conducting long-term
planning. By the 1990s, commenter
argued, the agency had suffered
reputational damage. See also
Comments 46 (supporting nonpartisan
career civil service with studies
showing politicization undercuts
Federal Government performance and
economic growth); 2822 (noting that
civil service laws ‘‘emphasize
responsibilities to the government, U.S.
citizens, the Constitution, laws, and
ethical principles’’ and not ‘‘political
agendas’’). One commenter suggested a
reason for the differences in
performance between neutral and
politicized staff was that that ‘‘career
civil servants who perceive their
agencies to be politicized are less likely
to invest in training and more likely to
leave the agency’’ thereby reducing
long-term government expertise.
Comment 2446. OPM appreciates these
views and agrees that the career civil
service should remain nonpartisan.
Commenters further argued that the
United States civil service is already
more politicized than those of peer
countries. A professor argued that,
among those countries, the United
States ‘‘is an outlier in terms of its
existing level of politicization.’’
Comment 50. This is because ‘‘[w]e use
about 4,000 political appointees to run
the executive branch. Up to the top five
layers of leadership in a department or
agency can be appointees, a sharp
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contrast with most peer countries where
only the top layer is part of the political
class.’’ Id. Commenter noted that this
presents a problem when Presidents
invariably struggle to fill these slots,
leading to delays in appointments and
vacancies in leadership. See also
Comments 2186 (‘‘[T]he United States’
executive branch is more politicized
than our peers.’’ (citing 2007 OECD
survey)), 3359 (‘‘Compared to other
major democracies, the United States
already maintains a higher number of
political appointees.’’).
Conversely, some commenters argued
that career civil servants need more
political alignment with an
administration’s policies to be more
‘‘accountable’’ to the President. A
former political appointee argued that a
merit system ‘‘is important only as far
as it helps the government better serve
the American people,’’ and that ‘‘the
American people are best served when
the government is in the control of the
President they chose to entrust with
control over the Executive Branch.’’
Comment 50; see also Comment 3892
(‘‘The federal bureaucracy is not
currently adequately or constitutionally
accountable to the elected president.’’).
As explained in later sections, executive
branch employees are already tasked
with executing the administration’s
policies and there is little evidence that
further politicization improves
government performance for the
American people. Politicization is
associated with poorer performance
outcomes, as described below.
Some commenters opposed to the rule
asserted that the Constitution allows a
president to closely control executive
branch civil servants. A law school
clinic argued that, ‘‘as a general matter,
the Constitution gives the president the
authority to remove those who assist
him in carrying out his duties,’’ because
‘‘[w]ithout such power, the President
could not be held fully accountable for
discharging his own responsibilities.’’
Comment 3190. For this proposition,
commenter cited Seila Law LLC v.
Consumer Financial Protection
Bureau 165 (quoting Free Enterprise
Fund).166 Commenter cited general
concepts in these cases regarding
independent agencies—the CFPB in
Seila Law and the SEC in Free
Enterprise Fund—which explore the
specific removal protections of principal
officers therein, and the
constitutionality of multiple layers of
removal protections, as supportive of
commenter’s propositions. But as
explained above regarding Free
165 140
166 561
S. Ct. 2183, 2191 (2020).
U.S. at 513–14.
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Enterprise Fund and further in Section
III(F), nothing in those holdings or their
progeny conflict with this final rule
regarding title 5 protections to the career
civil service. Career employees, the vast
majority of whom would not be
considered inferior officers, are
accountable through a supervisory chain
that typically runs upwards through
layers of political appointees. As the
official ultimately responsible for the
agency can generally be removed at the
President’s will, and as those officials
are ultimately responsible for the
performance management of their
subordinates, accountability is
maintained. The fact that accountability
in the form of removal may involve
certain processes for those employees
covered by adverse action procedures
and, in some cases, appeal rights, does
not make those protections
unconstitutional.
Some commenters argued that a
subset of civil servants actively work
against the policies of conservative
administrations. A legal organization
opposed to the rule asserted that
‘‘[i]nsulating federal employees from
removal and answerability emboldens
political activists with the federal
government to disrupt or delay
Presidential initiatives.’’ Comment
2866; see also Comment 2652. Comment
3156, an advocacy nonprofit
organization, further contended that
‘‘[a]ny authority civil servants purport
to exercise derives its legitimacy from
the election of the President, and any
attempt by civil servants in the
executive branch to undermine the
lawful actions of a President are an
attack on the Constitution and on
democracy itself.’’ OPM does not agree
that employing civil servants—without
consideration of their political views—
thwarts the agenda of any President, and
commenter’s objections lack any wellfounded support. Republican and
Democratic administrations have
achieved important policy goals with a
nonpartisan career civil service whose
members undoubtedly encompass a
wide variety of personal political
perspectives. One former civil servant
explained that ‘‘[t]he Reagan and later
administrations successfully
implemented new policy directions
with the professional Civil Service.’’
Comment 3038. A legal nonprofit
organization concurred and added that
civil servants ‘‘did not stop [the last
Administration’s] deregulatory efforts’’
and to the extent that regulatory agenda
was significantly delayed, ‘‘the best
explanation is not left-wing civil
servants’ resistance to a conservative
agenda.’’ Comment 2822.
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For example, in the first term of the
George W. Bush Administration,
agencies helped to establish new and
reimagined personnel systems for both
the Department of Homeland Security
and the Department of Defense in
response to the terrorist attacks on
America on September 11, 2001.167
Implementing these systems required
two sets of complex regulations
promulgated jointly by OPM and each
agency. Government attorneys then
vigorously defended these programs
against legal challenges in the Federal
courts.168 As noted in the 2003 edition
of Biography of an Ideal, with respect to
DHS:
OPM successfully advocated the
paramount importance of equipping the new
Department with a modern human resources
system that would make possible the flexible
use of all aspects of the system as tools to
help management accomplish strategic
objectives and results. The legislation
establishing DHS granted authority for the
Secretary of Homeland Security and the
Director of OPM to create, by jointly issued
regulation after extensive employee
involvement and consultation with
stakeholders (such as unions, employee
associations, academic experts, and
executives in the corporate and nonprofit
sectors), modern pay and job evaluation
systems. . . .169
The career civil service fulfilled the
tasks they were asked to perform to
stand up these systems rapidly
regardless of their personal politics or
views.
Comments Regarding Nonpartisan
Career Civil Servants and Neutral
Competence
Several commenters supportive of this
rule touted that a significant benefit of
a nonpartisan career civil service is their
‘‘neutral competence.’’ A former OMB
official who joined the agency in 1980
commented that, ‘‘[l]ike other OMB
career staff, I was not primarily a
Democrat or a Republican, but instead I
strongly endorsed and practiced the
ethos of ‘neutral competence’ that
served the president, without regard to
the party of the president.’’ Comment
13. An employee with the Bureau of
Land Management commented that
‘‘[c]ivil service positions provide a
continuous level of expertise and
neutrality to the functioning of the
167 See Homeland Security Act of 2002, Public
Law 107–296 (2002); National Defense
Authorization Act for Fiscal Year 2004, 108–36
(2003).
168 See, e.g., Nat’l Treasury Employees Union v.
Chertoff, 452 F.3d 839 (D.C. Cir. 2006) and Am. Fed.
of Gov. Employees v. Gates, rehearing denied, 486
F.3d 1316 (D.C. Cir. 2007).
169 U.S. Off. of Pers. Mgmt, supra note 20, at pp.
307–08.
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federal government. Making these
positions political appointees would
destroy institutional knowledge and
result in crippling inefficiencies.’’
Comment 3758; see also Comments 659,
678, 1818 (touting ‘‘value of the
experience of those who have worked in
[a policy] area and the need to insulate
them from political pressures of a
specific administration’’). A federal
policy analyst commented ‘‘I have
worked closely and successfully with
political appointees under the Obama,
Trump, and Biden administrations to
issue regulations and policy guidance
consistent with the policy priorities of
those administrations.’’ Comment 3195.
Commenter continued that ‘‘[n]aturally,
I have personal opinions about the
policy work I do, and I sometimes
disagree with my politically appointed
leaders about specific policies or
projects. In fact, robust civil service
protections have empowered me—and,
collectively, my coworkers and other
career employees—to occasionally share
policy recommendations or serious
concerns with agency leadership, which
sometimes results in leadership
changing course.’’ Commenter
concluded that this is a ‘‘perfectly
normal and healthy process, as career
civil servants are supposed to provide
candid deliberative advice to the
politically appointed leaders which
ultimately make the decisions. . . . At
the same time, I and other career federal
employees certainly understand that we
are not decisionmakers. Elections in a
democracy have consequences, and it is
entirely appropriate for agencies to
pursue the policy preferences of the
elected President that appoints its
leaders.’’ A former civil servant added
‘‘[h]istory makes the case that stable
societies with healthy economies rely
on steady, capable administration. For
security, for uninterrupted routine
transactions and for predictable
decisions and communication. When
things work, unfortunately, few people
notice.’’ Comment 3038. A 32-year civil
servant described serving under six
presidents—three Republicans and three
Democrats—and working ‘‘every day
devoted to serving the Constitution, the
laws and regulations, [ ] agency missions
and the American people.’’ Commenter
asserted that ‘‘our system thereby strikes
an appropriate balance between
presidential control and professional
independence.’’ Comment 2371; see
also Comments 2208 (33-year federal
attorney who served under several
administrations), 2258 (former HHS
attorney who also served under several
administrations).
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A few commenters opposed to the
rule argued that career civil servants are
not politically neutral—they instead
seek to influence policy through
politicized competence. Comment 3156
argued that contrary to the premise of
OPM’s rulemaking, career federal
employees ‘‘have strong views on policy
and actively desire to shape it.’’
Commenter asserted that they offer
‘‘politicized competence’’ instead of
‘‘neutral competence.’’ An advocacy
nonprofit organization commented that
the federal civil service is not politically
neutral because in the 2016 presidential
election, for example, ‘‘federal employee
donations—as recorded by the FEC—
went 95 percent to the Democratic
nominee for president.’’ Comment 3892.
OPM recognizes that many federal civil
servants have their own constitutionally
protected political and policy
preferences, which they are free to
express subject to the requirements of
the Hatch Act and other statutes and
regulations. But even assuming
commenter’s beliefs about the policy
and political preferences of civil
servants are accurate, these comments
do not convincingly tie a civil servant’s
personal beliefs to concrete and
actionable unacceptable performance or
misconduct.
Comment 4097, an advocacy
nonprofit organization, tried to equate
political misalignment with poor
performance. Commenter argued that
‘‘scholars virtually universally accept
the fact that federal employees have
their own policy views and often seek
to advance them.’’ Commenter cites one
article, Nou (2019),170 for this
proposition, but Nou’s analysis is much
more nuanced and measured. Nou’s
article is about hierarchical dynamics in
government and she qualifies the
findings as ‘‘an initial exploration of the
implication’’ of overt (not covert) civil
servant disobedience. ‘‘The aim is to
. . . examine principles for normatively
evaluating the practice.’’ The article’s
‘‘hope is to start, not end, more nuanced
conversations—to move past simplistic
references to the ‘deep state’ or ‘the
resistance’ towards a greater
appreciation of the complexity of intraexecutive branch dynamics.’’ Nou’s
preliminary conclusions are that
‘‘[b]ureaucratic resistance, broadly
defined, is neither exceptional nor
unprecedented.’’ Nou contends that
‘‘[e]ven the most ardent proponents of
executive power may have to
170 See Jennifer Nou, ‘‘Civil Servant
Disobedience,’’ Univ. of Chicago Law Sch., Public
Law and Legal Theory Working Papers (2019),
https://chicagounbound.uchicago.edu/cgi/
viewcontent.cgi?article=2247&context=public_law_
and_legal_theory.
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acknowledge that some forms of it are
inevitable in hierarchies with imperfect
information.’’ Nou also explains that it
would be ‘‘difficult, if not impossible, to
verify empirically’’ whether
bureaucratic resistance changed
qualitatively under the previous
Administration.171 Nou’s article—
focused on macro group dynamics—
does not support commenter’s proffer
that it is universally understood that
civil servants advance their own policy
views instead of those of the
administration or their agencies.
Comment 4097 continued, arguing
that ‘‘[s]cholars find it very clear that
bureaucrats are not neutral parties in the
policymaking process. Rather, they have
their own set of interests that they
actively work to protect.’’ For this,
commenter also cited one article, Potter
(2017b).172 But commenter’s
proposition does not align with Potter
(2017b) nor with a related citation in the
comment to Potter (2017a).173 Potter
does not examine the relationship
between individual bureaucrats’
political ideologies and the speed with
which they act. Instead, she explains
that ‘‘[r]ules take a long time to
complete’’ and ‘‘[b]ecause agencies
make important—and binding—policy
through rulemaking, political overseers
keep a watchful eye over the process.
Each branch of government—the
president, Congress, and the courts—
plays a role in overseeing agency
rulemaking.’’ Potter continues that,
‘‘[w]hile each branch of government’s
authority over rulemaking is exercised
in a different manner, the key insight
here is that each branch has the power
to overturn an agency rule or, at a
minimum, raise the agency’s cost of
doing business.’’ Rule reversals and
rebukes are significant setbacks with
‘‘long-term consequences for agency
reputations, autonomy, and bureaucrats’
career trajectories.’’ Potter’s thesis is
that agencies can anticipate, and
possibly stave off, some types of
oversight by pacing their rules to line up
with a favorable president, Congress,
and/or courts. Potter finds that ‘‘the
pace of rules slows significantly when
[any of these three] are more inclined to
disagree with—and potentially punish—
the agency issuing the rule in
171 See
id. at p. 351.
Augustine Potter, ‘‘The strategic
calculus of bureaucratic delay,’’ Midwest Pol. Sci.
Assoc., (2017b), https://www.mpsanet.org/strategiccalculus-of-bureaucratic-delay/.
173 Rachel Augustine Potter, ‘‘Slow-Rolling, FastTracking, and the Pace of Bureaucratic Decisions in
Rulemaking. Journal of Politics,’’ (2017a), https://
papers.ssrn.com/sol3/papers.cfm?abstract_
id=2759117.
172 Rachel
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question.’’ 174 Instead of employees’
personal politics or policy preferences,
Potter finds that agencies time
regulation strategically ‘‘[b]ecause
bureaucrats seek to avoid negative
political repercussions such as rule
overturns or reprimands.’’ 175
Comment 4097 expressed frustration
with career civil servants in the last
Administration, in which the author of
the comment was a political appointee,
but does not consider the roles and
impacts of the court system or a divided
Congress on the policy priorities of that
Administration—two key factors that
Potter highlights as impacting regulatory
timing. Instead, Comment 4097
included a list of instances that
allegedly show career employees
withholding information from political
appointees in the last Administration,
refusing ideologically distasteful work,
delaying and ‘‘slow-walking’’ work,
providing unacceptable work product,
leaking information, and being
insubordinate. For these points, the
comment largely cited a separate
publication by the author of the
comment, Tales from the Swamp. As
described above, another commenter,
Comment 2822, addressed and many of
these examples.
In sum, Comment 4097 pointed to
select articles and makes conclusions
that the articles do not fully support and
with which OPM does not agree. Still,
commenter claimed OPM’s rulemaking
ignores whether ‘‘federal employees
may have their own goals and
motivations or how they behave when
their goals differ from the President’s’’
but, as shown in the proposed rule and
here, OPM has thoroughly examined
this dynamic, as has Congress when it
enacted civil service protections and
merit system principles that include
disciplinary mechanisms for when
employees do engage in improper
behavior. Indeed, it is Congress’ views
that are paramount, and this rule is in
furtherance of the statutory scheme and
protections that Congress enacted
through the CSRA.
Comments Regarding the Benefits of a
Nonpartisan Civil Service
Many commenters agreed with OPM
that career civil servants provide
experience and expertise that benefit the
country. For instance, Comments 148
and 686 described the work civil
servants do to protect ‘‘our legal system,
our transportation networks, the safety
of our food and drugs, our borders, our
air and water, our farmlands, and so
much more.’’ Several other commenters
174 Potter
175 Potter
(2017b), supra note 172.
(2017a), supra note 173, at p. 28.
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asserted that a professional and
nonpartisan civil service bolsters
legitimacy and public trust in
government. As a result, the American
public holds civil servants in higher
esteem than elected officials and
political officers. A former federal
official argued that, while as of May
2022, ‘‘trust in career employees at
government agencies had declined from
previous years, a majority of Americans
still reported having a great deal or fair
amount of confidence in career
employees to act in the best interest of
the public; substantially more
Americans believe this about career
employees than about political
appointees.’’ Comment 2186; see also
Comment 2814 (a research and
advocacy nonprofit organization,
arguing ‘‘Americans tend to hold these
public servants in relatively high
esteem, recognizing their
professionalism and independence’’
which ‘‘contrasts particularly with
Americans’ views of elected officials
and political officers.’’). The former
federal official cited a study which
found that ‘‘emphasizing the
technocratic expertise of agency
officials, including that they could not
be hired for their political views or fired
for disagreements with political
leaders,’’ resulted in a ‘‘statistically
significant . . . [increase] in legitimacy
scores.’’ The study found smaller
increases in perceived legitimacy from
emphasizing public participation and
found no increase in perceived
legitimacy from emphasizing the
responsiveness of the agency action to
the President’s priorities and White
House staff. The study also cautioned
that ‘‘the conclusion that expertise and
political insulation boost legitimacy has
a converse: those desiring to erode
public support for agencies ought to
weaken the civil service.’’ This risks a
negative feedback loop concerning
agencies’ legitimacy and civil-service
protections (i.e., fewer protections lead
to worse perceptions, which lead to
fewer protections, and so on).
Relatedly, commenters noted that
political appointees are associated with
lower program performance. A professor
cited studies to this effect.176 Comment
50. The research found a ‘‘negative
relationship between political
appointment status and program
performance, while showing that
appointees selected because of their
campaign or party experience were
176 Citing David E. Lewis, ‘‘Testing Pendleton’s
Premise: Do Political Appointees Make Worse
Bureaucrats?’’ The Journal of Pol. 69, no. 4, pp.
1073–88 (2007), https://www.jstor.org/stable/
10.1111/j.1468-2508.2007.00608.x.
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especially likely to undermine
performance.’’ 177 The professor also
cited findings that ‘‘[m]ore politicized
environments undermine incentives for
career bureaucrats to invest in their
skills, and instead encourages them to
look for work elsewhere.’’ 178 This
proposition is supported by other
comments that discuss the potential
effects of politicization on recruitment,
hiring, and retention (see Section V.(B)).
Another professor noted that the
‘‘consensus,’’ as ‘‘evidenced by a large
volume of peer reviewed research,’’ is
that ‘‘highly politicized bureaucracies
are less transparent, less responsive and
less accountable to the public, less
conducive to stable governance, less
capable of operating effectively, and
more prone to corruption and
clientelism than those with more
neutral bureaucratic structures.’’
Comment 1927.
This view regarding the performance
benefits of career civil servants as
compared to political appointees is not
new. A few commenters pointed to a
1989 commission led by former Federal
Reserve Chair Paul Volcker proposing
that the U.S. ‘‘reduce the number of
political appointees, pointing to the
delays and performance problems
associated with America’s reliance on
often inexperienced appointees.’’ See
Comment 3973 (an anti-poverty
nonprofit organization). A similar
recommendation ‘‘was made again in a
2003 report.’’ Id.
Data submitted by other commenters
also highlight the benefits of civil
service protections and merit system
principles on performance outcomes
and reducing government corruption. A
professor asserted that a recent
‘‘systemic review of empirical research’’
on the use of merit-based processes
across countries concluded that ‘‘factors
such as meritocratic appointments/
recruitment, tenure protection,
impartiality, and professionalism are
strongly associated with higher
government performance and lower
corruption.’’ Comment 50. A former
federal official presented that ‘‘a
professional and independent civil
service that is insulated from the whims
of political appointees also has been
shown to meaningfully reduce
opportunities for corruption.’’ Comment
2816. This commenter cited a study of
177 Citing Nick Gallo and David E. Lewis, ‘‘The
Consequences of Presidential Patronage for Federal
Agency Performance,’’ Journal of Pub. Admin. Rsch.
and Theory, Vol. 22, Issue 2, pp. 219–43 (Apr.
2012), https://doi.org/10.1093/jopart/mur010.
178 Citing Mark Richardson, ‘‘Politicization and
expertise: Exit, effort, and investment.’’ The Journal
of Pol. 81, no. 3, pp. 878–91 (2019), https://doi.org/
10.1086/703072.
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520 experts across 52 countries that
found, ‘‘even when controlling for a
very broad range of political and
institutional factors, bureaucratic
professionalism is a statistically
significant deterrent of corruption.’’
This difference in performance is due
in large part to civil service job stability
and the opportunity to accumulate
expertise. A former federal official cited
one study that found that ‘‘previous
experience within an agency’s bureau,
and prior length of tenure, had
significant positive impacts on program
performance.’’ Comment 2186. While
removing ‘‘low performers who are
hampering an agency’s mission’’ is
important, proposals that would
‘‘facilitate rapid mass firings of
experienced employees to suit a
presidential administration’s political
agenda would likely impact the ability
of agencies to preserve institutional
knowledge and use it to improve agency
operations over time.’’ Comment 1181,
an individual, contended that research
by political scientists Sean Gailmard
and John Patty shows that the
protections of the United States civil
service system ‘‘generate better
outcomes because they allow public
officials a time horizon and security to
invest in task-specific expertise in
public sector skills. Politicizing the
workplace does the opposite.’’ 179 Id.; see
also Comments 50, 1759 (professors
citing the same research). This
commenter wrote that recent research
confirms this point, ‘‘showing that more
politicized environments undermine
incentives for career bureaucrats to
invest in their skills, and instead
encourages them to look for work
elsewhere.’’ Commenter concluded that,
‘‘[s]ince much of federal employment
work is technical in nature, and requires
deep knowledge of programs, this makes
both task-specific knowledge and
institutional experience important, and
impossible to easily replace.’’
Comment 1427, an individual, cited
James Rauch (1995), who researched
city governments during the Progressive
Era and argued that lessons learned
there can apply to the Federal
Government. Rauch demonstrates that
the ‘‘institution of civil service
protections was responsible for a greater
focus on larger and longer-term
infrastructure, which led to significantly
increased economic development for
cities with civil service protections over
those without.’’ Commenter concluded
that the same can be extrapolated to the
179 Citing Sean Gailmard and John W. Patty,
‘‘Learning while governing: Expertise and
accountability in the executive branch,’’ Univ. of
Chicago Press (2012).
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Federal Government—‘‘that civil
servants with career protections will be
able to focus on long-term projects with
beneficial economic impact, rather than
seeing their efforts driven only by their
political patron.’’
Comment 4097, an advocacy
nonprofit organization, took issue with
OPM’s assertion, in the proposed rule,
that there is little evidence showing that
firing of career civil servants without
appropriate process will improve the
government’s performance. In a
footnote, commenter argued that
performance between political
appointees and career civil servants is
not the relevant metric—it should be
‘‘how at-will career officials perform
relative to tenured career officials.’’
Commenter then pointed again to ‘‘state
HR directors’’ who report that at-will
employment ‘‘is an essential modern
management tool,’’ and that this
rulemaking would deny federal agencies
that ‘‘tool.’’
It is the Federal statutory scheme, as
demonstrated by Section 7511(b)(2), not
OPM rulemaking, that is ‘‘denying’’
Federal agencies this purported ‘‘tool.’’
Through the CSRA, Congress chose to
make removal protections the default for
career employees, allowing only for
limited exceptions.
In addition, commenter cited no data
or studies demonstrating that at-will
employees outperform ‘‘tenured career
officials’’ in state, let alone federal,
agencies. Also, unless a civil servant,
whose protections are governed by title
5, is in their probation/trial period or
has not met the durational requirements
under 5 U.S.C. 7511, they will
generally 180 have adverse action
protections, as noted above. So the pool
of at-will federal employees is difficult
to gauge for a comparison. There is little
doubt that at-will employment without
initial procedures or back-end review
makes firing easier, but that does not
demonstrate that at-will employment
produces better results. And although
there is a legitimate purpose for a small
cadre of Schedule C employees to act as
confidantes and handle particularly
sensitive tasks for presidential
appointees, turning a large segment of
the career staff—who do not ordinarily
function in that fashion—into at-will
employees would be an altogether
different proposition and inconsistent
with the historic trend of congressional
enactments extending protections to
larger segments of the workforce.
Moreover, at-will civil servants would
suffer from the same deficiencies as
180 For
instance, they would not have adverse
action protections if excluded from the definition
of ‘‘employee’’ under 5 U.S.C. 7511(b)(2).
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political appointees under the studies
cited above, in that they would lack the
job stability that incentivizes
‘‘invest[ing] in task-specific expertise in
public sector skills.’’ See Comment
1181. Also, as shown by Comment 2186,
a former federal official, studies looking
at state reforms leading to at-will
employment found ‘‘[o]ver 75 percent of
state employees disagreed that the
reforms ‘had resulted in a state
workforce that is now more productive
and responsive to the public.’ ’’ For
these reasons, Comment 4097 has not
shown that hypothetical at-will federal
employees would outperform career
civil servants.
Commenters supportive of the rule
also noted that career civil servants tend
to be more moderate than political
appointees. Comments 50, a professor,
and 1227, an individual, cited research
by Brian Feinstein and Abby K. Wood
which looked at donation records and
concluded that political appointees tend
to be at ideological extremes on both the
right and left, ‘‘while career officials
tend to be more moderate.’’ 181 See also
Comment 2822 (legal nonprofit
organization).
A few commenters opposed to the
rule argued that career civil servants are
too partisan and skew left compared to
the public. See Comment 1958 (an
advocacy nonprofit organization).
Comment 3156, an advocacy nonprofit
organization, examined donor
information, and attempts to refute
Comment 50’s conclusions, above, by
arguing that the federal workforce has
‘‘self-politicized’’ and that the premise
‘‘that civil servants are more moderate
than political appointees—no longer
holds.’’ Whether or not there is
probative value in examining donation
differences between career civil servants
and political appointees, no commenter
established a connection between
donation records or trends in donations
to unacceptable performance by career
civil servants. Federal workers are
entitled to their political opinions and
to support candidates on their free time
(subject to the Hatch Act and other
applicable laws). But they also must
fulfill the duties of their positions
appropriately or face an adverse action.
Comments Regarding the Nonpartisan
Career Civil Service’s Support of
Presidential Transitions
Various commenters supportive of the
rule argued that career civil servants are
important because they provide stability
181 See Brian Feinstein and Abby K. Wood,
‘‘Divided Agencies.’’ S. Cal. L. Rev. 95, 731 (2021),
https://southerncalifornialawreview.com/wpcontent/uploads/2022/12/WoodFeinstein_Final.pdf.
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and continuity between administrations.
A former OMB official commented that
his ability to provide nonpartisan,
objective, informed analyses—‘‘using
the work of OMB’s 400+ career staff—
greatly assisted [administration]
transitions.’’ Comment 13.
A group of former OMB employees
expressed a similar commitment to
providing expertise through presidential
transitions. Comment 2511 contended
that having in place an effective and
knowledgeable career staff ‘‘has proven
to be a vital capability for new leaders
after Inauguration Day—especially as
new Administrations seek solid footing
and/or confront unexpected
challenges.’’ Another former OMB
employee added that ‘‘the virtues of
institutional memory, dedication to
democratic governance principles, and
professionalism evident at OMB are
comparably shared at every federal
department and agency.’’ Comment
2538. Career employees at OPM
similarly play a significant role in
advising incoming administrations as to
options for filling critical positions
during the first few days of the
administration. OPM staff produce a
Presidential Transition Guide to Federal
Human Resources Management Matters
that assists incoming leaders on this
point.182
A public service nonprofit
organization concurred, writing
‘‘[c]areer employees allow a president to
begin their administration by tapping
into valuable institutional expertise that
can help drive their agenda from day
one, rather than starting from scratch.’’
Comment 44; see also Comment 46 (an
individual). OPM agrees that civil
servants are a valuable bridge across
administrations, especially during the
critical transition period. Our
government, our democracy, and the
American public rely on this smooth
transition of power so that everything
from the critical matters of the day to
routine services are not stalled.
Beyond the transition period, political
appointees rely on career civil servants
to carry out their policies and missions,
commenters argued. Comment 1493, a
former political appointee, stated, ‘‘I
relied heavily on the experience,
expertise, and advice of senior career
civil service employees in evaluating
and managing programs, developing
policy and regulatory proposals,
investigating and resolving cases, and
otherwise administering the laws
182 For example, the Guide published for the 2020
election year is available at https://www.opm.gov/
about-us/reports-publications/presidentialtransition-guide-2020.pdf. The importance of an
effective transition was also the subject of ‘‘The
Fifth Risk’’ (2018), a book by author Michael Lewis.
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Congress has authorized those agencies
to implement and enforce. I depended
on those employees to provide advice
and guidance based not on their
allegiance to a particular politician or
political party, but rather on their
thorough understanding of the
applicable statutes and regulations, their
institutional knowledge of the history of
the agencies, and their substantial
technical expertise.’’ Even friction
between political appointees and career
civil servants has benefits. OPM
received a comment from a former
Schedule C political appointee who
expressed ‘‘[t]here was no problem
accomplishing the agenda of the
administration. In fact, the expertise and
experience of the civil servants made it
possible.’’ Comment 3522. Comment
2816, a former federal official, cited
studies that found benefits to some
‘‘friction between political agency heads
and career staff’’ which ‘‘have served to
protect the public interest in a variety of
ways.’’ For instance, these agencies
‘‘tend to move more cautiously through
rulemakings, utilizing less hurried
rulemakings with particularly thorough
records, with these rulemakings just as
likely to produce final rules as in
agencies with less internal conflict.’’
Comments Regarding the American
Public and Government’s Reliance
Interests
Many commenters agreed with OPM
that the American public relies on the
nonpartisan civil service in all aspects
of their lives. Comments 148 and 686
explained that these civil servants are
‘‘hired via fair processes, are often paid
less than their private sector
counterparts, and are retained via the
benefit of steady work and pride of
service.’’ A private sector scientist
described benefiting from the
‘‘tremendous value provided by fellow
scientists and engineers employed by
our national agencies,’’ and from ‘‘the
countless more who contribute to a
functioning society.’’ Comment 451. An
individual described relying ‘‘on
multiple agencies’’ every day, from
experts who protect consumers from
fraudulent business practices to those
who manage the infrastructure and
transportation needs of the country.
Comment 1201. Commenter concluded
that ‘‘[a]llowing these workers to be
fired for political reasons would be
disastrous.’’ Comment 3641 (an
individual) adds that politicization
‘‘would be bad for individuals and
businesses’’ because many companies
rely on civil servants and their ‘‘public
data to make decisions.’’
Several others commented about the
many ways they and other Americans
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benefit from a nonpartisan career civil
service. See Comments 136 (former air
traffic controller who served for 25
years), 817 (an economic researcher
whose work ‘‘relies heavily on the
efforts of career civil servants across the
Federal Government’’), 842 (adding that
other nations also rely on the work of
our federal agencies), 1155 (plant
scientist and assistant professor who
works closely with career employees at
USDA), 1157 (former DOE, FWS, NPS,
Forest Service, Army Corps of
Engineers, Bureau of Reclamation, EPA,
and NOAA civil servant who was
‘‘consistently impressed with the
dedication, expertise, and
professionalism of staff’’), 1299 (small
business owner who works closely with
federal agencies on climate change
issues), 1518 (cancer researcher who
relies on HHS science and NIH grants),
2082 (small business owner who relies
on the ‘‘stability of our government and
its rules to conduct business’’). An
individual argued that even high-level
political officials, such as members of
Congress and the President, ‘‘rely on the
advice, expertise, and execution
capabilities of a professional civil
service.’’ Comment 1047. By ensuring
that the civil service is staffed by
individuals chosen for their merit and
‘‘protected from political winds, we
ensure a more stable, effective, and
reliable government.’’ Comment 1047
concluded that, ‘‘[i]n essence, this rule
isn’t just about protecting jobs; it’s about
protecting the integrity of our
government and the quality of our
democracy. By ensuring that our civil
service is merit-based, we are fostering
an environment where the best and
brightest can thrive, irrespective of the
political climate.’’
Many nonprofit organizations
commented that Congress relies on a
nonpartisan civil service to manage
complex federal programs and therefore
has an interest in legislating civil
service protections and merit system
principles. See Comments 2222, 2559,
2620, 3095 (coalition of public interest
organizations), 3149, 3687. They
contended that Congress directly creates
agencies, details agency authority, and
sets policy goals for the agency to
achieve using its authority, and ‘‘may
choose to grant an agency the authority
to issue legislative rules, enforce
provisions of law, or adjudicate
claims.’’ 183 They asserted that, while
‘‘leaders in the executive branch may
183 Citing Todd Garvey & Sean M. Stiff,
‘‘Congress’s Authority to Influence and Control
Executive Branch Agencies,’’ Cong. Rsch. Serv.,
R45442, p. 10 (Mar. 2023), https://
crsreports.congress.gov/product/pdf/R/R45442.
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shape implementation of agency
programs, the agencies (and their staff)
are themselves supposed to be stewards
of programs created, funded, and given
direction by acts of Congress,’’ and
protecting the expertise and experience
of agency staff ‘‘ensures that agencies
can fulfill this role.’’ A coalition of
public interest organizations argued that
‘‘[a]gencies exist to carry out programs
created and authorized by Congress that
last much longer than any single
administration, and our organizations
see significant value in preserving the
knowledge civil servants build over the
course of many years carrying out these
programs.’’ Comment 3095. A legal
nonprofit organization concluded that,
while ‘‘[s]ome critics argue that the role
of civil servants is ‘diligently following
orders and implementing policies of
elected officials,’ or ‘accomplishing the
agenda of a president’ rather than
protecting ‘the office of the president
[or] their institutions,’ ’’ civil servants
instead have ‘‘responsibilities to the
Constitution, to Congress, to the law,
and to the American people. The critics’
exclusive focus on implementation of a
president’s agenda misunderstands and
distorts the structural role of our civil
servants.’’ Comment 2822 (citations
omitted). OPM agrees that Congress, as
a co-equal branch of government, has a
vested interest in a well-functioning
federal workforce, especially since that
workforce is tasked with carrying out
the programs Congress authorizes.
Congress plays an important role in
legislating civil service protections, as it
has done regularly since 1883.
Another concern of politicization
expressed by commenters is that it
lowers responsiveness to the public and
Congress. A professor cited research for
this proposition.184 Comment 50; see
also Comment 3687 (a science advocacy
organization) (discussing the ‘‘virtuous
circle’’ of feedback from positive
customer experiences leading to
improved employee performance and
back again). Commenter explained that,
while ‘‘Senate-confirmed appointees
have been shown to be more reliable
trustees of Congressional intent based
on scrutiny in appointment, inserting
thousands of unilateral appointments
into the civil service would effectively
impede Congress’s ability to provide
oversight.’’
Commenters cited data showing the
many benefits that federal civil servants
provide to Americans across the
country. Comment 44, a public service
184 See
Abby K Wood and David E Lewis,
‘‘Agency Performance Challenges and Agency
Politicization,’’ Journal of Pub. Admin. Rsch. And
Theory, Vol. 27, Issue 4, pp. 581–95 (Oct. 2017),
https://doi.org/10.1093/jopart/mux014.
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nonprofit organization, argued that the
approximately 2.2 million civil servants
are ‘‘primarily located outside of the
Washington DC region.’’ At least 80% of
the federal workforce is located across
the country as well as around the world.
Commenter continued, ‘‘[o]ur nation’s
federal employees deliver essential
services including Social Security and
Medicare benefits, assist small
businesses, care for veterans, disrupt
international criminal syndicates,
maintain the safety of our transportation
systems, protect the food supply, find
cures for diseases, carry out the nation’s
foreign policy, and advance our national
security.’’ OPM agrees that civil servants
are fanned out across the country and
the world, which allows them to be
more responsive to constituents
regarding the local and international
functions of government.
Comments Regarding Regulated Entities’
Reliance Interests
Another benefit of a nonpartisan civil
service, many nonprofit organizations
commented, is that they provide
valuable certainty to regulated entities.
See Comments 2222, 3095 (coalition of
public interest organizations), 3149,
3687, 3973. They argued that regulatory
certainty provides ‘‘a stable framework
for regulated entities, partners, and
federal grantees to understand their
regulatory obligations and plan for the
future, including across presidential
administrations.’’ This predictability
provides the ‘‘certainty that these
entities need to make investments,
ensure compliance with legal
requirements, and focus on delivering
impact in their work rather than
navigating uncertain and ever-changing
legal frameworks.’’ Further, ‘‘stable
regulatory frameworks advance values
of uniformity and fairness.’’ By contrast,
‘‘substantial turnover in federal staff in
service of whipsaw changes to federal
regulations can cause turmoil for
partners and regulated entities.’’ They
concluded that ‘‘purges of agency staff
are a poorly-tailored and excessively
blunt tool for policy change,
handicapping agencies’ ability to
actually develop and implement new
policies while also potentially
misdiagnosing barriers to policy change
as personnel-related rather than legal,
political, or practical.’’ OPM agrees with
these commenters and their conclusions
regarding benefits the nonpartisan civil
service provides to regulated entities.
Comments Regarding Concerns About
Politicization of the Nonpartisan Civil
Service
OPM received several comments from
individuals concerned about a
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25005
politicized civil service and the effects
of politicization on them, their
communities, and larger society. See
Comments 80, 502, 1030. Comment 373,
an individual, argued that the amount of
‘‘institutional knowledge and training
that would be lost if these roles ever
became [politically] appointed would be
unfathomable’’ and that the people that
would be paying the cost from this
constant churn would be ordinary
citizens who rely on the ‘‘daily affairs of
government that no one ever thinks
about.’’ An individual from Ohio stated
that government employees account for
a significant percentage of the workforce
in that state. Comment 312. Commenter
concluded that protecting the federal
workforce ‘‘is vital to protecting Ohio’s
economy.’’ Id. Comment 460, an
individual, concluded that the ‘‘rule
will reinforce public trust in our
government institutions and ensure that
civil servants can carry out their duties
without undue political interference,
thus maintaining the high standards of
public service that our society expects
and deserves.’’
OPM also received several comments
from current and former civil servants
who are concerned about improper
political influence and removals. These
included concerns like, ‘‘[a]s a
government employee, I have worked
with both [Republican and Democrat]
appointees. I have never feared for my
job because of the civil service
protections. My expertise is what I am
paid for, not my political party.’’
Comment 470; see also Comments 60,
1991. An attorney and current civilian
employee of the U.S. Department of
Health and Human Services, expressed
‘‘I have long planned to build my career
primarily in public service. While not
without its flaws, the minor miracle of
the modern civil service system is a
major motivating factor in my decision
to pursue this career in public service
and in particular to focus on the federal
government.’’ Comment 1401.
Commenter adds ‘‘[t]he alreadypublished plans’’ of some organizations
to ‘‘fundamentally alter or eviscerate the
civil service system—and ultimately to
vitiate the concept of professionalism
itself—would, in the micro, certainly
require me to rethink my own career
and would, more broadly, drastically
threaten the functioning of our United
States government.’’ OPM received
similar comments from a career
employee in the Department of Defense
(Comment 1349), a member of the
Foreign Service (Comment 2320), a
federal contractor (Comment 2338), and
a contractor at the Office of Community
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Oriented Policing Services (Comment
2749), to name a few.
Finally, commenters were concerned
that experiences from other countries
and states with a politicized civil
service showed possible downsides of
further politicizing the civil service.
Comment 74 contended that, ‘‘[a]s a
scholar of India who has watched the
politicization of the bureaucracy unfold
under the current ruling party and its
deeply detrimental effects on public
welfare and civic society,’’ politicization
‘‘represents an existential threat to
democracy and state functioning in the
US.’’ Comment 1649 stated ‘‘I have lived
in a country with a political rather than
merit based civil service and can testify
as to the appalling impact of that system
on public safety, institutional integrity,
and community trust. There are many
things that don’t work well in the
American system, but our civil service
is one of the few that does.’’ And
Comment 2186, a former federal official,
cited a 2005 report for the European
Institute of Public Administration
which argued that efforts to weaken
state-level civil service protections had
a ‘‘tendency to punish state employees’’
with ‘‘demoralizing ‘bureaucrat bashing’
rhetoric of the ideologically and
politically driven reformers.’’ But there
has been ‘‘[g]rowing awareness among
policy makers, public employees and
their organizations, and human resource
professionals that’’ state-level reforms to
weaken civil service protections ‘‘have
not delivered the benefits they promised
and may well dampen enthusiasm for
[similar] initiatives by the states that
contemplate sudden, wholesale,
changes in existing arrangements.’’
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F. OPM’s Authority To Regulate
The OPM Director has direct statutory
authority to execute, administer, and
enforce all civil service rules and
regulations as well as the laws
governing the civil service.185 The
Director also has authorities Presidents
have conferred on OPM pursuant to the
President’s statutory authority.186
As explained here, in enacting the
CSRA, Congress conveyed broad
regulatory authority over Federal
employment directly to OPM
185 See 5 U.S.C. 1103(a)(5)(A). This authority does
not include functions for which either the MSPB or
OSC is primarily responsible. Among other
authorities, the MSPB has specific adjudicative and
enforcement authority upon the satisfaction of
threshold showings that an employee has
established appeal rights. It also has authority to
administer statutory provisions relating to
adjudication of adverse action appeals. OSC has
specific and limited investigative and prosecutorial
authority. See 5 U.S.C. 1213–1216.
186 See Presidential rules codified at 5 CFR parts
1 through 10.
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throughout title 5.187 In addition, many
of these specific statutory enactments,
including chapter 75, expressly confer
on OPM authority to regulate. Pursuant
to 5 U.S.C. 7514, OPM may issue
regulations to carry out the purpose of
subchapter II of chapter 75, and
pursuant to 5 U.S.C. 7504, OPM may
issue regulations to carry out the
purpose of subchapter I of chapter 75.
The same is true with respect to
chapter 43. Pursuant to 5 U.S.C. 4305,
OPM may issue regulations to carry out
subchapter I of chapter 43.
Prior to the reorganization
proposal 188 approved by Congress that
created OPM, the CSC exercised its
broad authorities, in part, to establish
rules and procedures concerning the
terms of being appointed in the
competitive or excepted services and of
moving between these services. Since its
inception in 1978, OPM has used that
same authority, as well as other
statutory authorities such as 5 U.S.C.
1103(a)(5) and 5 U.S.C. 1302, to
establish rules and procedures
concerning the effects on an employee
of being appointed in, and of moving
between, these services. OPM has used
these authorities to create governmentwide rules for Federal employees
regarding a broad range of topics, such
as hiring, promotion, performance
assessment, pay, leave, political activity,
retirement, and health benefits.189 For
instance:
• 5 CFR part 6 requires OPM to
publish in the Federal Register on a
regular basis the list of positions that are
in the excepted service.190
• 5 CFR 212.401(b), promulgated in
1968,191 well before the CSRA, provides
that ‘‘[a]n employee in the competitive
service at the time his position is first
listed under Schedule A, B, or C
remains in the competitive service
while he occupies that position.’’ This
regulation, as discussed further in
Section IV(A), was intended to preserve
competitive service status and rights for
employees who were initially appointed
187 See, e.g., 5 U.S.C. 1103, 1302, 3308, 3317,
3318, 3320; Chapters 43, 53, 55, 75.
188 President Jimmy Carter, ‘‘Reorganization Plan’’
No. 2, secs. 101 and 102 (May 23, 1978). The plan
specifies in section 102 that ‘‘[e]xcept as otherwise
specified in this Plan, all functions vested by statute
in the United States Civil Service Commission, or
the Chairman of said Commission, or the Boards of
Examiners established by 5 U.S.C. 1105 are hereby
transferred to the Director of the Office of Personnel
Management.’’
189 See, e.g., 5 CFR parts 2, 6, 212, 213, 335, 430,
550, 630, 733, 734, 831, 890.
190 5 CFR 6.1(c), 6.2; see 28 FR 10025 (Sept. 14,
1963), as amended by E.O. 11315; E.O. 12043, 43
FR 9773 (Mar. 10, 1978); E.O. 13562, 75 FR 82587
(Dec. 30, 2010); see also E.O. 14029, 86 FR 27025
(May 19, 2021).
191 See 33 FR 12408 (Sept. 4, 1968).
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to positions in the competitive service
and whose positions were subsequently
moved involuntarily into the excepted
service (such as administrative law
judges).192
• 5 CFR 302.102, promulgated in part
to implement 5 U.S.C. 3320, provides
that when an agency wishes to move an
employee from a position in the
competitive service to one in the
excepted service, the agency must: ‘‘(1)
Inform the employee that, because the
position is in the excepted service, it
may not be filled by a competitive
appointment, and that acceptance of the
proposed appointment will take him/
her out of the competitive service while
he/she occupies the position; and (2)
Obtain from the employee a written
statement that he/she understands he/
she is leaving the competitive service
voluntarily to accept an appointment in
the excepted service.’’ 193
• 5 CFR part 432 sets forth the
procedures to be followed, if an agency
opts to pursue a performance-based
action against an employee under
chapter 43 of title 5, U.S. Code. As with
the adverse action rules in part 752, the
rules applicable to performance-based
actions apply broadly to employees in
the competitive and excepted services,
with specific exceptions that include
political appointees.194
• 5 CFR part 752 implements chapter
75 of title 5, U.S. Code, and sets forth
the procedural rights that apply when
an agency commences the process for
taking an adverse action against an
‘‘employee,’’ as defined in 5 U.S.C.
7511. These regulations apply broadly
to employees in the competitive and
excepted services meeting the section
7511 criteria.195
Moreover, the President, pursuant to
his own authorities under the CSRA, as
codified at 5 U.S.C. 3301 and 3302, has
explicitly delegated a variety of these
authorities to OPM concerning
execution, administration, and
enforcement of the competitive and
excepted services. For example, under
Civil Service Rule 6.1(a), ‘‘OPM may
except positions from the competitive
service when it determines that . . .
appointments thereto through
competitive examination are not
practicable.’’ 196 And under Civil
192 Id.
193 See 55 FR 9407 (Mar. 14, 1990), as amended
at 58 FR 58261 (Nov. 1, 1993).
194 See 54 FR 26179 (June 21, 1989), redesignated
and amended at 54 FR 49076 (Nov. 29, 1989),
redesignated and amended at 58 FR 65534 (Dec. 15,
1993); 85 FR 65982 (Oct. 16, 2020); 87 FR 67782
(Nov. 10, 2022).
195 See 74 FR 63532 (Dec. 4, 2009), as amended
at 85 FR 65985 (Oct. 16, 2020); 87 FR 67782 (Nov.
10, 2022).
196 5 CFR 6.1(a).
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Service Rule 6.1(b), ‘‘OPM shall decide
whether the duties of any particular
position are such that it may be filled as
an excepted position under the
appropriate schedule.’’ 197
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Comments Regarding OPM’s Statutory
Authority
Several commenters, as discussed
further in Section IV regarding the
specific regulatory amendments, argued
that regulatory changes proposed by
OPM in its proposed rule fell within
OPM’s statutory authority. Certain
Members of Congress commented that
these are ‘‘critical regulatory updates
that would continue the efforts of the
Pendleton Act of 1883 and the Civil
Service Reform Act of 1978.’’ Comment
48, see also Comment 2134 (joint
comment by nonprofit organization and
former federal official, providing
extensive background on this point, as
summarized in Section IV).
A few comments, like Comment 4097,
commented that OPM does not have the
statutory authority to issue the
regulatory amendments in this rule.
OPM will discuss these arguments
further in the following section because
they relate to the specific amendments.
See Sec. IV.
Comments Regarding the President’s
Constitutional Authority
A few commenters argued that this
rule would improperly restrict the
powers of the President and is,
therefore, unconstitutional. A former
political appointee argued that the rule
‘‘is an attempt to usurp Presidential
authority by the bureaucrats in the
Executive Branch sworn to serve the
Constitution.’’ Comment 45. Comments
462 and 2012 (submitted by the same
individual) argued that ‘‘[a]ll employees
of the Executive Branch serve at the sole
discretion of the President and any
laws, rules, regulations, or guidelines
that restrict this discretionary power
subvert the authority of the U.S.
Constitution and as such are
unconstitutional.’’ As described above,
in Executive Order 14003, the President
declared that ‘‘[c]areer civil servants are
the backbone of the Federal workforce,
providing the expertise and experience
necessary for the critical functioning of
the Federal Government.’’ 198 The
President ordered that ‘‘[i]t is the policy
of the United States to protect,
empower, and rebuild the career Federal
workforce,’’ and that the Federal
Government ‘‘should serve as a model
employer.’’ The Order described
Executive Order 13957 (and Schedule
197 5
CFR 6.1(b).
FR 7231.
198 86
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F), as ‘‘unnecessary to the conditions of
good administration,’’ and therefore
revoked Executive Order 13957 because
it ‘‘undermined the foundations of the
civil service and its merit system
principles, which were essential’’ to the
Pendleton Act’s ‘‘repudiation of the
spoils system.’’ Far from usurping the
President’s authority, this rule
effectuates the discretionary authority
and policy positions of the President.
Also, while it is true that the
President has broad and significant
authority over the civil service, such as
the power to create excepted service
schedules when ‘‘necessary’’ and when
‘‘conditions of good administration
warrant’’ or direct OPM to issue
regulations, it is not the case that all
employees of the Executive Branch
serve ‘‘at the sole discretion’’ of the
President. This argument disregards 140
years of precedent and the role of
Congress in shaping the civil service—
which is tasked with executing
Congressional programs—as expressed
most notably in the Pendleton Act, the
Lloyd-La Follette Act, the CSRA, and
other statutory changes designed to
protect the civil service from actions
contrary to merit.
Comments 2866, a legal organization,
and 4097, an advocacy nonprofit
organization, made a related argument
that this final rule would violate
Supreme Court precedent in Free
Enterprise Fund, which the commenters
argued ‘‘held that the President has
general authority to remove
subordinates, and it is unconstitutional
to shield inferior officers from
Presidential control.’’ These comments
suggest that OPM’s construction in this
final rule would ‘‘give inferior officers
with substantive policymaking or
administrative authority binding
removal protections.’’ As previewed in
Section III(E), above, relating to a
similar comment, nothing in this rule
conflicts with Free Enterprise Fund or
its progeny.
First, these comments are mistaken in
their assertion that ‘‘many senior career
officials are inferior officers.’’ OPM is
not aware of any judicial decision
holding so and the comments cite none.
Instead, the comments cite Justice
Breyer’s dissent in Free Enterprise
Fund, which listed several civil service
positions that the dissent worried might
be imperiled and subject to at-will
removal under the majority’s analysis.
The majority, however, responded to
Justice Breyer’s concerns by explaining
that ‘‘none of the [civil service]
positions [the dissent] identifies are
similarly situated to the [PCAOB].’’ 199
199 561
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The Court went on to clarify that ‘‘many
civil servants within independent
agencies would not qualify as ‘Officers
of the United States’ ’’ because they do
not ‘‘ ‘exercise[e] significant authority
pursuant to the laws of the United
States.’ ’’ 200 Neither the comments nor
the Free Enterprise dissent explained
which, if any, civil service positions
might exercise such ‘‘significant
authority,’’ or which are ‘‘established by
law.’’ 201 That is not surprising, as even
in 1879, ninety percent of the
government’s workforce was
undoubtedly composed of employees
rather than officers, and ‘‘[t]he
applicable proportion has of course
increased dramatically since’’ then.202
Second, inferior officer status, even
where it applies, does not require
employees to be at will. The Supreme
Court has consistently upheld for-cause
and good-cause removal restrictions for
inferior officers. Over 130 years ago, the
Supreme Court held that Congress may
constitutionally provide removal
restrictions to inferior officers in the
military. In United States v. Perkins,203
an inferior officer in the Navy
challenged his removal without cause as
unlawful, as Congress had provided that
such inferior officers could be removed
in peacetime only pursuant to a courtmartial sentence.204 The Supreme Court
agreed, holding that it ‘‘ha[d] no doubt’’
that Congress ‘‘may limit and restrict the
power of removal’’ for inferior
officers.205
Perkins was consistent with the
contemporaneous judgment of both
Congress and the President that meritbased appointments and removals from
federal positions were in the Nation’s
interest. When Congress enacted the
Pendleton Act, it provided for meritbased selection and prohibited removal
based on partisan politics 206 and those
removal restrictions applied to inferior
officers appointed by the President.207
President McKinley strengthened those
removal restrictions by amending the
Civil Service rules to prohibit removals
‘‘except for just cause and upon written
charges filed with the head of the
department.’’ 208 And Congress soon
thereafter codified those restrictions to
provide that ‘‘no person’’ in the Civil
200 Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126
(1976)).
201 U.S. art. II, § 2, cl. 2.
202 561 U.S. at 506 n.9. (citing United States v.
Germaine 99 U.S. 508, 509 (1879)).
203 116 U.S. 483 (1886).
204 Id. at 483–84.
205 Id. at 485.
206 22 Stat. 403, 403–04 (1883).
207 See 29 Cong. Rec. 416–17 (1897).
208 United States v. Wickersham, 201 U.S. 390,
398 (1906).
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Service may be removed ‘‘except for
such cause as will promote the
efficiency of said service.’’ 209
Those longstanding removal
restrictions constitutionally apply to
inferior officers. In United States v.
Arthrex, Inc.,210 as discussed above, the
Supreme Court explained that
administrative patent judges can
properly serve as inferior officers with
restrictions on their removal, so long as
their decisions are subject to review by
a superior who is accountable to the
President. Although the Federal court of
appeals had invalidated the officers’
removal restrictions,211 the Supreme
Court reinstated them.212 Arthrex is just
another decision confirming the
principle that Congress may permissibly
restrict removal of inferior officers, as it
has for over a century.
Indeed, the independent counsel in
Morrison v. Olson,213 constitutionally
enjoyed a restriction on her removal
except for ‘‘good cause.’’ 214 By statute,
the independent counsel had ‘‘full
power and independent authority to
exercise all investigative and
prosecutorial functions and powers of
the Department of Justice,’’ could
conduct ‘‘grand jury proceedings and
other investigations,’’ could pursue
‘‘civil and criminal’’ litigation, and
could appeal any adverse court
decisions.215 The Supreme Court
nonetheless held that the independent
counsel was constitutionally
subordinate to the Attorney General
because, ‘‘[m]ost importantly, the
Attorney General retains the power to
remove the counsel for ‘good cause,’ a
power that we have already concluded
provides the Executive with substantial
ability to ensure that the laws are
‘faithfully executed.’ ’’ 216 Accordingly,
the Court held that the independent
counsel properly served as an inferior
officer, and that the removal restriction
‘‘does not violate the separation-ofpowers.’’ 217 And Free Enterprise Fund
confirmed that the holdings in Morrison
and Perkins continue to stand for the
proposition that Congress may enact
certain ‘‘restrictions on the power of
principal executive officers—themselves
responsible to the President—to remove
their own inferiors.’’ 218
209 Lloyd La-Follette Act, Public Law 62–336, sec.
6, 37 Stat. 539, 555 (1912).
210 141 S. Ct. 1970, 1986–87 (2021).
211 Id. at 1987.
212 Id.
213 487 U.S. 654 (1988).
214 Id. at 663.
215 Id. at 662.
216 Id. at 696.
217 Id. at 697.
218 561 U.S. at 483.
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Third, these comments suggest that
inferior officers within independent
agencies cannot have any removal
restrictions. Both the Trump and Biden
Administrations, however, have
consistently taken the position that
inferior officers within independent
agencies can constitutionally have
removal restrictions.219 As the Solicitor
General explained in 2018, when
inferior officers within an independent
agency can be removed for ‘‘failure to
perform adequately or to follow agency
policies,’’ such removal restrictions
‘‘afford[ ] a constitutionally sufficient
degree of accountability and Executive
Branch control.’’ 220
The comments’ comparisons of civil
service removal restrictions to those at
issue in Free Enterprise Fund fail to
describe the materially significant
difference in degree of those
restrictions. The inferior officers in Free
Enterprise Fund could be removed only
for willful violations of federal
securities laws, willful abuse of
authority, or failure to enforce
compliance with the securities laws
‘‘without reasonable justification or
excuse.’’ 221 Thus, the inferior officers of
the PCAOB could not be removed ‘‘for
violations of other laws,’’ and could not
be removed even if they were to
‘‘cheat[ ] on [their] taxes.’’ 222 Those
‘‘rigorous’’ removal restrictions,223
applied to the Board’s inferior officers,
who had ‘‘significant independence in
determining [their] priorities and
intervening in the affairs of regulated
firms (and the lives of their associated
persons) without . . . preapproval or
direction’’ by any other officer.224 By
contrast, members of the civil service
can be removed for ‘‘the efficiency of
the service,’’ 225 subject to the civil
service’s prohibited personnel practices
which, as a general matter, is both good
policy and constitutional. And members
of the civil service are overseen by other
officers within the Executive Branch,
who can direct policy and approve or
disapprove of their actions. The Court in
Free Enterprise Fund noted that the
removal provisions that apply to the
more general civil service are
substantially different from the stringent
removal restrictions for the PCAOB, and
the Court made clear that ‘‘[n]othing in
our opinion’’ should ‘‘be read to cast
219 See, e.g., Resp. Br. 45–55, Lucia v. SEC, No.
17–130 (U.S. Feb. 21, 2018); Petr. Br. 44–65, SEC
v. Jarkesy, No. 22–859 (U.S. Aug. 28, 2023).
220 Resp. Reply Br. 17, Lucia v. SEC, No. 17–130
(U.S. Apr. 16, 2018).
221 561 U.S. at 486 (quoting 15 U.S.C. 7217(d)(3)).
222 Id. at 503.
223 Id.
224 Id. at 505.
225 5 U.S.C. 7513(a).
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doubt on the use of what is colloquially
known as the civil service system
within independent agencies.’’ 226
Other commenters supportive of the
rule argued that it in no way infringes
on the President’s legal authority.
Comment 422, an individual, explained
that ‘‘the proposed rule does not
eliminate the ability of the executive to,
within the confines of legislation,
execute policy decisions or discretion’’
and ‘‘the proposed provisions retain the
distinction between the career civil
service and political/excepted
appointments, who retain their abilities
to direct policy within the delegation of
authority provided to by law.’’ As
explained above, OPM agrees that the
President has significant power over the
civil service and this final rule does not
infringe on those powers. Instead, it
makes regulatory changes, in line with
OPM’s authorities (some conferred
directly by Congress and others
conferred by the President, by redelegation of an authority conferred
upon him by Congress) to clarify and
reinforce statutory texts and advance the
President’s policy, as stated in
Executive Order 14003, ‘‘to protect,
empower, and rebuild the career Federal
workforce.’’
Comments Regarding Regulatory
Justifications
Some commenters argued that the
rule is procedurally unlawful because it
is a pretext to block Schedule F.
Comment 164, a form comment, stated
that ‘‘[t]he attempt to counter Schedule
F through this rule amounts to a Deep
State Protection Scheme that would
undemocratically undermine to [sic]
core constitutional principle that
executive power is vested in the
president.’’ Comment 101, another form
comment, stated there is a ‘‘discrepancy
between the stated purpose of the rule
and its actual intended purpose’’ which,
the comment contends, is to prevent
Schedule F. Comment 1958, an
advocacy nonprofit organization, argued
that ‘‘[r]egulations are supposed to be
responsive to specific problems. OPM’s
proposal is not an attempt to address an
ongoing, active problem. Instead, it is a
blatant defensive play’’ against
Schedule F. Comments 2866, a legal
organization, and 3156 argued that
Department of Commerce v. New
York 227 held that the stated intent
behind the actions of executive agencies
cannot be different from the agencies’
actual motivation.’’ They also argue that
‘‘OPM’s stated intent of enhancing
efficiency is demonstrably different
226 561
227 139
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from their actual motivation of
impeding future implementation of
Schedule F to undermine future
administrations.’’
As explained extensively in the
proposed rulemaking and in this final
rule, OPM set forth a variety of reasons
for promulgating this final rule. And, far
from hiding concerns about Schedule F,
the proposed rulemaking includes
extensive discussion 228 about the prior
Schedule F and OPM’s view that its
implementation would have constituted
a stark and unwarranted departure from
140 years of civil service protections
and merit system principles. The
proposed rule and this final rule note
that Schedule F sought to exploit the
exception in section 7511(b)(2). As
observed in the proposed rule 229 and by
several commenters responding to that
notice,230 however, Congress, OPM, and
other agencies had long understood the
meaning of the phrase ‘‘confidential,
policy-determining, policy-making, or
policy-advocating character’’ to be a
gloss on the description of positions that
could be placed in Schedule C of the
excepted service at 5 CFR 213.3301(a),
i.e., ‘‘positions of a confidential or
policy-nature.’’ In light of the issuance
of Executive Order 13957, and its
departures from the common
understanding of the meaning of section
7511(b)(2), OPM determined to issue
this rule. Among other reasons, the rule
elucidates the proper scope of the
exception in 5 U.S.C. 7511(b)(2) and
clarifies any confusion that may have
been introduced by the promulgation of
the now-revoked order and schedule.
OPM is authorized by Congress and
the President, throughout title 5, to
regulate the civil service and carry out
the purposes of the civil service statutes.
OPM does not and cannot prevent a
President from creating excepted service
schedules or from moving employees,
and this rule does not do that. Instead,
the rule promulgates certain definitions
clarifying the meaning of statutory
language based on longstanding
legislative history and intent, legal
precedent, and past practices.
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IV. Regulatory Amendments and
Related Comments
In this section, OPM discusses the
regulatory amendments to 5 CFR parts
210, 212, 213, 302, 432, 451, and 752
and related comments. The first
subsection discusses the retention of
status and civil service protections upon
228 See
88 FR 63862, 63867–69, 63874, 63878.
229 Id. at 63883.
230 See, e.g., Comment 2134, a joint comment by
a nonprofit organization and former federal official,
at pp. 12–33.
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an involuntary move to or within the
excepted service (revisions to parts 212
and 752). The second discusses the
definition for positions of a
‘‘confidential, policy-determining,
policy-making or policy-advocating’’
character as used in 5 U.S.C. 7511(b)(2)
(revisions to parts 210, 213, 302, 432,
451, and 752). And the third discusses
processes for moving employees and
positions to or within the excepted
service and related appeal rights
(revisions to part 302).
A. Retention of Status and Civil Service
Protections Upon a Move
OPM amends 5 CFR part 752 (Adverse
Actions) to reflect OPM’s longstanding
interpretation of 5 U.S.C. 7501 and 7511
and the congressional intent underlying
the statutes, including exceptions to
civil service protections outlined in 5
U.S.C. 7511(b). These amendments
clarify that ‘‘employees,’’ under 5 U.S.C.
7501, 7511(a), in the competitive service
or excepted service will retain the rights
previously accrued upon an involuntary
move from the competitive service to
the excepted service, or from one
excepted service schedule to another, or
any subsequent involuntary move,
unless the employee relinquishes such
rights or status by voluntarily
encumbering a position that explicitly
results in a loss of, or different, rights.
The rule also conforms the regulation
for non-appealable adverse actions with
statutory language in 5 U.S.C. 7501 and
Federal Circuit precedent to clarify
which employees are covered. OPM
amends 5 CFR part 212 (Competitive
Service and Competitive Status) to
further clarify a competitive service
employee’s status in the event the
employee and/or their position is
moved involuntarily to Schedules A, B,
C, or any schedule created after the
promulgation of this rule.
A voluntary movement is generally
characterized by an employee initiating
a reassignment, conversion, or transfer
by pursuing and accepting an offer to
serve in a different position, either at
the employee’s own agency or another
Federal agency. A voluntary move may
extinguish accrued rights, depending on
the circumstances of each such
situation.231 If, on the other hand, an
agency initiates an action to move the
employee’s position from the
competitive service to the excepted
service or from one schedule in the
excepted service to another, based on
231 See, e.g., Garcia v. Dep’t of Homeland Sec.,
437 F.3d 1322, 1328 (Fed. Cir 2006); Shoaf v. Dep’t
of Agriculture, 260 F.3d 1336, 1341–42 (Fed. Cir.
2001); Staats v. U.S. Postal Serv., 99 F.3d 1120,
1123 (Fed. Cir. 1996) (regarding voluntariness in the
retirement context).
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25009
the nature of the position, that
movement will be regarded as
involuntary, vis a vis the incumbent,
and should not affect previously
accrued rights. Similarly, if an employee
is reassigned to a different position by
the agency, on the agency’s own
initiative, to better meet agency needs,
the reassignment or conversion will be
regarded as involuntary and should not
affect previously accrued rights.
As noted above in Section III(B),
adverse action protections and related
eligibility and procedures are covered in
5 U.S.C. chapter 75. Subchapter I covers
suspensions for 14 days or less and 5
U.S.C. 7501 defines ‘‘employee’’ for the
purposes of adverse action procedures
for suspensions of this duration. Under
5 U.S.C. 7504, OPM may prescribe
regulations to carry out the purpose of
subchapter I. Subchapter II covers
removals, suspensions for more than 14
days, reductions in grade or pay, or
furloughs for 30 days or less. In
subchapter II, 5 U.S.C. 7511 defines
‘‘employee’’ for the purposes of
entitlement to adverse action
procedures. Under 5 U.S.C. 7514, OPM
may prescribe regulations to carry out
the purposes of subchapter II except as
it concerns any matter where the MSPB
may prescribe regulations.
Performance-based actions under
chapter 43 and related eligibility and
processes are covered in 5 U.S.C. 4303.
Section 4303(e) defines when an
employee is entitled to appeal rights to
the MSPB. Chapter 43 cross-references
chapter 75, providing that any employee
who is a preference eligible, in the
competitive service, or covered by
subchapter II of chapter 75, and who has
been reduced in grade or removed under
section 4303, is entitled to appeal the
action to the MSPB under 5 U.S.C. 7701.
Under 5 U.S.C. 4305, OPM may issue
regulations to carry out subchapter I of
chapter 43.
OPM received several overarching
comments regarding the proposed
changes to Parts 212 and 752. OPM will
discuss these comments, followed by
specific comments related to these
regulatory changes.
Comment Regarding the History of
Status and Rights Upon an Involuntary
Move
A joint comment from a nonprofit
organization and a former federal
official provided an extensive history of
retention of accrued status and civil
service protections upon the
involuntary movement to an excepted
service schedule or within the excepted
service and agreed with OPM that this
rulemaking would reinforce and clarify
the longstanding legal interpretations
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and practice pertaining to employees’
retention of accrued civil service status
and protections. See Comment 2134.
Commenter concluded that OPM’s
proposed regulatory provisions on
retention are a clarification, rather than
an expansion, of rights. Because of its
thorough citation to facts and sources
relevant to these regulatory changes,
OPM will summarize portions of the
comment here.
Commenter began the analysis with a
detailed historical treatment of status
and civil service protections and then
turned to Roth v. Brownell,232 a key
precedent on this issue, and its progeny.
Commenter detailed that, before Roth,
the enactment of the Veterans
Preference Act of 1944 enhanced the
civil service rights of preference eligible
employees. Consistent with the
Ramspeck Act of 1940 and applicable
executive orders,233 the CSC’s
regulations at the time acknowledged
that some employees in excepted
service positions enjoyed competitive
status.
Commenter noted that, in 1950, the
United States Court of Claims reviewed
the CSC’s regulations applicable to
nonveterans and explained that
‘‘employees serving under other than a
probational or temporary appointment
in the competitive service, and
employees having a competitive status
who occupy positions in Schedule A
and B, shall not be removed or demoted
except for such cause as will promote
the efficiency of the service and in
accordance with set procedures.’’
(emphasis in original).234
In 1953, President Eisenhower created
Schedule C in Executive Order 10440,
which purported to strip employees,
‘‘[e]xcept as may be required by the
Veterans’ Preference Act,’’ of accrued
procedural protections upon their
movement to Schedule C.235 President
232 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub
nom, Brownell v. Roth, 348 U.S. 863 (1954).
233 Citing Ramspeck Act, Public Law 76–880, sec.
1, 54 Stat. 1211 (1940), https://www.loc.gov/
resource/llsalvol.llsal_054/?sp=1245&st=image;
E.O. 9830 (Feb. 24, 1947), https://
www.archives.gov/federal-register/codification/
executive-order/09830.html; E.O. 8743 (Apr. 23,
1941), https://www.archives.gov/federal-register/
codification/executive-order/08743.html.
234 Citing Lamb v. United States, 90 F. Supp. 369,
372–73 (Ct. Cl. 1950) (‘‘[W]e conclude that a
government employee having competitive status
and serving in an excepted position in Schedule A,
must be separated from such position in accordance
with the Civil Service Regulations, regardless of the
length of time he has occupied such excepted
position.’’).
235 Citing E.O. 10440, sec. 6.4 (Mar. 31, 1953)
(‘‘Except as may be required by the Veterans’
Preference Act, the Civil Service Rules and
Regulations shall not apply to removals from
positions listed in Schedule C or from positions
excepted from the competitive service by statute.
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Eisenhower then issued Executive Order
10463, which purported to remove
accrued procedural protections from
employees in Schedule A, as well. An
unfavorable decision in Roth v.
Brownell would later lead President
Eisenhower to revoke and replace both
executive orders.
Commenter explained that, in Roth,
the D.C. Circuit considered a decision
by Attorney General Herbert Brownell to
challenge these civil service protections.
Though plaintiff, Roth, had been
appointed to the competitive service
under the Ramspeck Act and President
Roosevelt’s 1941 Executive Order, a
1947 order by President Truman moved
his position to a reestablished Schedule
A. In 1953, the Eisenhower
Administration moved his Schedule A
position to Schedule C and purported to
remove his civil service status and
procedural protections. The Executive
Director of the CSC had stated in a letter
to Roth that career employees whose
jobs were moved to Schedule C retained
their civil service protections. The D.C.
Circuit ruled for plaintiff and ordered
his reinstatement. The court held that
neither of these moves stripped Roth of
the competitive status and protections
he had accrued, explaining that ‘‘[t]he
power of Congress thus to limit the
President’s otherwise plenary control
over appointments and removals is
clear,’’ and ‘‘[i]t is immaterial here that
the President has long been ‘authorized
to prescribe such regulations for the
admission of persons into the civil
service of the United States as may best
promote the efficiency thereof . . .
[because] [c]omplete control over
admissions does not obviate the removal
requirements of the Lloyd-La Follette
Act.’ ’’ 236
Commenter explained that, a month
after the Roth decision, President
Eisenhower issued Executive Order
10577, revoking Executive Orders 10440
and 10463.237 The new Executive Order
provided that ‘‘an employee who is in
the competitive service at the time his
position is first listed under Schedule A,
B, or C shall be considered as
continuing in the competitive service as
long as he continues to occupy such
position.’’ In January 1955, the CSC
issued new guidance consistent with the
The Civil Service Rules and Regulations shall apply
to removals from positions listed in Schedules A
and B of persons who have competitive status,
however they may have been or may be
appointed.’’), https://www.presidency.ucsb.edu/
documents/executive-order-10440-amendmentcivil-service-rule-vi.
236 Roth, 215 F.2d at 501–02.
237 Citing E.O. 10577 (Nov. 23, 1954), https://
www.presidency.ucsb.edu/documents/executiveorder-10577-amending-the-civil-service-rules-andauthorizing-new-appointment.
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court’s order in Roth and Executive
Order 10577, redefining for Federal
agencies the coverage of the competitive
civil service and the removal protection
of certain Federal employees under the
Lloyd-La Follette Act. The CSC
explained that an employee who is
serving with competitive status in a
competitive position at the time his
position is listed under Schedules A, B,
or C, continues to be in the competitive
service during his occupancy of that
position (thus the employee is entitled
to the removal protection of the LloydLa Follette Act, which applies to the
competitive civil service). The CSC also
explained that, where proposed
appointees to a Schedule A, B, or C
position are serving in the competitive
service, the employees shall not be
appointed until they are advised in
writing that acceptance of the excepted
appointment will result in their leaving
the competitive service. This will put
the employees clearly on notice that,
upon acceptance of the excepted
position, they will no longer be under
the protection of the Lloyd-La Follette
Act.238 A few days after this issuance,
the CSC published a Federal Register
notice to codify the Eisenhower
Administration’s recognition of these
rights.239
In giving its instructions to agencies
about movement of employees after
January 23, 1955, to Schedule A, B, or
C positions, the CSC also took steps to
protect employees who were moved
prior to that time. It stated that
employees in three groups who were
moved prior to January 23, 1955, would
still be considered to be in the
competitive service.240
Commenter showed that
contemporaneous legal analyses, such
as a 1955 law review article, concluded
that Roth had confirmed the durability
of personally accrued status, at least in
the case of an involuntary move.241 That
same year, the Comptroller General
demonstrated the broad applicability of
Roth by confirming the appropriateness
of the National Labor Relations Board’s
award of backpay to a similarly situated
238 Citing Press Release, U.S. Civil Sev. Comm’n,
1 (Jan. 24, 1955).
239 Citing Appeals from Employees Entitled to But
Denied Protection of Lloyd-La Follette Act, Civil
Serv. Comm’n Prop. Reg. 5 CFR pts. 9 &20, 20 FR
599, 601 (Jan. 28, 1953), https://archive.org/details/
sim_federal-register-find_1955-01-28_20_20/mode/
2up.
240 Citing Press Release, U.S. Civil Serv. Comm’n,
pp. 1–2 (Jan. 24, 1955).
241 Citing De Seife, Rodulphe, 5 Cath. U.L. Rev.
110 (1955), https://scholarship.law.edu/cgi/
viewcontent.cgi?article=3073&context=lawreview.
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employee who had been improperly
removed.242
On May 12, 1955, the CSC highlighted
the difference between an employee’s
voluntary and involuntary movement to
Schedule C, explaining that under civil
service rules, ‘‘a vacant Schedule C job
may not be filled by the appointment of
an employee serving in the competitive
service until the employee has been
given notice in writing that acceptance
of the position will result in his leaving
the competitive service. Leaving the
competitive service would result in his
giving up the job-removal protections of
the Lloyd La Follette Act.’’ On the other
hand, ‘‘if an occupied job in the
competitive civil service is moved to
Schedule C, an incumbent who has
civil-service status continues to have the
removal protection of the Lloyd-La
Follette Act during his occupancy of the
position.’’ 243
As commenter demonstrated, the next
several presidential administrations did
not differ in their interpretation
regarding the retention of status and
rights. Under President Lyndon
Johnson, for example, the CSC codified
the principle of retained status at 5 CFR
212.401(b).244 OPM notes that this
regulation remained unchanged until
this final rule, which, consistent with
the intent of the original regulation,
modifies the regulation to cover any
newly created schedules.
Under President Ford, the CSC
acknowledged the continuing relevance
of Roth in a memorandum emphasizing
that employees retained accrued status
and civil service protections upon
movement to positions designated as
confidential or policy-determining.245 A
related handout for officials with
presidential transition responsibilities
explained that Schedule C employees
with status were entitled to appeal their
removal to the CSC under the
commission’s regulations at 5 CFR part
752.246
242 Citing Gov. Accountability Off., Op. for Guy
Farmer, Chairman, NLRB (July 25, 1955), https://
www.gao.gov/products/b-123414.
243 Citing Press Release, U.S. Civil Serv. Comm’n,
3 (May. 12, 1955).
244 Citing Revision of Regulations, U.S. Civil Serv.
Comm’n, Final Reg. 5 CFR ch. I, subch. B (other
than pt. 213), 33 FR 12402–08 (Sep. 4, 1968) (‘‘An
employee in the competitive service at the time his
position is first listed under Schedule A, B, or C
remains in the competitive service while he
occupies that position.’’), https://
archives.federalregister.gov/issue_slice/1968/9/4/
12396-12526.pdf#page=23.
245 Citing Memo. from Raymond Jacobson, Exec.
Dir., CSC, 5 (Nov. 10, 1976), https://
www.fordlibrarymuseum.gov/library/document/
0067/1563179.pdf.
246 Citing CSC, Procedures for Removals from
Excepted Positions, p. 2 (1976), https://
www.fordlibrarymuseum.gov/library/document/
0067/1563179.pdf.
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Still further, a decade after enactment
of the CSRA, and during the Reagan
Administration, OPM issued a
government-wide advisory that cited
Roth as establishing the guiding
principle for removing employees with
status from Schedule C positions,
explaining that an employee who was
serving in a position in the competitive
service when OPM authorized its
conversion to Schedule C and who is
still serving in that position may be
removed from that position only ‘‘for
such cause as will promote the
efficiency of the service’’ and in
accordance with the procedures
established by 5 U.S.C. 7511 et seq. and
part 752 of OPM’s regulations.247
Commenter also referenced
subsequent cases and administrative
opinions where this reasoning
prevailed. For instance, in Saltzman v.
United States,248 the Court of Claims
held that the plaintiff, despite
occupying a position that was now in
the excepted service, was entitled to the
civil service protections afforded to
competitive service employees,
explaining that ‘‘Plaintiff never lost the
rights he acquired under the Lloyd La
Follette Act when he acquired
permanent competitive status in the
classified civil service.’’
Commenter then discussed Stanley v.
Department of Justice,249 where the
Federal Circuit reviewed the adverse
action rights of term-limited Bankruptcy
Trustees who were moved into
Schedule C because they were
proclaimed to be encumbering positions
that were ‘‘confidential, policydetermining, policy-making or policyadvocating’’ in character. As explained
below in response to another contention
in Comment 4097, this 2005 ruling was
entirely consistent with the
longstanding view that an employee
cannot be stripped of status
involuntarily but can waive it
voluntarily.
Analogous principles apply to
employees subject to transfers of
functions.250 In 1980, for instance, the
Comptroller General agreed with OPM
guidance determining ‘‘that employees
who transfer to the Peace Corps would
be transferred incident to a transfer of
functions and accordingly would retain
their status as employees with
247 Citing Memo. from Constance Horner, Dir.,
U.S. Off. of Pers. Mgmt. to heads of departments
and agencies, ‘‘Civil Service and Transition to a
New Presidential Administration,’’ pp. 8–9 (Nov.
30, 1988), https://www.cia.gov/readingroom/docs/
CIA-RDP90M01364R000800330004-0.pdf.
248 161 Ct. Cl. 634 (1963).
249 423 F.3d 1271 (Fed. Cir. 2005), cert. denied,
547 U.S. 1098 (2006).
250 See 5 U.S.C. 3503, 5 CFR 351.301–302.
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competitive civil service appointments
notwithstanding that the Peace Corps’
appointment authority is solely under
the Foreign Service Act of 1946 as
amended.’’ 251
Further, the MSPB has held that a
determination under 5 U.S.C. 7511(b)(2)
is not adequate unless it is made before
the employee is appointed to the
position.252 The MSPB has also required
agencies to follow applicable
procedures when making
determinations under 5 U.S.C.
7511(b)(2). In Blalock v. Department of
Agriculture,253 for example, the MSPB
rejected an agency’s claim that it had
removed employees from their Schedule
A positions by reduction-in-force (RIF)
procedures and appointed them to new
Schedule C positions. It found that this
RIF was improper and the redesignation
was not a ‘‘reorganization.’’ Therefore,
the agency could not have conducted a
RIF and the agency’s abolishment of
their Schedule A positions constituted
individual adverse actions against the
incumbents. The MSPB directed the
agency to reinstate preference eligible
employees whom it had separated
without adhering to applicable adverse
action procedures.
OPM appreciates Comment 2134
providing such extensive and detailed
factual history and agrees with the
comment’s analyses and conclusion that
251 Citing Matter of Clement J. Zalocki, House of
Reps., B–19818 L/M, 1980 WL 16731 (Comp. Gen.
1980), https://www.gao.gov/products/b-198187-lm.
252 Citing Thompson v. Dep’t of Justice, 61
M.S.P.R. 364 (Mar. 30, 1994) (No. DE–1221–92–
0182–W–1), subsequent history at 70 M.S.P.R. 251,
aff’d, 106 F.3d 426 (Fed. Cir. 1997), Chambers v.
Dep’t of the Interior, No. DC–0752–004–0642–M–2,
2011 WL 81797 (M.S.P.B. Jan. 11, 2011) (Member
Rose concurring) (inadvertently citing paragraph
(b)(8) instead of (b)(2): ‘‘For the section 7511(b)(8)
exclusion to be effective as to a particular
individual, the appropriate official must designate
the position in question as confidential, policydetermining, policy-making, or policy-advocating
before the individual is appointed.’’); Owens v.
Dep’t of Health & Human Servs., 2017 WL 3400172
(July 31, 2017) (No. AT–0752–17–0516–I–1) (citing
Briggs for the proposition that ‘‘a determination
under 5 U.S.C. 751l(b)(2) is not adequate unless it
is made before the employee is appointed to the
position’’); Vergos v. Dep’t of Justice, 2003 WL
21417091 (June 6, 2003) (No. AT–0752–03–0372–I–
1) (citing Thompson for the proposition that a
‘‘determination under the 5 U.S.C. 7511(b)(2) is not
adequate unless it is made before the employee is
appointed to the position’’). See also King v. Briggs,
83 F.3d 1384, 1387 (Fed. Cir. 1996) (noting, in
affirming a Board decision reinstating the Executive
Director of the Council on Disabilities, that the
administrative judge who adjudicated the Director’s
appeal had found that ‘‘the Council ‘had never
made a determination that [Briggs’] position was a
confidential, policy-making, policy-determining, or
policy-advocating position,’ and thus excluded
from the definition of employee in section 7511(a),’’
and ‘‘even if the Council had made such a
determination, ‘it never communicated that fact’ to
Briggs.’’).
253 28 M.S.P.R. 17, 20 (1985), aff’d sub nom.,
Huber v. MSPB, 793 F.2d 284 (Fed. Cir. 1986).
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‘‘OPM correctly characterized as
‘longstanding’ the executive branch’s
interpretations of sections 7501 and
7511 of title 5, as well as the
congressional intent as to the meanings
of those sections.’’
Comments Regarding Property Interests
in a Position and the Retention of
Accrued Status and Rights Upon an
Involuntary Move
A coalition of national and local
unions agreed with OPM’s contention in
the proposed rule,254 as recognized in
Supreme Court precedent, that in light
of congressional enactments creating
various prerequisites to a removal for
employees who meet specified
conditions, employees can earn a
property interest in their positions once
they satisfy their probationary/trial
period or their durational requirement
of current continuous service under 5
U.S.C. 7511 and retain those rights upon
an involuntary move from the
competitive service to the excepted
service or within the excepted service.
See Comments 41.
Commenters supportive of the rule
argued that the President cannot take
away a vested property right through an
executive order. The same coalition of
national and local labor unions wrote
that no President, through an
‘‘Executive Order or other action can
override the Constitution or Chapter 75’’
and remove the property interest that
certain career employees accrue in their
continued federal employment. See
Comment 41. A former federal official
argued that OPM’s rulemaking regarding
part 752 would help protect career civil
servants against ‘‘arbitrary adverse
actions while serving in their positions’’
and would help preserve those
employees’ protections even when a
competitive service position is moved
into the excepted service. See Comment
2816. Commenter continued that this
rule would reduce the risk of
misapplying the civil service statutes by
using rescheduling to bypass civil
service protections. OPM agrees with
the contention regarding property rights
and the expected benefits of this rule.
A commenter opposed to the rule
argued that the President can use
rescheduling to eliminate civil service
protections. Comment 4097 conceded
that OPM accurately explains in the
proposed rule that the Supreme Court
has held that civil service protections
give government employees a property
interest in their job, and that those same
cases also state that the government
cannot constitutionally remove these
property interests without due process.
254 See
88 FR 63862, 63865–66, 63877.
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Commenter contended, nevertheless,
that the government can eliminate civil
service procedures and, in doing so,
extinguish the underlying property
interest previously created. The cases
and examples commenter cited in
support (see Comment 4097, fn. 8),
however, involve state legislative action,
not executive action, to alter or remove
civil service protections. This appears to
be in line with Loudermill which
instructs that a ‘‘legislature may elect
not to confer a property interest in
public employment, [but] it may not
constitutionally authorize the
deprivation of such an interest once
conferred, without appropriate
procedural safeguards.’’ 255 Federal
appellate courts have held that rights
conferred on state employees by
legislative action can be revoked, but
that revocation also requires legislative
action.256 Also, it is unclear which, if
any, cited cases removed protections
from incumbents as opposed to
unencumbered positions, which could
run contrary to Roth and its progeny as
explained above.
Commenter also argued that, in light
of section 7511(b)(2), courts have held
that federal agencies can declare
positions policy-influencing and
thereby eliminate civil service removal
requirements that previously attached,
citing Stanley v. Department of
Justice 257 and Stanley v. Gonzales.258
OPM disagrees with commenter’s
characterization of these two cases, in
which the Federal and Ninth Circuits
heard challenges to the removal of two
U.S. Trustees who were serving fiveyear terms. The original text of the
statutory provision concerning U.S.
Trustees, 28 U.S.C. 581, provided that
the Attorney General could remove a
U.S. Trustee only for cause.259 In 1986,
however, Congress amended the statute
to eliminate the ‘‘for cause’’
requirement.260 At the time the trustees
were initially appointed, no Attorney
General had made a determination that
the position should be considered
confidential, policy-determining,
policy-making, or policy-advocating.
Later, however, Attorney General Janet
Reno declared U.S. Trustee positions to
be ‘‘confidential, policy-determining,
policy-making or policy-advocating’’ in
character, and therefore not subject to
255 470
U.S. at 541.
e.g., id.; Correa-Ruiz v. Fortuno, 573 F.3d
1, 14–15 (1st Cir. 2009); Gattis v. Gavett, 806 F.2d
778, 779–81 (8th Cir. 1986).
257 423 F.3d 1271 (Fed. Cir. 2005), cert. denied,
547 U.S. 1098 (2006).
258 476 F.3d 653 (9th Cir. 2007).
259 423 F.3d at 1273–74.
260 Id.
256 See,
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chapter 75’s protections.261 Several
years later, Attorney General John
Ashcroft fired the Trustees.262
Commenter argued that the ‘‘courts
upheld these dismissals because the
trustees now occupied policyinfluencing positions; they no longer
had MSPB appeal rights.’’ But this
glosses over the actual facts of these
cases. As noted by Comment 2134, and
as explained in Stanley v. Department
of Justice, even though Attorney General
Reno made this determination, the
Department of Justice acknowledged in
writing ‘‘that Trustees appointed prior
to the proclamation would not be
affected—they would retain appeal
rights—but that all those appointed after
the proclamation were exempt from the
due process provisions contained in
Title 5.’’ 263 And these appointments
were subject to a term of five years.
Accordingly, any rights in the original
appointment would have ended at the
end of that term. The initial five-year
terms of these two Trustees later
expired. When the individuals affected
voluntarily accepted new appointments
to subsequent five-year terms, those
appointments were now subject to
Attorney General Reno’s intervening
determination that the positions were
confidential, policy-determining,
policy-influencing, or policyadvocating. During the Trustees’ second
five-year term, a new presidential
administration removed them. The
Federal Circuit found that the
intervening determination by Attorney
General Reno, before their voluntary
acceptance of a second term, deprived
them of any entitlement to particular
procedures before they could be
terminated from the positions.
Thus, far from demonstrating that
‘‘courts have held that federal agencies
can declare positions policy-influencing
and thereby eliminate civil service
removal requirements that previously
attached,’’ Stanley v. Department of
Justice demonstrates only that when
Congress excepts a position from the
competitive service by statute and
confers authority on the agency head to
remove without cause, and when the
agency head thereafter determines that
the position is policy-influencing, the
subjects of new appointments thereafter
will not be entitled to procedural or
appeal rights under chapter 75 and 5
U.S.C. 7701.
Reliance upon the related Stanley v.
Gonzales case also does not support
commenter’s position. In that case, the
Ninth Circuit affirmed a holding by a
261 Id.
at 1273.
262 Id.
263 Id.
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Federal district court that that court
lacked jurisdiction over Ms. Stanley’s
new constitutional claims arising from
the same facts. Although Ms. Stanley
argued that the CSRA did not preclude
her from pursuing relief directly under
the Constitution, the Ninth Circuit
concluded that it could not even reach
that question because she had failed to
allege a colorable constitutional claim.
More specifically, in concluding she
could not state a cognizable property
interest in her position, the Ninth
Circuit focused on the key details that
Stanley was on a time-limited second
appointment and that, by statute (citing
28 U.S.C. 581), she could be removed
without cause by the Attorney General.
There is nothing about these decisions
that is inconsistent with OPM’s position
that a career employee’s accrued rights
cannot be stripped involuntarily.
A former political appointee opposed
to the rule argued that OPM claimed it
is acting in accordance with statutory
text, legislative history for that text, and
Congressional intent but there is
nothing in the CSRA that states
congressional intent to preserve rights
upon a move. See Comment 45.
Commenter argued that OPM’s
rulemaking is speculative with regard to
the intent of the statutes, especially
‘‘since neither 5 U.S.C. 7501 nor 5
U.S.C. 7511 clearly state their intents’’
and ‘‘neither statute talks about or
insinuates ‘congressional intent.’ ’’ It is
unclear what this commenter is
attempting to convey. The language in
chapter 75 does not provide an explicit
definition for certain terms used therein.
OPM notes, however, that congressional
intent is not always spelled out in
statutory text, especially in a
comprehensive statute that deals with
many discrete topics. In that situation,
courts, regulated entities, and others
seeking to interpret statutory language
may look to traditional tools of statutory
interpretation, including structure,
statutory and legislative history and
other indicia of intent, as well as
relevant precedents. As explained
throughout this final rule, these statutes
have extensive statutory and legislative
history and there are precedents that
support OPM’s rulemaking. The
extensive history discussed in Comment
2134, for example, supports OPM’s rule
regarding the retention of status and
rights upon an involuntary move.
A nonprofit organization opposed to
the rule commented that 5 U.S.C. 7501
and 7511 refer to current continuous
service in a same or similar position, but
do not contemplate a move from the
competitive service to the excepted
service. See Comment 1811. The
organization asserted that OPM offers no
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case law ‘‘relevant to this specific
instance’’ and because ‘‘the current
regulations do not address this
particular situation,’’ commenter
believes rulemaking ‘‘is not the proper
way for OPM to address this concern.’’
Instead, ‘‘Congress ought to clarify
worker protection here.’’ The reference
to current continuous service relates to
how rights are accrued in the first place.
Once an employee has accrued the
requisite service, different
considerations apply with respect to the
consequences of an involuntary move of
a position or person from the
competitive to the excepted service. A
different advocacy nonprofit
organization stated that ‘‘OPM does not
have the authority to permanently
attach removal protections.’’ See
Comment 1958. Moreover, commenter
argued that ‘‘worker classifications exist
to tie different levels of protection to
different types of jobs.’’ Allowing a
worker to carry over a protection to a
new classification ‘‘undercuts the
purpose of worker classifications.’’
Commenter argued that this ‘‘provision
is a significant change in law, not a
mere clarification[.]’’
OPM will make no revisions based
upon these comments. As explained
previously, Roth held that once a
Federal employee has accrued civil
service status and procedural rights, the
employee retains the status and rights
even if the employee’s position is later
moved to an excepted service schedule
that would otherwise lack such status
and rights. Roth was consistent with the
cases that followed, such as Loudermill
and its progeny, which OPM describes
here and in the proposed rulemaking. In
the absence of specific examples, we are
unaware what commenter means by
‘‘different levels of protection’’ for
‘‘different types of jobs.’’ An
‘‘employee’’ as defined in section 7511,
who has met the requisite service
requirement, is entitled to the
procedures specified in section 7513,
whether the employee is in the
competitive service or the career
excepted service.
A nonprofit organization opposed to
the rule commented that employees
moved from the competitive service to
the excepted service should not as a
matter of policy retain their accrued
rights. Comment 1811. Commenter
asserted that the changes to part 752
would make terminations harder for
agencies by strengthening civil service
protections. OPM notes that these
revisions largely clarify the status quo
so they would not make it more difficult
to remove employees for the efficiency
of the service or pursuant to the
optional procedures in chapter 43 for
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action based on unacceptable
performance. Section 212.401(b) of this
part, promulgated in 1968, already
provides that ‘‘[a]n employee in the
competitive service at the time his
position is first listed under Schedule A,
B, or C remains in the competitive
service while he occupies that
position.’’ As noted in the proposed
rule,264 this regulation was intended to
preserve civil service protections and
adverse action rights when positions are
moved. Comment 1811 then argued that
‘‘[w]hen employees move from the
Competitive Service to the Excepted
Service, it is not logical that their
accrued worker protections should
follow them. They will report to new
supervisors, have new work, and
different responsibilities.’’ For the
reasons described above regarding
Comment 2134 and its analysis of Roth
and its progeny, OPM disagrees that
such retention of rights is illogical. On
the contrary, it is well grounded in
decades of civil service precedent and
practice. Without these protections, an
agency might try to defeat accrued rights
by reassigning individuals to new
positions in another service or schedule.
Although we believe the case law would
already make such an attempt futile, we
have chosen to clarify our regulations by
addressing the consequences of such a
move explicitly in this final rule.
Moreover, there is nothing to support
the contention that moving an employee
to the excepted service would
necessarily result in new supervisors,
new work, or different responsibilities.
Comments Regarding the Regulatory
Changes and Creation of ‘‘New Rights’’
Two commenters opposed to this rule
argued that it grants new rights that are
contrary to statute. One former political
appointee argued that ‘‘Congress has
distinguished between the competitive
service and exempted [sic] service’’ in
that they are different classifications
with different hiring processes,
responsibilities, and protections.
Comment 45. Commenter continued
that it ‘‘is unfair that civil servants who
have worked in the exempted [sic]
service for years would not have
protections, while those who had just
been moved from the competitive
service would have protections, solely
by virtue of their previous
classification.’’ We assume, for purposes
of responding to this comment, that
commenter meant to refer to the
excepted service, as there is no
264 See
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‘‘exempted service’’ category.265
Commenter appears to suggest that
excepted service employees do not have
civil service protections. Excepted
service positions may accrue the same
adverse action rights as competitive
service employees once they
satisfactorily complete their
probationary/trial period or satisfy their
durational requirement. See 5 U.S.C.
7511. Following a decade of experience
under the CSRA, Congress expanded the
scope of employees covered by adverse
action procedures in the 1990
Amendments by conferring such rights
on employees who had been appointed
to career excepted service positions and
had accrued 2 years of continuous
service in the same or a similar
position.266 The main exception to this,
as discussed throughout this rule, are
those excluded under 5 U.S.C. 7511(b),
including political appointments
requiring senate confirmation, Schedule
C political appointees, and presidential
appointments. Also, as explained
previously, for almost 60 years,
executive action, legal precedent, and
regulations have recognized that civil
servants moved involuntarily from the
competitive service to the excepted
service keep their rights.
Another commenter argued that 5
U.S.C. 7511(b) categorically exempts
policy-influencing excepted service
positions from chapter 75’s adverse
action procedures and OPM has no
authority to extend civil service removal
restrictions to employees in such
positions. Comment 4097.267 This
265 The confusion may arise from section
302.101(c) of this part, which lists a small set of
positions in the excepted service that are also
exempt from the part 302 procedures that would
normally apply to the hiring of employees into the
excepted service. As noted above, section 3320 of
title 5, U.S. Code, requires appointing authorities
hiring individuals into the excepted service to use
the same procedures described in sections 3308 to
3318 of title 5 to effectuate veterans’ preference.
OPM’s regulations at part 302 are intended to
provide the means for an agency to meet that
requirement. Part 302 provides for limited
exemptions where compliance is essentially
impossible (e.g., attorney positions, for which
Congress has forbidden examination in annual
appropriation provisions). For those discrete
positions, veterans’ preference must still be applied
as far as administratively feasible. 5 CFR 302.101(c).
266 See Civil Service Due Process Amendments
Act, 101 Public Law 376 (Aug. 17, 1990).
267 We also note that section 7511(b)(2) does not
automatically exempt policy-influencing General
Schedule positions from chapter 75 protections.
The position must be placed in the excepted service
by the President, OPM, or Congress, and a
determination must be made, by the appropriate
person or entity, as described in more detailed
subparagraphs under subparagraph (b)(2), that the
position is of a confidential, policy-determining,
policy-making, or policy-advocating character. The
provision is not self-executing, as the Stanley cases
demonstrate. In the absence of a determination by
the appropriate party, and communicated at the
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misstates this final rule. OPM is not
extending civil service protections to
employees excluded by section 7511(b).
OPM’s regulatory amendments elaborate
upon and clarify the retention of rights
upon an involuntary move and further
define the exception in 5 U.S.C.
7511(b)(2), as explained further in
Section IV(B), based on its longstanding
interpretation of the statute, elucidated
by legislative and statutory history,
additional indicia of intent, and
precedent. Commenter then contended
that OPM fails to cite any cases holding
that employees retain removal
restrictions after their positions are
determined to be policy-influencing and
instead OPM cited two cases ‘‘that deal
with an entirely different issue.’’
(referring to footnote 117 of the
proposed rule, which cites McCormick
v. Department of the Air Force (2002)
and Greene v. Defense Intelligence
Agency (2005)). See Comment 4097.
OPM did not cite either of those cases
for this proposition. They were cited in
this rulemaking because OPM is making
conforming regulatory changes based on
the precedent, holding that once an
employee satisfactorily completes their
probationary/trial period or durational
requirement under 5 U.S.C. 7511, they
are entitled to adverse action rights.
Footnote 117 from the proposed rule
states, ‘‘[t]hese proposed regulatory
changes are consistent with how similar
statutory rights have been interpreted by
Federal courts and MSPB when
employees change jobs by moving to a
different Federal agency.’’ 268 That is
precisely the reason these two cases
were cited. Also, as previously
explained, longstanding precedent
shows that employees retain adverse
action protections if moved to or within
the excepted service. See also Comment
2134, (detailing precedent, starting with
Roth and including the Stanley cases,
which explain that incumbent
employees can retain rights even after
their position is found to be policyinfluencing).
Finally, some commenters opposed to
the rule argued that pay and privileges
should flow with the position, not the
person. One professor emeritus
commented that a basic principle of the
civil service has been that pay and
privileges flow to the position and it
would be inconsistent for individuals to
permanently carry with them the
attributes and protections that applied
to their previous positions. Comment
3953, see also Comment 4097 (‘‘Nothing
in title 5 says or implies those
time of appointment, section 7511(b)(2) would not
limit adverse action rights.
268 See 88 FR 63862, 63871.
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restrictions follow individual
employees.’’). Comment 3953 continued
that it would be unreasonable to expect
that individuals who move from ‘‘career
to noncareer positions’’ would, or could,
permanently carry with them the
protections they once enjoyed. But
federal workers become ‘‘employees’’
entitled to rights under chapter 75 based
on their ability to complete a
probationary/trial period and
continuous service in a position or
similar position.269 Once those rights
are earned, employees retain that status
even if they are moved to an excepted
service schedule or within the excepted
service, so long as the move was
involuntary. A move from ‘‘career to
noncareer positions’’ would only retain
adverse action rights, as explained
above, if such a move was involuntary.
For instance, a voluntary movement
from the competitive service to
Schedule C would require an
acknowledgment from the employee
that adverse action rights would be
waived.270 A contrary rule would allow
Federal workers to be reclassified at the
whim of an agency without regard to
how the civil service system has
operated for decades, despite
longstanding reliance on these
protections by the Federal workforce.
OPM is promulgating the following
changes to 5 CFR parts 212 and 752:
Part 212—Competitive Service and
Competitive Status
Subpart D—Effect of Competitive Status
on Position
Section 212.401 Effect of Competitive
Status on Position
Part 212 addresses competitive
service and competitive status and this
final rule revises the regulations in 5
CFR 212.401(b) regarding the effect of
an employee’s competitive status on the
employee’s position. This final rule
establishes that a competitive service
employee whose position is first listed
under Schedule A, B, C, or any future
excepted service schedule remains in
the competitive service for the purposes
of status and protections, while the
employee continues to occupy the
position or any other positions to which
the employee is moved involuntarily.
As described throughout this final
rule, OPM’s longstanding view is that
Federal employees maintain the civil
service status and protections that they
have accrued. Since 1968, civil service
regulations have provided that an
employee with competitive service
269 See
5 U.S.C. 7501, 7511.
5 CFR 302.102 (regarding processes for
voluntary movements).
270 See
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status (i.e., in the competitive service),
at the time the employee’s position is
first listed (i.e., moved) under Schedule
A, B, or C of the excepted service,
remains in the competitive service as
long as the employee continues to
occupy the position.271 OPM is
updating 5 CFR 212.401(b) consistent
with this final rule to establish that a
competitive service employee whose
position is first listed involuntarily
under any future excepted service
schedule remains in the competitive
service. OPM is updating to account for
the possibility of new excepted service
schedules which may be established
after promulgation of this rule or other
efforts to involuntarily move positions
to or within the excepted service.
Comments Regarding Amendments to 5
CFR 212.401
One commenter opposed to the rule
expressed a view that OPM believes is
a misreading of the regulatory change.
Comment 3190, a law school clinic,
argued that the rulemaking creates ‘‘a
new pathway for burrowing’’ because it
would amend 5 CFR 212.401(b) to allow
that an ‘‘employee in the competitive
service at the time his position is first
listed under Schedule A, B, or C, or
whose position is otherwise moved from
the competitive service and listed under
a schedule created subsequent to’’ the
effective date of final rule, to remain in
the competitive service.272 Commenter
argued that, under such a provision, an
outgoing administration could burrow
personnel by promoting ideologically
aligned competitive service civil
servants to Schedule C positions. A
president would then be stuck with
individuals who oppose his agenda,
even though Schedule C positions are
‘‘policy determining’’ positions that
often ‘‘involve a close and confidential
working relationship with the head of
an agency or other key appointed
officials.’’ 273 OPM believes this concern
is misplaced. The portion of the
regulation that commenter identifies,
relating to Schedules A, B, and C, is not
a ‘‘new’’ revision in this final rule. That
language already existed in 5 CFR
212.401(b) prior to this rule’s
amendment and dates to 1968.274 The
271 33
FR 12402, 12408 (Sept. 4, 1968).
FR, 63862, 63882.
273 Id. at 63872.
274 Citing Revision of Regulations, Civil Serv.
Comm’n Final Reg. 5 CFR ch. I, subch. B (other than
pt. 213), 33 FR 12402–08 (Sep. 4, 1968) (‘‘An
employee in the competitive service at the time his
position is first listed under Schedule A, B, or C
remains in the competitive service while he
occupies that position.’’), https://
archives.federalregister.gov/issue_slice/1968/9/4/
12396-12526.pdf#page=23. Fifty-five years later,
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272 88
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final rule adds the language, ‘‘or whose
position is otherwise moved from the
competitive service and listed under a
schedule created subsequent to
[effective date of final rule],’’ to
establish that a competitive service
employee whose position is first listed
under any future excepted service
schedule remains in the competitive
service as long as the employee
continues to occupy the position, or any
other positions, in sequence to which
the employee is moved involuntarily, as
has been the case for almost 60 years.
As explained above and in Comment
2134, the original language in 5 CFR
212.401(b) was added during the
Johnson Administration to track judicial
decisions finding that employees
retained accrued status and civil service
protection upon an involuntary
movement to excepted service positions.
Regarding Schedule C, specifically, the
CSC in 1955 noted the difference
between an employee’s voluntary and
involuntary movement to that schedule.
Regarding a voluntary move, the CSC
explained that competitive service
employees would lose adverse action
rights. It stated, ‘‘a vacant Schedule C
job may not be filled by the
appointment of an employee serving in
the competitive service until the
employee has been given notice in
writing that acceptance of the position
will result in his leaving the competitive
service. Leaving the competitive service
would result in his giving up the jobremoval protections of the Lloyd La
Follette Act.’’ Conversely, in the case of
an involuntary movement, the CSC
noted that a competitive service
employee would retain their rights,
explaining, ‘‘if an occupied job in the
competitive civil service is moved to
Schedule C, an incumbent who has
civil-service status continues to have the
removal protection of the Lloyd-La
Follette Act during his occupancy of the
position.’’ See Comment 2134.275 OPM
also issued an advisory during the
Reagan Administration that explained,
‘‘[t]he only Schedule C employees
covered by statutory appeal procedures
[under 5 U.S.C. 7513] and who,
therefore, may appeal removal actions to
the Merit Systems Protection Board
(MSPB) are those who were serving in
a position in the competitive service
when OPM authorized its conversion to
Schedule C and who still serve in those
positions (i.e., have status in the
position—cf. Roth v. Brownell, 215 F.2d
500 (D.C. Cir. 1954)).’’ See Comment
this regulation remains unchanged. 5 CFR
212.401(b).
275 Citing Press Release, U.S. Civil Serv. Comm’n,
p. 3 (May 12, 1955).
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2134 (brackets in original). In that
advisory, OPM continued, ‘‘[a]n
employee who was serving in a position
in the competitive service when OPM
authorized its conversion to Schedule C
and is still serving in that position may
be removed from that position ‘for such
cause as will promote the efficiency of
the service.’ Moreover, the action must
be taken in accordance with the
procedures established by 5 U.S.C. 7511
et seq. and part 752 of OPM’s
regulations. These procedures provide
for the right: (1) to a 30-day advance
written notice which states the reasons
for the proposed removal specifically
and in detail; (2) to reply personally and
in writing; (3) to be represented; (4) to
have the reply considered; and (5) to a
written decision stating the reasons for
the action. The employee may appeal
the action to MSPB.’’ For these reasons,
OPM disagrees with Comment 3190 and
the conclusions that this provision
regarding Schedules A, B, and C is new
or problematic.
Other commenters were generally
supportive of this regulatory change.
Comment 2134, a joint comment by a
nonprofit organization and former
federal official, was supportive but
suggested that § 212.401(b) be revised to
clarify that competitive status is defined
in § 212.301. OPM will adopt this
suggestion and revise § 212.401(b) to
specifically reference an employee in
the competitive service who had
competitive status as defined in
§ 212.301. This revision reduces the risk
of inconsistent interpretation or
application of the regulations by
referring to competitive status with
uniform language.
This comment also suggested that
OPM revise § 212.401(b) to address the
movement of employees and not only
the movement of positions. The
comment also suggested that OPM
revise the rule to make explicit that
employees who otherwise meet the
conditions of § 212.401 retain their
competitive status regardless of the
number of times the position or
employee is moved involuntarily (so
long as the sequence is not broken by a
voluntary decision to apply for and
accept a different position, in which
case, different rules may apply). OPM
will revise the language to clarify, based
on the context and history described
above, that once status and rights are
accrued, the key to determining whether
they are retained upon a move is
whether the move was voluntary or
involuntary. The number of times the
employee is moved is immaterial to this
analysis if all such movements are
involuntary. OPM will therefore revise
the end of § 212.401(b) accordingly.
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Part 752—Adverse Actions
Part 752 addresses the procedural
requirements for suspensions of 14 days
or less, suspension for more than 14
days, reduction in grade or pay, or
furlough for 30 days or less for covered
employees.
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General Comments Regarding
Amendments to 5 CFR Part 752
One management association offered
strong support for OPM’s proposed
changes. Comment 2849. It stated, with
respect to the part 752 amendments,
that ‘‘[i]f an administration can bypass
the civil service framework established
by Congress in the CSRA by moving
employees to a new excepted service, it
would undermine the intention of the
CSRA and make its extensive employee
protections obsolete.’’ Another
management association said that, with
respect to part 752, OPM’s rule provides
sufficient protections and clarity.
Comment 763.
A national union stated the proposed
language for part 752 ‘‘would effectively
deter moving a federal employee’s
position to the excepted service for the
purpose of retaliation, circumvention of
due process, or discriminatory action
against any federal employee.’’
Comment 3278. A different national
union stated that one reason for their
support of the amendments to part 752
was because ‘‘employees will not feel
safe reporting fraud, waste, and abuse
unless they have the ability to challenge
arbitrary, unfounded, and/or
unreasonable disciplinary actions.’’
Comment 2640.
A local union stated that OPM’s
proposed language to amend 5 CFR part
752 ‘‘ensures that employees moved
into excepted positions retain their
critical rights and should be enacted as
proposed.’’ Comment 1042. The local
union maintained that adverse action
procedures and appeal rights ensure
that Federal employees are retained
based on merit and are protected from
retaliation and discrimination,
including due to their political
affiliation. This commenter further
asserted that the rights accrued in a
prior Federal position should not be lost
solely because the employee has been
moved involuntarily, as such an
approach would encourage retaliation
and limit agencies’ ability to recruit top
candidates due to applicants’ fears that
they could eventually lose protections
they earned in that federal position by
administrative reassignment.
Another organization said that they
‘‘particularly support’’ the amendments
to part 752 to clarify that employees
who are moved from the competitive
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service or from one excepted service
schedule to another retain the
protections they had already accrued.
Comment 1904.
As stated above, other commenters
expressed general disapproval of OPM’s
regulatory amendments to part 752.
OPM is not persuaded to make any
revisions based on those comments for
the reasons stated above, namely the
comments are at odds with existing
protections in chapter 75 that OPM’s
final rule clarifies, and the statutory
text, legislative history, and legal
precedents construing it.
Subpart B—Regulatory Requirements for
Suspension for 14 Days or Less
This subpart addresses the procedural
requirements for suspensions of 14 days
or less for covered employees. Chapter
75 of title 5, U.S. Code, provides a
straightforward process for agencies to
use in adverse actions involving
suspensions of this duration. The
changes conform this subpart with
statutory language to clarify which
employees are covered by subpart B
when an agency takes an action for such
cause as will promote the efficiency of
the service.
Section 752.201 Coverage
This section describes when an
employee has or retains coverage under
the procedures of this subpart.
Paragraphs (b)(1) through (b)(6) of 5 CFR
752.201 enumerate the conditions under
which an individual would qualify for
coverage. OPM’s revision to 5 CFR
752.201(b)(1) prescribes that, even if an
agency intends to suspend for 14 days
or less an employee in the competitive
service who is serving a probationary or
trial period, the employee is entitled to
the procedural rights provided under 5
U.S.C. 7503 if the individual has
completed 1 year of current service in
the same or similar position under other
than a temporary appointment limited
to 1 year or less.
As set forth in the proposed rule,276
OPM is revising subpart B of part 752
to conform to the Federal Circuit
decisions in Van Wersch v. Department
of Health & Human Services 277 and
McCormick v. Department of the Air
Force.278 These cases now guide the
way the MSPB applies 5 U.S.C.
7511(a)(1), which defines employees
who have the right to appeal major
adverse actions, such as removals, to the
MSPB. Van Wersch addressed the
definition of ‘‘employee’’ for purposes
of nonpreference eligibles in the
276 88
FR 63862, 63871, 63881.
F.3d 1144 (Fed. Cir. 1999).
278 307 F.3d 1339 (Fed. Cir. 2002).
277 197
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excepted service and, a few years later,
McCormick addressed the meaning of
‘‘employee’’ for purposes of the
competitive service. As explained
supra, section 7511(a)(1) states that
‘‘employees’’ include individuals who
meet specified conditions relating to the
duration of their service or, for
nonpreference eligibles, relating to their
probationary or trial period status. The
Federal Circuit explained that the word
‘‘or,’’ here, refers to alternatives: some
individuals who traditionally had been
considered probationers with limited
rights are actually entitled to the same
appeal rights afforded to nonprobationers if the individuals meet the
other requirements of section 7511(a)(1),
namely (1) their prior service is ‘‘current
continuous service,’’ (2) the current
continuous service is in the ‘‘same or
similar positions’’ for purposes of
nonpreference eligibles in the excepted
service, and (3) the total amount of such
service meets a 1 or 2-year requirement,
and was not in a temporary
appointment limited to 1 or 2 years,
depending on the service.279
In a prior rulemaking,280 OPM
modified its regulations for appealable
adverse actions in 5 CFR part 752,
subpart D, to align with Van Wersch and
McCormick and statutory language.
OPM has consistently advised agencies
construing 5 U.S.C. 7501 to do so in
light of the Federal Circuit’s
interpretation of similar statutory
language in 5 U.S.C. 7511. In this rule,
OPM modifies language in 5 CFR
752.201(b)(1) to conform to that
understanding (and thus with the
statutory language in 5 U.S.C. 7501, as
construed by the Federal Circuit in a
precedential decision). OPM’s revision
to section 752.201(b)(1) prescribes that,
even if an employee in the competitive
service who has been suspended for 14
days or less is serving a probationary or
trial period, the employee retains the
procedural rights provided under 5
U.S.C. 7503 if the individual has
completed 1 year of current continuous
service in the same or similar position
under other than a temporary
appointment limited to 1 year or less.
Comments Regarding Amendments to 5
CFR 752.201
Some commenters discussed OPM’s
changes to conform regulations to
Federal Circuit precedent in Van
Wersch and McCormick and most were
supportive. A coalition of national and
local unions expressed support for
279 See McCormick, 307 F.3d at 1341–43; Van
Wersch, 197 F.3d at 1151–52.
280 U.S. Off. of Pers. Mgmt., ‘‘Career and CareerConditional Employment and Adverse Actions,’’ 73
FR 7187 (Feb. 7, 2008).
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aligning the language of section
752.201(b)(1) for suspensions of less
than 14 days ‘‘with the language of 5
U.S.C. 7501 and its interpreting
jurisprudence.’’ Comment 41. An
organization emphasized its support of
OPM’s change to section 752.201
regarding the employees eligible for
grievance rights for suspensions.
Comment 1904.
One former political appointee
opposed to the rule questioned how an
individual meets the criterion for
‘‘continuous service’’ in this regulatory
change. Comment 45. Commenter asked
how ‘‘continuous service’’ applies to
individuals who are teleworking or ‘‘not
turning on their government computers
given certain data from the Government
Accountability Office about the ‘massive
increase in telework and
underutilization of office buildings.’’’
OPM is unclear whether this is a serious
inquiry, but notes that the term ‘‘current
continuous employment’’ is defined in
5 CFR 752.201(d) for suspensions of 14
days or less as ‘‘a period of employment
or service immediately preceding a
suspension action without a break in
Federal civilian employment of a
workday,’’ and does not turn on
whether the employee is exercising
flexibilities such as remote work or
telework. Although commenter raised
concerns about ‘‘continuous service’’
with respect to section 752.201, OPM
also notes that the language is present
in subpart D of part 752 as it applies to
regulatory requirements for removals,
suspensions for more than 14 days,
reductions in grade or pay, and
furloughs for 30 days or less. In section
752.402, the term ‘‘current continuous
employment’’ is defined as ‘‘a period of
employment or service immediately
preceding an adverse action without a
break in Federal civilian employment of
a workday.’’ This rulemaking does not
amend these definitions. Apart from the
fact that these definitions are unrelated
to an individual’s use of telework or
occupancy in government office
buildings, we note that, during a lengthy
period starting in March 2020 and
extending into the beginning of the
Biden Administration, Federal office
buildings were closed to all but a few
employees whose work required their
physical presence, making it
unavoidable that most employees were
working from alternative locations.281
Accordingly, the need to monitor
whether employees are actually working
when not in the agency’s brick-andmortar workplace is not a new
281 See, e.g., U.S. Off. of Mgmt. and Budget, M–
20–15 (Mar. 15, 2020); M–20–16 (Mar. 17, 2020);
M–20–23 (April 20, 2020).
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consideration and can be addressed, as
always, through traditional performance
management tools. OPM has already
issued extensive guidance on this
topic.282
In addition, the amended regulations
section 752.201(b)(1) through (b)(6)
explain that individuals retain their
status as covered employees if they are
moved involuntarily from the
competitive service to the excepted
service, unless specifically prohibited
by law.
One joint comment by a nonprofit
organization and former federal official
supportive of the rule argued that
OPM’s proposed language for section
752.201(b)(1), (b)(2), and (b)(6) provides
coverage if the employee is moved
involuntarily and ‘‘still occupies that
position or a similar position[.]’’
Comment 2134. Likewise, commenter
noted that section 752.201(b)(4) applies
only if the employee still occupies that
position. Commenter stated that these
provisions collectively may be too
narrow to achieve OPM’s purpose and
that the ‘‘number of involuntary moves
should not be relevant to the coverage
of this subsection.’’ Commenter noted
that an agency might deliberately move
an employee to a dissimilar position for
the purpose of stripping the employee of
their rights. For these reasons, the
organization ‘‘suggest[s] that OPM end
these paragraphs with the following
language: ‘that position or another
position to which the employee is
moved involuntarily.’’’
OPM agrees with commenter that the
revision suggested would better meet
and strengthen the policy that OPM is
advancing with the final rule, and we
will revise these provisions accordingly.
OPM’s proposed rule was based the
procedural rights in section
752.201(b)(1), (b)(2), and (b)(6) in
Subchapter I of chapter 75, title 5, U.S.
Code. The definitions for that
subchapter are codified at 5 U.S.C. 7501,
which defines an employee as ‘‘an
individual in the competitive service
who is not serving a probationary or
trial period under an initial
appointment or who has completed 1
year of current continuous employment
in the same or similar positions under
other than a temporary appointment
limited to 1 year or less.’’ (emphasis
added). OPM agrees with commenter,
though, that the ‘‘same or similar
positions’’ language used in chapter 75
relates to how rights are accrued in the
first instance. Based on the precedent
described above, the key factor to
whether accrued status and rights are
retained following a move to or within
the excepted service is whether the
move was voluntary or involuntary. The
position to which an employee is
involuntarily moved need not be the
‘‘same or similar’’ for the employee who
has already accrued rights to continue to
retain such rights. OPM will therefore
revise the provisions in paragraphs 5
CFR 752.201(b)(1), (b)(2), and- (b)(6) by
clarifying that the provision applies
where the employee is moved
involuntarily and continues to occupy
that position or any other position to
which the employee is moved
involuntarily. In addition, based on the
precedent explained above, OPM will
revise 5 CFR 752.201(b)(3) through (5) to
apply the same language.
The final rule also establishes a new
5 CFR 752.201(c)(7) to make clear that
employees in positions determined to be
of a confidential, policy-determining,
policy-making, or policy-advocating
character as defined in 5 CFR 210.102
are excluded from coverage under
subpart B of part 752, consistent with
congressional intent and as described
more fully below.283
An agency commented that the
‘‘inclusions/exclusions in 5 CFR
752.201 appear to conflict.’’ Comment
2766. The agency explained that the
subsection of the proposed regulation
addressing employees included at
§ 752.201(b) indicates that in many
cases, ‘‘an employee will be covered if
the employee is moved involuntarily
into the excepted service (or [into a]
different schedule[ ]of the excepted
service) and still occupies this
position.’’ The agency noted, however,
that the subsection addressing
employees excluded at § 752.201(c)
would preclude coverage of individuals
whose position has been determined to
be of a confidential, policy-determining,
policy-making, or policy-advocating
character. The agency noted that
subsection (c) does not specify that the
exclusion would apply only if the
individual lacked the accrued rights
referenced in paragraph (b). The agency
then recommended a change to
§ 752.201(c)(7) to address the perceived
conflict.
Based on this agency’s comment,
OPM is persuaded that a change is
necessary to effectuate the policy
advanced by this final rule consistent
with statutory text, legislative history,
and legal precedents. As Comment 2134
282 See U.S. Off. of Pers. Mgmt., ‘‘2021 Guide to
Telework and Remote Work in the Federal
Government,’’ https://www.opm.gov/telework/
documents-for-telework/2021-guide-to-teleworkand-remote-work.pdf.
283 Please see also the discussion in Section IV(B)
regarding the definition of the phrases
‘‘confidential, policy-determining, policy-making or
policy-advocating’’ and ‘‘confidential or policydetermining.’’
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noted, under Roth and other precedents,
it is well-established that when an
employee with accrued rights is
involuntarily moved from the
competitive service to an excepted
service schedule without such rights,
the employee retains the accrued rights
while the employee remains in that
position or any subsequent position to
which the employee is involuntarily
moved. OPM will accept the agency’s
recommendation to revise the exclusion
at § 752.201(c)(7) by clarifying that the
exclusion does not apply if the
incumbent was moved involuntarily to
such a position after accruing rights as
delineated in § 752.201(b).
Subpart D—Regulatory Requirements
for Removal, Suspension for More Than
14 Days, Reduction in Grade or Pay, or
Furlough for 30 Days or Less
This subpart addresses the procedural
requirements for removal, suspension
for more than 14 days, reduction in
grade or pay, or furlough for 30 days or
less for covered employees. This
includes, but is not limited to, adverse
actions based on misconduct or
unacceptable performance. The changes
are intended to reinforce the civil
service protections that apply when an
agency pursues certain adverse actions
for the efficiency of the service under
chapter 75.
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Section 752.401
Coverage
The changes add language to provide
that an ‘‘employee’’ (i.e., for purposes of
this part, an individual who has accrued
adverse action rights by completing
probation or a current continuous
service requirement) who occupies a
position that is moved from the
competitive service into the excepted
service, or from one excepted service
schedule to another, is covered by the
regulatory requirements for removal,
suspension for more than 14 days,
reduction in grade or pay, or furlough
for 30 days or less.
The changes to § 752.401 reflect the
impact of statutory requirements—
namely, that once an employee meets
certain conditions, the individual gains
certain statutory procedural rights and
civil service protections which cannot
be taken away from the individual by
moving the employee’s position
involuntarily into the excepted service,
or within the excepted service. These
regulatory changes are consistent with
how similar statutory rights have been
interpreted by Federal courts and the
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MSPB when employees change jobs by
moving to a different Federal agency.284
Paragraph (c) of 5 CFR 752.401
enumerates the conditions under which
an individual would qualify for
coverage. The amended regulation
explains that those individuals retain
their status if moved involuntarily
unless specifically prohibited by law.
Consistent with the proposed rule,285
OPM’s final rule revises § 752.401(c) to
clarify that employees in the
competitive and excepted services who
have fulfilled their probationary or trial
period requirement or the durational
requirements under 5 U.S.C. 7511 will
retain the rights conferred by subchapter
II if moved involuntarily from the
competitive service to the excepted
service or within the excepted service to
a new excepted service schedule, except
in the case where an employee
relinquishes such rights or status by
voluntarily seeking, accepting, and
encumbering a position that explicitly
results in a loss of, or different, rights.
Comments Regarding Amendments to 5
CFR 752.401
One former political appointee
opposed to the rule cited language in
the proposed rule regarding the
retention of rights on an involuntary
move or the relinquishment of rights on
a voluntary move and characterized it as
OPM wanting ‘‘employees being
transferred to have the authority to
determine if they relinquish their pay/
benefits/protections’’ which would be,
commenter argued, the ‘‘equivalent of
placing someone on paid leave but
allowing them to decide how much pay
to receive while they are gone.’’
Comment 45. OPM disagrees with this
assessment. This section of OPM’s
proposed rule addressed rights
following the movement of an employee
and differentiated between voluntary
and involuntary movements.286 It is not,
as Commenter seems to suggest, similar
to leave following a disciplinary action.
As explained in the proposed rule and
this final rule, absent a voluntary
movement, accrued rights are
established in statute, as confirmed by
case law construing the statute, and
cannot be taken from employees by
involuntarily moving them.
Commenter’s comparison of the
retention of rights following a move to
an employee’s rights following a
disciplinary action is therefore inapt.
284 See, e.g., McCormick, 307 F.3d at 1341–43;
Greene v. Def. Intel. Agency, 100 M.S.P.R. 447
(2005).
285 88 FR 63862, 63871.
286 See 5 CFR 302.102 (regarding processes for
voluntary movements).
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As with 5 CFR 752.201, Comment
2134, which strongly supported the
proposed amendments, requested
modifications to ensure that if ‘‘an
agency moves an employee
involuntarily more than once, the
employee’’ would ‘‘retain any
applicable status and civil service
protections.’’ Comment 2134.
Commenter contended that an agency
might deliberately move an employee
multiple times to a dissimilar position
for the purpose of stripping the
employee of rights. Commenter noted
that OPM’s proposed language for
§ 752.401(c)(3), (4), (5), and (7) provides
coverage if the employee is moved
involuntarily and ‘‘still occupies that
position or a similar position[.]’’
Commenter recommended ‘‘replacing
language that refers to a subsequent
movement to a ‘similar position’ with
language that refers to any position to
which an employee is moved
involuntarily.’’ For these reasons,
commenter recommended adding the
language, ‘‘or another position to which
the employee is moved involuntarily’’
directly after ‘‘and still occupies that
position’’ in each of these paragraphs.
OPM is persuaded that this concern is
well-founded and that the change would
strengthen the policy that the final rule
advances. OPM will revise these
provisions accordingly. Section
752.401(c)(3) covers an ‘‘employee in
the excepted service who is a preference
eligible in an Executive agency as
defined at section 105 of title 5, United
States Code, the U.S. Postal Service, or
the Postal Regulatory Commission[.]’’
Section 752.401(c)(4) covers certain
individuals in the Postal Service, and
§ 752.401(c)(5) covers certain
nonpreference eligibles in the excepted
service. OPM’s proposed rule focused
on the fact that all such individuals
derive their rights and protections from
5 U.S.C. 7511(a)(1)(B) or (a)(1)(C), both
of which require the work to have been
performed ‘‘in the same or similar
positions[.]’’ With respect to
§ 752.401(c)(7), the language covers an
employee who previously ‘‘was’’ in the
competitive service with competitive
status and is currently in the excepted
service. As explained above, OPM
agrees with commenter that the ‘‘same
or similar positions’’ language used in
chapter 75 relates to how rights are
accrued in the first instance and the key
factor in determining whether accrued
status and rights are retained following
a move to or within the excepted service
is whether the move was voluntary or
involuntary. OPM will therefore revise
the provisions in 5 CFR 752.401(c)(3),
(c)(4), and (c)(5) to replace the words ‘‘a
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similar position’’ with the words ‘‘any
other position to which the employee is
moved involuntarily.’’ In addition, OPM
will revise 5 CFR 752.401(c)(6) and
(c)(8) to apply the same language. In 5
CFR 752.401(c)(7), OPM will replace ‘‘a
similar position’’ with the words ‘‘any
other position to which the employee is
moved involuntarily.’’ OPM will also
correct a typographical error by
changing the period at the end of 5 CFR
752.401(d)(2)(iii) to a semicolon.
In addition, the final rule modifies 5
CFR 752.401(d)(2) to make clear that
employees in positions determined to be
of a confidential, policy-determining,
policy-making, or policy-advocating
character as defined in 5 CFR 210.102
are excluded from coverage under
subpart D of part 752. In this final rule,
OPM defines these terms as descriptors
for the positions held by noncareer
political appointees, as discussed in
Section IV(B).
As with 5 CFR 752.201, an agency
asserted that the ‘‘inclusions/exclusions
in 5 CFR 752.401 appear to conflict.’’
Comment 2766. The agency expressed
that the subsection addressing
employees excluded at section
752.401(d) would preclude coverage of
individuals whose position has been
determined to be of a confidential,
policy-determining, policy-making, or
policy-advocating character but does not
specify that the exclusion would apply
only if the individual lacked the
accrued rights referenced in paragraph
(c). The agency then recommended a
change to 5 CFR 752.401(d)(2) to
address the perceived conflict. Based on
this agency’s comment, OPM is
persuaded that a change is necessary for
the same reasons explained above
relating to 5 CFR 752.201. OPM will
revise the exclusion at § 752.401(d)(2)
by clarifying that the exclusion does not
apply if the incumbent was moved
involuntarily to such a position after
accruing rights as delineated in
§ 752.401(c).’’
Finally, this final rule revises 5 CFR
752.401(c)(2)(ii) to reflect the repeal of
10 U.S.C. 1599e, effective December 31,
2022, by the National Defense
Authorization Act for Fiscal Year
2022.287 The repeal restores a 1-year
probationary period for covered
Department of Defense employees (and
also reduces the alternative continuous
service prong to 1 year). With respect to
OPM’s amendment to reflect the repeal
of the 2-year probationary period in the
Department of Defense, an individual
disagreed with OPM’s chosen language,
stating that the proposed regulation
287 See Public Law 117–81, 135 Stat. 1541, Sec.
1106(a)(1).
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would ‘‘codify an erroneous reading of
the clear language’’ of sections 7501 and
7511 of title 5, U.S. Code. Comment 474.
Commenter expressed concern that
under OPM’s proposed regulation,
individuals who were in a 2-year
probationary period at the time of their
appointment (due to the now-repealed
law) would not benefit from the
conforming amendment that modified 5
U.S.C. 7511 to remove references to the
now-repealed 2-year period. Commenter
discussed both Department of Defense
guidance and multiple canons of
statutory construction. Commenter
stated that the provision in 5 CFR
752.401(c)(2)(ii) in the proposed rule
should be deleted in the final rule to
reflect the language of 5 U.S.C. 7501(1)
and 7511(a)(1)(A)(ii).
OPM will not adopt commenter’s
suggested revision but will make a
clarification. Section 1106 of Public Law
117–81 had two sections, (a) and (b).
Section (a) repealed a 2-year
probationary period in the Department
of Defense. Section (b) provided the
‘‘Technical and Conforming
Amendments.’’ Section (a) states that
the modifications of probationary
periods created by the repeal ‘‘shall only
apply to an individual appointed as
such an employee on or after the
effective date specified’’ by the
statute.288 The amendments to the U.S.
Code that follow in section (b) are
alterations intended to conform the code
to the intent of the legislation, including
the repeal of similar provisions in 5
U.S.C. 7501 and 5 U.S.C. 7511. OPM
interprets Public Law 117–81 section
1106(a)(1) to mean that someone who
was on a 2-year probationary period (or
2-year continuous service requirement)
under section 1599e as of the effective
date of the repeal, must still complete
one of those 2-year periods
notwithstanding the repeal. Anyone
hired on or after the effective date, need
only complete a 1-year period. The
current regulatory text indicates that
covered employee includes an employee
‘‘[e]xcept as provided in section 1599e
of title 10, United States Code, who has
completed 1 year of current continuous
service under other than a temporary
appointment limited to 1 year or less.’’
OPM will therefore revise this provision
to clarify that the 2-year probationary
period applies to individuals hired prior
to December 31, 2022, the date that
section was otherwise repealed by
Public Law 117–81, section 1106.
288 See
PO 00000
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25019
Additional Comments Regarding
Amendments to 5 CFR Part 752
A former federal official supportive of
the rule suggested that OPM clarify that
the changes proposed in 5 CFR part 752
include SES Positions. Comment 2816.
Commenter included proposed language
that would modify 5 CFR 752.601,
which deals with regulatory
requirements for taking adverse action
relating to the SES. Commenter
suggested adding ‘‘including such an
employee who is moved involuntarily
into the excepted service and still
occupies that position or a similar
position’’ at the end of 5 CFR
752.601(c)(1)(i), (ii), (iii), and (2)(i).
OPM agrees with the policy goal that
SES employees maintain their adverse
action protections, but we will not make
any changes in response to this
comment. As described further in
Section IV(B), this rule addresses the
competitive and excepted services,
specifically the retention of status and
rights upon an involuntary movement
from the competitive service into or
within the excepted service, the
exclusion of adverse action rights for
excepted service positions of a
‘‘confidential, policy-determining,
policy-making or policy-advocating
character,’’ and processes for moving
employees and positions from the
competitive service into or within the
excepted service. As described above,
the SES is its own separate service that
it is not governed by provisions
applicable to the competitive or
excepted services. Any transfer of SES
employees and positions would be
governed by the SES statute and
regulations. Importantly, the exception
to adverse action rights under 5 U.S.C.
7511(b)(2) does also not apply to the
SES. The career SES is governed by
separate adverse action procedures that,
unlike the rules governing the
competitive and excepted services,
make no mention of whether a position
is of ‘‘a confidential, policydetermining, policy-making or policyadvocating character.’’ 289 For these
reasons, as explained more fully below
in Section IV(B), OPM will make no
modifications to the rule based on this
suggestion.
B. Positions of a Confidential, PolicyDetermining, Policy-Making, or PolicyAdvocating Character
Part 210 of title 5, Code of Federal
Regulations, addresses basic concepts
and definitions used throughout the
Civil Service regulations in 5 CFR
chapter I, subchapter B. This final rule
289 See
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adds a definition for the phrases
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’
and ‘‘confidential or policydetermining.’’ Positions of this character
are excepted from the chapter 75
protections described above.
OPM defines these phrases to make
explicit OPM’s interpretation of this
exception in 5 U.S.C. 7511(b)(2)—
grounded in the statute, traditional tools
of statutory interpretation, and
longstanding policy—that Congress
intended to except from chapter 75’s
civil service protections individuals in
positions of a character exclusively
associated with a noncareer political
appointment that is both (a) identified
by its close working relationship with
the President, head of an agency, or
other key appointed officials who are
responsible for furthering the goals and
policies of the President and the
administration, and (b) that carries no
expectation of continued employment
beyond the presidential administration
during which the appointment
occurred.
OPM is also defining these phrases as
descriptors for the positions held by
noncareer political appointees because
the phrases are currently used in the
regulations to describe, among other
things, a ‘‘position’’ or the ‘‘character’’
of a position. OPM is conforming
changes to 5 CFR 213.3301, 302.101,
432.101, 451.302, 752.201, and 752.401
to standardize the phrasing used to
describe this type of position.
As explained in this section and in
the proposed rule,290 Congress has been
careful to strike a balance between
career employees—who are covered by
civil service protections under chapter
75 because of the need for a professional
civil service no matter whether they are
in the competitive or excepted service—
and political appointees who serve as
confidential assistants and advisors to
the President and other politically
appointed officials who have direct
responsibility for carrying out the
Administration’s political objectives.
These political appointees are not
required to compete for their positions
in the same manner as career
employees, serve at the pleasure of their
superiors, and have no expectation of
continued employment beyond the
presidential administration during
which their appointment occurred.
When Congress created the adverse
action protections under chapter 75, it
excluded, among others, employees
appointed by the President, with or
without Senate confirmation,291 and
290 88
FR 63862, 63871–73.
5 U.S.C. 7511(b)(1), (b)(3).
291 See
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employees in the excepted service
‘‘whose position has been determined to
be of a confidential, policy-determining,
policy-making or policy-advocating
character.’’ 292 Likewise, Congress
specifically excluded from the positions
safeguarded against prohibited
personnel practices under 5 U.S.C.
2302(a)(2)(B)(i) any position that is
‘‘excepted from the competitive service
because of its confidential, policydetermining, policy-making, or policyadvocating character.’’
Chapter 75 does not specifically
define the phrase as used in the 5 U.S.C.
7511(b)(2) exception, but as described in
the proposed rule—and as made further
clear by public comments—this is a
term of art and the history of the phrase
and the exception have long meant
political appointees.
Comments Regarding the Need To
Clarify the Exception
Several commenters agreed with OPM
that the phrase in this exception needs
further clarification because of the risk
it could be read, counter to the history
of its usage, unreasonably broadly to
strip rights from career civil servants.
One commenter discussed the difficulty
in identifying which employees have
duties that are of a ‘‘[c]onfidential,
policy-determining, policy-making, or
policy-advocating’’ character if the
phrase is interpreted not to mean, as has
been broadly understood for decades,
political appointees. Comment 6.
Merely being in an office or position
titled ‘‘policy,’’ ‘‘policy analysis,’’
‘‘policy implementation’’ or such is not
determinative. Likewise, some
employees with a title such as ‘‘policy
analyst’’ or in an office with a policy or
planning-related title may be mid- or
lower-level. And countless federal
employees work on issues that relate to
or touch upon policy. Thus, commenter
argued, OPM’s proposal to define these
policy positions as used in 5 U.S.C.
7511(b)(2) to noncareer political
appointees will be ‘‘helpful in limiting
the adverse impacts’’ of politicization to
policy roles. Another commenter argued
that, without these changes, there is a
risk of overbroad classification of
positions as ‘‘policy-making,’’
potentially subjecting a substantial
number of federal employees to
unwarranted political interference.
Comment 2516. Commenter argued that
this interference could adversely impact
employees’ ability to perform their
duties effectively and could potentially
paralyze the essential functions of their
agencies. Therefore, ‘‘the need for clear
delineation in the interpretation of these
292 See
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terms is paramount to prevent
unintended consequences that could
impede vital government services.’’ Id.,
see also Comment 3491. A professor
emeritus noted that the different
potential interpretations of the
exception are represented in the various
estimates on the potential scope of
Schedule F. See Comment 3953.
Commenter showed that, in the early
days of Schedule F, the estimates were
‘‘in the thousands.’’ Since then, the
proponents have varyingly suggested
that the number would be at least
50,000 and perhaps as many as
100,000.293 In public discussions, some
Schedule F supporters have made clear
that their goal is for all 2.2 million
federal employees to serve at the
pleasure of the president. Id.
Conversely, a former political
appointee argued that the statutory
exception was clear and did not require
further definition. See Comment 45.
OPM believes that the phrase itself—
‘‘confidential, policy-making, policydetermining or policy-advocating’’—
may be, when viewed in isolation,
capable of more than one interpretation.
But employing the standard tools of
statutory interpretation, including past
practice, legislative history, intent, and
legal precedents, provides that the best
reading of the exception refers to
noncareer political appointees typically
listed in Schedule C.
Comment Regarding the History of the
Exception
The same joint comment by a
nonprofit organization and former
federal official that extensively detailed
the historical treatment of accrued
status and civil service protections upon
an involuntary move to an excepted
service schedule, summarized in
Section IV(A), also commented at length
regarding the executive branch’s
historical understanding that the
exception for ‘‘confidential, policydetermining, policy-making or policyadvocating’’ positions applies only to a
small class of political appointee
positions. See Comment 2134. This
phrase and the related phrase,
‘‘confidential or policy-determining,’’
have ‘‘been used with consistency for
between seven and nine decades.’’ This
history is important because, as OPM
recounts in its proposed rule and in this
final rule, a common understanding of
the terminology gave meaning to the
293 Citing, for example, Drew Friedman, ‘‘Divide
over Schedule F reveals deeper need for federal
workforce reform, Partnership says,’’ Federal News
Network (July 3, 2023), https://
federalnewsnetwork.com/workforce/2023/07/
divide-over-schedule-f-reveals-deeper-need-forfederal-workforce-reform-partnership-says/.
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language of 5 U.S.C. 7511(b) when
Congress enacted the CSRA. Commenter
concluded, after exhaustively detailing
the relevant history, that OPM’s
proposed regulatory definition is fully
consistent with the phrase’s historical
meaning.
Commenter also showed that the
executive branch has consistently
designated only around 1,500 positions
as confidential or policy positions and
has applied that definition to political
appointees with no expectation of
continued employment beyond the
presidential administration during
which the appointment occurred. See
Comment 2134.
Because of the extensive citation to
facts and history relevant to this
regulatory change, OPM summarizes
commenter’s arguments here.
Commenter began with the legal
context of the exception. While the
phrase ‘‘confidential, policydetermining, policy-making or policyadvocating’’ is not further defined in
chapter 75, commenter argued that other
sections of the U.S. Code make clear
that this phrase refers to political
appointees. Commenter cited as
examples four laws that directly state
that incumbents of ‘‘confidential,
policy-determining, policy-making or
policy-advocating’’ positions are
political appointees. One law applicable
to the Department of Homeland Security
declares plainly that ‘‘the term ‘political
appointee’ means any employee who
occupies a position which has been
excepted from the competitive service
by reason of its confidential, policydetermining, policy-making, or policyadvocating character.’’ 294 Congress used
similar language in laws applicable to
the Department of Agriculture,295 the
National Aeronautics and Space
Administration,296 and the Department
of Veterans Affairs.297 Commenter also
showed that Congress has enacted laws
that apply restrictions to classes of
political appointees that include
incumbents of positions of a
‘‘confidential, policy-determining,
294 Citing 6 U.S.C. 349(d)(3) (‘‘For purposes of
paragraph (1)—(A) the term ‘career employee’
means any employee (as such term is defined in
section 2105 of title 5), but does not include a
political appointee; and (B) the term ‘political
appointee’ means any employee who occupies a
position which has been excepted from the
competitive service by reason of its confidential,
policy-determining, policy-making, or policyadvocating character.’’).
295 Citing 7 U.S.C. 6992(e)(2).
296 Citing 5 U.S.C. 9803(c)(2).
297 Citing U.S. Dep’t of Veterans Affairs, ‘‘VA’s
Administrations,’’ https://www.ruralhealth.va.gov/
aboutus/structure.asp#:∼:text=
VA%20is%20the%20federal
%20government’s,Veterans
%2C%20their%20families%20and%20survivors.
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policy-making or policy-advocating’’
character, including laws with
government-wide applicability.298
Further illustrating the political
nature of positions excluded under 5
U.S.C. 7511(b)(2), commenter cited a
law applicable to the Social Security
Administration that imposes an
aggregate limit on the total number of
noncareer (i.e., political) SES positions
and confidential or policy positions.299
In addition to pointing to Congress’
understanding of the phrases,
commenter also extensively detailed the
history of these phrases through various
administrations, beginning in 1936 with
the Roosevelt Administration, and
concluded that this context further
supports OPM’s definition in this
rulemaking. The history confirms that
these phrases have the same meaning,
refer to political appointees, and cover
only a small number of positions in the
executive branch (roughly 1,500).
As commenter points out, at least as
early as the Roosevelt Administration,
the executive branch sought to treat
confidential and policy positions
differently than it treated career
excepted and competitive service
employees.300 In 1937, President
Roosevelt called for converting all
positions other than ‘‘policy-forming’’
positions to the classified (i.e.,
competitive) service, a position with
which the CSC agreed.301
Further, as commenter noted, and as
OPM explained in its proposed
rulemaking, the Roosevelt
Administration’s Brownlow Committee,
studying the executive branch
organization, issued a report explaining
298 Citing 5 U.S.C. 4107(b)(3), 5753(a)(2), 5754,
5758, 10104(d), see also 12 U.S.C. 4511, 5584; 22
U.S.C. 3983(d)(3); 38 U.S.C. 308(d)(2).
299 Citing 42 U.S.C. 904(c), see also 5 U.S.C.
1215(b) (Office of Special Counsel statute that
requires that office to notify the President of a
Hatch Act violation by ‘‘an employee in a
confidential, policy-making, policy-determining, or
policy-advocating position appointed by the
President, by and with the advice and consent of
the Senate,’’ which reinforces political meaning of
the phrase), 2 U.S.C. 1601 (Lobbying Disclosure Act
listing ‘‘confidential, policy-determining, policymaking, policy-advocating’’ with other political
appointees and executive and military officers).
300 Citing Democratic Party Platform of 1936 (June
23, 1936) (‘‘For the protection of government itself
and promotion of its efficiency, we pledge the
immediate extension of the merit system through
the classified civil service . . . to all non-policymaking positions in the Federal service.’’), https://
www.presidency.ucsb.edu/documents/1936democratic-party-platform.
301 Citing Task Force on Pers. & Civil Serv.,
Report on Personnel and Civil Service, 6 (1955)
https://www.google.com/books/edition/Report_on_
Personnel_and_Civil_Service/ytR9zYFWVtwC; U.S.
Civil Serv. Comm’n, Fifty-Fourth Report, 2 (1937),
https://babel.hathitrust.org/cgi/
pt?id=hvd.hl29qu&seq=10&q1=policy&format=
plaintext.
PO 00000
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that its conception of policydetermining positions was extremely
narrow and such positions should be
‘‘relatively few in number,’’ consisting
mainly of ‘‘the heads of executive
departments, under secretaries and
assistant secretaries, the members of the
regulatory commissions, the heads of a
few of the large bureaus engaged in
activities with important policy
implications, the chief diplomatic posts,
and a limited number of other key
positions.’’ 302
Testifying before Congress, Louis
Brownlow, the committee chair,
explained the meaning of this policydetermining position exception:
‘‘[P]olicy-determining officers should be
political officers and, in my opinion,
should change when the President
changes.’’ 303 Contemporaneous
materials support this meaning of the
term ‘‘policy-determining.’’ 304
President Roosevelt then pursued the
Committee’s recommendation and
issued Executive Order 7916,305
adopting the term ‘‘policy-determining’’
in lieu of the term ‘‘policy-forming’’
which his Administration had initially
used. The order created a framework for
giving employees in excepted service
positions, other than those in ‘‘policydetermining’’ positions, competitive
status.
Two commissions led by former
President Herbert Hoover agreed with
the same reading of this exception.
During the Truman Administration, the
first Hoover Commission recommended
a civil service exception for ‘‘policymaking’’ positions, saying that ‘‘[t]op
policy-making officials must and should
be appointed by the President. But all
employment activities below these
levels, including some positions now in
the exempt category, should be carried
on within the framework of the
decentralized civil service system
recommended in this report.’’ 306 Later,
302 Citing ‘‘Hearings on Reorganization of the
Executive Departments, before Joint Comm. on
Gov’t Org.,’’ 75th Cong., 112 (1937) (testimony of
Louis Brownlow), https://babel.hathitrust.org/cgi/
pt?id=mdp.39015022777190&
seq=124&q1=policy&format=plaintext.
303 Id.
304 Citing ‘‘Civil Service Aide Defends Federal
Plan, Cites Administration’s increase in Employes
Under System,’’ Cincinnati Post (May 11 1936);
Nat’l Civil Service Reform League, ‘‘The Civil
Service in Modern Government, A Study of the
Merit System,’’ p. 19 (1937), https://
babel.hathitrust.org/cgi/pt?id=mdp.
39015005609923&seq=27.
305 Citing E.O. 7916 (June 24, 1938), https://
www.presidency.ucsb.edu/documents/executiveorder-7916-extending-the-competitive-classifiedcivil-service.
306 Citing U.S. Dep’t of Justice, ‘‘Hiring
Procedures for Attorneys,’’ 3 Op. O.L.C. 140, 145,
n.7 (1979) (‘‘[Attorneys] were, pursuant to Exec.
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a second Hoover commission
determined the term ‘‘policydetermining’’ was ‘‘used to describe
positions which should properly be
reserved for political executives, and
hence not be converted to classified
status.’’ 307
The Eisenhower Administration
maintained this same distinction
between career positions and political
positions. In March 1953, the White
House issued a press release describing
‘‘types of positions that do not belong in
the Civil Service System’’ which
included (1) those positions that
received a delegation to shape the
policies of the Government and (2) those
where the duties required a close
personal and confidential
relationship.308 As commenter noted,
the focus of this press release was
Schedule A because, at the time, career
positions had been comingled with
political positions under that schedule.
Later that month, President Eisenhower
created a new home for political
positions through Executive Order
10440, which established Schedule C
for both types of positions described in
the press release. The order combined
these types of positions, referring to
them as ‘‘positions of a confidential or
policy-determining character.’’ 309
The CSC explained that Schedule C
aimed ‘‘to enable the Administration to
make appointments directly to those
positions involving the determination of
major executive policies’’ and identified
the purpose of the new schedule for
positions of a confidential or policydetermining character: ‘‘This action was
taken in order to make a clear
distinction between jobs which belong
in the career service and those which
should be subject to change with a
change in administration.’’ 310
As commenter asserts, the Eisenhower
Administration recognized that the
universe of political positions was small
and showed restraint in redesignating or
creating Schedule C positions. By midOrder No. 8743, in the competitive service.’’),
https://www.justice.gov/d9/olc/opinions/1979/04/
31/op-olc-v003-p0140_0.pdf.
307 Citing Task Force on Pers. and Civil Serv.,
Report on Personnel and Civil service, p. 6 (1955)
(emphasis added)), https://www.google.com/books/
edition/Report_on_Personnel_and_Civil_Service/
ytR9zYFWVtwC.
308 Citing Press Release, The White House, p. 1
(Mar. 5, 1953) (signed by James C. Hagerty, Press
Sec’y to the President).
309 Citing E.O. 10440 (Mar. 31, 1953), https://
www.presidency.ucsb.edu/documents/executiveorder-10440-amendment-civil-service-rule-vi.
310 Citing Memo. From Philip Young, Chairman,
CSC, to Heads of Dep’ts and Indep. Estabs. (Apr. 1,
1953); CSC, 70th Annual Report, p. 2 (Nov. 16,
1953), https://babel.hathitrust.org/cgi/
pt?id=uiug.30112069434923&seq=532&q1=policydetermining&format=plaintext.
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1954, there were only 1,086 Schedule C
positions.311 This understanding about
the limited nature of this Schedule and
corresponding restraint has endured to
this day.
The precedent from 1936–1960 gave
meaning to the phrase ‘‘confidential or
policy-determining’’ by recognizing that
it applied to political appointees and
only a small number of positions. As
commenter showed, Presidents
Kennedy, Johnson, Nixon, Ford, and
Carter solidified that meaning by
continuing to recognize the appropriate
scope of the phrase ‘‘confidential or
policy-determining.’’ Under those five
presidents, the number of confidential
and policy-determining positions
remained consistent, never exceeding
1,590 positions.312
By the time Congress enacted the
CSRA in 1978, the meaning of
‘‘confidential or policy-determining’’
was firmly established as referring only
to a small class of political positions. In
enacting the CSRA, Congress opted for
the slightly longer and more descriptive
phrase ‘‘confidential, policydetermining, policy-making or policyadvocating.’’ But as commenter showed,
the two phrases have always meant the
same thing.
Congressional deliberations over the
CSRA exception for ‘‘confidential,
policy-determining, policy-making or
policy-advocating’’ positions reflected a
contemporaneous understanding that
the legislature’s longer phrase referred
to the same thing as the executive
branch’s shorter phrase.313 During
hearings on the bill that would become
the CSRA, participants used the terms
‘‘policy-determining,’’ ‘‘policy-making’’
and ‘‘policy-advocating’’
interchangeably. Floor debate in the
Senate, for example, discussed reports
of the two Hoover Commissions,314
demonstrating that Congress was aware
of the history of the terms when it
enacted the CSRA. The House
Committee on the Post Office and Civil
Service issued a report in 1978 that
showed congressional understanding
and approval of the historical use of the
‘‘confidential or policy-determining’’
exception, stating ‘‘[a]n employee whose
position is of a confidential or policy
determining character, generally
political appointees, would not be
entitled to the benefits of this
legislation.’’ 315 The House Committee
continued that the CSC ‘‘issues
regulations to define positions which
are of a policy or confidential nature,
and the committee believes the current
regulatory definitions for these positions
are adequate.’’
Commenter showed that the House of
Representatives committee responsible
for the CSRA explicitly indicated in its
1978 report that it meant for the new
language, ‘‘confidential, policydetermining, policy-making or policyadvocating,’’ to cover only the types of
positions that the executive branch had
already included in Schedule C or
designated as noncareer (i.e., politically
appointed) executive positions.316
This limitation, confining the
language to political appointees, was
well understood after the CSRA’s
enactment as well. In 1990, when
Congress amended 5 U.S.C. 7511 to
grant nonpreference eligible employees
a right to appeal removals and other
major adverse actions to the MSPB, the
relevant congressional committee was
again clear in describing confidential
and policy positions as political
appointees.317
311 Citing Press Release, U.S. Civil Serv. Comm’n,
p. 2 (Aug. 6, 1954); U.S. Civil Serv. Comm’n,
Schedule C Approvals and Disapprovals by Agency
Based Upon Civil Service Commission Decisions
(Jul. 23, 1954).
312 Citing Mike Causey, ‘‘Reagan’s Plum Book
Plumper Than Carters,’’ Wash. Post (May 11, 1984),
https://www.washingtonpost.com/archive/local/
1984/05/11/reagans-plum-book-plumper-thancarters/4b45ea11-5f41-4b0b-a3c3-f0e4b5774543/;
Attachment to Memo. from Raymond Jacobson,
Exec. Dir., U.S. Civil Serv. Comm’n, to Dirs. Of
Pers., at p. 5 (Nov. 10, 1976), https://
www.fordlibrarymuseum.gov/library/document/
0067/1563179.pdf; H. Comm. On Post Off. And
Civil Serv., 94th Cong., the Merit System in the
United States Civil Service, p. 22 n.1 (Comm. Print
94–10 1975) (monograph by Bernard Rosen),
https://babel.hathitrust.org/cgi/
pt?id=mdp.39015078700211&view=1up&seq=1&
q1=%22schedule+c%22.
313 Citing ‘‘Hearings on H.R. 12080, Civil Service
Amendments of 1976, Before the Subcomm. on
Manpower and Civil Serv., H. Comm. on Post Off.
and Civil Serv.,’’ Serial No. 94–67, 29 (1976),
https://babel.hathitrust.org/cgi/
pt?id=pur1.32754078079963&
seq=33&q1=advocating&format=plaintext.
314 Citing 124 Cong. Rec. (Senate) 27540 (Aug. 24,
1978) (remarks of Senator Charles Percy (R–IL))
(‘‘The Hoover Commission believed that in a true
career service, the employee could go as far as his
ability and initiative and qualifications indicated,
excepting only decisionmaking or confidential
posts. It held: [‘]Top policy-making officials must
and should be appointed by the President. But all
employment activities below these levels, including
some positions now in the exempt category, should
be carried on within the framework of (the civil
service system).[’]’’), https://www.govinfo.gov/
content/pkg/GPO-CRECB-1978-pt20/pdf/GPOCRECB-1978-pt20-7-1.pdf.
315 Citing H.R. Rep. No. 95–1207, at 5 (1978),
https://babel.hathitrust.org/cgi/
pt?id=mdp.39015087614379&seq=1053&q1=policydetermining.
316 Citing H. Comm. on Post Off. and Civil Serv.,
Legislative History of the Civil Service Reform Act
of 1978, vol. II, 242 (Comm. Print 96–2 1979),
https://babel.hathitrust.org/cgi/
pt?id=uc1.b4177360&seq=242&q1=policydetermining&format=plaintext.
317 H.R. Rep. 101–328, 5, 1990 U.S.C.C.A.N. 695,
699 (‘‘Schedule C, positions of a confidential or
policy-determining character. These are political
appointees who are specifically excluded from
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In 1992, a bipartisan group of senators
and congressional representatives filed
an amicus brief emphasizing that ‘‘the
effective synonym for confidential
policy positions is ‘political
appointees.’ ’’ 318 Their brief cited an
MSPB decision that had said the phrase
was, ‘‘after all, only a shorthand way of
describing positions to be filled by socalled ‘political appointees.’ ’’
Comment 2134 also showed that, in
1994, the Senate Select Committee on
Ethics reaffirmed this common
understanding. Following the enactment
of the Hatch Act Reform Amendments,
the committee issued guidance on a new
prohibition applicable to members of
Congress regarding personnel action
recommendations or statements for ‘‘all
non-political Federal employment.’’
This meant that the prohibition did not
apply to political appointments. The
committee specifically noted that the
prohibition did not apply to
recommendations for presidential
appointments or for positions
determined to be of a ‘‘confidential,
policy-determining, policy-making, or
policy-advocating character.’’ 319 The
committee understood the term of art to
mean political positions.
Finally, commenter noted that OPM
further affirmed the common
understanding of this phrase when it
responded to questions posed by
Senator Christopher Shays (R–CT)
during a hearing in 1996. Illustrating the
consistency of OPM’s position on the
meaning of the phrase it now defines,
OPM wrote: ‘‘OPM has authority to
except positions from the competitive
service on the basis that they are of a
confidential or policy-making, policycoverage under section 7511(b) of title 5. H.R. 3086
does not change the fact that these individuals do
not have appeal rights.’’).
318 Citing Amicus Curiae Brief of Sens. Charles
Grassley and David Pryor and Reps. Connie
Morella, Patricia Schroeder, and Gerry Sikorski,
reprinted in ‘‘Hearing on S. 1981 To Extend
Authorization of Appropriations for the U.S. Office
of Special Counsel, and for Other Purposes before
S. Comm. on Govt’l Affairs, Subcomm. on Fed.
Servs., Post Off., and Civil Serv.,’’ 102d Cong., 101–
10 (1992), https://babel.hathitrust.org/cgi/
pt?id=pst.000022216847&seq=59&q1=policydetermining&format=plaintext.
319 Citing ‘‘Dear Colleague’’ Letter from the Senate
Select Committee on Ethics to United States
Senators, 1 (Mar. 2, 1994), reprinted in the 1996
Senate Ethics Manual, 1996 Ed., 238, https://
babel.hathitrust.org/cgi/
pt?id=mdp.39015038182369&seq=
256&q1=advocating; see also U.S. Off. of Pers.
Mgmt., ‘‘The status of the Senior Executive
Service,’’ p. 12 (1994) (‘‘Executive branch agencies
are barred from accepting or considering prohibited
political recommendations and are required to
return any prohibited recommendations to the
sender, marked as in violation of the law.
Presidential appointees and employees in
confidential, policy-making or policy-advocating
positions are exempted from the regulations.’’).
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determining, or policy-advocating
character (‘political’ positions).’’ 320
Commenter concluded, correctly, that
this extensive history shows that the
‘‘terms mean precisely what OPM’s
proposed definition says they mean.
They describe positions meant to be
filled by political appointees who have
no expectation of continuing beyond the
terms of either the president who
appointed them or the term-limited
presidential appointees they support.’’
The history also reveals there are few
such positions. The number has
remained steady at around 1,500
positions and has never exceeded 1,800
positions.
Other Comments Regarding the History
of the Exception
Several other comments supportive of
the rule concurred with OPM’s
understanding that Congress intended
the phrase ‘‘confidential, policydetermining, policy-making or policyadvocating’’ to mean political
appointees. A labor union expressed
that the clarification is consistent with
the general understanding that the
exception was intended to only cover
political appointees and was not
intended to extend to all federal
employees whose jobs touch on policy
in some way, which, if read broadly,
could encompass a substantial portion
of the federal civil service. Comment 40.
The potential for turning the exception
into one that ‘‘eats the rule’’ is clear and
the rule is a sensible approach to
prevent such future abuses. Id. A
coalition of national and local unions
agreed with OPM’s contention that there
has been a long, consistent
understanding that this exception
should encompass only a category of
political appointees. Comment 41.
Comments Opposing this Regulatory
Change
An advocacy nonprofit organization
opposed to the rule argued that the
legislative history for this exception
merely confirms that it covers Schedule
C political appointees. Comment 4097.
But commenter contended that the
legislative history does not state that the
policy influencing exception covers
only political appointments and
excludes career employees. OPM
disagrees with this position for the
reasons detailed in the proposed rule,
320 Citing ‘‘Hearing before the S. Comm. on Govt’l
Affairs,’’ 104th Cong, S. Hrg. 104–483, 20, 92 (Feb.
7, 1996) (responses of Off. of Pers. Mgmt. to
Questions for the Record by Rep. C. Shays (Mar. 21,
1996) as read into the record by Chairman Ted
Stevens (R–AK)), https://babel.hathitrust.org/cgi/
pt?id=uc1.b5141898&seq=1&q1=policydetermining.
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25023
this final rule, and Comment 2134.
Since at least 1936, this phrase and the
resulting exception in 5 U.S.C.
7511(b)(2) have been understood to
mean political appointees. Commenter
cites nothing that counters this
extensive record. Even if there were
some uncertainty regarding the scope of
section 7511(b)(2), OPM would adopt
the same definition because it is the best
reading of the statute, reflects the
understanding articulated by Congress
in enacting the CSRA and, as discussed
throughout this preamble, reasonably
reinforces and clarifies longstanding
civil service protections and merit
system principles.
The same commenter opposed to the
rule argued that OPM’s clarification of
the longtime understanding of this
exception would be unconstitutional.
Comment 4097 argued that OPM ‘‘does
not appear to have considered the
implications of its interpretation:
accepting this construction would
render many inferior officers’ civil
service protections unconstitutional.’’
For this, commenter again cited Free
Enterprise Fund. For the reasons
explained above in Sections III.(E), (F),
OPM does not agree with this
conclusion or that Free Enterprise Fund
supports commenter’s position. That
case dealt with an independent agency
with multiple layers of removal
protections for their inferior officers
(which generally do not exist in
agencies where the President can
remove a Secretary, Director, or other
agency head at will). In Free Enterprise
Fund, the second layer of protection was
also ‘‘significant and unusual’’ 321 and
the Court specifically said that other
civil servants, like members of the SES,
did not have such rigorous protections
even when they worked in independent
agencies, and further noted that many
such employees would not qualify as
constitutional officers. Free Enterprise
Fund casts no doubt on the
constitutionality of the civil service
within independent agencies and that
decision provides no support to
commenter’s assertion that lowerranking employees in all agencies must
lose civil service rights if they work on
policy or that somehow confirming their
rights is unconstitutional. And
commenter made no showing that career
civil servants working on policy
matters, especially below the ranks of
the SES—those to which this definition
would apply—are always, or by
definition, inferior officers, nor is OPM
aware of any judicial decisions holding
so.
321 561
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One former political appointee
appears to have argued that 5 U.S.C.
7511(b)(3) 322 already exempts
presidential appointees from adverse
action protections, so OPM’s definition
applicable to the exception in 7511(b)(2)
would be superfluous. See Comment 45.
But subsections 7511(b)(1)–(3) exclude
three distinct types of political
appointments from the definition of
‘‘employee,’’ and by extension, from
adverse action rights.323 The first
excludes high-level presidential
appointees requiring Senate
confirmation (PAS).324 The third
excludes other presidential appointees
who do not require Senate
confirmation.325 The middle category,
and the subject of this regulatory
change, excludes those in positions
determined to be of a ‘‘confidential,
policy-determining, policy-making or
policy-advocating character’’—
traditionally understood to refer, in the
main, to Schedule C political
appointees.326 The creation of such a
position is approved in advance by
OPM. Although the appointments are
approved by the Presidential Personnel
Office, the individuals selected are
actually appointed by the head of the
agency (or a designee) where the
individual will be assigned. Section
7511(b)(2) was enacted as part of the
Civil Service Due Process Amendments
Act of 1990,327 where Congress sought,
inter alia, to eliminate the general
exclusion of nonpreference eligible
excepted-service employees from
‘‘independent [MSPB] review.’’ 328
Accordingly, unlike the presidential
322 Commenter argued ‘‘Chapter 75 § 7511(c) says
that all Presidential appointees are exempt.
However, other subsections enumerate other
categories for exemption. Chapter 75 § 7511 (b)(2)
outlines exemptions for policymaking employees. If
Congress had intended that ONLY political
appointees be exempt, they would not have
outlined under what circumstances other
employees would have been exempt for
policymaking reasons. Therefore, Congressional
intent was for there to be members of the civil
service who are considered ‘policymaking.’ ’’
Comment 45. Commenter cited 5 U.S.C. 7511(c) but
appears to mean 7511(b)(3). Also, OPM never
argues that only political appointees are excepted
from adverse action rights. It is defining the
exception in 5 U.S.C. 7511(b)(2) to mean political
appointees.
323 See supra note 138 (detailing the different
types and numbers of political appointments).
324 See 5 U.S.C. 7511(b)(1).
325 See 5 U.S.C. 7511(b)(3).
326 See 5 U.S.C. 7511(b)(2). Paragraph (b)(2) also
specifies who may make the determination for
positions that Congress itself excepts from the
competitive service. See 5 U.S.C. 7511(b)(2)(C). An
example of such a position is the U.S. Trustee
position discussed in Stanley v. Dep’t of Justice, 423
F.3d 1271 (Fed. Cir. 2005).
327 Public Law 101–376, 2, 104 Stat. 461, 461–62.
328 H.R. Rep. No. 101–328, at 3, as reprinted in
1990 U.S.C.C.A.N. 695, 697.
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appointees discussed in (b)(1) and
(b)(3), which are automatically excluded
from the adverse action procedures in
chapter 75, some person or entity must
make an affirmative determination
whether a position in the excepted
service is of a ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ character, a description
which, as we have noted above, was
consistent with Congress’ understanding
of the unique set of excepted service
positions comprising Schedule C.
Subparagraph (A) of section 7511(b)(2)
specifies that any such determination
must be made by the President, for a
position that the President has excepted
from the competitive service;
subparagraph (B) specifies that any such
determination must be made by OPM,
for a position that OPM has excepted
from the competitive service; and
subparagraph (C) specifies that any such
determination must be made by the
President or the agency head for a
position that Congress itself has
excepted from the competitive service.
As noted above, Congress explained that
‘‘the key to the distinction between
those to whom appeal rights are
extended and those to whom such rights
are not extended is the expectation of
continuing employment with the
Federal Government.’’ Congress stated
that the bill that would become the Civil
Service Due Process Amendments Act
of 1990 ‘‘explicitly denies procedural
protections’’ to these types of political
appointees—‘‘presidential appointees,
individuals in Schedule C positions
[which are positions of a confidential or
policy-making character] and
individuals appointed by the President
and confirmed by the Senate,’’ and that
‘‘[e]mployees in each of these categories
have little expectation of continuing
employment beyond the administration
during which they were appointed’’
because they ‘‘explicitly serve at the
pleasure of the President or the
presidential appointee who appointed
them.’’ 329 By enacting section
7511(b)(3), therefore, Congress intended
to exclude from the procedural and
appeal rights of 5 U.S.C. chapter 75 a
discrete group of political appointees
separate from those described in section
7511(b)(2), namely those individuals
appointed directly by the President 330
329 H.R. Rep. No. 101–328, at pp. 4–5, as reprinted
in 1990 U.S.C.C.A.N. at 698–99.
330 See, e.g., 5 CFR 213.3102(c); U.S. Off. of Pers.
Mgmt., ‘‘Frequently Asked Questions: Political
Appointees and Career Civil Service Positions
FAQ’’ (listing various types of political
appointments), https://www.opm.gov/frequentlyasked-questions/political-appointees-and-careercivil-service-positions-faq/general/which-types-ofpolitical-appointments-are-subject-to-opmrsquospre-hiring-approval/.
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but who do not require Senate
confirmation.
Some commenters opposed to the rule
argued that career civil servants, not just
political appointees, can be
‘‘policymakers’’ and excluded from the
definition of ‘‘employee’’ and stripped
of rights under 5 U.S.C. 7511(b)(2). One
former political appointee contended
that career civil servants significantly
impact policy in agencies across the
Federal Government and that it makes
little sense to say they are not
policymakers. See Comment 45.
Comment 4097, an advocacy nonprofit
organization, argued that the CSRA
expressly applies the terms ‘‘policydetermining’’ and ‘‘policy-making’’ to
career positions. To support this point,
commenter points to 5 U.S.C. 3132,
which relates to the duties of both
career and noncareer SES and states that
SES members exercise ‘‘important
policy-making, policy-determining, or
other executive functions.’’ 5 U.S.C.
3132(2)(E). Commenter concludes
similar phrasing in 5 U.S.C. 7511(b)(2)
must also apply to career members of
the competitive and excepted services.
OPM disagrees, for multiple reasons.
As an initial matter, the terminology
and the structure of 5 U.S.C. 7511(b) are
different from 5 U.S.C. 3132. As
explained extensively throughout this
final rule, the phrase ‘‘confidential,
policy-determining, policy-making or
policy-advocating,’’ as Congress used it
in 5 U.S.C. 7511(b)(2), is a term of art
with a clear history and a consistent
usage. By contrast, Congress, in enacting
the provisions establishing the SES, was
writing on a clean slate and used a
different statutory structure and
language. Section 3132(2)(E) describes
the SES as exercising ‘‘important policymaking, policy-determining, or other
executive functions’’ (emphasis
supplied), a new formulation of
characteristics. Congress, in creating the
SES, also established a different
mechanism to provide flexibility for
hiring a certain number of noncareer
appointees, while limiting such
appointments pursuant to a numerical
formula.331
Further, Comment 4097’s comparison
to language in the SES cuts against its
larger argument—that Congress
contemplated that career civil servants,
by the function of having confidential or
policy responsibilities, can and should
lose adverse action rights. As
commenter points out, the law
acknowledges that all SES positions,
career and noncareer, ‘‘exercise[ ]
important policy-making, policydetermining, or other executive
331 See
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functions,’’ yet the career SES
appointees under these positions are
entitled to adverse action protections.332
And these protections do not include
any exception for career SES officials,
similar to 5 U.S.C. 7511(b)(2), for
positions of a ‘‘confidential, policydetermining, policy-making or policyadvocating’’ character.333 To the
contrary, all career SES officials who
have completed a probationary period—
again, officials who, by statute,
‘‘exercise important policy-making’’ and
‘‘policy-determining’’ functions—
receive adverse action protections.334 It
does not follow that Congress would
create a statutory scheme where the SES
could have policy responsibilities and
adverse action rights but a lowerranking strata of career civil servants—
managed by that SES—could lose
adverse action rights the moment they
worked on policy.
A professor emeritus opposed to this
rule made a related argument that, in
practice, career civil servants perform
policy roles. See Comment 3953.
Commenter argued that OPM’s
definition of the statutory exception
fails to recognize that there is a
significant number of career employees
who exercise ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ roles within the
government. The rulemaking,
commenter argued, therefore presumes a
separation of policymaking and policy
implementation and between political
appointees and career officials that does
not exist. As explained above, however,
this final rule does not say that only
political appointees should or do work
on policy. Instead, it clarifies the
longtime understanding of the exception
in 5 U.S.C. 7511(b)(2) as political
appointees.
Comment 4097 further argued that a
1994 amendment to 5 U.S.C. 2302,
relating to prohibited personnel
practices, shows that career incumbents
‘‘can lose statutory protections if their
332 See
5 U.S.C. 7541–7543.
explained, the exception at 5 U.S.C.
7511(b)(2) does not apply to the SES. That
exception applies to the excepted service and
whether those civil servants have adverse action
rights. But the excepted service does not include
the SES. See 5 U.S.C. 2103(a) (defining ‘‘excepted
service,’’ and stating, ‘‘[f]or the purpose of this title,
the ‘excepted service’ consists of those civil service
positions which are not in the competitive service
or the Senior Executive Service.’’).
334 The Subchapter on adverse actions establishes
the at-will status of noncareer SES by simply
defining ‘‘employee’’ for purposes of that
Subchapter as career employees, at section 7541(1)).
Thus, there was no need, in crafting, sections 7541–
7543, to make an exception similar to 5 U.S.C.
7511(b)(2), for positions of a ‘‘confidential, policydetermining, policy-making or policy-advocating’’
character.’’
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positions are declared policyinfluencing.’’ Section 2302(a)(2)(B)
defines ‘‘covered position’’ with respect
to any personnel action, but excludes
from coverage any position which is,
‘‘prior to the personnel action . . .
excepted from the competitive service
because of its confidential, policydetermining, policy-making, or policyadvocating character.’’ 5 U.S.C.
2302(a)(2)(B) (emphasis added).
Commenter suggests that the 1994
amendment added ‘‘prior to the
personnel action’’ to this clause, and
this means that Congress contemplated
the designation of a position as
confidential, policy-making, policydetermining, or policy-advocating and
the subsequent removal of those
positions as ‘‘covered’’ under section
2302. That career incumbent, according
to commenter, would then lose the
corresponding protections from
prohibited personnel practices after the
position’s move to the excepted service.
Section 2302(a)(2)(B) clarifies that the
status of the underlying position at the
time of the personnel action determines
whether the incumbent can pursue
relief pursuant to section 2302. OPM
notes that this final rule deals with
adverse action rights under 5 U.S.C.
chapter 75 and corresponding
regulations, but not prohibited
personnel practices. Adverse action
protections and the ability to seek
corrective action in response to a
prohibited personnel practice are two
separate types of rights with distinct
processes. Nothing about the 1994
amendments change the meaning of the
exclusion in section 7511(b)(2) as
explained above. OPM, moreover, agrees
that a select few employees have been
moved from the competitive service to
Schedule C because conditions of good
administration warranted such a move,
or have been placed in the excepted
service by Congress, via a statute
creating unique appointment and
removal provisions, as in the Stanley
cases.335 But as these cases show, when
it comes to adverse action rights, even
the incumbents of confidential, policydetermining, policy-making, or policyadvocating positions, when moved to
Schedule C, retain previously accrued
adverse action rights if the move was
involuntary.
Comments Regarding the MSPB’s
Interpretation of This Exception
Other commenters supporting the rule
contended that the MSPB has
interpreted the phrase to mean political
appointees. A coalition of national and
local labor unions noted, as did OPM in
its proposed rule,336 that the MSPB has
construed this phrase for decades.
Comment 41. The Board has explained
that the phrase ‘‘confidential, policydetermining, policy-making or policyadvocating’’ is ‘‘only a shorthand way of
describing positions to be filled by socalled ‘political appointees.’ ’’ 337
One commenter opposed to the rule
argued that MSPB decisions have ‘‘little
relevance here’’ since chapter 75 gives
the President, OPM, and agency heads
responsibility for determining that
positions are policy-influencing.
Comment 4097. Commenter argued that
MSPB case law does not and cannot
determine the scope of these exceptions.
The MSPB is authorized to hear,
adjudicate, or provide for the hearing or
adjudication, of all matters within the
jurisdiction of the Board.338 Subject to
otherwise applicable provisions of law,
it may take final action on any such
matter.339 It may order any Federal
agency or employee to comply with any
order or decision it issues and enforce
compliance with any such order.340 It is
true that the MSPB cannot compel the
Federal Circuit or the Supreme Court to
adopt a different position, but MSPB’s
interpretations of title 5’s terms are
nevertheless significant. Where
possible, it is prudent to interpret
statutes harmoniously and in a manner
that will not expose agencies to
unwarranted liability. Also, as Comment
2134 described, Congress itself has
relied on the MSPB decisions and
viewed them as persuasive in defining
terms in title 5. In 1992, a bipartisan
group of senators and congressional
representatives filed an amicus brief
emphasizing that ‘‘the effective
synonym for confidential policy
positions is ‘political appointees.’ ’’ See
Comment 2134. Their brief cited an
MSPB decision that said the phrase was,
‘‘after all, only a shorthand way of
describing positions to be filled by socalled ‘political appointees.’ ’’ Id. OPM
is not simply deferring to existing MSPB
decisions, but rather has considered
those decisions and finds their
reasoning to be compelling and in
accord with our own. The fact that
multiple agencies within the Executive
Branch with authority to interpret and
apply title 5 have reached the same
determination about what this title 5
336 See
88 FR 63862, 63872.
Special Counsel v. Peace Corps, 31
M.S.P.R. 225, 231 (1986).
338 5 U.S.C. 1204(a)(1).
339 Id.
340 5 U.S.C. 1204(a)(1)(2).
337 Citing
335 See also 5 CFR 6.8(c) (moving USDA
Agriculture Stabilization and Conservation state
executive directors and Farmers Home
Administration state directors into Schedule C).
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term of art means only underscores the
persuasiveness of that conclusion.
Finally, a former political appointee
argued that ‘‘policy-making’’ under 5
U.S.C. 7511(b)(2) is not determined by
how employees are hired—as a political
appointee or career civil servant—but
rather, it is determined based on
holding an excepted position. Comment
45. Under 5 U.S.C. 3302, however,
excepted service positions can be
created for a variety of reasons when
conditions of good administration
warrant. The President has delegated to
OPM—and, before that, to its
predecessor, the CSC—concurrent
authority to except positions from the
competitive service when it determines
that appointments thereto through
competitive examination are not
practicable. Merely holding an excepted
service position does not make someone
a policy-making employee nor does
working on policy necessitate being in
an excepted service.
As Congress described during the
1990 Amendments, the ‘‘key to the
distinction’’ between those civil
servants on whom appeal rights are
conferred and those to whom such
rights are not conferred is the
‘‘expectation of continuing employment
with the Federal Government.’’ Some
commenters opposed to this rule ignore
this distinction. Comment 4097 argued
that certain employees would not enjoy
adverse action rights but would keep
their jobs if they ‘‘faithfully advanced
the President’s agenda.’’ Such a scheme
would be directly contrary to this ‘‘key’’
distinction that Congress identified as
animating the adverse action
exceptions.
Improperly applying the phrase
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’ to
describe positions held by career
employees, who have an expectation of
continuing employment beyond the
presidential administration during
which they were appointed, and to strip
them of civil service protections, even
when the Senior Executives to whom
such individuals report retain
protections, would be inconsistent with
the statute. OPM’s rule, on the contrary,
is the best reading of the statute—as
confirmed by the statutory scheme,
congressional intent, legislative history,
and decades of applicable case law and
practice. Congress carefully balanced
the need for long-term employees who
have knowledge of the history, mission,
and operations of their agencies with
the need of the President for individuals
in certain positions who will ensure that
the specific policies of the
Administration will be pursued. The
phrase has long been interpreted as ‘‘a
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shorthand way of describing positions
to be filled by political appointees,’’
including any appointment required or
authorized to be made by the President,
or by an agency head when there are
‘‘indications that the appointment was
intended to be, or in fact was, made
with any political considerations in
mind.’’ 341 In this final rule, therefore,
OPM is making explicit this longtime,
consistent understanding.
OPM is promulgating the following
changes to 5 CFR parts 210, 213, 432,
451, and 752:
Part 210—Basic Concepts and
Definitions (General)
Subpart A—Applicability of
Regulations; Definitions
Section 210.102 Definitions
The final rule amends 5 CFR 210.102
to add a definition for the phrase
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’
and ‘‘confidential or policydetermining’’ to describe positions
generally excepted from chapter 75’s
protections to reinforce the longstanding
interpretation that, in creating this
exception to 5 U.S.C. 7511(b), Congress
intended to except noncareer political
appointments from the civil service
protections, which are identified by
their close working relationship with
the President, head of an agency, or
other key appointed officials who are
responsible for furthering the goals and
policies of the President and the
administration, and that carry no
expectation of continued employment
beyond the presidential administration
during which the appointment
occurred. OPM defines the phrase as
descriptors for the positions held by
noncareer political employees because
the phrase is currently used in the
regulations to describe, among other
things, a ‘‘position’’ or the ‘‘character’’
of a position.
OPM also conforms changes to 5 CFR
213.3301, 302.101, 432.101, 451.302,
752.201, and 752.401 to standardize the
phrasing used to describe this type of
position. Additional comments related
to this definition are addressed here.
Comments Regarding Amendments to 5
CFR 210.102
An oversight nonprofit organization
supportive of this rule suggested that it
would be improved if OPM provided a
list of the positions that do not meet the
definition of ‘‘confidential, policydetermining, policy-making, or policyadvocating.’’ Comment 3894. This
341 O’Brien
v. Off. of Indep. Counsel, 74 M.S.P.R.
192, 206 (1997) (quoting Special Counsel, 31
M.S.P.R. at 231).
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commenter was especially concerned
that OPM enumerate the nonconfidential, policy-determining,
policy-making, and policy-advocating
positions involving national security,
public health, emergency management,
whistleblower protection, government
ethics, audits, legal and regulatory
interpretation, budget development and
execution, medical and scientific
research, and data collection and
analysis. Commenter suggested that an
explicit enumeration is necessary to
ensure that the appropriate positions in
critical areas are not mistakenly
categorized as confidential, policydetermining, policy-making, or policyadvocating. OPM will not make
revisions based on this comment. OPM
has adequately and thoroughly clarified
the exception in 5 U.S.C. 7511(b)(2) by
explaining that it applies to noncareer
political appointees. It would be
impracticable for OPM to effectively
enumerate all such political positions,
especially since new positions may be
created over time. OPM also notes that
a (necessarily partial) list of positions
that do not meet the definition may be
misunderstood as an attempt at an
exhaustive list, generating confusion
rather than clarity.
Several commenters requested that
OPM clarify how the definition of
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’ in
this final rule applies, if at all, to the
members of the SES.342 Comments 44, a
public service nonprofit organization,
and 3687, a science advocacy
organization, asked that OPM clarify
how this definition affects SES
employees. Comment 763, a
management association, expressed
concern that OPM’s clarification of
these types of positions will lead to SES
employees getting cut out of their
current policy supporting roles. They
recommended that OPM define ‘‘policy
determining, making, and advocating’’
as covering issues that rise to a level
needing decisions by Presidential
appointees. They further recommended
that OPM address how our proposed
amendments to 5 CFR part 210 interact
with the statutes and regulations
governing the SES and other senior
career leaders that make clear that
career SES are involved in many policyrelated activities, explicitly including
support for policy advocacy. Comments
2442 and 3428 (submitted by the same
individual) request further clarification
in light of the provisions of 5 U.S.C.
342 The extension of all parts of this rule to the
SES was a common request and theme in the
comments. See Comments 2193, 2222, 2260, 2796,
2816, 2822, 3049, 3095, 3149, 3687, 3973.
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3132, which states career members of
the SES exercise ‘‘important
policymaking, policy-determining, or
other executive functions.’’ As
described above and further below, no
changes to the proposed rule are
necessary, as the SES is governed by a
separate statutory structure that protects
the career SES in different ways from
the framework governing the
competitive and excepted services.
As explained in Section III(D), the
Federal civil service created by the
CSRA consists of three ‘‘services’’: the
competitive service, the excepted
service, and the SES.343 This regulation
addresses the competitive and excepted
services, which are governed by the
statutory and regulatory provisions cited
in the proposed rule and this final rule,
including, specifically, the adverse
action rules set forth at 5 U.S.C. 7501–
7515. Congress established the SES as a
separate service ‘‘to ensure that the
executive management of the
Government of the United States is
responsive to the needs, policies, and
goals of the Nation and otherwise is of
the highest quality for executive-level
Federal employees.’’ 344 The SES has a
different system for hiring executives,
managing them, and compensating
them.345 It provides for both career and
noncareer positions and sets its own
limitations on the appointment of
noncareer positions. Career SES
employees are governed by separate
adverse action procedures. Because,
pursuant to the definitions in 5 U.S.C.
7541, those adverse actions are limited
to ‘‘career’’ employees, there was no
need, unlike with the rules governing
adverse actions for employees in the
General Schedule, to call out and
exclude positions of ‘‘a confidential,
policy-determining, policy-making or
policy-advocating character,’’ and thus
there is no reference to such positions
in the provisions at section 7541–7543.
Instead, chapter 75’s adverse action
procedures for the SES, codified at 5
U.S.C. 7543, indisputably apply to any
career appointee in the SES who has
completed the relevant probationary
period in the SES or had accrued
adverse action protections while serving
in the competitive or excepted services
prior to joining the SES.346 Accordingly,
even though SES employees engage in
important policy-related work, the
phrase ‘‘confidential, policy343 There
are also a small number of officials,
typically those appointed by the President with or
without consent of the Senate, who are paid on the
Executive Schedule and not considered part of any
of these services.
344 5 U.S.C. 3131.
345 See 5 U.S.C. 5131–5136.
346 5 U.S.C. 7541.
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determining, policy-making or policyadvocating character,’’ as used to
describe positions that are excepted
from chapter 75’s adverse action
protections, does not apply to the SES.
Further, in addition to providing
explicit adverse action protections for
career SES, Congress also sought to
protect and preserve a career SES free
from undue partisan political influence
in other ways, including by setting strict
limits on the number of SES positions
that could be designated as ‘‘noncareer’’
(i.e., political).347 The rules are clear:
the number of noncareer SES in any
agency is to be determined annually by
OPM, not by the agency; ‘‘the total
number of noncareer appointees in all
agencies may not exceed 10 percent of
the total number of Senior Executive
Service positions in all agencies’’; and
the number of noncareer SES in any
single agency may not be more than ‘‘25
percent of the total number of Senior
Executive Service positions in the
agency’’ or ‘‘the number of [certain
executive and Executive Schedule]
positions in the agency which were
filled on the date of the enactment of’’
the CSRA.348 There are also limits on
the number of emergency and limitedterm SES appointments. The
governmentwide total may not exceed 5
percent of the governmentwide total of
all SES.349
As discussed above, any suggestion
that Congress provided more protections
for SES employees who work on policy
than it did for competitive and excepted
service employees who work on policy
would make little sense within the
statutory scheme. Members of the SES
make up the most senior ranks of the
civil service beneath the presidential
appointment level. They work most
directly with the President’s political
appointees. They have managerial
authority over employees in the
competitive and excepted services. This
includes the ability to direct their work
and hold them accountable for poor
performance or misconduct. A system
that provided greater protections to its
senior executives than it does to its
rank-and-file employees would be
ineffective and impractical.
Another commenter expressed
concern that the proposed definition
would lead to a reduction in the
responsibilities of current positions, and
a reclassification of those positions into
the excepted service. Comment 2445 (an
individual), see also Comment 763
(management association, expressing
concern about career staff who support
347 See
5 U.S.C. 3134.
id.
349 See 5 U.S.C. 3134(e).
348 See
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25027
the policy development process through
their work but do not have confidential,
policy-determining, policy-making, or
policy-advocating positions). Comment
2445 suggested that OPM clarify that
some confidential, policy-determining,
policy-making, or policy-advocating
work may be delegated without
changing the character of the delegee’s
position. The comment also suggested
that OPM clarify that duties typically
performed by those in competitive
service positions are not confidential,
policy-determining, policy-making, or
policy-advocating. OPM will not make
revisions based on these comments.
OPM will clarify though, as described
above, that OPM acknowledges and
understands that career employees
across government touch, support, and
otherwise work on policy. This final
rule in no way suggests that only
political appointees do or should work
on policy. Instead, the purpose of this
rule is much more specific—to clarify
the meaning of the exception to adverse
action rights in section 7511(b)(2)—
which, as explained, is a term of art that
has long meant political appointees.
Finally, one individual encouraged
OPM to define positions of a
‘‘confidential, policy-determining,
policy-making, or policy-advocating’’
character as narrowly as possible.
Comment 920. OPM will not make
revisions based on this comment. OPM
notes that the definition adopted
accords with Congressional intent,
legislative history, and past practices
and is the best reading of the statute.
The comment also suggested that OPM
add additional protections to prevent
positions from being moved into
Schedule C and to prevent the creation
of a new schedule of political
appointees. OPM will not make
revisions based on this comment. The
President has the authority to create
excepted service schedules and except
positions where necessary and if
conditions of good administrations
warrant such exceptions. What this rule
is addressing is the retention of accrued
status and rights following an
involuntary move to or within the
excepted service and a clarification of
when the exception of 5 U.S.C.
7511(b)(2) applies.
Part 213—Excepted Service
Part 213 sets forth provisions for
positions and appointments in the
excepted service. OPM is amending 5
CFR 213.3301 to conform to the revised
5 CFR 210.102.
OPM received no comments
specifically about the regulatory
changes to 5 CFR part 213, sees no
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reason to amend the proposal, and will
finalize the language as proposed.
Part 432—Performance Based Reduction
in Grade and Removal Actions
Section 432.102
Coverage
Part 432 sets forth the procedures to
be followed if an agency opts to pursue
a performance-based action against an
employee under chapter 43 of title 5,
U.S. Code. As with the adverse action
rules in part 752, the rules applicable to
performance-based actions apply
broadly to employees in the competitive
and excepted services, with specific
exceptions that include political
appointees. The final rule amends 5
CFR 432.102 to make clear that
employees in positions determined to be
of a confidential policy-determining,
policy-making, or policy-advocating
character as defined in 5 CFR 210.102
are excluded from coverage under part
432, consistent with congressional
intent.
Comments Regarding Changes to 5 CFR
432.102
An agency expressed the view that
part 752 would provide ‘‘coverage to
employees who are involuntarily moved
into roles in the excepted service that
have confidential, policy-determining,
policy-making, or policy-advocating
character,’’ as described in Section
IV(A) and then requested that part 432
be treated similarly by revising the
exclusion at 5 CFR 432.102(f)(10). See
Comment 2766. OPM will accept the
agency’s recommendation for the same
reasons it adopted similar suggested
revisions to part 752 and will revise
section 432.102(f)(10) by adding ‘‘unless
the incumbent was moved involuntarily
to such a position after accruing rights
as delineated in paragraph (e) of this
section.’’
Part 451—Awards
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Section 451.302 Ranks for Senior
Career Employees
Part 451 applies to awards and 5 CFR
451.302 addresses ranks for senior
career employees. OPM is amending 5
CFR 451.302 to conform to the revised
5 CFR 210.102. This amendment
standardizes the phrasing used to
describe this type of position.
OPM received no comments
specifically about the regulatory
changes to 5 CFR 451.302, sees no
reason to amend the proposal, and will
finalize the language as proposed.
C. Agency Procedures for Moving
Employees
OPM revises 5 CFR part 302
(Employment in the Excepted Service)
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to require that Federal agencies follow
specific procedures upon moving
positions from the competitive service
to the excepted service or, if the
position is already in the excepted
service, to a different excepted service
schedule following a direction from the
President, Congress, OPM, or their
designees (hereinafter, ‘‘a directive’’).350
This final rule sets the procedures an
agency must follow before taking these
actions, outlines the notice
requirements that apply when the
positions are encumbered, and provides
a right of appeal to the MSPB to the
extent any such move is involuntary
and characterized as stripping
individuals of any previously accrued
civil service status and protections.
OPM discusses the public comments
related to these provisions in turn.
1. Procedures for Moving Positions
In enacting the CSRA, Congress made
certain findings relevant to the changes
discussed here. It noted that the merit
system principles, many of which have
existed since 1883,351 ‘‘shall govern in
the competitive service’’ and that these
principles and the prohibited personnel
practices should be ‘‘expressly stated’’
in statute to ‘‘furnish guidance to
Federal agencies.’’ 352 As explained
previously, Congress then proceeded to
divide functions previously performed
by the CSC among OPM, the MSPB, and
OSC. It found that the function of filling
positions in the Executive Branch
should be delegated to agencies ‘‘in
appropriate cases’’ but that OPM should
maintain control and oversight ‘‘to
protect against prohibited personnel
practices and the use of unsound
management practices by the
agencies.’’ 353
OPM has concluded that imposing
additional safeguards when agencies
move positions from one service to
another, or one excepted service
schedule to another, will help OPM
determine whether appointments to the
competitive service are ‘‘not
practicable,’’ 354 protect against
prohibited personnel practices, secure
appropriate enforcement of the laws
350 There are only three possible sources of a
direction to move a position from the competitive
service to the excepted service or from one schedule
of the excepted service to another. The direction
may come from the President, 5 U.S.C. 3302; from
OPM, id.; see 5 CFR part 6.1(a); or from Congress,
via an enactment that creates an exception to the
default rules established under 5 U.S.C. 3301 and
3302. If an agency purported to act at its own
initiative, that effort would be unauthorized and
thus contrary to law.
351 See supra note 53.
352 Public Law 95–454, sec. 3.2.
353 Id. at sec. 3.5
354 5 CFR 6.1.
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governing the civil service, and avoid
unsound management practices with
respect to the civil service. It is
important to the effective administration
of the civil service that exceptions from
the competitive service norm be
enforced within the terms of the specific
authority creating them and that
employees who are said to have
voluntarily accepted positions that
affect their rights share the same
understanding as their agencies and are
aware of the potential consequences of
those moves.
Some background demonstrates why
these changes are important. Positions
in the Federal Government are, by
default, placed in the competitive
service. As noted by the D.C. Circuit, 5
U.S.C. 3301 and 3302 ‘‘make it clear
. . . that ‘competitive service [is] the
norm rather than the exception.’ ’’ 355
The President, however, is authorized
by Congress to provide for ‘‘necessary
exceptions of positions from the
competitive service’’ whenever
warranted by ‘‘conditions of good
administration.’’ 356 The President, in
turn, has delegated to OPM the
authority to except positions from the
competitive service, which means either
the President or OPM may except
positions, as situations warrant.357 It has
been a longstanding practice under
these authorities for the President, and
for OPM exercising its delegated
authority, to permit positions that
would otherwise be in the competitive
service to be filled through excepted
service appointments where conditions
of good administration warrant
exceptions from competitive examining
procedures (e.g., for people with
disabilities and students). In some cases,
positions have been placed in the
excepted service because it is not
practicable to examine for the position.
For example, a perennial rider to OPM
appropriations prohibits OPM—and
before that, its predecessor CSC—from
examining for attorney positions.358
355 Nat’l Treasury Employees Union v. Horner,
854 F.2d 490, 493 (D.C. Cir. 1988); accord, Dean v.
Off. of Pers. Mgmt., 115 M.S.P.R. 157, ¶ 15 (2010);
see also supra note 149.
356 5 U.S.C. 3302.
357 5 CFR 6.1(a).
358 See, e.g., Treasury, Postal Service and General
Appropriation Act, 1982, H.R. 4121, 97th Cong., 1st
Sess. (1981); Fiorentino v. United States, 607 F.2d
963, 965–66 (Ct. Cl. 1979) (‘‘It has long been known
. . . that the Congress has been always opposed to
Civil Service Commission (CSC) testing and
examining of attorney positions in the Executive
branch under the competitive system. . . .
Defendant cites as the enacted expression of this
[opposition] the annual prohibition against
appropriated funds of the CSC being used for the
Commission’s Legal Examining Unit. An unbroken
series of such clauses runs from the Act of June 26,
1943, Pub. L. 90, 57 Stat. 169, 173, to the Act of
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This appropriations bar makes
examinations not practicable, and
attorney positions have been placed in
Schedule A of the excepted service
since at least 1947.359 See Comment
2134 (detailing history of federal
attorneys in the competitive service and
Congress’ bar of attorney examinations
resulting in Schedule A). In all these
cases, OPM is subject to the standard
that any departure must be compelled
by conditions of good administration.360
Traditionally, the President has
exercised his authority to except
General Schedule positions from the
competitive service through executive
orders.361 OPM has also authorized
excepted service hiring to address
urgent needs of agencies,362 such as the
need to bring on staff quickly to respond
to the COVID–19 pandemic.363 When
OPM exercises such authority, it
determines that the characteristics of the
position make it impracticable to use
the processes associated with
conducting a competitive
examination.364 For example, it may be
that the qualification requirements
established for competitive service
positions cannot be used because the
series has been newly created. In other
instances, OPM determines that open
competition is not conducive to filling
certain positions quickly because the
applicant pool is narrow.
Sometimes, excepted service
determinations are prescriptive, and
agencies need only execute the
operational tasks necessary to
implement the direction of the President
or OPM (for example, Schedule A
October 10, 1978, Pub. L. 95–429, 92 Stat. 1001,
1007. The President had set up a Board of Legal
Examiners (Legal Examining Unit), by E.O. 9358,
July 1, 1943. By E.O. 9830, 12 FR 1259 (1947), the
President in s 6.1 provided that positions in
Schedule A and B should be excepted from the
competitive service. Section 6.4 is Schedule A. Item
IV therein is ‘attorneys.’ Whether the legislative
intent is obvious to ‘outsiders,’ it certainly has been
to the Executive branch, which has never, since
May 1, 1947, put attorney positions anywhere but
in the excepted service.’’).
359 Fiorentino, 607 F.2d at 965–66.
360 See 5 U.S.C. 3302; see also Nat’l Treasury
Employees Union v. Horner, supra note 149.
361 See, e.g., E.O. 13562, 75 FR 82583 (Dec. 30,
2010) (establishing Schedule D for the Pathways
programs); E.O. 13843, 83 FR 32755 (July 10, 2018)
(establishing Schedule E for administrative law
judges).
362 5 CFR part 213.
363 See U.S. Off. of Pers. Mgmt. Memo.,
‘‘Coronavirus (COVID–19) Schedule A Hiring
Authority,’’ (March 20, 2020).
364 Even in those cases, however, OPM has
provided that ‘‘the principle of veteran preference’’
must be followed ‘‘as far as administratively
feasible.’’ 5 CFR 302.101(c). In practice, this
standard has been held to be satisfied by using
veterans’ preference as a plus factor, and thus a tiebreaker, in comparing candidates at similar levels
of knowledge, skills, and abilities. See Patterson v.
Dep’t of Interior, 424 F.3d 1151 (Fed. Cir. 2005).
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attorneys, Schedule E administrative
law judges, or any number of other
positions specifically identified for
excepted service status, such as through
Executive Orders 5560 and 6655). In
other circumstances, either the
President or OPM establishes standards
and conditions for agencies to apply in
deciding which positions should be
moved—either temporarily or
permanently into the excepted service
(for example, Schedule D appointments
for students and recent graduates and
Schedule A appointments related to the
COVID–19 pandemic). In the latter
category, the determination of whether
to place a position in the excepted
service has typically occurred prior to
the position being filled. In other words,
with the notable exceptions of Schedule
E, established by Executive Order
13843,365 and of the prior Schedule F,
established by the now-revoked
Executive Order 13957, these are
intended to be used as hiring
authorities. It is notable that, in the case
of the creation of Schedule E, the
President remarked that the exigency
presented by pending litigation was one
of the motivations, and expressly
provided that incumbents who were in
the competitive service as of the date of
enactment would remain in the
competitive service as long as they
remained in their current positions.366
When the President or OPM has
chosen to establish standards for
agencies to apply in creating new
positions or moving existing positions
into the excepted service (rather than
specifically directing that certain
positions be excepted service positions),
they have also routinely required
agencies to follow certain procedures
subject to OPM oversight.
The Pathways programs, originally
established by President Barack Obama
in Executive Order 13562, is a good
example. Under 5 CFR part 362,
agencies seeking to use the Pathways
programs to hire students and recent
graduates into excepted service
positions must adhere to various
policies and procedures. There are rules
governing how agencies must use the
Pathways programs as part of a larger
workforce planning effort, specifying
procedures that are conditions of the
agency’s use of the programs,
identifying how Pathways positions are
to be announced, and setting parameters
for eligibility for the programs.367 OPM
has the authority to cap Pathways
365 83
FR 32755 (July 10, 2018).
FR 32755, 32756.
367 See, e.g., 5 CFR 362.105 (Pathways workforce
planning requirements) and 362.303 (Recent
Graduate announcements).
366 83
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hiring 368 and can even shut down an
agency’s ability to use Pathways
altogether.369
Based on this history and experience,
OPM proposed and is now establishing
appropriate safeguards—i.e., a floor of
procedures—that would apply
whenever an agency is executing
discretion to move any position or
positions from the competitive service
to the excepted service, or from one
excepted service schedule to another,
under authority exercised by the
President, Congress, OPM, or their
designees. In each instance, the agency
would have to adhere to the following
procedures:
1. Identify the types, numbers, and
locations of the employee(s) or
position(s) that the agency proposes to
move into or within the excepted
service;
2. Document the basis for its
determination that movement of the
employee(s) or position(s) is consistent
with the standards set forth by the
President, Congress, OPM, or their
designees, as applicable;
3. Obtain certification from the
agency’s Chief Human Capital Officer
(CHCO) 370 that the documentation is
sufficient and movement of the
employee(s) or position(s) is both
consistent with the standards set forth
by the President, Congress, OPM, or
their designees, as applicable, and
advances sound merit system
principles;
4. Submit the CHCO certification and
supporting documentation to OPM (to
include the types, numbers, and
locations of the employee(s) or
position(s)) in advance of using the
excepted service authority;
5. Use the excepted service authority
only after obtaining written approval
from the OPM Director to do so; and
368 See
5 CFR 362.108.
5 CFR 362.104(b).
370 The Chief Human Capital Officers Act of 2002,
enacted as part of the Homeland Security Act of
2002, established the role of the CHCO in the
Federal Government. CHCOs advise and assist in
carrying out agencies’ responsibilities for selecting,
developing, training, and managing a high-quality,
productive workforce in accordance with merit
system principles. See 5 U.S.C. 1401–1402. They
are also responsible for ‘‘implement[ing] the rules
and regulations of the President, the Office of
Personnel Management (OPM), and the laws
governing the civil service within an agency.’’ 5
CFR 250.202. OPM has delegated various
responsibilities directly to CHCOs. See, e.g., U.S.
Off. of Pers. Mgmt., ‘‘Personnel Management in
Agencies’’ 81 FR 89357 (Dec. 12, 2016) (tasking
CHCOs with developing a Human Capital Operating
Plan); U.S. Off. of Pers. Mgmt, ‘‘Human Resources
Management in Agencies,’’ 73 FR 23012 (Apr. 28,
2008) (implementing regulations for agencies and
CHCOs regarding the strategic management of the
Federal workforce); 5 CFR 337.201 (giving CHCOs
the ability to request direct-hire authority when
OPM determines there is a hiring need).
369 See
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6. Initiate any hiring actions under the
excepted service authority only after
OPM publishes any such authorizations
in the Federal Register, to include the
types, numbers, and locations of the
positions moved to the excepted service.
Comments Regarding the Implications
of This Regulatory Change
Most of the comments regarding these
changes were supportive, but some,
including a former political appointee,
argued that creating further procedures
impedes the President’s ability to act
with his constitutionally vested
authority over the Executive Branch and
its functions. See Comment 45.
Commenter also argued that ‘‘Congress
has granted the President the authority
to move Federal employees. This rule
seeks to impede this authority.’’ As
noted in Section III(F), the CSRA, as
codified, imposed upon OPM both
authority and an obligation to, among
other things, ‘‘execut[e], administer[ ],
and enforce[ ] . . . the civil service rules
and regulations of the President and the
Office and the laws governing the civil
service.’’ 371
We will not make any changes as a
result of this comment. The President,
pursuant to his own authorities under
the CSRA, as codified at 5 U.S.C. 3301
and 3302, has also delegated a variety of
these authorities to OPM concerning
execution, administration, and
enforcement of the competitive and
excepted services. Among other things,
the President has authorized OPM to
‘‘promulgate and enforce regulations
necessary to carry out the provisions of
the Civil Service Act and the Veterans’
Preference Act, as reenacted in title 5,
United States Code, the Civil Service
Rules, and all other statutes and
Executive orders imposing
responsibilities on the Office,’’ 372 and
to collect information and records
regarding matters falling within the civil
service laws, rules, and regulations.373
OPM has acted pursuant to these
authorities to create government-wide
rules for Federal employees regarding a
broad range of topics, such as hiring,
promotion, performance assessment,
pay, leave, political activity, retirement,
and health benefits. Both the President
and OPM also establish standards and
conditions for agencies to apply in
deciding which positions should be
moved from the competitive into the
excepted service. This rule is squarely
within these authorities.
Also, while the President can create
excepted service schedules and move
U.S.C. 1103(a)(5).
CFR 5.1, 6.1, 6.2.
373 5 CFR 5.4.
positions into the excepted service, that
ability is not unqualified. For instance,
Congress has mandated that exceptions
occur only when ‘‘necessary’’ and
warranted by ‘‘conditions of good
administration.’’ 374 Although the
Administrative Procedure Act (APA)
does not apply to the President, it is
applicable to OPM and the agencies that
implement directions from the President
or OPM. The D.C. Circuit has
determined, for purposes of challenges
under the APA, that ‘‘several provisions
of title 5 of the U.S. Code, viewed
together, provide a meaningful—not a
rigorous, but neither a meaningless—
standard against which to judge’’ a
decision to except positions from the
competitive service, when it is OPM
that creates the exception.375 If
determinations by agencies or OPM that
certain positions belong in a newlycreated excepted service schedule
would similarly be reviewable, it is
prudent for OPM to establish procedural
regularity into this process.
Finally, this rule does not restrict the
President’s authorities. These
procedures, which establish uniform
processes when agencies move positions
or people, will help OPM determine
whether appointments to the
competitive service are ‘‘not
practicable,’’ protect against prohibited
personnel practices, secure appropriate
enforcement of the law governing the
civil service, and avoid unsound
management practices with respect to
the civil service.
OPM is promulgating the following
changes to 5 CFR part 302:
Part 302—Employment in the Excepted
Service
Part 302 governs employment in the
excepted service, including the
procedures an agency must follow when
an employee serving under a
nontemporary appointment is selected
for an excepted appointment. The
authority citation provided in the
proposed rule did not reflect changes
made by the Fair Chance to Compete for
Jobs final rule published on September
1, 2023 (88 FR 60317). The updated
authority citation is reflected in this
final rule.
Section 302.101 Positions Covered by
Regulations
This section describes positions
covered by part 302. OPM is amending
5 CFR 302.101 to conform to the revised
5 CFR 210.102, which adds a definition
to the phrases ‘‘confidential, policydetermining, policy-making, or policy-
371 5
372 5
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374 5
U.S.C. 3302; 5 CFR 6.1.
supra note 149, 854 F.2d at 495.
375 Horner,
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advocating’’ and ‘‘confidential or policydetermining.’’ 376
Subpart F—Moving Employees and
Positions Into and Within the Excepted
Service
OPM adds subpart F titled, ‘‘Moving
Employees and Positions Into and
Within the Excepted Service.’’ In the
event of a directive by the President,
Congress, OPM, or their designees, to
move employee(s) or position(s) from
the competitive service to the excepted
service, or from one excepted service
schedule to another, this new subpart
describes the processes and procedures
an agency must follow to carry out such
a move.
Section 302.601 ‘‘Scope’’
This subsection describes the scope of
the positions that would be subject to
the new procedures in subpart F.
Comments Regarding Amendments to 5
CFR 302.601
Comment 2134, a joint comment by a
nonprofit organization and former
federal official, supported the rule but
suggested that 5 CFR 302.601 be revised
for clarity. Commenter noted that the
proposed rule clearly covered the
movement of positions into an excepted
service schedule but was unclear about
the involuntary movement of employees
from their current positions to other
positions in an excepted service
schedule. Commenter suggested a
revision to make clear that the
movement of employees, not just
positions, falls within the scope of
Subpart F. OPM agrees with this
comment and has revised this provision
accordingly.
One intended purpose of Subpart F is
to regulate the movement of positions to
and within the excepted service. But
covering the movement of employees is
an important feature of the subpart. For
instance, section 302.602(c) requires
that agencies that seek to move an
encumbered position into or within the
excepted service notify affected
employees of the movement and
relevant rights. Covering both
employees and positions in this
regulatory scheme is important because,
once a position is filled by an
incumbent, that incumbent gains certain
rights and status over time as detailed
in 5 U.S.C. 7511(a) and as explained in
Section IV(A). And once those rights
and status accrue, the employee retains
those rights upon a move to or within
the excepted service so long as the
moves, however many they may be or
into whichever positions they may be,
376 See
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are involuntary. In this way, both
positions and employees are covered by
this regulatory amendment.
OPM will modify the regulatory
language to clarify this point. The
revised language at 5 CFR 302.601 will
state that the subpart applies to any
situation where an agency moves—(1) a
position from the competitive service to
the excepted service, or between
excepted services, whether pursuant to
statute, Executive order, or an OPM
issuance, to the extent that this subpart
is not inconsistent with applicable
statutory provisions; or (2) an employee
who has accrued status and civil service
protections under 5 U.S.C. chapter
75,377 subchapter II, involuntarily to any
position that is not covered by that
chapter or subchapter. It will also
explain that the subpart applies in
situations where a position previously
governed by title 5, U.S. Code, will be
governed by another title of the U.S.
Code going forward, unless the statute
governing the exception provides
otherwise.
Another commenter, a former federal
official, suggested that OPM revise
Subpart F to include movement of
positions from the career-reserved SES
into the excepted service. See Comment
2816. For the reasons described in the
previous sections, OPM will not adopt
these suggestions. The SES, as noted
above, is not in the excepted service and
is governed by a separate statutory
structure that addresses access to
adverse action protections by type of
appointment. The statute expressly
provides for ‘‘career’’ and ‘‘noncareer’’
positions. But an ‘‘employee,’’ for
purposes of the SES adverse action
provisions, is defined as a ‘‘career’’
employee. Accordingly, the adverse
action provisions, which apply only to
career employees, contain no explicit
exclusions, akin to section 7511(b)(2),
based upon the character of the
position. Moreover, the provisions
governing the SES directly address
reassignments and transfers of career
senior executives,378 removal of a career
employee from the SES into a civil
377 Commenter also suggests that we include
regulatory language addressing accrued civil service
protections under 5 U.S.C. chapter 23, relating to
merit system principles and prohibited personnel
practices, in addition to those accrued under
chapter 75. As explained above, this final rule deals
with adverse action rights under chapter 75 and
corresponding regulations, but not prohibited
personnel practices. Adverse action protections and
the ability to seek corrective action in response to
a prohibited personnel practices are two separate
types of rights with distinct processes. Also, OPM
notes that 5 U.S.C. 2302 addresses certain
prohibited personnel actions with respect to
‘‘covered’’ positions, rather than rights ‘‘accrued’’
by individuals over time.
378 5 U.S.C. 3395.
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service position outside of the SES
during probation or as a result of less
than fully successful executive
performance,379 and the circumstances
in which there may be guaranteed
placement in other personnel systems
for a senior executive who has been
removed from the SES.380
Section 302.602(a) ‘‘Basic
Requirements’’
This section requires an agency to
take certain steps after a directive from
the President, Congress, OPM or their
designees to move a position or
positions from the competitive service
to the excepted service, or from one
excepted service schedule to another.
This final rule establishes additional
procedural requirements that apply
when one or more of the positions the
agency seeks to move is encumbered by
an employee.
Section 302.602(a)(1) states that, if the
directive explicitly delineates the
specific positions that are covered, the
agency need only list the positions
moved in accordance with that
directive, and their location within the
organization and provide the list to
OPM.
Section 302.602(a)(2) states that, if the
directive requires the agency to select
the positions to be moved pursuant to
criteria articulated in the directive, then
the agency must provide OPM with a
list of the positions to be moved in
accordance with those criteria, those
positions’ location in the organization,
and, upon request from OPM, an
explanation of how the positions met
those criteria.
Section 302.602(a)(3) states that, if the
directive confers discretion on the
agency to establish objective criteria for
identifying the positions to be covered,
or which specific slots of a particular
type of position the agency intends to
move, then the agency must, in addition
to supplying a list, supply OPM with
the locations in the organization, the
objective criteria to be used, and an
explanation of how these criteria are
relevant.
Section 302.602(b) describes the steps
agency management must take,
independent of the impacted
employees, with respect to such moves.
Section 302.602(b)(1) requires an
agency to identify the types, numbers,
and locations of positions that the
agency proposes to move into the
excepted service.
Section 302.602(b)(2) requires the
agency to document the basis for its
determination that movement of the
379 5
380 5
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U.S.C. 3594.
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25031
positions is consistent with the
standards set forth by the President,
Congress, OPM, or their designees as
applicable.
Section 302.602(b)(3) requires the
agency to obtain certification from the
agency’s CHCO that the documentation
is sufficient and movement of the
positions is both consistent with the
standards set forth by the President,
Congress, OPM, or their designees as
applicable, and with merit system
principles.
Section 302.602(b)(4) requires the
agency to submit the CHCO certification
and supporting documentation to OPM
(to include the types, numbers, and
locations of positions) in advance of
using the excepted service authority.
Section 302.602(b)(5) specifies that
OPM shall then review the CHCO
certification and supporting
documentation, and the agency shall be
able to use the excepted service
authority only after obtaining written
approval from the OPM Director to do
so.
Section 302.602(b)(6) specifies that
OPM shall publish any such
authorizations in the Federal Register,
to include the types, numbers, and
locations of the positions moved to the
excepted service and that the agency is
not permitted to initiate any hiring
actions under the excepted service
authority until such publication occurs.
Comments Regarding Amendments to 5
CFR 302.602(a) and (b)
Comment 2134 proposed several
changes to OPM’s proposed addition of
section 302.602. Commenter correctly
noted that in paragraph (a)(1), the
second instance of the word ‘‘list’’
(following ‘‘in accordance with that’’) is
a mistake. OPM meant to write
‘‘directive’’ instead and will adopt this
suggestion. Paragraphs (a)(2) and (a)(3)
require that agencies provide a list or
lists of the positions to be moved, the
locations in the organization, the
objective criteria to be used, and an
explanation of how these criteria are
relevant. Commenter is correct that the
list or lists should be provided to OPM.
and OPM will make that clear in the
final regulatory language. Paragraphs
(b)(1) and (b)(2) require agencies to
‘‘Identify’’ and ‘‘Document’’ certain
information, respectively. Commenter
asserted it is not clear how agencies are
to accomplish the identification and
documentation and suggested adding
‘‘in a report to OPM’’ after the words
‘‘Identify’’ and ‘‘Document’’ in these
paragraphs. OPM will not adopt this
suggestion. OPM believes the reporting
is implicit in the certification by the
CHCO and the accompanying data and
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lists. OPM will consider providing
further instructions about the forms this
information should take in guidance
and will also consider providing
templates. For the reasons discussed
above regarding suggested revisions to
section 302.601, commenter also
suggested expanding the coverage of
section 302.602 to include not only the
movement of positions but also the
movement of individual employees by
adding a new subsection (d) that reads:
‘‘In addition to applying to the
movement of positions, the
requirements of this section apply to the
involuntary movement of competitive
service or excepted service employees
who have accrued status or civil service
protections under 5 U.S.C. [ ] chapter 75,
subchapter II, to positions that are not
covered by such chapter or subchapter.’’
OPM will adopt this suggestion for the
same reasons it adopted the similar
suggestion regarding section 302.601.381
OPM will modify this suggestion so that
subsection (d) reads: ‘‘In addition to
applying to the movement of positions,
the requirements of this section apply to
the involuntary movement of
competitive service or excepted service
employees with respect to any earned
competitive status, any accrued
procedural rights, or depending on the
action involved, any appeal rights under
chapter 75, subchapter II, or section
4303 of title 5, United States Code, even
when moved to the new positions.’’
Commenter then suggested that OPM
consider increasing transparency by
ensuring that the public has access to
the information discussed in section
302.602. To enforce any such
transparency requirement, commenter
suggested that OPM provide that
personnel actions implementing the
movement of positions or employees
will be ineffective until 90 days after the
release of this information to the public.
This period, commenter argued, would
also provide Congress an opportunity to
conduct meaningful oversight in the
event of a major upheaval of civil
service processes and protections. OPM
believes that the processes in this final
rule already strike the appropriate
balance among a variety of factors,
including transparency, the preservation
of merit, and good governance while
also allowing for the efficiency and
flexibility to conduct normal
government operations governed by
statute, which can include
reorganizations or moving positions to
or within the excepted service if
381 Commenter
also suggests that we include
regulatory language addressing accrued civil service
protections under 5 U.S.C. chapter 23, but for the
reasons discussed in note 377, we decline to do so.
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necessary and warranted by conditions
of good administration. Further, the
presentation of information as described
in this subpart may lead to
communications between OPM and an
agency that would generally be
protected by the privilege afforded to
the deliberative process. OPM will not
adopt these suggestions.
Finally, this commenter suggested
that because section 302.602 refers to
the movement of ‘‘positions’’ and uses
other plural words, this section might be
construed to be inapplicable in the case
of the movement of only one employee
or position. OPM agrees and will add a
new subsection (e) that reads:
Notwithstanding the use of the plural
words ‘‘positions,’’ ‘‘employees,’’ and
‘‘personnel actions,’’ this section also
applies if the directive of the President,
Congress, OPM, or a designee thereof
affects only one position or one
individual.
Another commenter supportive of the
rule suggested that OPM shift
documentation and other duties under
section 302.602(b)(3) from agency
human resources to Department-level
human resources or OPM. Comment 6.
OPM will not make revisions based on
this comment. A CHCO is well
positioned to certify the sufficiency of
an agency’s documentation pursuant to
section 302.602(b). By law, CHCOs
advise and assist in carrying out
agencies’ responsibilities for selecting,
developing, training, and managing a
high-quality, productive workforce in
accordance with merit system
principles.382 They are responsible for
‘‘implement[ing] the rules and
regulations of the President, the Office
of Personnel Management (OPM), and
the laws governing the civil service
within an agency.’’ 383 They are also
experienced with these types of duties
because OPM has delegated various
similar responsibilities directly to
CHCOs in the past. Commenter also
suggested that the rule require agencies,
Departments, and OPM to consult with
bargaining units and unions concerning
the effects of the movement of a position
on bargaining unit employees, prior to
moving a position. OPM will not make
revisions based on this comment.
Collective bargaining obligations can
arise with any new policies which
impact bargaining unit employees. This
includes implementation of policies
found in any new or revised
government-wide regulation, such as the
final rule, so no new consultation
process is required. The proposed rule
did not purport to address new labor
382 See
383 5
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CFR 250.202.
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relations provisions and such matters
are already subject to requirements in
the Federal Service Labor-Management
Relations Statute of 1978.
Another commenter, an individual,
suggested that these regulatory
amendments should be broadened to
require that agencies disclose the
underlying reasons for the movement.
Comment 407. Comment 3894, an
oversight nonprofit organization, also
suggested that section 302.602(b)(6),
regarding OPM publishing any such
authorizations to move positions in the
Federal Register, should be revised to
require a solicitation for public
comment. As stated above, OPM
believes these amendments already
strike the appropriate balance between
being protective of rights and merit
system principles and allowing for the
efficiency and flexibility of normal
government operations, so OPM does
not believe that further process is
necessary. Regarding Comment 407,
there may be many underlying reasons
for a move and a precise underlying
reason, while potentially probative,
does not get to the central inquiry for
the retention of rights and status, which
is whether the move was voluntary or
involuntary. Still, those general reasons
are implicit in 5 CFR 302.602(b)(2),
which requires that an agency
‘‘[d]ocument the basis for its
determination that movement of the
positions is consistent with the
standards set forth by the President,
Congress, OPM, or their designees as
applicable.’’ OPM does not believe that
further requirements on this point are
necessary. Regarding Comment 3894,
the purpose of publishing this
information in the Federal Register is to
increase transparency. OPM believes
that publishing this information is
sufficient and that public comment
would add little further value. It would
also risk the process becoming unduly
burdensome. For these reasons, OPM
will not adopt these suggestions.
Finally, Comment 2816, by a former
federal official, again suggests that OPM
clarify that the changes proposed within
5 CFR 302.602 include SES Positions.
OPM will not adopt this suggestion for
the same reasons it did not adopt a
similar suggestion regarding section
302.601. The SES is not in the excepted
service and is governed by a separate
statutory structure that protects the
career SES in different ways from the
framework governing the competitive
and excepted services.
2. Notice Rights for Encumbered
Positions
OPM is promulgating additional
requirements, under 5 CFR 302.602(c),
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that would apply when one or more of
the positions the agency wishes to move
is encumbered by an employee. It
describes the information an agency
must provide an employee whose
position is being moved from the
competitive service and placed in the
excepted service, other than in
Schedules D or E, or with an excepted
service employee whose position is
moved to another excepted service
schedule, other than Schedules D or
E.384 In that case, under section
302.602(c)(1)(i), no less than 30 days
prior to moving the position, the agency
must provide written notification to the
employee of the intent to move the
position. Under section 302.602(c)(1)(ii),
if the move is involuntary, the notice
must inform the employee that the
employee maintains their civil service
status and protections, if any,
notwithstanding the movement of the
position.
Employees who are in the competitive
service—and who the agency is not
planning to move—may wish to apply
for a new position in the excepted
service and potentially relinquish
accrued rights (such as a voluntary
move from a competitive service
position to a position as a Schedule C
political appointee). In that situation,
agencies must continue to comply with
longstanding rules—codified at 5 CFR
384 OPM is omitting Schedules D and E from this
regulatory change because these schedules, for the
Pathways programs participants and Administrative
Law Judges (ALJs), see 5 CFR 6.2, respectively, have
specific and unique requirements regarding
eligibility and entrance into these positions. In
particular, the Pathways programs, which were
created by the President, not OPM, already have
highly reticulated schemes for conversion of the
appointee from the excepted service to the
competitive service following the successful
conclusion of the initial excepted service
appointment. It is unlikely that the initial timelimited appointments to the excepted service would
be appropriate vehicles for conversion to a different
excepted service position, and, in any event, the
incumbent would likely not yet have accrued
adverse action rights in the excepted service
positions they encumbered. Even if such rights had
accrued, these appointees would enjoy such rights
only for the balance of the original time-limited
appointment. ALJ appointments were changed in
light of ALJs’ significant responsibilities in ‘‘taking
testimony,’’ ‘‘conducting trials,’’ ‘‘enforcing
compliance with their orders,’’ and in some cases
issuing ‘‘the final word [for] the agencies they
serve.’’ See E.O. 13843. Those specific duties,
carried out with ‘‘significant discretion,’’ combined
with a desire to eliminate any constitutional
concerns regarding the method of ALJ
appointments, were the reasons that ALJs were
placed in the excepted service by the President as
a matter of ‘‘sound policy,’’ which allowed agencies
to ‘‘assess critical qualities in ALJs candidates’’ to
‘‘meet the particular needs of the agency,’’ such as
subject matter expertise relevant to the agency’s
work. Id. In addition, special chapter 75 procedures
apply to incumbent ALJs, and they can be removed
from ALJ positions only by the employing agency
at the conclusion of a specified proceeding at the
MSPB.
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302.102(b)—providing that employees
be given notice that they are leaving the
competitive service and requiring that
employees acknowledge they
understand that they are voluntarily
leaving the competitive service to accept
an appointment in the excepted
service.385
OPM did not receive comments
specifically relating to 5 CFR 302.602(c).
In this final rule, though, OPM is
clarifying that a notice under section
302.602(c)(1)(ii), informing the
employee that the employee maintains
their civil service status and protections
notwithstanding the movement of the
position, applies where the move is
involuntary.
3. Appeal Rights for Encumbered
Positions
OPM further amends 5 CFR part 302
to establish that a competitive service
employee whose position is moved
involuntarily into the excepted service,
or an excepted service employee whose
position is moved involuntarily into a
different schedule of the excepted
service, may directly appeal to the
MSPB if, contrary to these regulations,
the entity perpetuating the move asserts
that the move will strip the individual
of any status and civil service
protections they had already accrued.
This rulemaking would not apply to
situations where the employee applies
for, is selected for, and accepts a new
position with fewer or different civil
service protections, since acceptance of
that new position voluntarily
relinquishes the protections the
employee had already accrued.
As explained previously in Section
III(F), under 5 U.S.C. 1103(a)(5), a
variety of other provisions governing
specific topics under title 5, and
delegations from the President, OPM
has broad authority to execute,
administer, and enforce civil service
rules and regulations. Exercising these
authorities, OPM has previously
conferred rights of appeal to the MSPB
with respect to a variety of personnel
determinations, including, for example,
final suitability determinations.386 The
385 Under 5 CFR 302.102(b), when an employee
serving under a temporary appointment in the
competitive service is selected for an excepted
appointment, the agency must:
1. Inform the employee that, because the position
is in the excepted service, it may not be filled by
a competitive appointment, and that acceptance of
the proposed appointment will take him/her out of
the competitive service while he/she occupies the
position; and
2. Obtain from the employee a written statement
that he/she understands he/she is leaving the
competitive service voluntarily to accept an
appointment in the excepted service.
386 88 FR 63862, 63876–77 (citing to 5 CFR part
731, subpart E and identifying twelve instances in
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25033
Federal Circuit has repeatedly sustained
this practice and ruled that where an
appeal is solely by regulation, the
regulation circumscribes the scope of
the appeal.387 Title 5 explicitly provides
that an employee may appeal a
personnel action made appealable by
regulation.388 The MSPB, in turn, has
the responsibility to ‘‘hear, adjudicate,
or provide for the hearing or
adjudication, of all matters within the
jurisdiction of the Board under . . . law,
rule or regulation.389
Section 302.603
‘‘Appeals’’
In these final regulations, OPM is
prescribing an MSPB appeal right for an
employee whose position in the
competitive service is moved to the
excepted service involuntarily, or whose
position in the excepted service is
moved into a different schedule of the
excepted service involuntarily, and
when an entity effectuating such a
move, contrary to these regulations,
asserts that the individual loses any
status and civil service protections they
had already accrued. This provision
would not apply when the employee
voluntarily relinquishes such rights by
applying for and accepting a new
position with different rights. Such an
appeal right would, however, cover an
employee’s allegation that an agency
coerced the employee to ‘‘voluntarily’’
move to a new position that would
require the employee to relinquish their
competitive status or any civil service
protections. OPM notes that an
individual may choose to assert in any
appeal to the MSPB that the agency
committed procedural error, if
applicable, by failing to act in
accordance with the procedural
requirements of section 302.602 while
effecting any placement from the
competitive service into the excepted
service or from the excepted service to
a different schedule of the excepted
service. In cases where an individual
asserts procedural error by the agency,
OPM expects the MSPB would typically
determine whether the procedural error
was harmful as a pre-requisite for any
reversal of the agency’s action. The
MSPB will find that an agency error is
harmful only when the record shows
that it was likely to have caused the
which OPM has provided in regulation a basis for
an appeal to the MSPB).
387 See Roberto v. Dep’t of the Navy, 440 F.3d
1341, 1350 (Fed. Cir. 2006); Folio v. Dep’t of
Homeland Sec., 402 F.3d 1350, 1355 (Fed. Cir.
2005); Dowd v. United States, 713 F.2d 720, 722–
23 (Fed. Cir. 1983); see also Gaxiola v. Dep’t of the
Air Force, 6 M.S.P.R. 515, 519 (1981).
388 5 U.S.C. 7701(a).
389 5 U.S.C. 1204(a)(1).
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agency to reach a different
conclusion.390
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Comments Regarding Amendments to 5
CFR 302.603
Comment 2134 is supportive of the
rule and the conferral of a regulatory
appeal right premised specifically on
the movement of an employee but
suggested that OPM explain that, ‘‘in
creating this appeal right, OPM is not
taking a position as to whether
employees would otherwise lack appeal
rights in all cases involving an
involuntary move.’’ OPM agrees and is
not in this rule addressing whether
employees would otherwise lack appeal
rights in all cases involving an
involuntary move.
Commenter also suggested a revision
regarding the proposed language in
section 302.603, which would allow
employees to appeal to have their rights
‘‘reinstated.’’ Commenter contended
that the proposed text of the rule
implied that rights were lost upon the
move but could then be ‘‘restored’’ by a
successful appeal. Commenter also
noted this regulatory language does not
specify a time in which an aggrieved
employee must file an appeal and
expressed concern that this ‘‘might not
fully achieve OPM’s aims.’’ Commenter
expressed that, as proposed, the
language could suggest that an agency
could strip an employee of civil service
status and protections in a manner
contrary to this final rule and put the
onus on the employee to rectify such an
action before the MSPB. Or an agency
might use silence or take a chance that
an employee will not timely appeal, but
that outcome would be unjust.
Commenter therefore proposed a 180day period for the employee to appeal,
which commenter offered would allow
sufficient time for the employee to
gather information necessary for that
appeal. OPM does not believe the final
rule should specify a time period; the
timing procedures should instead follow
the normal processes associated with
appeals to the MSPB. But OPM agrees
that it should add a clause to this
section specifying that the appeal rights
conferred in part 302 are in addition to,
390 See 5 CFR 1201.3 (Appellate Jurisdiction);
1201.4(r) (Definitions, MSPB Practices and
Procedures), 1205 (Powers and functions of the
Merit Systems Protection Board); Ramey v. U.S.
Postal Serv., 70 M.S.P.R. 463, 467 (1996) (‘‘An
[MSPB] administrative judge’s adjudication of an
action not only embraces the provisions of law
giving the Board jurisdiction over the action, but
includes review of any other relevant provision of
law, regulation or negotiated procedures as
circumstances warrant.’’); Adakai v. Dep’t of
Interior, 20 M.S.P.R. 196, 201 (1984) (‘‘There is no
question that an agency is obligated to conform to
procedures and regulations it adopts, and the Board
is required to enforce such procedures.’’).
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and not in derogation of, any right the
employee would otherwise have to
appeal a subsequent personnel action
undertaken without following
appropriate chapter 75 or chapter 43
procedures. The appeal right created by
this rule merely provides an additional
avenue for immediate correction if the
agency asserts that accrued status or
rights will no longer apply or fails to
provide notice of the impact on accrued
status or rights. To better capture OPM’s
intent, OPM will revise 5 CFR
302.603(a) to read: (a) A competitive
service employee whose position is
placed into the excepted service or who
is otherwise moved involuntarily to the
excepted service, or an excepted service
employee whose position is placed into
a different schedule of the excepted
service or who is otherwise
involuntarily moved to a position in a
different schedule of the excepted
service, may directly appeal to the Merit
Systems Protection Board, as provided
in paragraphs (b), (c), and (d) of this
section. The appeal rights conferred in
this section are in addition to, and not
in derogation of, any right the
individual would otherwise have to
appeal a subsequent personnel action
undertaken without following
appropriate procedures under chapter
75, subchapter II, or section 4303 of title
5, United States Code.
Commenter also suggested that the
right in section 302.603(b) to appeal
moves which ‘‘purportedly’’ strip
protections is too narrow. Commenter
contended that it is possible that
agencies will remain silent on an
employee’s civil service status and
protections, and thereby could avoid an
appeal because the agency has not
‘‘purported’’ to have any effect on
employee status and protections.
Commenter also contended that
subsection (b) addresses only the
movement of a position. In contrast,
subsections (a) and (c) of section
302.603 also cover the movement of an
employee to a new position. OPM will
revise this language to clarify that
agencies cannot circumvent this final
rule by moving an individual instead of
a position. To better capture OPM’s
intent in this final rule, OPM will revise
5 CFR 302.602(b) to read: (b) Where the
agency, notwithstanding the
requirements of section 302.602 of this
part, asserts that the move of the
original position or any subsequent
position to which the individual is
involuntarily moved thereafter, will
eliminate competitive status or any
procedural and appeal rights that had
previously accrued, the affected
individual may appeal from that
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determination and request an order
directing the agency (A) to correct the
notice to provide that any previously
accrued status or procedural and appeal
rights under those provisions continue
to apply, and (B) to comply with the
requirements of either chapter 75,
subchapter II or section 4303 of title 5,
United States Code, in pursuing any
action available under those provisions,
except to the extent that any such order
would be inconsistent with an
applicable statute.
To address the concern that an agency
could remain silent regarding an
employee’s status and rights upon a
move, OPM will modify section
302.603(c) to read that: Where the
agency fails to comply with
§ 302.602(c)(1) of this part, and fails to
provide an individual with the requisite
notice, the affected individual may
appeal and request an order directing
the agency to comply with that
provision.
Finally, this commenter suggested
that OPM modify section 302.603 to also
allow for appeals based on involuntary
though not necessarily coercive
movements. OPM will adopt this
suggestion. Employees retain their civil
service status and protections during
involuntary movement into or within
the excepted service, regardless of
whether the movement was coerced or
performed by other involuntary means.
OPM will add a 5 CFR 302.603(d) to
read: (d) An individual may appeal
under this part on the basis that (A) a
facially voluntary move was coerced or
otherwise involuntary for purposes of
this section or (B) a facially voluntary
move to a new position would require
the individual to relinquish their
competitive status or any civil service
protections and was coerced or was
otherwise involuntary.
Another comment from an
employment lawyers association
supportive of the rule suggested that
OPM revise the rule to bring section
302.603 appeals under 5 U.S.C. 7701, so
that successful appellants are not
burdened with attorney’s fees or the
costs of litigation. Comment 40. OPM
appreciates this suggestion but will not
add regulatory language to this effect as
it goes beyond the scope contemplated
in the proposed rule. If experience with
such appeals indicates further changes
might be warranted, OPM can pursue
regulatory options then.
Comment 920, an individual, was
supportive of the rule but expressed
concern that it would not be sufficiently
protective in cases of ‘‘wholesale
reclassification.’’ The comment
questioned whether individual appeals
would be effective if an agency
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attempted to involuntarily move a
majority of its workforce all at once
while purportedly stripping them of
civil service status and protections. The
President and OPM have the authority
to reschedule positions but, as
explained in this rule, there are ways to
do so without infringing on this
authority that are protective of the civil
service and merit system principles as
envisioned by Congress. Further, to the
extent ‘‘wholesale reclassification’’ is
unlawful, there exist other avenues to
challenge such a move besides the
processes in this final rule.391
A few commenters supportive of the
rule queried what happens when, by
deliberative or inadvertent act, the
MSPB is without a quorum. See
Comments 44, 2442, 3687. As explained
above, the appeals described in 5 CFR
302.603 should be treated like all other
appeals to the MSPB. Therefore, OPM
does not believe that it should revise
this final rule to account for the
possibility of a lack of a MSPB quorum.
Even without a quorum, OPM notes,
administrative judges (AJs) can issue
initial decisions. If neither party to a
case files a petition for review, the AJ’s
initial decision becomes the final
decision of the Board. Appellants could
then choose to exercise their judicial
review rights.392 If either party files a
petition for review to the MSPB, a Board
decision could not be issued until a
quorum of at least two Board members
is restored but the Clerk of the Board
can still exercise delegated authority to
‘‘grant a withdrawal of a petition for
review when requested by a
petitioner.’’ 393
Finally, Comment 2816, from a former
federal official, again suggests that OPM
clarify that the changes proposed within
5 CFR 302.603 include SES Positions.
OPM will not adopt it for the same
reasons it did not adopt a similar
391 For example, in Blalock v. Dep’t of Agric., 28
M.S.P.R. 17, 20 (1985), aff’d sub nom., Huber v.
MSPB, 793 F.2d 284 (Fed. Cir. 1986) the MSPB
rejected an agency’s claim that it had removed
employees from their Schedule A positions by RIF
procedures and appointed them to new Schedule C
positions. It found that this RIF was improper, there
was no reclassification warranting a RIF, and the
redesignation was not a ‘‘reorganization.’’
Therefore, the agency could not have conducted a
RIF and the agency’s abolishment of their Schedule
A positions constituted individual adverse actions
against the incumbents. The MSPB directed the
agency to reinstate the employees whom it had
separated without adhering to applicable adverse
action procedures.
392 See 5 U.S.C. 7703.
393 See U.S. Merit Sys. Prot. Bd., ‘‘Frequently
Asked Questions about the Lack of a Quorum
Period and Restoration of the Full Board, Updated:
February 27, 2023,’’ https://www.mspb.gov/New_
FAQ_Lack_of_Quorum_Period_and_Restoration_of_
the_full_board.pdf.
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suggestion regarding sections 302.601
and 302.602.
V. Regulatory Analysis and Related
Comments
A. Statement of Need
On December 12, 2022, OPM received
a petition from the National Treasury
Employees Union (NTEU), which
represents Federal workers in 34
agencies and departments,394 to amend
OPM regulations in a manner that
would ensure compliance with civil
service protections and merit system
principles for competitive service
positions moved to the excepted
service.395 NTEU contends in its
petition that Congress has established
protections for ‘‘employees’’ under
chapter 75 in the competitive service
and these protections create a
constitutionally protected property
interest in continued Federal
employment. NTEU argued that no
President can take away these rights,
once accrued, without due process.
On May 23, 2023, the Federal Workers
Alliance, a coalition of 13 labor unions
representing over 550,000 Federal and
postal workers, wrote OPM in support
of the rulemaking changes proposed by
NTEU. On May 26, 2023, the American
Federation of Government Employees,
AFL–CIO, the largest union of Federal
employees representing more than
750,000 Federal and District of
Columbia workers, did the same. For the
reasons described in the proposed rule
and this final rule, OPM determined it
was prudent to consider the points
raised.
By operation of law, certain Federal
employees accrue a property interest in
their continued employment and are
entitled to adverse action rights under
chapter 75 before they may be removed
from career positions. Agencies are
statutorily obligated to extend the
specific protections codified at chapter
75 to eligible employees as defined in 5
U.S.C. 7511. OPM notes that this section
precludes noncareer political
appointees and other statutorily
specified categories of employees from
accruing these procedural rights, but
OPM does not interpret chapter 75 as
allowing the President, OPM, or an
agency to waive the statutory rights that
covered employees have accrued. These
394 See Nat’l Treasury Employees Union, ‘‘Our
Agencies,’’ https://www.nteu.org/who-we-are/ouragencies.
395 See Nat’l Treasury Employees Union, Petition
for Regulations to Ensure Compliance with Civil
Service Protections and Merit System Principles for
Excepted Service Positions, (Dec. 12. 2022), https://
www.nteu.org/∼/media/Files/nteu/docs/public/
opm/nteu-petition.pdf?la=en.
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25035
final rules are to clarify and reinforce
that point.
The now-revoked Executive Order
13957 introduced a new conception of
the phrase ‘‘confidential, policydetermining, policy-making or policyadvocating character,’’ as used in the
adverse action exception in 5 U.S.C.
7511(b)(2), and sought to employ that
conception to expand the category of
employees excluded from adverse
action procedural rights.396 This phrase
is a term of art with a long history. It
has been broadly understood, based
upon context, history, and practice, to
mean political appointees. Using that
language as the former President used it
in Executive Order 13957—to remove
rights from career civil servants—
departed from this established
understanding. OPM has determined
that a regulation interpreting and
clarifying this provision, pursuant to
OPM’s statutory authority to prescribe
regulations to carry out the purpose of
subchapter II of chapter 75, is
warranted.397
The CSRA and merit system
principles have informed OPM’s
regulations regarding the competitive
and excepted services, and employee
movement between them. One of those
principles is that the creation of new
positions in—and movement of existing
positions into—the excepted service is
meant to be an exception to the normal
procedure for filling competitive service
positions and maintaining the positions
in that service thereafter. Accordingly,
OPM has maintained for decades several
safeguards and transparency measures
associated with any such movements.
These safeguards and measures may
include agency reporting to OPM,398
such as where positions are placed
temporarily in the excepted service for
the purpose of a trial period leading to
a permanent appointment in the
396 85
FR 67361–62.
U.S.C. 7514.
398 See 5 CFR 5.1 (‘‘The Director, Office of
Personnel Management, shall promulgate and
enforce regulations necessary to carry out the
provisions of the Civil Service Act and the
Veterans’ Preference Act, as reenacted in title 5,
United States Code, the Civil Service Rules, and all
other statutes and Executive orders imposing
responsibilities on the Office.’’); 5 CFR 5.4 (‘‘When
required by the Office, the Merit Systems Protection
Board, or the Special Counsel of the Merit Systems
Protection Board, or by authorized representatives
of these bodies, agencies shall make available to
them, or to their authorized representatives,
employees to testify in regard to matters inquired
of under the civil service laws, rules, and
regulations, and records pertinent to these
matters’’); 5 CFR 10.2 (OPM authority to set up
accountability systems); 5 CFR 10.3 (OPM authority
to review agency personnel management programs
and practices).
397 5
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competitive service; 399 OPM
authorization to create certain new
positions in—or move certain existing
positions into—the excepted service; 400
publication in the Federal Register; 401
and an acknowledgment of the consent
of affected employees when an existing
employee obtains a different position in
another service or schedule.402 The
now-revoked directions to agencies
contained in Executive Order 13957, for
implementing the now-defunct
Schedule F, called into question the
continued vitality of these longstanding
principles with respect to employees
who had accrued adverse action rights.
We seek to confirm these principles
through this final rule.
OPM received numerous comments
relating to the need for this rule. Most
of the comments were supportive.
Comments Regarding the Need for This
Final Rule
Several comments agreed with OPM
that this rule would protect the
nonpartisan career civil service and
merit system principles. Comment 684,
an individual, contended that ‘‘[t]he
rule will help preserve the autonomy of
the civil service, allowing its
professionals to complete their work
without arbitrary fear or favor of current
elected office holders and making it
possible for the government of the
United States to serve its people
consistently and evenhandedly across
administrations.’’ See also Comments 9
(arguing that the government ‘‘cannot
properly function if civil servants are
forced to curry political favor rather
than carry out the work laid out for
them by law,’’), 1310 (explaining that
the rule will help preserve the many
benefits of the civil service), 3687
(same). Comment 1691, an individual,
contended that ‘‘[b]y ensuring that
federal employees retain their civil
service protections and status during
transitions between the competitive and
excepted services, the rule enhances job
security and employee rights.’’ Also, the
rule ‘‘clarifies the definitions of roles
exempt from these protections, bringing
greater transparency and adherence to
legislative intent. Importantly, the
introduction of procedural safeguards
and the right to appeal to the Merit
Systems Protection Board empowers
employees, fostering a fairer and more
accountable federal workforce.’’
Commenter concluded that ‘‘[t]his rule
change is not just a regulatory update;
it’s a reaffirmation of our commitment
399 See,
e.g., 5 CFR part 362.
CFR 6.1.
401 Id.
402 5 CFR 302.102(b).
to a merit-based, transparent, and
equitable civil service.’’ See also
Comment 949 (an individual, expressing
concern that ambiguities in the civil
service statutes, addressed by this rule,
could allow for mass firings based on
political favor).
Regarding the rule’s protection of
merit system principles, an individual
wrote, ‘‘[i]n a time when preserving the
merit-based and non-partisan principles
of the federal workforce is of paramount
importance, this proposed rule stands as
a beacon of clarity and fairness.’’
Comment 3800. It is ‘‘essential to
safeguard the rights and protections of
federal employees while also
maintaining flexibility for necessary
personnel movements. It is my firm
belief that implementing this rule will
promote good administration, uphold
merit system principles, and provide
federal employees with the confidence
that their careers and rights are
protected.’’ Id. Commenter concluded
that the rule ‘‘ensures that decisions
related to the movement of positions are
made judiciously, with adherence to the
rule of law and congressional intent.’’
Some commenters opposed to this
rule argued that civil service procedures
cause hiring, performance management,
and misconduct challenges and this rule
would only exacerbate those challenges
and hurt accountability. Comment 4097
stated, ‘‘Chapters 43 and 75 have proven
to be longstanding and entrenched
barriers to effectively addressing
performance and conduct issues. . . .
The reality is that they give federal
employees ‘a de facto form of life
tenure, akin to that of Article III judges
. . . What’s more, federal employees
know it—and they take full-throated
advantage of it.’ ’’ 403
As noted in prior sections, OPM does
not agree with commenter’s
characterizations of the futility of
chapters 43 and 75 or that career civil
servants are broadly ‘‘taking advantage’’
of those protections to some
inappropriate end. Under commenter’s
theory, Federal employment should be
at-will. As discussed above and in the
following Section V.(B), the civil service
has sufficient and longstanding tools to
deal with actual misconduct or
unacceptable performance. If a Federal
employee refuses to implement lawful
direction from leadership, there are
appropriate vehicles for agencies to
respond through discipline and,
ultimately, removal under chapter 75 or,
alternatively, if performance related,
chapter 43 and other authorities. More
importantly, if commenter believes that
400 5
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4th 366 (5th Cir. 2023) (J. Ho concurrence).
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the current performance management
system, as reflected in chapters 43 and
75, is inadequate, then the appropriate
solution is to try to convince Congress
of that proposition and suggest
corresponding changes to the statutory
scheme. In contrast, distorting existing
provisions to have a meaning
untethered to long-settled
understandings and removing adverse
action rights from thousands of
employees whom Congress intended to
protect is not an appropriate means of
addressing the putative problem with
the statutory scheme.
Commenter 4097 also argued that this
rule, and its removal restrictions, are
unnecessary to protect merit.
Commenter wrote ‘‘the merit system
operated for eight decades with federal
employees generally unable to appeal
dismissals; the Lloyd-La Follette Act
expressly provided that no trial or
hearing would be required to effectuate
removals. Many state governments
currently operate at will. Nonpartisan,
merit-based civil services can, do, and
did operate effectively at will. Schedule
F’s elimination of those restrictions is
fully consistent with an effective merit
service.’’ Commenter then added
‘‘[n]onetheless, OPM’s confusion on
these points is understandable’’ because
‘‘federal unions prompted this
rulemaking’’ and ‘‘have long used the
specter of the spoils system to oppose
civil service reforms.’’
While a labor union petitioned OPM
to promulgate regulations regarding
civil service protections, OPM is fully
capable of analyzing these issues on its
own, and is promulgating measured
amendments, using its own expertise,
and based squarely within statutory and
regulatory authority, legal precedent,
and history, to reinforce and clarify
these longstanding civil service
protections and merit system principles.
Also, as noted above, other
commenters (see Comment 2822) take
issue with Comment 4097’s
interpretation of history and law in
support of Schedule F. Since the
Pendleton Act, Congress has barred
terminations based on political grounds
to preserve merit-system principles. A
few years later President McKinley
required just cause and written charges
prior to removal—requirements which
were codified in the Lloyd La Follette
Act to establish that covered Federal
employees were to be both hired and
removed based on merit. Comment
2816, a former federal official, cited
studies showing the negative impacts of
at-will employment on states and
several other state employees
commented how these reforms have
been harmful. OPM therefore does not
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agree that the elimination of civil
service protections is ‘‘fully consistent
with an effective merit service.’’
Several individuals supportive of the
rule argued that it would effectively
protect civil servants from
politicization. Comment 11 wrote that
the ‘‘proposed rule is a necessary and
timely response’’ to efforts that could
‘‘undermine the civil service system and
politicize it for partisan purposes.’’
Comment 371 stated that the rulemaking
would protect the civil service from
‘‘employment decisions based on
anything but job performance and
qualifications.’’ See also Comments 704
(arguing that the rule ‘‘acts as a
necessary buffer against the potential
upheaval and erosion of our
institutions, and would help to ensure
stability of essential government
agencies.’’), 711, 3751. A professor
contended the rule ‘‘provides
appropriate protection against these
negative effects’’ of politicization.
Comment 1971.
A coalition of national and local
unions, including the union that
submitted the petition for rulemaking
referenced above, expressed their
support for this rule. They stated, ‘‘OPM
would make important clarifications
regarding the rights of federal
employees whose positions might be
shifted from the competitive service to
the excepted service or from one
excepted service schedule to another.
We urge OPM to finalize the rule
promptly.’’ Comment 41.
Commenters opposed to this rule
argued that the civil service needs
performance management, and this rule
will have a negative effect on the stated
intent, resulting in government
inefficiency and waste. Comment 2866,
a legal organization, argued that
‘‘American taxpayers should not be
forced to fund lazy, incompetent, or
insubordinate federal employees who
fail to complete their work, seek to
undermine the democratic process by
failing to carry out the President’s
agenda, or both.’’ Comment 4097 argued
‘‘OPM’s proposed rule would instead
make dismissing employees in senior
policy-influencing positions for poor
performance or intransigence
considerably more difficult. This would
‘seal up’ poor performers in the
bureaucracy. . . . [C]hapter 43 and 75
procedures are insufficient to combat
these ‘levers of resistance.’ ’’
For the reasons stated above, OPM
disagrees with commenters’ views as to
the sufficiency of performance
management tools. These tools are also
addressed further in Section V.(B).
Moreover, this rule tracks the status
quo, so it would not make performance
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management more difficult. The
amendments to parts 210, 212, 432, and
752 clarify longstanding civil service
law and agency procedures. Nor do
commenters explain how the changes to
part 302 and resulting procedures
would impact performance
management. They are instead directed
at potential movements of positions or
employees from the competitive to the
excepted service or between schedules
in the excepted service, and added for
the purposes of good administration, to
enhance transparency, and to provide
employees with a right of appeal to the
MSPB to protect against potential
abuses. In essence, they provide an
avenue of relief to an employee in the
event the employing agency fails to
inform the employee of the impact of
the move on the employee’s rights or the
employee is concerned that the move is
an attempt to strip the employee of civil
service status and protections.
Further, actual resistance to
supervisory direction would generally
be expected to produce unacceptable
performance that could be demonstrated
on the record under either chapters 43
or 75.
Comment 4097, from an advocacy
nonprofit organization, also argued that
this rule would increase politicization.
See also Comment 3156 (the same
commenter, arguing that ‘‘political
appointees rationally respond to
intransigent career staff by cutting them
out of the policy process.’’). Comment
4097 argued that this rule would
‘‘discourage vetting prospective policies
with career staff’’ because ‘‘the practical
consequence of insulating career staff
from accountability is political
appointees cut them out of the loop to
avoid leaks.’’ Commenter added ‘‘[i]f
career officials feared leaking draft
policies could end their careers,
political appointees would have more
freedom to seek their input.’’ As an
example, commenter states, ‘‘OPM
career staff were entirely cut out of the
development of Schedule F. The White
House realized sharing policy proposals
with OPM career staff was tantamount
to sending them to federal unions and
other reform opponents.’’
Generations of civil servants have
worked with administrations and
political appointees of both parties to
advance their policies. For instance, as
explained above, Comments 2822, a
legal nonprofit organization, and 3038,
a former civil servant, observe that the
Reagan, Bush, and Trump
Administrations succeeded in
advancing many of their policy efforts
even if, as Commenter 4097 contends,
federal employees lean liberal.
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Commenter adds ‘‘[i]f there were no
restrictions on removing policyinfluencing career staff political
appointees could simply dismiss
employees they knew or strongly
suspected leaked deliberative policy
documents.’’ (emphasis added). This
comment suggests that, under its
preferred scheme, suspicion of leaking,
without proof, would be a basis for
removal. OPM believes such an
environment would chill employees
broadly and interfere with their
willingness to present objective analyses
and frank views in carrying out their
duties, thus diminishing the reasoned
consideration of policy options.
Moreover, by instilling fear of reprisal
and loss of employment, it would
damage retention and recruitment
efforts, as explored in the following
section, thus further fracturing the
successful functioning of government
and our democracy.
Individuals opposed to this rule also
added that it is a means for the
‘‘bureaucracy’’ to ‘‘protect itself from
any disruption or risk to its continued
employment.’’ Comment 20, see also
Comment 3130. Comment 45, a former
political appointee, stated this rule ‘‘is
a truly clear demonstration of
bureaucrats in full self-protection mode,
operating as an independent,
unaccountable, deep state fourth branch
of government, outside the United
States Constitution’’ and its ‘‘goal is
simply to expand more protections to as
many of the current administrative
state’s lackeys as possible.’’ Comment
31 adds ‘‘[t]here is probably no private
business that allows its ‘employees’ to
first make up & approve their own
policy, salary, benefits, performance etc.
and then to ‘manage’ and ‘interpret’
their duties to the general public.’’
OPM is headed by a presidentially
appointed and Senate-confirmed
Director, who is accountable to the
current President. It has both career staff
and political appointees. Accordingly,
this rule is not the work product of
unaccountable bureaucrats. OPM also
does not, through this rule or any rule,
‘‘make up’’ the ‘‘bureaucracy’s’’ adverse
action rights—those rights have been
granted to incumbents of various
positions in the civil service by
Congress after vigorous and careful
debate. In that way, and many other
ways, the civil service is also unlike
employees in private businesses in the
same way that government agencies,
though mindful of sound business
practices where they appropriately
apply, are not and cannot be identical
to a business. Congress decided, long
ago, to create a civil service based upon
merit system principles (and has added,
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over time, various protections for career
employees) to protect against
politicization, build competencies,
enhance the ability to transmit
knowledge during transitions, and
generally advance the public interest.
OPM is tasked by statute with the
authority to execute, administer, and
enforce all civil service rules and
regulations as well as the laws
governing the civil service.404 All of its
rules give effect to Congress’ intentions
under title 5, including civil service
protections and merit system principles.
This rule is a standard exercise of the
delegated authority Congress provided
to OPM.
Several commenters expressed
support for the rule, in part, because it
is being promulgated through notice and
comment in accordance with the APA.
This is contrasted with Executive Order
13957 establishing Schedule F, which a
professor argued ‘‘was developed in
secret, with no consultation of public
management researchers or experts who
could provide evidence to inform its
adoption.’’ Comment 50. It ‘‘sought no
consultation of researchers or experts in
public management, so the Executive
Order is free of any peer-reviewed
evidence to support its adoption.’’
Comment 2594 (an individual), see also
Comment 3213 (an individual). The
rule, commenters argued, ‘‘is thoroughly
researched, and invites public
comment,’’ demonstrating a high degree
of public engagement. Comments 50, see
also Comments 1677 (an individual),
1780 (same). OPM takes no position as
to the executive processes leading to
Executive Order 13957 but does
acknowledge this rulemaking process
resulted from OPM’s own research,
informed by 60 days of public comment,
and now reflects the review and
consideration of the thousands of
comments received. This final rule,
moreover, furthers the objectives of
Executive Order 14003. In the findings
underpinning that Executive order,
President Biden observed that the
foundations of the civil service and its
merit system principles were essential
to the Pendleton Act’s repudiation of
the spoils system.405 The President
further noted that revoking Schedule F
was necessary ‘‘to enhance the
efficiency of the civil service and to
promote good administration and
systematic application of merit system
principles.’’ 406 The amendments in this
final rule support the civil service and
404 See
405 E.O
5 U.S.C. 1103(a)(5)(A).
14003, sec. 2.
406 Id.
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merit system principles for career
Federal employees.
B. Regulatory Alternatives
An alternative to this rulemaking is to
not issue a regulation. OPM has
determined this is not a viable option.
The risks of not issuing this final
rulemaking are many and include both
fiscal as well as non-fiscal
consequences. As noted in the
preamble, this rulemaking is important
for preserving the integrity of the
Federal career workforce as an
independent entity selected in a manner
that is free of political influence, and
free of personal loyalties to political
leaders, consistent with merit system
principles. Promulgating measures that
help ensure that career employees
maintain any status and procedural
rights they have accrued under law is a
means of preserving the integrity of the
Federal career workforce. It preserves
and promotes employee morale and
settled expectations, minimizes
workforce disruptions by preventing
potential losses of seasoned or
experienced personnel, and contributes
to a positive impact on agencies’ ability
to meet mission requirements. Finally,
and importantly, these changes will
promote compliance with statutory
enactments.
The option of not regulating in this
area carries with it fiscal costs as well.
These costs include that of recruiting
and replacing staff who separate before
or after their positions are moved to the
excepted service in a manner that
purportedly strips them of their civil
service protections, as well as the loss
of or delay in services, benefits, and
entitlements owed to many of our
nation’s citizens. Many of the citizens
receiving these entitlements depend on
them to meet their basic living
expenses.
Many commenters discussing
regulatory alternatives focused on the
potential impact of this final rule on
performance management and the
ability to recruit, hire, and retain talent.
Comments Regarding Performance
Management
Commenters opposed to the rule
commented that career civil servants
have too many poor performance issues
and therefore fewer, not more,
protections are needed to allow for their
removal. See, e.g., Comment 1802 (an
advocacy organization). Comment 90, a
form comment, points to a 2020 Federal
Employee Viewpoint Survey (FEVS) to
say, generally, that ‘‘the existing system
. . . already faces challenges in
addressing poor performance.’’
Comment 45, a former political
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appointee in favor in Schedule F,
similarly cited the 2020 FEVS results 407
showing that 42% of employees agreed
with the question: ‘‘In my work unit,
steps are taken to deal with a poor
performer who cannot or will not
improve.’’ Commenter then cited a
different question in that FEVS which
asked, ‘‘In my organization, senior
leaders generate high levels of
motivation and commitment in the
workforce.’’ (emphasis added).
Commenter argued that ‘‘[a]cross five
years from 2016 to 2020, we see
worryingly low rates of workers
responding in the affirmative, with only
51% of workers doing so in 2020 and it
being lower in all previous years
surveyed.’’ Commenter concluded that
this ‘‘not only signals a demoralizing
effect on those workers who do strive
for efficiency and satisfactory
performance but is also a cause of poor
performance itself.’’
OPM disagrees with commenter’s
analysis and conclusions. ‘‘Senior
leaders’’ in the FEVS are defined as the
heads of departments/agencies and their
immediate leadership team responsible
for directing the policies and priorities
of the department/agency.408 These can
be career employees but are most often
political appointees. It is unclear how
the motivation and commitment
question relating to senior leaders ties to
performance management, as
commenter concluded, especially since
immediate supervisors—the personnel
most likely to handle performance
management—scored higher than senior
leaders in relevant metrics in that same
2020 FEVS. For instance, 78% of
respondents said their immediate
supervisor was doing a ‘‘good job’’
overall and 87% said their supervisor
treated them with respect. Regarding
their close colleagues, 82% of
respondents said their work unit had
the ‘‘job-relevant knowledge and skills
necessary to accomplish organizational
goals’’ and 84% said the people they
worked with ‘‘cooperate to get the job
done.’’
Comment 4097 and others also argued
that FEVS data shows ‘‘[a]gencies fail to
address poor performers effectively,’’
407 U.S. Off. of Pers. Mgmt., 2020 Federal
Employee Viewpoint Survey, https://www.opm.gov/
fevs/reports/governmentwide-reports/
governmentwide-reports/governmentwidemanagement-report/2020/2020-governmentwidemanagement-report.pdf.
408 U.S. Off. of Pers. Mgmt., ‘‘Federal Employee
Viewpoint Survey,’’ https://www.opm.gov/fevs/, see
also U.S. Off. of Pers. Mgmt., ‘‘2022 Federal
Employee Viewpoint Survey Results: Technical
Report,’’ (defining ‘‘Senior Leader’’), https://
www.opm.gov/fevs/reports/technical-reports/
technical-report/technical-report/2022/2022technical-report.pdf.
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citing 2021–2023 FEVS data and the
same question as above, this time
showing approximately 40% of
respondents agreeing that ‘‘their agency
had taken steps to deal with a poor
performer who cannot or will not
improve.’’ See also Comments 1811,
3190, 3892. A few also argued (or cited
surveys that they allege show) that
public trust in government is low. See
Comments 1811, 1958. Comment 4097
adds that ‘‘[m]isconduct—including
policy resistance—occurs at
unacceptably high levels. The federal
hiring process is also widely recognized
as broken. The federal workforce needs
reform.’’
As explained above, under the law, a
mere difference of opinion with
leadership does not qualify as
misconduct or unacceptable
performance or otherwise implicate the
efficiency of the service in a manner
that would warrant an adverse action.
The FEVS data that commenters argued
shows there are too many poor
performers in government does not, in
fact, show a numerical prevalence of
poor performers. There is an important
difference between (a) data showing a
belief by respondents that poor
performers exist and the agency has not
adequately addressed their performance
and (b) the existence of too many poor
performers. For example, if a work unit
contains one employee with
performance issues out of a 100, then 99
might have one example of a poor
performer who has not yet been
removed or demoted, but that does not
necessarily mean the work unit has a
prevalence of poor performers. Also,
unless the respondents are in the
supervisory chain of an employee with
performance issues, they would have
little way of knowing what ‘‘steps are
being taken to deal with a poor
performer who cannot or will not
improve,’’ which is the FEVS question
repeatedly cited in these comments. For
privacy reasons, supervisors would not
normally share information about a
particular employee’s performance or
behavior with other employees, nor
would the supervisor be likely to
disclose what actions had been taken in
response. Commenters have not shown
that there are significant numbers of
poor performers in government. OPM
notes that a 2016 GAO report showed
‘‘99 percent of all permanent, non-SES
employees received a rating at or above
‘fully successful’ in calendar year 2013.
Of these, approximately 61 percent were
rated as either ‘outstanding’ or ‘exceeds
fully successful.’ ’’ In any event, even if
it could be demonstrated that there was
a high proportion of unacceptable
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performance or misconduct among
employees, OPM is not free to remove
adverse action rights from large swathes
of career civil servants. That is an action
that may be taken only by congressional
enactment.
A few individuals opposed to the rule
argued that career civil servants are
inefficient and/or provide poor service
to the American public. See Comments
18, 29. A nonprofit organization claimed
the civil service was ineffective and
blamed it on the lack of competition
‘‘that makes the private sector efficient.’’
Comment 1811. Commenter argued that
once an employee accrues worker
protections, ‘‘they have little incentive
to improve their work.’’ And should an
agency allege poor performance, ‘‘the
federal worker has ample time to
improve their performance and
challenge the claims of the agency.’’
Comment 4097 concurred with this
notion, arguing that ‘‘[i]n addition to
sheltering poor performers, removal
restrictions directly make federal
employees less productive. Economists
consistently find that giving employees
removal protections reduces their
productivity.’’ OPM notes that
commenter cited Ichino and Riphahn
(2005); Martins (2009); Riphahn (2004);
Scoppa (2010); Scoppa and Vuri (2014)
for this proposition. These studies all
concern European workers with
European-style labor protections. Four
exclusively consider private industry
and three are further restricted to the
impact of a single statute on Italian
labor markets. None are about the
American civil service. Also, these
papers do not purport to and could not
show that removing American civil
service protections would make career
civil servants more efficient. A loss of
protections, instead, would likely lead
to a loss of motivation to invest in and
hone their skills.
With respect to the claim that, should
an agency allege poor performance, ‘‘the
federal worker has ample time to
improve their performance and
challenge the claims of the agency,’’ we
note that many supervisors can and do
use chapter 75, rather than chapter 43,
to suspend, demote, or remove an
employee with a history of unacceptable
performance. Although it is true that the
statutory scheme provides for a notice
period and an opportunity to respond,
in a chapter 75 adverse action
proceeding, the supervisor need only
disclose the grounds for proposing the
action (which can be unacceptable
performance), provide evidence to
support the charge, and demonstrate
that the action proposed will promote
the efficiency of the service. There is no
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requirement to let the employee try to
improve their performance.
One form comment argued, without
evidence, that career civil servants do
not deserve protections because they are
captured by industry. See Comment 14,
26. The comment contended that, once
a career federal employee has lost
independence of decision making to
‘‘the patronage of a corporation,’’ the
employee is no longer applying their
merit to their employment function,
thus their ‘‘merit score would be
rendered ‘zero.’ ’’ The comment argued
the employee would then be subject to
employment termination. Commenter
provided no evidence for this assertion.
Whether some civil servants are
influenced improperly by outside
corporations in the way they conduct
their official duties is outside the scope
of this rule. But OPM notes that such
demonstrable influence, to the extent it
exists, could be a violation of federal
ethics laws and, in any event, could
readily be addressed by existing
performance management mechanisms.
We reiterate, as well, that whether or
not civil servants ‘‘deserve’’ adverse
action protections, Congress has
provided for them by law, and OPM is
not free to eliminate the protections
merely because it would allow agencies
to more easily remove employees.
Conversely, several commenters in
support of the rule agreed with OPM
and argued that the civil service already
has sufficient tools to deal with
performance issues. A public service
nonprofit organization commented that
‘‘[c]ritics often claim that it is
impossible to fire poor performing
federal employees, but data shows that
over 10,000 federal employees are
terminated or removed due to discipline
or performance issues each year (a trend
that goes back to at least 2005).’’ 409
Comment 44. It continued, ‘‘[d]espite
many misconceptions about the
prevalence of poor performers in
government, there are reasonable
approaches to ensuring managers are
trained in using disciplinary and
removal procedures and have the
necessary tools to manage their
workforce, including a streamlined
adjudicatory and appeals process.’’
Comment 1228, an individual, argued
that ‘‘[t]hough some may argue that the
current system is incapable of removing
bad employees, a.) there is little
evidence that such incapacity exists, it
seems like there are not only good
agencies doing good work but also the
need to fully staff those same offices,
409 Citing statistics on federal employees drawn
from Office of Personnel Management FedScope
data on the federal workforce.
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and b.) the benefits of removing low
performing employees more easily is
drastically outweighed by the risk of an
administration creating massively
unpredictable alterations to government
functioning based on the whims of an
incoming administration.’’ Comment
4016, an individual who worked for the
Federal Government for 30 years, added
that ‘‘[p]oliticization only leads to
incompetence in the federal workforce.
It’s not easy but a manager can remove
poor performers. It can be done as I’ve
witnessed and have done many times.’’
OPM agrees that the civil service
contains tools to address misconduct or
performance issues.
Comments Regarding the Effect of the
Rule on the Recruitment, Hiring, and
Retention of Talent
In addition to comments about
performance management, OPM
received many comments about the
rule’s impact on recruitment, hiring,
and retention efforts. This rulemaking is
expected to create an incentive for such
efforts. It will enhance agencies’ ability
to fulfill important merit system
principles, that recruitment should be
from qualified individuals in an
endeavor to achieve a workforce from
all segments of society, and that
selection and advancement should be
determined solely on the basis of
relative ability, knowledge, and skills,
after fair and open competition which
assures that all receive equal
opportunity.410 It also promotes
compliance with the congressional
policy to confer a preference on eligible
veterans or family members entitled to
derived preference. In a more pragmatic
sense, diminishing or eliminating civil
service protections from entire
categories of career employees would
destabilize the civil service—potentially
repeatedly, each time there is a change
in administration—and eliminate a
competitive advantage Federal agencies
have long enjoyed when competing with
other sectors for needed talent: stable,
fair, merit-based employment.
Failure to protect adverse action
rights and other civil service protections
risks a loss of experienced staff, leading
to a disruption, if not interruption, of
agency mission operations. This is an
especially important consideration
given the many challenges facing our
nation that require a response by the
Executive branch. These challenges
include threats to our nation’s economy
writ large, as well as problems
impacting small businesses and
emerging markets and technologies.
There are challenges associated with
410 See
5 U.S.C. 2301(b)(1).
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public health, climate (including
impacts on both private property and
businesses impacted by droughts,
floods, wildfires, etc.), data security,
and pressing international and
geopolitical matters, among others.
Many commenters were concerned
that not issuing this rule would allow
politicization (or even the threat of
politicization) to increase in the career
civil service, which would hurt
government recruitment, hiring, and
retention efforts.
OPM received several comments
concerning politicization that noted, as
a baseline concept, that the civil service,
unlike much employment in the private
sector, is spurred by mission-driven
work. Comment 3022 contended
‘‘[o]pponents of the Civil Service often
voice two objections: ‘Government
should be run like a business’ and ‘The
boss has the right to hire and fire at
will.’ ’’ Commenter argued that
government is not a business because
the purpose of a business is to turn a
profit whereas the purpose of
government, as ‘‘stated in the first
paragraph of the Constitution’’ is to
‘‘form a more perfect Union, establish
Justice, insure domestic Tranquility,
provide for the common defence,
promote the general Welfare, and secure
the Blessings of Liberty to ourselves and
our Posterity.’’
This desire for mission-driven work
helps explain why politicization in the
civil service impacts job satisfaction and
morale, argued commenters. Comment
2660, a science advocacy nonprofit
organization, cited evidence suggesting
that when federal scientists perceive
that their workplaces are free from
political interference, there are positive
knock-on effects, such as making that
federal agency more attractive when
recruiting other federal scientists and
increasing retention. Comment 2816, a
former federal official, showed that
‘‘[e]mployees in highly politicized
agencies evince ‘less general satisfaction
in the workplace and federal workers in
more politicized agencies are less likely
to believe their agency compares
favorably with other organizations and
to recommend their job as a good place
to work.’ ’’ 411
Other commenters in support of this
rule argued that it would help
recruitment. Comment 2059, an
individual, expressed that ‘‘[a]s
someone considering joining the civil
service, this is the type of clarification
and improvement I would need to see
411 Citing David E. Lewis, ‘‘Politicization and
Performance: The Larger Pattern, in The Politics of
Presidential Appointments: Political Control and
Bureaucratic Performance,’’ pp. 172, 191 (2008).
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before moving forward.’’ See also
Comments 84 (an individual,
commenting about the difficulty to
recruit and retain competent and
dedicated employees to the civil service
if they knew that they might lose their
jobs at any moment for political
reasons), 3038 (a former civil servant
arguing that increased politicization
diminishes the attraction of government
jobs ‘‘to excellent workers with the
temperament to be truly dedicated
public officials’’). Comment 2193, a
women’s health nonprofit organization,
argued that ‘‘[m]erit system protections
are important for attracting highly
qualified individuals to fill open
positions and retaining employees who
have developed valuable expertise in
their topic areas.’’ Comment 2004, an
individual, added that ‘‘[e]roding [civil
service] protections would also damage
the federal government’s ability to
attract good people, as job security and
a sense of purpose are two attractive
features of many federal jobs which
attract talent that could easily make
more money working somewhere else.’’
Commenter continues, ‘‘[i]f these
employees have to worry that every
election could mean the end of their
federal careers, we’ll have a tough time
attracting and retaining good people,
meaning we’ll have severely damaged
the government’s ability to effectively
serve the country and implement the
policies and programs of any President
or Congress.’’ As examples of
politicization’s potential impact on
government recruitment, Comment
1904, a national parks advocacy
organization, pointed to the National
Park Service, saying ‘‘[t]he NPS is
already struggling with recruiting and
retaining employees and the risk of
political retribution or misguided
politically-driven decisions would only
create further challenges.’’ Comment
857, an individual, gives, as an example,
the Environmental Protection Agency,
saying ‘‘[t]he EPA and other agencies
will not be able to attract and retain the
best professional staff if they are subject
to at will firing. U.S. citizens will not be
as safe as a result.’’
Comment 407, an individual, detailed
how this rule directly impacts OPM’s
recruitment and human capital
management goals. The rule would
‘‘help to maintain the progress of the
past two decades on strategic human
capital management.’’ Since 2001,
commenter noted, GAO has placed
strategic human capital on its biennial
high-risk list. In the past two decades,
‘‘OPM has reported addressing
government-wide skill gaps for certain
positions, such as auditors and
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economists, while gaps persist for other
specialties like acquisition or
cybersecurity.’’ Commenter continued
‘‘[t]o ensure continued progress, it is
imperative that the civil service remain
an employer that is professional,
apolitical, merit-based, and stable.’’
Conversely, ‘‘inaction or weakened
protections for career civil servants may
reverse the progress of the last two
decades with strategic human capital
management and resolving skills gaps.’’
As an example, commenter stated
‘‘auditors and economists may not apply
for or remain in federal positions in the
face of political interference or
retaliation that slants their analysis and
work to meet political ends.’’ The
prospect of instability with each change
in administration would ‘‘undermine
the government’s ability to recruit and
retain such key positions.’’ Commenter
concluded, ‘‘it would be difficult to
keep highly sought and potentially high
paid experts in federal employment if
they do not think that they will have a
job in another 4 or 8 years when the
administration changes.’’
OPM notes that agencies have
specifically raised concerns around
attrition rates for scientific and
technical positions as well as an
inability to hire quickly enough to meet
demands. Regarding these types of
positions, Comments 3687, a science
advocacy organization, and 3973, an
anti-poverty nonprofit organization,
added that ‘‘[i]ncreased politicization of
roles also makes public service less
attractive and can result in higher
turnover and fewer incentives to
develop expertise. Managing federal
science and technology programs
requires a steady cadre of subject area
experts, including working with
program partners and grantees and
balancing competing operational, legal,
and political needs. Federal agencies
already face challenges hiring and
retaining employees in positions that
require highly-specialized technical
expertise, and failure to insulate the
civil service from politicization
introduces additional instability and
exacerbates this issue.’’ Similarly,
Comment 2660, another science
advocacy organization, argued that
‘‘[f]ailing to ensure that federal
scientists’ jobs are based on merit and
other civil service protections is more
likely to push federal scientists to
consider leaving federal agencies for
workplaces that better fit the demands
and norms of their scientific
profession.’’ Comment 3409, a former
civil servant, contended that
‘‘researchers and evaluators who wish to
conduct unbiased analyses and present
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an honest representation of results may
avoid civil service positions under such
conditions. The quality of the federal
workforce would decline as a result.’’
Comment 2001 added ‘‘[a]s a trained
engineer with extensive software, data
analysis, and data science experience, I
have long considered working for the
federal government a dream of mine that
I would love to pursue should the
opportunity arise. The reason for that is
that the United States’ strong tradition
of an apolitical, well-protected civil
service that is hired and rewarded based
on merit, rather than political
connections, makes it something that I
couldn’t help but aspire to. This
tradition must be protected.’’
One commenter opposed to the rule
argued it will hurt the ability to hire, but
that seems to be based largely on their
concerns about the time and resources
necessary to hire into the competitive
service. Comment 4097 stated ‘‘the
competitive hiring process is broken.
There is widespread consensus that the
federal hiring process needs reform. It
takes agencies an average of about 100
days—more than three months—to fill
vacant positions in the competitive
service.’’ Commenter argued that private
employers do not have to use these
procedures and can hire qualified
applicants much more expeditiously.
The Comment fails to acknowledge,
however, that the rules governing the
competitive hiring process were
established, largely, by Congress.
Congress’ objective was to filter a merit
system principle—that selection and
advancement of candidates be
determined on the basis of relative
levels of knowledge, skills, and
abilities—through rules enacted to
confer a defined advantage, in the
process of rating and selection, on
individuals eligible for veterans’
preference.412
Comment 4097 concluded that OPM’s
recruitment concerns regarding efforts
to strip career employees of civil service
protections are misplaced. Commenter
argued that, ‘‘[Executive Order 13957]
prohibited patronage and stipulated that
Schedule F positions would last beyond
a presidential term. . . . Contrary to
OPM’s concerns, Schedule F employees
would keep their jobs so long as they
performed well and faithfully advanced
the President’s agenda.’’ As explained
previously, however, if career civil
servants become at-will employees,
thereby subjecting them to removal
without any cause, we do not
understand the basis for commenter’s
view that such employees ‘‘would keep
412 See
5 U.S.C. 2301(b)(1), 3301, 3304; see also
5 U.S.C. 3319, 3320.
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their jobs.’’ They may keep their jobs—
but they also would be removable at
will for any number of reasons.
Comment 4097 stated that ‘‘OPM’s
recruitment concerns have not
materialized in states with at-will
workforces.’’ Commenter again cited
snippets of a report concluding that atwill employment ‘‘makes the HR
function more efficient.’’ Whether states
can more efficiently fill these positions
proves nothing about the applicant pool
or the quality of the candidates
ultimately selected. See Comment 2816
(regarding the effect on state civil
servants of at-will laws). At any rate, as
Commenter 4097 concedes, these state
systems operate under statutory
provisions that differ meaningfully from
those of title 5.
Comments Outside the Scope of This
Rulemaking and/or OPM’s Regulatory
Authority
Commenters also suggested a variety
of other changes. These included
requests to curb burrowing in, limit
large scale movements of employees
(including capping the number of
Schedule C appointments), scrutinize
the appointments and functions of the
SES, review hiring preferences and
agencies’ uses of preferences, add
whistleblower protections, modify
assignment rights applicable to RIF,
clarify how agencies should better use
probationary periods, reform chapters
43 and 75, streamline performance and
accountability processes, and consider
whether policies promoted by the rule
could be included in collective
bargaining agreements. See Comments
6, 33, 38, 44, 2442, 2849, 3049, 3227,
3428, 3687, 3894. OPM appreciates
these suggestions but found they were
either outside the scope of this
rulemaking, outside of OPM’s regulatory
authority, or both.
As described above, commenters
proposed revisions to some of OPM’s
regulatory changes to 5 CFR parts 210,
212, 213, 302, 432, 451, and 752. For the
reasons described above and
summarized below, they were adopted
or rejected in whole or in part.
Regarding 5 CFR part 752, OPM’s
changes to the regulations for adverse
actions are consistent with statute and
cannot be further simplified. OPM
conforms part 752 with Federal Circuit
precedent 413 and statutory language.414
In addition, OPM makes plain that an
employee who is moved involuntarily
from the competitive service to a
position in the excepted service, or from
413 See Van Wersch, 197 F.3d at 1151–52;
McCormick, 307 F.3d at 1341–43.
414 See 5 U.S.C. 7501.
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one excepted service schedule to
another excepted service schedule,
retains the status and civil service
protections the employee had already
accrued.
One regulatory alternative to
conforming part 752 was to forgo
changes to the regulation and allow
Federal agencies to continue relying
upon 5 U.S.C. 7501 and 7511 for a more
complete understanding of eligibility for
procedural and appeal rights. However,
as the MSPB observed in urging OPM to
update 5 CFR 752.401:
Retaining out-of-date information in a
Government regulation can confuse
agencies, managers, and employees and
produce unintended outcomes. Human
resources specialists or managers who
are not experts in employee discipline
may inadvertently rely on these
particular regulations. Agencies may fail
to use proper procedures and fail to
notify employees of appeal rights.
Terminations may be reversed.415
OPM agrees that current regulations
need updating and does so through this
rulemaking.
OPM is amending the coveragerelated provisions in part 752 to close
the gap between current regulations and
relevant precedent interpreting the
underlying statute, thus adding clarity.
In addition, OPM provides guidance on
implementing the statute. Having
regulations that are congruent to the
underlying statute, as interpreted in
binding precedent, should mitigate
potential errors in cases where an
agency might mistakenly believe it is
free to terminate employment without
following adverse action procedures.
Failure to align the regulations with
applicable precedents could produce
improper terminations. These
terminations might then be overturned
at the MSPB, resulting in wasted
resources and frustration for agency
supervisors. It could also mean the
continued employment of a poorly
performing employee, until a
proceeding under chapter 75 or chapter
43 could be undertaken and sustained.
Revising this regulation thus promotes
efficiency in removing or disciplining
employees and addresses complaints
that the Federal removal process is too
cumbersome. Through this rulemaking,
OPM is conforming the regulation to
essential statutory requirements that
have not been previously reflected in
OPM’s regulations.
415 U.S. Merit Sys. Prot. Bd., ‘‘Navigating the
Probationary Period After Van Wersch and
McCormick,’’ (Sept. 2006), https://www.mspb.gov/
studies/studies/Navigating_the_Probationary_
Period_After_Van_Wersch_and_McCormick_
276106.pdf.
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OPM is issuing these regulations in
the least burdensome way possible.
Fundamentally, the amendments to part
752 do not impose new requirements on
agencies that are not already in place
through existing statutes, regulations,
and case law. This includes the
provisions that an employee retains
accrued rights when the employee is
moved involuntarily from the
competitive service to the excepted
service or placed in a new schedule
within the excepted service.
With respect to 5 CFR part 210, OPM
considered not defining ‘‘confidential,
policy-determining, policy-making, or
policy-advocating’’ and ‘‘confidential or
policy-determining’’ positions but, as
stated in the proposed rule and here,
doing so adds important clarity. This
final rule more explicitly defines the
employees and positions that are
excluded from civil service protections
to align with relevant statutory text,
congressional intent, legislative history,
legal precedent, and OPM’s
longstanding practice. Accordingly,
OPM adds a definition for these terms
of art to clarify that they mean a
noncareer political appointment that is
identified by its close working
relationship with the President, head of
an agency, or other key appointed
officials who are directly responsible for
furthering the goals and policies of the
President and the administration, and
that carries no expectation of continued
employment beyond the presidential
administration during which the
appointment occurred.
Finally, OPM’s addition of 5 CFR
302.602 establishes minimum
requirements for moving employees and
positions into and within the excepted
service and creates new guardrails to
protect existing rights and reinforce
merit system principles. OPM also
confers in 5 CFR 302.603 a narrow
MSPB appeal right to an employee
whose position is placed involuntarily
into the excepted service, or an
excepted service employee whose
position is placed involuntarily into a
different schedule of the excepted
service, and when, in any such move, in
violation of these regulations, an agency
asserts that the employee loses status or
any civil service protections they had
already accrued.
OPM weighed the alternative of not
conferring a right of appeal to the
MSPB. As stated in 5 CFR 1201.3, the
MSPB’s ‘‘appellate jurisdiction is
limited to those matters over which it
has been given jurisdiction by law, rule,
or regulation.’’ Currently, for personnel
actions for which there is no MSPB
appellate coverage, an aggrieved Federal
employee may have multiple other
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options for contesting a personnel
decision, including filing an Equal
Employment Opportunity (EEO)
complaint, an OSC complaint, an
administrative grievance, or if
applicable, a grievance under a
negotiated grievance procedure.
However, with regard to an allegation
that an agency has asserted that the
employee loses status or any civil
service protections the employee has
already accrued, or that an agency
coerced the employee to move in a
manner that was facially voluntary to a
new position that would require the
employee to relinquish their status or
any civil service protections, OPM
concluded that the current scheme of
avenues for redress is less complete
than preferable to safeguard against
actions brought against employees for
reasons stated above. Such actions
would have an adverse impact on
employee morale across Federal
agencies and a corrosive effect on the
American public’s confidence in
equitable administrative processes of
Federal civilian service.
Currently, if an employee alleges that
an agency has committed a prohibited
personnel practice, the employee can
file a complaint with OSC, or if the
employee is contesting an otherwise
appealable action, the employee can file
an MSPB appeal of the personnel action
and claim as an affirmative defense that
the agency committed a prohibited
personnel practice. OPM’s selected
option—the addition of 5 CFR
302.603—provides an earlier recourse to
employees, following an involuntary
movement, or at a later point, if a
personnel action is undertaken without
following appropriate procedures, as
detailed in section 302.603. This
enables employees to protect their status
and rights and reinforces that affected
employees are deserving of fair and
equitable treatment in all aspects of
their employment as it relates to
movement to and within the excepted
service.
C. Impact
These revisions clarify and reinforce
existing employee protections and add
procedures that agencies must follow to
further advance merit system principles.
Congress enacted procedural rules to
provide an adequate opportunity to hear
from the tenured employee and
appropriately explore the underlying
facts and law before adverse actions are
taken and thus help ensure that such
actions are taken for proper cause.416
416 U.S. Merit Sys. Prot. Bd., ‘‘What is Due
Process in Federal Civil Service,’’ pp. ii, 4 (May
2015), https://www.mspb.gov/studies/studies/
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The procedural protections enacted by
Congress are for all tenured employees,
not only for the few employees who will
inevitably present problems in a
workforce of more than two million
individuals. And procedural protections
exist for ‘‘the whistleblower, the
employee who belongs to the ‘wrong’
political party, the reservist whose
periods of military service are
inconvenient to . . . [superiors], the
scapegoat, and the person who has been
misjudged based on faulty
information.’’ 417
Where Congress has created a
property interest in a position for
tenured employees, due process
considerations protect employees from
an unlawful deprivation of that
interest.418 Procedural protections are a
small price to pay to deliver to the
American people a merit-based civil
service rather than a system based on
political patronage.419
For the reasons stated in the proposed
rule and in Section IV(A–C) of this final
rule—including OPM’s responses to
comments therein—these rules will
reinforce protections and procedural
requirements that exist already for most
Federal employees. OPM believes that
those portions of the rules will not
change any existing requirements for
agencies covered by the rules and the
impact on agencies is expected to be
negligible.
The procedural requirements for
moving an employee from the
competitive service to the excepted
service or within the excepted service
are no more rigorous than the many
other regulations promulgated by OPM
for the administration of the civil
service, especially those reticulated
regulations related to the excepted
service under schedules D and E (as
described above). The reporting
requirements relating to excepted
service positions align with those with
which OPM already must comply.
D. Costs
This final rule requires agencies to
update internal policies and procedures
to ensure compliance with the final
regulations at 5 CFR 210.102(b),
212.401, 213.3301, 302.101, 302.602,
302.603, 451.302 and with the
regulatory amendments to parts 432 and
752 as well as resolve any appeals that
may arise from contested moves covered
by part 302. Regarding the procedural
requirements for moving positions, the
What_is_Due_Process_in_Federal_Civil_Service_
Employment_1166935.pdf.
417 Id., at cover letter.
418 See Loudermill, 470 U.S. at 541.
419 U.S. Merit Sys. Prot. Bd., supra note 32 at pp.
ii–iii.
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rule will affect the operations of
approximately 80 Federal agencies,
ranging from cabinet-level departments
to small independent agencies. OPM
cannot estimate these costs with great
specificity because they will vary
depending on the specific number of
positions an agency would seek to
move.
The cost analysis to update policies
and procedures and resolve appeals
assumes an average salary rate of
Federal employees performing this work
at the 2024 rate for a GS–14, step 5, from
the Washington, DC, locality pay table
($157,982 annual locality rate and
$75.70 hourly locality rate). We assume
the total dollar value of labor, which
includes wages, benefits, and overhead,
is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of
$151.40 per hour.
We estimate that the cost to comply
with updating policies and procedures
in the first year would require an
average of 40 hours of work by
employees with an average hourly cost
of $151.40 per hour. Upon publication
of the final rule, this would result in
first-year estimated costs of about
$6,056 per agency, and about $484,480
governmentwide. There are ongoing
costs associated with routinely
reviewing and updating internal
policies and procedures, but not
necessarily a measurable increase in
costs for agencies.
To comply with the regulatory
requirements in this final rule, affected
agencies would need to resolve any
appeals that may arise pursuant to
section 302.603. We estimate that, in the
first year following publication of a final
rule, this would require an average of
120 hours of work by employees with an
average hourly cost of $151.40 per hour.
This would result in estimated costs in
that first year of implementation of
about $18,168 per agency, and about
$1.45 million governmentwide. In
subsequent years, we assume a
decreased need for appeal resolution as
agencies further refine their processes
under section 302.603, resulting in less
staff time. Accordingly, in subsequent
years, we estimate an average of 80
hours of work by employees with an
average hourly cost of $151.40 per hour.
This would result in estimated costs of
about $12,112 per agency annually, and
about $968,960 governmentwide
annually in the years after the first year
of implementation.
OPM did not receive comments
related to the financial costs of this
rulemaking, which were presented in
the proposed rule.420 OPM adheres to its
420 88
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25043
view in the proposed rule and will
adopt the estimates as set forth here. In
sum, OPM estimates the first-year cost
to be approximately $24,224 per agency,
and about $1.94 million
governmentwide. For subsequent years,
we estimate annual costs to be $12,112
for agencies, and about $968,960
governmentwide.
E. Benefits
These final regulations clarify the
Federal civil service protections that are
critical to balancing an effective,
experienced, and objective bureaucracy
with Executive branch control. These
regulations benefit the American people
not only by shoring up longstanding
civil service protections, but also by
promoting good government. As stated
in Executive Order 14003, it is this
Administration’s policy to ‘‘protect,
empower, and rebuild the career Federal
workforce.’’ This rulemaking benefits
the career Federal workforce by
reinforcing that it is deserving of the
trust and confidence of the American
people.
OPM stated in its Fiscal Year 2019
Human Capital Review Summary Report
that ‘‘Agencies face different challenges
depending on their mission and the
current state of their organizations; but
there is little debate that effectively
managing human capital is at the
forefront of leadership’s greatest
priorities.’’ 421 Among the top trends
that surfaced during OPM’s review were
(1) identifying and closing skills gaps
and (2) recruiting and retaining
employees. For example, agencies raised
concerns around attrition rates for
scientific and technical positions as
well as an inability to hire fast enough
to meet demands. The ongoing
challenge with recruitment and
retention for IT and cyber positions is
due to the ever-changing landscape,
competition with the private sector and
other Federal agencies, and difficulty
retaining talent.
This final rule has several important
benefits. It supports the retention of
Federal career professionals who
provide the continuity of institutional
knowledge and subject-matter expertise
necessary for the critical functioning of
the Federal Government.422 ‘‘A vast
body of research’’ shows ‘‘public service
motivation as a central factor in public
421 U.S. Off. of Pers. Mgmt., ‘‘Fiscal Year 2019
Human Capital Reviews Report,’’ p. 1 (Mar. 2020),
https://www.chcoc.gov/sites/default/files/
2019%20Human%20Capital%20Review%
20Summary%20Report.pdf.
422 Donald P. Moynihan, ‘‘Public Management for
Populists: Trump’s Schedule F Executive Order and
the Future of the Civil Service,’’ Pub. Admin. Rev.,
p. 174, 177 (Jan.–Feb. 2022).
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employment’’ and that civil servants
‘‘invest effort and develop expertise
precisely because a stable public job
provides an environment where they
can pursue their motivation to make a
difference.’’ 423 The rights and
protections afforded to career Federal
employees offer a more stable
alternative to comparable private and
non-government sector positions.424
These professionals play an integral role
in transferring knowledge, not just as
part of their official duties, but also by
training and mentoring newer and less
experienced Federal employees, interns,
contractors, etc.
A related benefit of this rulemaking is
that it will mitigate costs associated
with recruitment of personnel needed to
replace staff who leave or are
subsequently removed following
placement in the excepted service or a
new schedule in the excepted service.
‘‘Instability and politicization makes
public service less attractive, leading to
higher turnover of experienced civil
servants and giving public officials less
reason to develop expertise.’’ 425 OPM
cannot estimate the exact value of this
benefit to taxpayers because it would
depend on the number of positions
moved by an agency. Nevertheless, the
final rule will protect agencies’ abilities
to meet mission requirements by
mitigating disruptions caused by
upheavals within an agency’s
workforce, the result of which could
have a negative impact on an agency’s
ability to meet mission requirements
and use its resources (including
taxpayer funds) in a timely and efficient
manner.
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Comments Regarding the Benefits of
This Final Rule
The benefits of civil service
protections, which this rule would
uphold, have been widely recognized by
Congress, civil servants, and the
American public for 140 years.
Comment 2816, a former federal official,
argued that ‘‘[t]he notion of a
competitively selected civil service is
far from a modern creation; the
justification for competitive selection
stretches more than a century and a half.
Throughout that period, Congress has
grappled with the same concerns—
whether and how to insulate civil
servants from political forces, how to
ensure the civil service is staffed by
experienced professionals, how to
promote trust that the government acts
in the public interest—that are at stake
423 Id.
424 Id.
425 Id.
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in contemporary debates about civil
service protections.’’
For these reasons, OPM believes that
civil service protections and merit
system principles provide significant
benefits both to civil servants and the
American people. This final rule will
reduce the risks associated with
misapplying the CSRA, depriving civil
service protections to those who have
rightfully earned them, and needlessly
politicizing our nation’s nonpartisan
career civil service.
As several commenters noted, there is
little evidence that supports the notion
that a more politicized civil service
would increase governmental
performance.426 A professor noted that
opponents of this rule have cited a
paper by Spenkuch, Teso and Xu, which
argues that political misalignment
between political appointees and career
agency officials can lead to cost
overruns and delays in procurement
contracts.427 Comment 50. The paper
reaches this conclusion by looking at
voter registration data for civil servants,
but especially for procurement officers,
and then examines the performance of
contracts the procurement officers
oversaw, including any cost overruns,
ex post modifications, or delays. But
Comment 50 argued that the paper
actually shows the risks of
politicization. The professor argued
that, ‘‘[w]hile there are certainly key
decisions where political appointees
should shape policy, specific
procurement outcomes is not one. There
is no Democratic or Republican
ideological approach to procurement
that should alter how existing legal
processes are implemented.’’
426 See id.; see also Donald P. Moynihan,
‘‘Populism and the Deep State: the Attack on Public
Service under Trump,’’ Liberal-Democratic
Backsliding and Pub. Admin., (May 21, 2020),
https://papers.ssrn.com/sol3/papers.cfm?abstract_
id=3607309 (‘‘If political appointees offer
responsiveness to elected officials through their
loyalty, this responsiveness comes at a cost. The
best evidence we have is that appointees generate
poorer organizational performance relative to career
officials.’’) (citation omitted); David E. Lewis,
‘‘Testing Pendleton’s Premise: Do Political
Appointees Make Worse Bureaucrats?’’ The Journal
of Pol., Vol. 69, No. 4 (Nov. 2007), https://
www.jstor.org/stable/10.1111/j.14682508.2007.00608.x (‘‘This analysis demonstrates
that appointees get systematically lower
performance grades than careerists. Previous bureau
experience and longer tenure in management
positions explain why careerist-run programs get
higher grades. . . . These results add weight to
what civil service reformers like George Pendleton
believed, namely that a merit-based civil service
system would lead to lower turnover in the Federal
workforce and the cultivation of useful
administrative expertise.’’).
427 Citing Jo
¨ rg L. Spenkuch, Edoardo Teso, and
Guo Xu. ‘‘Ideology and Performance in Public
Organizations.’’ Econometrica, 91, no. 4, pp. 1171–
1203 (2023), https://doi.org/10.3982/ecta20355.
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Commenter continued that politicizing
procurement through political
alignment would risk ‘‘temporary
partisan employees redirecting
procurement processes to satisfy
politically favored contractors’’ and that
‘‘peer-reviewed research in the topranked American Journal of Political
Science’’ demonstrates this point.428 A
review of federal procurement processes
between 2003–2015 shows that greater
politicization is associated with more
non-competitive contracts and greater
cost overruns. The authors of the study
that Comment 50 cites conclude that
‘‘agency designs that limit appointee
representation in procurement decisions
reduce political favoritism.’’ 429 Another
professor argued that there is ‘‘no
equivalent body of peer reviewed
evidence’’ supporting the idea that
removing career civil servants from
office improves government
performance or responsiveness. Studies
show that the opposite is true. Comment
1927.
Finally, agency counsel and employee
relations practitioners will benefit from
the clarifications in this final rule that
address current inconsistencies between
OPM regulations and statute. After the
MSPB recommended that OPM update
its regulations to reflect the Federal
Circuit’s decisions in Van Wersch and
McCormick,430 OPM revised 5 CFR part
752, subpart D to conform to the court’s
interpretation of 5 U.S.C. 7511 as it
pertains to appealable suspensions,
removals, and furloughs. However, OPM
elected at that time not to update
subpart B of part 752 for suspensions of
14 days or less. In addition to closing
regulatory gaps in part 752 by
conforming the regulations to case law
and statute, OPM clarifies that an
employee moved to or within the
excepted service retains accrued
procedural and appeal rights. The
cumulative effect of these changes will
be a comprehensive and robust
regulatory framework on which agency
practitioners can rely for understanding
and applying the protections available
to Federal employees appropriately.
428 Citing Carl Dahlstro
¨ m, Miha´ly Fazekas, and
David E. Lewis, ‘‘Partisan procurement: Contracting
with the United States Federal Government, 2003–
2015,’’ Am. Journal of Pol. Sci., 65, no. 3 (2021),
https://doi.org/10.1111/ajps.12574.
429 OPM is also not persuaded to change its
analysis based on this paper because it does not
address the likely resource costs of politicization on
the civil service described in this rule, such as
increased attrition and the need to hire new
employees with likely less experience and
expertise.
430 U.S. Merit Sys. Prot. Bd., supra note 30.
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VI. Procedural Issues and Regulatory
Review
supplemented by Executive Orders
13563 and 14094.
A. Severability
D. Executive Order 13132, Federalism
If any of the provisions of this final
rule is held to be invalid or
unenforceable by its terms, or as applied
to any person or circumstance, it shall
be severable from its respective
section(s) and shall not affect the
remainder thereof or the application of
the provision to other persons not
similarly situated or to other dissimilar
circumstances. For example, if a court
were to invalidate any portions of this
final rule imposing procedural
requirements on agencies before moving
positions from the competitive service
to the excepted service, the other
portions of the rule—including the
portions providing that employees in
the competitive service maintain their
protections even if their positions are
moved to the excepted service if moved
involuntarily—would independently
remain workable and valuable.
Similarly, the portions of this final rule
defining ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ and ‘‘confidential and
policy-determining’’ can and would
function independently of any of the
other portions of this final rule. In
enforcing civil service protections and
merit system principles, OPM will
comply with all applicable legal
requirements.
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 final rule does not have sufficient
federalism implications to warrant
preparation of a Federalism Assessment.
B. Regulatory Flexibility Act
The Director of the Office of
Personnel Management certifies that
this rulemaking will not have a
significant economic impact on a
substantial number of small entities
because the rule will apply only to
Federal agencies and employees.
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F. Unfunded Mandates Reform Act of
1995
This rulemaking will not result in the
expenditure by State, local, or tribal
governments, in the aggregate, or by the
private sector, of more than $100
million annually. Thus, no written
assessment of unfunded mandates is
required.
G. Congressional Review Act
OMB’s Office of Information and
Regulatory Affairs has determined this
rule does not satisfy the criteria listed in
5 U.S.C. 804(2).
This regulatory action will not impose
any reporting or recordkeeping
requirements under the Paperwork
Reduction Act.
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 certain 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
20:10 Apr 08, 2024
This regulation meets the applicable
standards set forth in section 3(a) and
(b)(2) of Executive Order 12988 (Feb. 7,
1996).
H. Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35)
C. Regulatory Review
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E. Executive Order 12988, Civil Justice
Reform
VII. Regulatory Amendments
List of Subjects
5 CFR Parts 210 and 212
Government employees.
5 CFR Part 213
Government employees, Reporting
and recordkeeping requirements.
5 CFR Parts 302 and 432
Government employees.
Decorations, Government employees.
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Frm 00065
Fmt 4701
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Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in
the preamble, OPM amends 5 CFR parts
210, 212, 213, 302, 432, 451, and 752 as
follows:
PART 210—BASIC CONCEPTS AND
DEFINITIONS (GENERAL)
1. The authority citation for part 210
continues to read as follows:
■
Authority: 5 U.S.C. 1302, 3301, 3302; E.O.
10577, 3 CFR, 1954–1958 Comp., p. 218.
Subpart A—Applicability of
Regulations; Definitions
2. Amend § 210.102 by:
a. Redesignating paragraphs (b)(3)
through (18) as paragraphs (b)(5)
through (20); and
■ b. Adding new paragraphs (b)(3) and
(4).
The additions read as follows:
■
■
§ 210.102
Definitions.
*
*
*
*
*
(b) * * *
(3) Confidential, policy-determining,
policy-making, or policy-advocating
means of a character exclusively
associated with a noncareer political
appointment that is identified by its
close working relationship with the
President, head of an agency, or other
key appointed officials who are
responsible for furthering the goals and
policies of the President and the
Administration, and that carries no
expectation of continued employment
beyond the presidential administration
during which the appointment
occurred.
(4) Confidential or policy determining
means of a character exclusively
associated with a noncareer political
appointment that is identified by its
close working relationship with the
President, head of an agency, or other
key appointed officials who are
responsible for furthering the goals and
policies of the President and the
Administration, and that carries no
expectation of continued employment
beyond the presidential administration
during which the appointment
occurred.
*
*
*
*
*
PART 212—COMPETITIVE SERVICE
AND COMPETITIVE STATUS
5 CFR Part 451
5 CFR Part 752
25045
3. The authority citation for part 212
continues to read as follows:
■
Authority: 5 U.S.C. 1302, 3301, 3302; E.O.
10577, 3 CFR, 1954–1958 Comp., p. 218.
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number, to be used by the agency in
recording appointments made under
that authorization.
*
*
*
*
*
Subpart D—Effect of Competitive
Status on Promotion
4. Amend § 212.401 by revising
paragraph (b) to read as follows:
■
§ 212.401
position.
Effect of competitive status on
*
*
*
*
*
(b) An employee who was in the
competitive service and had competitive
status as defined in § 212.301 of this
chapter at the time:
(1) The employee’s position was first
listed under Schedule A, B, or C, or
whose position was otherwise moved
from the competitive service and listed
under a schedule created subsequent to
May 9, 2024; or
(2) The employee was moved
involuntarily to a position in the
excepted service; remains in the
competitive service for the purposes of
status and any accrued adverse action
protections, while the employee
occupies that position or any another
position to which the employee is
moved involuntarily.
PART 213—EXCEPTED SERVICE
5. The authority citation for part 213
continues to read as follows:
■
Authority: 5 U.S.C. 3161, 3301 and 3302;
E.O. 10577, 3 CFR 1954–1958 Comp., p. 218;
Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C.
3301, 3302, 3307, 8337(h), and 8456; E.O.
13318, 3 CFR 1982 Comp., p. 185; 38 U.S.C.
4301 et seq.; Pub. L. 105–339, 112 Stat. 3182–
83; E.O. 13162; E.O. 12125, 3 CFR 1979
Comp., p. 16879; and E.O. 13124, 3 CFR 1999
Comp., p. 31103; and Presidential
Memorandum—Improving the Federal
Recruitment and Hiring Process (May 11,
2010).
Sec. 213.101 also issued under 5 U.S.C.
2103.
Sec. 213.3102 also issued under 5 U.S.C.
3301, 3302, 3307, 8337(h), and 8456; 38
U.S.C. 4301 et seq.; and Pub. L. 105–339, 112
Stat. 3182–83.
Subpart C—Excepted Schedules
6. Amend § 213.3301 by revising the
section heading and paragraph (a) to
read as follows:
■
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§ 213.3301 Positions of a confidential or
policy-determining character.
(a) Upon specific authorization by
OPM, agencies may make appointments
under this section to positions that are
of a confidential or policy determining
character as defined in § 210.102 of this
chapter. Positions filled under this
authority are excepted from the
competitive service and constitute
Schedule C. Each position will be
assigned a number from §§ 213.3302
through 213.3999, or other appropriate
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PART 302—EMPLOYMENT IN THE
EXCEPTED SERVICE
7. The authority citation for part 302
continues to read as follows:
■
Authority: 5 U.S.C. 1302, 3301, 3302,
8151, E.O. 10577 (3 CFR 1954–1958 Comp.,
p. 218); § 302.105 also issued under 5 U.S.C.
1104, Pub. L. 95–454, sec. 3(5); § 302.501 also
issued under 5 U.S.C. 7701 et seq. § 302.107
also issued under 5 U.S.C. 9201–9206 and
Pub. L. 116–92, sec. 1122(b)(1).
Subpart A—General Provisions
8. Amend § 302.101 by revising
paragraph (c)(7) to read as follows:
■
§ 302.101 Positions covered by
regulations.
*
*
*
*
*
(c) * * *
(7) Positions included in Schedule C
(see subpart C of part 213 of this
chapter) and positions excepted by
statute which are of a confidential,
policy-determining, policy-making, or
policy-advocating character;
*
*
*
*
*
■ 9. Add subpart F consisting of
§§ 302.601 through 302.603, to read as
follows.
Subpart F—Moving Employees and
Positions into and Within the Excepted
Service
Sec.
302.601
302.602
302.603
§ 302.601
Scope.
Basic requirements.
Appeals.
Scope.
(a) This subpart applies to any
situation where an agency moves:
(1) A position from the competitive
service to the excepted service, or
between excepted services, whether
pursuant to statute, Executive Order, or
an OPM issuance, to the extent that this
subpart is not inconsistent with
applicable statutory provisions; or
(2) An employee who has accrued
status and civil service protections
under 5 U.S.C. chapter 75, subchapter II,
involuntarily to any position that is not
covered by that chapter or subchapter.
(b) This subpart also applies in
situations where a position previously
governed by title 5, United States Code
will be governed by another title of the
United States Code going forward,
unless the statute governing the
exception provides otherwise.
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§ 302.602
Basic requirements.
(a) In the event the President,
Congress, OPM, or their designees direct
agencies to move positions from the
competitive service into the excepted
service under Schedule A, B, or C, or
any schedule in the excepted service
created after May 9, 2024, or to move
positions from a schedule in the
excepted service to a different schedule
in the excepted service, the following
requirements must be met, as relevant:
(1) If the directive explicitly
delineates the specific positions that are
covered, the agency need only list the
positions moved in accordance with
that directive, and their location within
the organization and provide the list to
OPM.
(2) If the directive requires the agency
to select the positions to be moved
pursuant to criteria articulated in the
directive, then the agency must provide
OPM with a list of the positions to be
moved in accordance with those
criteria, denote their location in the
organization, and explain, upon request
from OPM, why the agency believes the
positions met those criteria.
(3) If the directive confers discretion
on the agency to establish objective
criteria for identifying the positions to
be covered, or which specific slots of a
particular type of position the agency
intends to move, then the agency must,
in addition to supplying a list of the
identified positions or specific slots of
particular types of position, supply
OPM with the locations in the
organization, the objective criteria to be
used, and an explanation of how these
criteria are relevant.
(b) An agency is also required to—
(1) Identify the types, numbers, and
locations of positions that the agency
proposes to move into the excepted
service.
(2) Document the basis for its
determination that movement of the
positions is consistent with the
standards set forth by the President,
Congress, OPM, or their designees as
applicable.
(3) Obtain certification from the
agency’s Chief Human Capital Officer
(CHCO) that the documentation is
sufficient and movement of the
positions is both consistent with the
standards set forth by the directive, as
applicable, and with merit system
principles.
(4) Submit the CHCO certification and
supporting documentation to OPM (to
include the types, numbers, and
locations of positions) in advance of
using the excepted service authority,
which OPM will then review.
(5) For exceptions effectuated by the
President or OPM, list positions to the
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appropriate schedule of the excepted
service only after obtaining written
approval from the OPM Director to do
so. For exceptions effectuated by
Congress, inform OPM of the positions
excepted either before the effective date
of the provision, if the statutory
provisions are not immediately
effective, or within 30 days thereafter.
(6) For exceptions created by the
President or OPM, initiate any hiring
actions under the excepted service
authority only after OPM publishes any
such authorizations in the Federal
Register, to include the types, numbers,
and locations of the positions moved to
the excepted service.
(c) In accordance with the
requirements provided in paragraphs (a)
and (b) of this section—
(1) An agency that seeks to move an
encumbered position from the
competitive service to the excepted
service, or from one excepted service
schedule to another, must—
(i) Provide written notification to the
incumbent employee of the intent to
move the position 30 days prior to the
effective date of the position being
moved.
(ii) In the written notification required
by paragraph (c)(1)(i) of this section, if
the movement was involuntary, inform
the employee that the employee retains
any competitive status or procedural
and appeal rights previously accrued
under chapter 75, subchapter II, or
section 4303 of title 5, United States
Code, notwithstanding the movement of
the position, and inform the employee
of appeal rights conferred under
§ 302.603 and the timing for exercising
such appeal rights.
(d) In addition to applying to the
movement of positions, the
requirements of this section apply to the
involuntary movement of competitive
service or excepted service employees
with respect to any earned competitive
status, any accrued procedural rights, or
depending on the action involved, any
appeal rights under chapter 75,
subchapter II, or section 4303 of title 5,
United States Code, even when moved
to the new positions.
(e) Notwithstanding the use of the
plural words ‘‘positions,’’ ‘‘employees,’’
‘‘individuals,’’ and ‘‘personnel actions,’’
this section also applies if the directive
of the President, Congress, OPM, or a
designee thereof affects only one
position or one individual.
§ 302.603
Appeals.
(a) A competitive service employee
whose position is placed into the
excepted service or who is otherwise
moved involuntarily to the excepted
service, or an excepted service
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employee whose position is placed into
a different schedule of the excepted
service or who is otherwise
involuntarily moved to a position in a
different schedule of the excepted
service, may directly appeal to the Merit
Systems Protection Board, as provided
in paragraphs (b), (c), and (d) of this
section. The appeal rights conferred in
this section are in addition to, and not
in derogation of, any right the
individual would otherwise have to
appeal a subsequent personnel action
undertaken without following
appropriate procedures under chapter
75, subchapter II, or section 4303 of title
5, United States Code.
(b) Where the agency,
notwithstanding the requirements of
section 302.602 of this part, asserts that
the move of the original position or any
subsequent position to which the
individual is involuntarily moved
thereafter will eliminate competitive
status or any procedural and appeal
rights that had previously accrued, the
affected individual may appeal from
that determination and request an order
directing the agency:
(1) To correct the notice to provide
that any previously accrued status or
procedural and appeal rights under
those provisions continue to apply; and
(2) To comply with the requirements
of either chapter 75, subchapter II or
section 4303, title 5, United States Code,
in pursuing any action available under
those provisions, except to the extent
that any such order would be
inconsistent with an applicable statute.
(c) Where the agency fails to comply
with § 302.602(c)(1) of this part and fails
to provide the individual with the
requisite notice, the affected individual
may appeal the failure to provide the
requisite notice and request an order
directing the agency to comply with that
provision.
(d) An individual may appeal under
this part on the basis that:
(1) A facially voluntary move was
coerced or otherwise involuntary; or
(2) A facially voluntary move to a new
position would require the individual to
relinquish their competitive status or
any civil service protections and the
move was coerced or otherwise
involuntary.
PART 432—PERFORMANCE BASED
REDUCTION IN GRADE AND
REMOVAL ACTIONS
10. The authority citation for part 432
continues to read as follows:
■
Authority: 5 U.S.C. 4303, 4305.
11. Amend § 432.102 by revising
paragraph (f)(10) to read as follows:
■
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Fmt 4701
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§ 432.102
25047
Coverage.
*
*
*
*
*
(f) * * *
(10) An employee whose position has
been determined to be of a confidential,
policy-determining, policy-making, or
policy-advocating character, as defined
in § 210.102 of this chapter by—
(i) The President for a position that
the President has excepted from the
competitive service;
(ii) The Office of Personnel
Management for a position that the
Office has excepted from the
competitive service (Schedule C); or
(iii) The President or the head of an
agency for a position excepted from the
competitive service by statute, unless
the incumbent was moved involuntarily
to such a position after accruing rights
as delineated in paragraph (e) of this
section.
*
*
*
*
*
PART 451—AWARDS
12. The authority citation for part 451
continues to read as follows:
■
Authority: 5 U.S.C. 4302, 4501–4509; E.O.
11438, 33 FR 18085, 3 CFR, 1966–1970
Comp., p. 755; E.O. 12828, 58 FR 2965, 3
CFR, 1993 Comp., p. 569.
Subpart C—Presidential Rank Awards
13. Amend § 451.302 by revising
paragraph (b)(3)(ii) to read as follows:
■
§ 451.302
Coverage.
*
*
*
*
*
(b) * * *
(3) * * *
(ii) To positions that are excepted
from the competitive service because of
their confidential or policy-determining
character.
*
*
*
*
*
PART 752—ADVERSE ACTIONS
14. The authority citation for part 752
continues to read as follows:
■
Authority: 5 U.S.C. 7504, 7514, and 7543,
Pub. L. 115–91, 131 Stat. 1283, and Pub. L.
114–328, 130 Stat. 2000.
Subpart B—Regulatory Requirements
for Suspension for 14 Days or Less
15. Amend § 752.201 by revising
paragraphs (b), (c)(5) and (6), and
adding paragraph (c)(7) to read as
follows:
■
§ 752.201
Coverage.
*
*
*
*
*
(b) Employees covered. This subpart
covers:
(1) An employee in the competitive
service who has completed a
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probationary or trial period, or who has
completed 1 year of current continuous
employment in the same or similar
positions under other than a temporary
appointment limited to 1 year or less,
including such an employee who is
moved involuntarily into the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
(2) An employee in the competitive
service serving in an appointment
which requires no probationary or trial
period, and who has completed 1 year
of current continuous employment in
the same or similar positions under
other than a temporary appointment
limited to 1 year or less, including such
an employee who is moved
involuntarily into the excepted service
and still occupies that position or
occupies any other position to which
the employee is moved involuntarily;
(3) An employee with competitive
status who occupies a position under
Schedule B of part 213 of this chapter,
including such an employee who is
moved involuntarily into a different
schedule of the excepted service and
still occupies that position or occupies
any other position to which the
employee is moved involuntarily;
(4) An employee who was in the
competitive service and had competitive
status as defined in § 212.301 of this
chapter at the time the employee’s
position was first listed involuntarily
under any schedule of the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
(5) An employee of the Department of
Veterans Affairs appointed under 38
U.S.C. 7401(3), including such an
employee who is moved involuntarily
into a different schedule of the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
and
(6) An employee of the Government
Publishing Office, including such an
employee who is moved involuntarily
into the excepted service and still
occupies that position or occupies any
other position to which the employee is
moved involuntarily.
(c) * * *
(5) Of a National Guard Technician;
(6) Taken under 5 U.S.C. 7515; or
(7) Of an employee whose position
has been determined to be of a
confidential, policy-determining,
policy-making, or policy-advocating
character, as defined in § 210.102 of this
subchapter by—
(i) The President for a position that
the President has excepted from the
competitive service unless the
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incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (b) of this
section;
(ii) The Office of Personnel
Management for a position that the
Office has excepted from the
competitive service unless the
incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (b) of this
section; or
(iii) The President or the head of an
agency for a position excepted from the
competitive service by statute unless the
incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (b) of this
section.
*
*
*
*
*
Subpart D—Regulatory Requirements
for Removal, Suspension for More
Than 14 Days, Reduction in Grade or
Pay, or Furlough for 30 Days or Less
16. Amend § 752.401 by revising
paragraphs (c) and (d)(2) to read as
follows:
■
§ 752.401
Coverage.
*
*
*
*
*
(c) Employees covered. This subpart
covers:
(1) A career or career conditional
employee in the competitive service
who is not serving a probationary or
trial period, including such an
employee who is moved involuntarily
into the excepted service;
(2) An employee in the competitive
service—
(i) Who is not serving a probationary
or trial period under an initial
appointment, including such an
employee who is moved involuntarily
into the excepted service; or
(ii) Except as provided in the former
section 1599e of title 10, for individuals
hired prior to December 31, 2022 (the
date that section was otherwise repealed
by Public Law 117–81, section 1106),
who has completed 1 year of current
continuous service under other than a
temporary appointment limited to 1
year or less, including such an
employee who is moved involuntarily
into the excepted service;
(3) An employee in the excepted
service who is a preference eligible in
an Executive agency as defined at
section 105 of title 5, United States
Code, the U.S. Postal Service, or the
Postal Regulatory Commission and who
has completed 1 year of current
continuous service in the same or
similar positions, including such an
employee who is moved involuntarily
into a different schedule of the excepted
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Fmt 4701
Sfmt 4700
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
(4) A Postal Service employee covered
by Public Law 100–90 who has
completed 1 year of current continuous
service in the same or similar positions
and who is either a supervisory or
management employee or an employee
engaged in personnel work in other than
a purely nonconfidential clerical
capacity, including such an employee
who is moved involuntarily into a
different schedule of the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
(5) An employee in the excepted
service who is a nonpreference eligible
in an Executive agency as defined at 5
U.S.C. 105, and who has completed 2
years of current continuous service in
the same or similar positions under
other than a temporary appointment
limited to 2 years or less, including such
an employee who is moved
involuntarily into a different schedule
of the excepted service and still
occupies that position or occupies any
other position to which the employee is
moved involuntarily;
(6) An employee with competitive
status who occupies a position in
Schedule B of part 213 of this chapter,
including such an employee whose
position is moved involuntarily into a
different schedule of the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
(7) An employee who was in the
competitive service and had competitive
status as defined in § 212.301 of this
chapter at the time the employee’s
position was first listed involuntarily
under any schedule of the excepted
service and who still occupies that
position or occupies any other position
to which the employee is moved
involuntarily;
(8) An employee of the Department of
Veterans Affairs appointed under 38
U.S.C. 7401(3), including such an
employee who is moved involuntarily
into a different schedule of the excepted
service and still occupies that position
or occupies any other position to which
the employee is moved involuntarily;
and
(9) An employee of the Government
Publishing Office, including such an
employee who is moved involuntarily
into the excepted service.
(d) * * *
(2) An employee whose position has
been determined to be of a confidential,
policy-determining, policy-making, or
policy-advocating character, as defined
in § 210.102 of this chapter by—
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(i) The President for a position that
the President has excepted from the
competitive service unless the
incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (c) of this
section;
(ii) The Office of Personnel
Management for a position that the
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Office has excepted from the
competitive service unless the
incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (c) of this
section; or
(iii) The President or the head of an
agency for a position excepted from the
competitive service by statute unless the
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incumbent was moved involuntarily to
such a position after accruing rights as
delineated in paragraph (c) of this
section;
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[FR Doc. 2024–06815 Filed 4–4–24; 8:45 am]
BILLING CODE 6325–39–P
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Agencies
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 24982-25049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06815]
[[Page 24981]]
Vol. 89
Tuesday,
No. 69
April 9, 2024
Part III
Office of Personnel Management
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5 CFR Parts 210, 212, 213, et al.
Upholding Civil Service Protections and Merit System Principles; Final
Rule
Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 24982]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
[Docket ID: OPM-2023-0013]
RIN 3206-AO56
Upholding Civil Service Protections and Merit System Principles
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to reinforce and clarify longstanding civil service
protections and merit system principles, codified in law, as they
relate to the involuntary movement of Federal employees and positions
from the competitive service to the excepted service, or from one
excepted service schedule to another. In this final rule, OPM adopts
many of the provisions from the proposed rule with some modifications
and clarifications based on comments received from the public. The
final regulations will better align OPM regulations with relevant
statutory text, congressional intent, legislative history, legal
precedent, and OPM's longstanding practice.
DATES: Effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by phone at (202) 606-2930.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Digest of Public Comments
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil
Service Protections
B. Conduct and Performance Under the Civil Service Reform Act of
1978
C. The Competitive, Excepted, and Senior Executive Services
D. The Prior Schedule F
E. General Comments
F. OPM's Authority To Regulate
IV. Regulatory Amendments and Related Comments
A. Retention of Status and Civil Service Protections Upon a Move
B. Positions of a Confidential, Policy-Determining, Policy-
Making, or Policy-Advocating Character
C. Agency Procedures for Moving Employees
V. Regulatory Analysis and Related Comments
A. Statement of Need
B. Regulatory Alternatives
C. Impact
D. Costs
E. Benefits
VI. Procedural Issues and Regulatory Review
A. Severability
B. Regulatory Flexibility Act
C. Regulatory Review
D. Executive Order 13132, Federalism
E. Executive Order 12988, Civil Justice Reform
F. Unfunded Mandates Reform Act of 1995
G. Congressional Review Act
H. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
VII. Regulatory Amendments
I. Executive Summary
The Office of Personnel Management (OPM) is issuing final
regulations governing competitive service and competitive status,
employment in the excepted service, and adverse actions. The final rule
also makes conforming changes to the regulations governing performance-
based actions and awards.
This rule clarifies and reinforces longstanding civil service
protections and merit system principles, reflected in the passage of
the Pendleton Civil Service Reform Act of 1883. The Act ended the
patronage, or ``spoils,'' system for Federal employment and initiated
the competitive civil service. For the past 140 years, Congress has
enacted statutes and agencies have promulgated rules that govern the
civil service, beginning with laws that limited political influence in
employment decisions and growing over the years to establish
comprehensive laws regulating many areas of Federal employment. These
changes were designed to further good government. Subsequent statutes,
including, among others, the Lloyd-La Follette Act of 1912, the
Veterans' Preference Act of 1944, as amended, the Civil Service Reform
Act of 1978 (CSRA), and the Civil Service Due Process Amendments Act of
1990, extended and updated these civil service provisions.
Whereas the Pendleton Act eliminated the spoils system and
introduced a merit-based civil service as a key pillar of our
democratic system, the CSRA was the signature, bipartisan reform that
has most shaped the system we have today.\1\ It created an elaborate
``new framework'' \2\ of the modern civil service, protected career
Federal employees from undue partisan political influence, and extended
adverse action rights by statute to a larger cohort of employees, so
that the business of government can be carried out efficiently and
effectively, in compliance with the law, and in a manner that
encourages individuals to apply to participate in the civil service.
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\1\ See Lindahl v. OPM, 470 U.S. 768, 773 (1985) (explaining
that the CSRA ``overhauled the civil service system'').
\2\ Id. at 774; see United States v. Fausto, 484 U.S. 439, 443
(1988).
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The 2.2 million career civil servants active today are the backbone
of the Federal workforce. They are dedicated and talented professionals
who provide the continuity of expertise and experience necessary for
the Federal Government to function optimally across administrations.
These employees take an oath to uphold the Constitution and are
accountable to agency leaders and managers who, in turn, are
accountable to the President, Congress, and the American people for
their agency's performance. At the same time, these civil servants must
carry out critical tasks requiring that their expertise be applied
objectively (performing data analysis, conducting scientific research,
implementing existing laws, etc.).
Congress has dictated a well-established way in which agencies can
control their workforces. If a Federal employee refuses to implement
lawful direction from leadership, there are mechanisms for agencies to
respond through discipline, up to and including removal, as
appropriate, under chapter 75 of title 5, U.S. Code. If a Federal
employee's performance has been determined to be unacceptable, the
agency may respond under chapter 75 (on the basis that action is
necessary to promote the efficiency of the service) or pursue a
performance-based action under chapter 43 of title 5, U.S. Code, at the
agency's discretion. Under the law, however, a mere difference of
opinion with leadership does not qualify as misconduct or unacceptable
performance or otherwise implicate the efficiency of the service in a
manner that would warrant an adverse action.
Career civil servants have a level of institutional experience,
subject matter expertise, and technical knowledge that incoming
political appointees have found to be useful and may lack themselves.
Such civil servants' ability to offer their objective analyses and
educated views when carrying out their duties, without fear of reprisal
or loss of employment, contribute to the reasoned consideration of
policy options and thus the successful functioning of incoming
administrations and our democracy. These rights and abilities must
continue to be protected and preserved, as envisioned by Congress when
it enacted the CSRA, and expanded and strengthened those protections
through subsequent enactments such as the Civil Service Due Process
Amendments Act.\3\
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\3\ Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17,
1990); see also H.R. Rep. 101-328 (Nov. 3, 1989).
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[[Page 24983]]
Congress has generally charged the OPM Director with executing,
administering, and enforcing the laws governing the civil service.\4\
In chapter 75, Congress provided certain Federal employees with
specified procedural rights and provided OPM with broad authority to
prescribe regulations to carry out the chapter's purposes.\5\ Moreover,
OPM regulations govern the movement of positions from the competitive
service to the excepted service.\6\ Pursuant to its authority, OPM
issues this rule to clarify and reinforce longstanding civil service
protections and merit system principles as codified in the CSRA. OPM
amends its regulations in 5 CFR chapter I, subchapter B, as follows:
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\4\ See 5 U.S.C. 1103(a)(5)(A).
\5\ See 5 U.S.C. 7504, 7514.
\6\ See, e.g., 5 CFR part 212.
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First, the rule amends 5 CFR part 752 (Adverse Actions) to clarify
that civil servants in the competitive service or excepted service who
qualify as ``employees'' under 5 U.S.C. 7501, 7511(a)--meaning they
have fulfilled their probationary or trial period requirement or
durational requirement and are not excluded from the definition of
``employee'' by 5 U.S.C. 7511(b) \7\--will retain the rights previously
accrued upon an involuntary move \8\ from the competitive service to
the excepted service, or from one excepted service schedule to another,
or any subsequent involuntary move, unless the employee relinquishes
such rights or status by voluntarily encumbering a position that
explicitly results in a loss of, or different, rights.\9\ The rule also
conforms the regulation for non-appealable adverse actions with
statutory language in 5 U.S.C. 7501 and Federal Circuit precedent to
clarify which employees are covered. The rule amends 5 CFR part 212
(Competitive Service and Competitive Status) to further clarify a
competitive service employee's status in the event the employee and/or
their position is moved involuntarily to an excepted service schedule.
OPM also updates the regulations to reflect the repeal of 10 U.S.C.
1599e, effective December 31, 2022, and restores a one-year
probationary period for covered Department of Defense employees
appointed to permanent positions within the competitive service in the
Department of Defense on or after December 31, 2022.
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\7\ OPM notes that employees appointed pursuant to Schedule C
have no expectation of accruing such rights, considering the
longstanding interpretation of 5 U.S.C. 7511(b)(2) and E.O. 10577,
Rule VI, Schedule C, as amended. There are a small number of
additional, discrete, positions for which the appointing authority
similarly precludes the accrual of such rights, by the appointing
authority's own terms.
\8\ The final rule further discusses the differences between
voluntary and involuntary moves in Section IV(A).
\9\ As explained further infra, an individual can voluntarily
relinquish rights when moving to a position that explicitly results
in the loss of, or different, rights. An agency's failure to inform
an employee of the consequences of a voluntary transfer cannot
confer appeal rights to an employee in a position which has no
appeal rights by statute. This is distinguishable from situations
where the individual was coerced or deceived into taking the new
position with different rights. See Williams v. MSPB, 892 F.3d 1156
(Fed. Cir. 2018).
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Second, the rule amends 5 CFR part 210 (Basic Concepts and
Definitions (General)) to interpret the phrases ``confidential, policy-
determining, policy-making, or policy-advocating'' and ``confidential
or policy-determining'' \10\ in 5 CFR 210.102. These terms of art--
which would apply throughout OPM's Civil Service Regulations in 5 CFR
chapter I, subchapter B \11\--describe positions of the character
generally excepted from chapter 75's protections. OPM reinforces the
longstanding interpretation that, in creating this exception in 5
U.S.C. 7511(b)(2), Congress intended to except noncareer political
appointees \12\ from civil service protections.
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\10\ See 5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202,
752.401.
\11\ The relevant regulatory language currently varies slightly.
For instance, 5 CFR part 752 refers to positions ``of a
confidential, policy-determining, policy making, or policy-
advocating character.'' But 5 CFR part 213 describes these positions
as being ``of a confidential or policy-determining character,'' 5
CFR part 302 uses ``of a confidential, policy-determining, or
policy-advocating nature,'' and 5 CFR part 451 uses ``of a
confidential or policy-making character.'' In this final rule, OPM
adopts ``confidential, policy-determining, policy making, or policy-
advocating'' and ``confidential or policy-determining'' as two,
interchangeable alternatives to describe these positions.
\12\ The term ``career employee,'' as used here, refers to
appointees to competitive service permanent or excepted service
permanent positions. The terms ``noncareer political appointee'' and
``political appointee,'' as used here, refer to individuals
appointed by the President or his appointees pursuant to Schedule C
(or similar authorities) who serve at the pleasure of the current
President or his political appointees and who have no expectation of
continued employment beyond the presidential administration in which
the appointment occurred.
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Third, the rule amends 5 CFR part 302 to provide specific
procedures that apply when moving individuals or positions from the
competitive service to the excepted service, or from one excepted
service schedule to another, for the purposes of good administration,
to add transparency, and to provide a right of appeal to the Merit
Systems Protection Board (MSPB or Board) to the extent any such move is
involuntary and characterized as stripping individuals of any
previously accrued civil service status and protections.
On September 18, 2023, OPM issued a notice of proposed rulemaking,
which was published at 88 FR 63862. After consideration of public
comments on the proposed regulatory amendments, OPM has determined that
the issuance of these revised regulations is essential to strengthen
and protect the foundations of the civil service and its merit system
principles.\13\ These principles were critical to the Pendleton Act's
repudiation of the spoils system; essential to continued compliance
with the statutory schemes for performance management, as enacted by
Congress (and subsequently expanded) to extend procedural entitlements
to most career employees following a specified period of service; and
essential to the creation of the modern civil service on which this
country depends and under which it has thrived for 140 years.\14\ The
final rule is also critical to the Federal Government's ability to
recruit and retain the talent that agencies need to deliver on their
complex missions. Individuals considering whether to accept a career
civil service position need to know that they will be valued for their
knowledge, skills, and abilities; evaluated based on merit; and not
only protected from retribution for offering their candid opinions but
encouraged to do so. Policies that cast doubt on these fundamental
characteristics of a career civil service job restrict the pool of
applicants interested in Federal Government jobs and disadvantage
agencies in competing for top talent.
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\13\ OPM's authorities to issue regulations only extend to title
5, U.S. Code. A position may be placed in the excepted service by
presidential action, under 5 U.S.C. 3302, by OPM action, under
authority delegated by the President pursuant to 5 U.S.C. 1104, or
by Congress. These proposed regulations apply to any situation where
an agency moves positions or people from the competitive service to
the excepted service, or between excepted services, whether pursuant
to statute, Executive order, or an OPM issuance, to the extent that
these provisions are not inconsistent with applicable statutory
provisions. For example, to the extent that a position is placed in
the excepted service by an act of Congress, an OPM regulation will
not supersede a statutory provision to the contrary. However, an OPM
regulation may prescribe the procedures by which agencies would be
required to move positions unless inconsistent with that statutory
provision. Similarly, these regulatory provisions also apply where
positions previously governed by title 5 will be governed by another
title going forward, unless the statute governing the exception
provides otherwise.
\14\ E.O. 14003, sec. 2.
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OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of this final rule.
[[Page 24984]]
II. Digest of Public Comments
In response to the proposed rule, OPM received 4,097 comments
during the 60-day public comment period from a variety of individuals
(including current and former civil servants), organizations, and
Federal agencies. At the conclusion of the public comment period, OPM
reviewed and analyzed the comments. In general, the comments ranged
from enthusiastic support of the proposed regulations to categorical
rejection. Approximately 67 percent of the overall comments were
supportive of the proposed regulatory amendments.\15\ Of the
approximately 33 percent of comments that were opposed, more than 95
percent of those comments consisted of one of four form letters.\16\
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\15\ Approximately five of the 4,097 comments could be
considered neutral--neither supportive nor opposed.
\16\ The form letters are described below where relevant.
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In the proposed rule, OPM requested comments on a variety of topics
regarding the implementation and impacts of this rulemaking.\17\ OPM
received many comments in response and incorporated them in the
relevant sections that follow. Such information was useful for better
understanding the effect of these final revisions on civil service
protections, merit system principles, and the effective and efficient
business of government, in compliance with the law.
---------------------------------------------------------------------------
\17\ See 88 FR 63862, 63881.
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In the next section, we address the background for these regulatory
amendments and related comments. In subsequent sections, we address the
specific amendments, provide a regulatory analysis, and list procedural
considerations. OPM concludes with the amended regulatory text.
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil Service
Protections
It is critical to our government that career Federal employees be
protected from undue partisan influence so that business can be carried
out efficiently and effectively, in compliance with the law.
President George Washington based most of his federal appointments
on merit. Subsequent presidents, though, deviated from this policy, to
varying degrees.\18\ ``By the time Andrew Jackson was elected president
in 1828,'' the patronage or `` `spoils system,' . . . was in full
force.'' Under this system, Federal employees were generally appointed,
retained, or removed based on their political affiliations and support
for the political party in power rather than their capabilities or
competence.\19\ A change in administration often triggered the
widespread removal of Federal employees to provide jobs for the
supporters of the new President, his party, and party leaders.\20\ This
spoils system often resulted in party managers ``pass[ing] over
educated, qualified candidates and distribut[ing] offices to `hacks'
and ward-heelers who had done their bidding during campaigns and would
continue to serve them in government.'' \21\ Theodore Roosevelt, who
served as a Civil Service Commissioner before becoming the Vice
President and then President of the United States, described the spoils
system as ``more fruitful of degradation in our political life than any
other that could possibly have been invented. The spoilsmonger, the man
who peddled patronage, inevitably bred the vote-buyer, the vote-seller,
and the man guilty of misfeasance in office.'' \22\ George William
Curtis, a reformer and proponent of a merit-based civil service,
described that, under the spoils system, ``[t]he country seethe[d] with
intrigue and corruption. Economy, patriotism, honesty, honor, seem[ed]
to have become words of no meaning.'' \23\ Ethical standards for
Federal employees were at a low ebb under this system. ``Not only
incompetence, but also graft, corruption, and outright theft were
common.'' \24\
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\18\ See, e.g., Nat'l Archives, Milestone Documents, ``Pendleton
Act (1883),'' https://www.archives.gov/milestone-documents/pendleton-act.
\19\ U.S. Merit Sys. Prots. Bd., ``What is Due Process in
Federal Civil Service,'' p. 4. (May 2015), https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf.
\20\ U.S. Off. of Pers. Mgmt., ``Biography of an Ideal,'' p. 83
(2003), https://dml.armywarcollege.edu/wp-content/uploads/2023/01/OPM-Biography-of-an-Ideal-History-of-Civil-Service-2003.pdf.
\21\ See Anthony J. Gaughan, ``Chester Arthur's Ghost: A
Cautionary Tale of Campaign Finance Reform,'' 71 Mercer L. Rev. 779,
at pp. 787-78 (2020), https://digitalcomons.law.mercer.edu/cgi/viewcontent.cgi?article=1313&context=jour_mlr.
\22\ U.S. Off. of Pers. Mgmt., supra note 20 at pp. 182-83.
\23\ Id. at p. 182. In 1871, Curtis was appointed by President
Ulysses S. Grant to chair the first Civil Service Commission. See
id. at p. 196.
\24\ Id. at pp. 183-84.
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To protect career Federal employees from undue partisan influence,
civil service advocates and then Congress sought to establish a Federal
nonpartisan career civil service that would be selected based on merit
rather than political affiliation.\25\ Such a workforce, though
initially limited in scope, would reinvigorate government, making it
more efficient and competent.\26\ This reform movement came to a head
in 1881 when President James Garfield was shot by a disappointed office
seeker who believed he was entitled to a Federal job based on the work
he had done for Garfield and his political party.\27\
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\25\ See Gaughan, supra note 21 at p. 787; U.S. Merit Sys.
Prots. Bd., supra note 19 at pp. 3-5.
\26\ See Gaughan, supra note 21 at p. 787.
\27\ See U.S. Merit Sys. Prots. Bd., supra note 19 at pp. 4-5;
U.S. Off. of Pers. Mgmt., supra note 20 at pp. 198-201.
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The Pendleton Act of 1883 \28\ ended this patronage system for
covered positions and created the competitive civil service. Coverage
has grown as a proportion of the Federal workforce over time to cover
nearly all career positions.\29\ The Pendleton Act required agencies to
appoint Federal employees covered by the Act based on competency and
merit.\30\ It also established the Civil Service Commission (CSC) to
help implement and enforce the government's adherence to merit-based
principles.\31\
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\28\ Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883)
(22 Stat. 403).
\29\ Nat'l Archives, supra note 18.
\30\ 22 Stat. 403-04 (stating that hiring should be based on an
``open, competitive examination'' of the employee's ``relative
capacity and fitness . . . to discharge the duties of the service
into which they seek to be appointed.'').
\31\ Id. at 403.
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Commenters generally agreed \32\ with this background,\33\
especially the point that the corruption of the spoils era and evolving
complexity of government necessitated a nonpartisan career civil
service. A professor concurred with OPM's contention that the growing
complexity of issues facing the United States in the late nineteenth
century, ``combined with the pathologies engendered by the Jacksonian
spoils system (culminating in the assassination of President Garfield)
led to the creation of a competitive civil service.'' Comment 42.\34\
Other commenters noted that the Pendleton Act was intended to eliminate
the influence of personal loyalty and partisan activity as the key
qualifications for career appointees, and replace them with ``fitness,
capacity,
[[Page 24985]]
honesty [and] fidelity.'' Comment 2816; see also Comments 2822, 3029.
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\32\ One notable dissent comes in Comment 4097, from an advocacy
nonprofit organization. Commenter opposed the rule and did not
dispute the factual bases of the Pendleton Act but argued that its
limited treatment of removal rights supports a view that modern
removal protections can now be eliminated for certain career civil
servants. OPM disagrees with this argument as explained in later
sections.
\33\ See 88 FR 63862, 63863-67 (detailing background in proposed
rule).
\34\ Comments filed in response to this rulemaking are available
at https://www.regulations.gov/comment/OPM-2023-0013-nnnn, where
``nnnn'' is the comment number. Note that the number must be four
digits, so insert preceding zeroes as appropriate.
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The contours of the civil service and merit system principles that
resulted were borne of extensive debates in which one view clearly
prevailed. A former federal official commented that ``Congress decided
to target the threats of increased incompetence and patronage in a
spoils system, and decided that the benefits of a professionalized
civil service outweighed concerns about bureaucratic inertia.'' Comment
2816. Commenter noted that ``opponents of the Pendleton Act argued [at
the time] that civil service protections were `one step in the
direction of the establishment of an aristocracy in this country, the
establishment of another privileged class.' '' Id. Commenter concluded
that ``arguments that the civil service should be responsive to, rather
than insulated from, the churn of partisan politics are echoed by
contemporary critics of civil service protections. But these arguments
against a professional civil service were soundly rejected with the
passage of the Pendleton Act and have been proven to have been
incorrect over more than a century of experience.'' Id.
A legal nonprofit organization similarly commented that the
features of the ``civil service that frustrate its critics--fealty to
Congressional programs, dedication to government institutions,
consideration of the public interest, and a mission broader than simply
serving political appointees--are core components of the system
established by an elected Congress almost 150 years ago.'' Comment
2822. Congress ``has spoken clearly about its vision for the civil
service for a century and a half, and consistently rejected a civil
service that is merely an extension of a President's will.'' Id.
Several commenters noted that the Pendleton Act was extraordinarily
successful in establishing the foundation for the modern civil service.
A former federal official explained that the Act had the qualitative
benefit of improving targeted employees' professional backgrounds.
Comment 2816. As discussed further in Section III(E), the nonpartisan
civil service ensured that the United States government would be
capable of combating problems ``unimagined when the Pendleton Act was
passed, including auto safety, climate change, and the airworthiness of
planes.'' See Comment 42.
Even with respect to the enactment of the Pendleton Act, a
subsequent President saw the need to address removals more specifically
not long afterward.\35\ In 1897, President William McKinley addressed
removals by issuing Executive Order 101, which mandated that ``[n]o
removal shall be made from any position subject to competitive
examination except for just cause and upon written charges filed with
the head of the Department, or other appointing officer, and of which
the accused shall have full notice and an opportunity to make
defense.'' \36\ Congress, far from objecting to this Order, later
essentially codified these requirements in the Lloyd-La Follette Act of
1912 \37\ to establish that covered Federal employees were to be both
hired and removed based on merit. Specifically, section 6 of the Act
provided no person in the ``classified civil service'' \38\ of the
United States can be removed ``except for such cause as will promote
the efficiency of said service'' and for reasons given in writing. The
Act also mandated providing notice to the person whose removal is
sought and ``of any charges [proffered] against him, and be furnished
with a copy thereof, and also be allowed a reasonable time for
personally answering the same in writing; and affidavits in support''
of the removal.
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\35\ The Pendleton Act does specify that ``no person in the
public service is . . . under any obligations to contribute to any
political fund, or to render any political service, and that he will
not be removed or otherwise prejudiced for refusing to do so.'' 22
Stat. at 404.
\36\ U.S. Merit Sys. Prots. Bd., supra note 19 at p. 5.
\37\ 37 Stat. 555 (1912).
\38\ The ``classified civil service'' refers to the competitive
service. See 5 U.S.C. 2102.
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Congress, over time, has codified, renewed, and expanded
protections to civil servants. A former federal official quoted Rep.
James Tilghman Lloyd, one of the Lloyd-La Follette Act's namesakes, as
saying the Act sought to ``do away with the discontent and suspicion
which now exists among the employees [of the civil service] and [ ]
restore that confidence which is necessary to get the best results from
the employees.'' Comment 2816. It would, according to Rep. Lloyd,
ensure that civil servants ``being dismissed from service would have
the benefit of a written record of charges against them, with reports
made to Congress, and the ability to have Congress subject their
dismissal to `special inquiry' if department heads `trump up charges'
to dismiss civil servants.'' \39\ Id.
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\39\ Citing 48 Cong. Rec. 2653-54 (1912).
---------------------------------------------------------------------------
Thereafter, Congress enacted further requirements and reforms. In
1944, Congress passed the Veterans' Preference Act,\40\ which, among
other things, granted federally employed veterans extensive rights to
challenge adverse employment actions, including the right to file an
appeal with the CSC and provide the CSC with documentation to support
the appeal. Based on the evidence presented, the CSC would issue
findings and recommendations regarding the adverse employment action.
In short, the Veterans' Preference Act provided eligible veterans with
adverse action protections and access to an appeals process.\41\ Then,
in 1962, President John F. Kennedy issued Executive Order 10988 to
extend similar adverse action rights to a broader swath of the civil
service, specifically, employees in the competitive service.\42\
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\40\ 58 Stat. 387 (1944).
\41\ Agencies initially were not required to comply with the
CSC's recommendations in adverse action appeals, but Congress
amended the Veterans' Preference Act in 1948 to require compliance.
See 67 Stat. 581 (1948); see also U.S. Merit Sys. Prots. Bd., supra
note 19 at pp. 7-8.
\42\ E.O. No. 10988, 27 FR 551 (Jan. 19, 1962) (``The head of
each agency, in accordance with the provisions of this order and
regulations prescribed by the Civil Service Commission, shall extend
to all employees in the competitive civil service rights identical
in adverse action cases to those provided preference eligibles under
section 14 of the Veterans' Preference Act of 1944, as amended.'')
(emphasis added).
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B. Conduct and Performance Under the Civil Service Reform Act of 1978
To synthesize, expand upon, and further codify the patchwork of
processes that had developed over almost a century, and to protect a
broader group of civil servants and govern personnel actions, Congress
in 1978 passed the CSRA \43\--the most comprehensive Federal civil
service reform since the Pendleton Act.
---------------------------------------------------------------------------
\43\ 92 Stat. 1111 (1978); see. Fausto, 484 U.S. at 455 (``The
CSRA established a comprehensive system for reviewing personnel
action taken against federal employees.'').
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One factor that led to the CSRA, as a whistleblower protection
nonprofit organization explained, was that ``whistleblowers at the
Senate Watergate hearings'' showed that the Nixon Administration
``tried to implement the Malek Manual, a secret blueprint to replace
the civil service merit system with a political hiring scheme'' that
would have begun ``by purging all Democrats from federal employment.''
Comment 3340.\44\ Those abuses led to passage of the CSRA ``to shield
the merit system with enforceable rights against similar future
abuses.'' Id.\45\
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\44\ Citing Dobrovir, Gebhardt and Devine, ``Blueprint for Civil
Service Reform,'' Fund for Constitutional Government (1976).
\45\ That these concerns have been ongoing can be seen in
Congress' enactment of the Presidential Transitions Improvements Act
of 2015 referenced in note 155, infra.
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[[Page 24986]]
The CSRA made significant organizational changes to civil service
management, adjudications, and oversight. It replaced the CSC, dividing
its duties among OPM \46\ and the MSPB, which initially encompassed the
Office of Special Counsel (OSC).\47\ OSC later became a separate agency
to which specific duties were assigned.\48\ OPM inherited the CSC's
policy, managerial, and administrative duties, including the obligation
to establish standards, oversee compliance, and conduct examinations as
required or requested.\49\ OPM was also obligated to, among other
things, advise the President regarding appropriate changes to the civil
service rules, administer retirement benefits, adjudicate employees'
entitlement to these benefits, and defend adjudications at the
Board.\50\ The MSPB adjudicates challenges to personnel actions taken
under the civil service laws,\51\ among other things, and OSC
investigates and prosecutes prohibited personnel practices.\52\ Other,
more specific enactments confer upon these entities the obligations or
authorities to promulgate regulations on specific topics.
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\46\ Congress envisioned that: ``OPM would be the administrative
arm of Federal personnel management, serve as Presidential policy
advisor, . . . promulgate regulations, set policy, run research and
development programs, implement rules and regulations, and would
manage a centralized, innovative Federal personnel program.'' 124
Cong. Rec. S27538 (daily ed. Aug. 24, 1978) (bill summary of the
CSRA of 1978, S. 2540).
\47\ U.S. Gov't Accountability Off., ``Civil Service Reform--
Where it Stands Today,'' at p. 2 (May 13, 1980), https://www.gao.gov/assets/fpcd-80-38.pdf. The Equal Employment Opportunity
Commission and Office of Government Ethics also handle duties
previously covered by the CSC.
\48\ See Cong. Rsch. Serv., ``Merit Systems Protection Board
(MSPB): A Legal Overview,'' p. 4 (March 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45630.
\49\ See 5 U.S.C. 1103(a)(5), (a)(7).
\50\ Id.; see 5 U.S.C. 8461.
\51\ See 5 U.S.C. 1204, 7513(d).
\52\ See 5 U.S.C. 1212.
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The CSRA codified fundamental merit system principles, which had
developed since 1883.\53\ These principles are summarized here:
---------------------------------------------------------------------------
\53\ See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.
---------------------------------------------------------------------------
Merit System Principles \54\
---------------------------------------------------------------------------
\54\ See 5 U.S.C. 2301.
---------------------------------------------------------------------------
1. Recruit, select, and advance on merit after fair and open
competition.
2. Treat employees and applicants fairly and equitably.
3. Provide equal pay for equal work and reward excellent
performance.
4. Maintain high standards of integrity, conduct, and concern for
the public interest.
5. Manage employees efficiently and effectively.
6. Retain or separate employees on the basis of their performance.
7. Educate and train employees if it will result in better
organizational or individual performance.
8. Protect employees from improper political influence.
9. Protect employees against reprisal for the lawful disclosure of
illegality and other covered wrongdoing.
The CSRA also established an ``elaborate new framework'' related to
civil service protections for employees in the competitive and excepted
services. Challenges to non-appealable adverse actions, appealable
adverse actions, and ``prohibited personnel practices'' are channeled
into separate procedural tracks.\55\ The procedures an agency must
follow in taking an adverse action and whether the agency's action is
appealable to the MSPB depend on the action the agency seeks to impose.
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\55\ See Fausto, 484 U.S. at 443, 445-47; see 5 U.S.C. 1212,
1214, 2301, 2302, 7502, 7503, 7512, 7513; see also 5 U.S.C. 4303
(review of actions based on unacceptable performance).
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Suspensions of 14 days or less are not directly appealable to the
MSPB.\56\ But an employee against whom such a suspension is proposed is
entitled to certain procedural protections, including notice, an
opportunity to respond, representation by an attorney or other
representative, and a written decision.\57\
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\56\ 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
\57\ 5 U.S.C. 7503(b)(1)-(4); 5 CFR part 752, subpart B.
---------------------------------------------------------------------------
More rigorous procedures apply before agencies may pursue removals,
demotions, suspensions for more than 14 days, reductions in grade and
pay, and furloughs for 30 days or less, if the subject of the
contemplated action meets the definition of an ``employee'' under 5
U.S.C. 7511(a) by satisfying probationary or length of service
conditions.\58\ These employees, other than those who are statutorily
excepted from chapter 75's protections, receive the civil service
protections outlined in 5 U.S.C. 7513.\59\ Under section 7511(a)(1),
``employee'' refers to an individual who falls within one of three
groups: (1) an individual in the competitive service who either (a) is
not serving a probationary or trial period \60\ under an initial
appointment; or (b) has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less; (2)
a preference eligible \61\ in the excepted service who has completed 1
year of current continuous service in the same or similar positions in
an Executive agency, or in the United States Postal Service or Postal
Regulatory Commission; or (3) an individual in the excepted service
(other than a preference eligible) who either (a) is not serving a
probationary or trial period under an initial appointment pending
conversion to the competitive service; or (b) has completed 2 years of
current continuous service in the same or similar positions in an
Executive agency under other than a temporary appointment limited to 2
years or less.\62\
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\58\ See 5 CFR 752.401, 404, and 1201.3; see also 5 U.S.C.
7512(1)-(5), 7514; Fausto, 484 U.S. at 446-47.
\59\ 5 U.S.C. 7513(d), 7701(a).
\60\ The term ``probationary period'' generally applies to
employees in the competitive service. ``Trial period'' applies to
employees in the excepted service and some appointments in the
competitive service, such as term appointments, which have a 1-year
trial period set by OPM. A fundamental difference between the two is
the duration in which employees must serve. The probationary period
is set by law to last 1 year. When the trial period is set by
individual agencies, it can last up to 2 years. See 5 CFR 315.801
through 806; see also U.S. Merit Sys. Prots. Bd., Navigating the
Probationary Period After Van Wersch and McCormick, (Sept. 2006),
https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.
\61\ The term ``preference eligible'' refers to specified
military veterans and family members with derived preference
pursuant to statute, such as an unmarried widow, and the wife or
husband of a veteran with a service-connected disability. See 5
U.S.C. 2108(3).
\62\ 5 U.S.C. 7511(a)(1).
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In the event of a final MSPB decision adverse to the employee,
employees may seek judicial review by petitioning to the appropriate
Federal appellate or district court.\63\
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\63\ 5 U.S.C. 7513(d), 7701-7703, 7703(a)(1), (b)(2). The
appropriate federal appellate court will generally be the U.S. Court
of Appeals for the Federal Circuit but, in some instances, where
appellant asserts whistleblower retaliation, employees may appeal to
the Federal Circuit or another circuit court. Cases that include
claims under certain discrimination statutes are appealable to
Federal district courts. See 5 U.S.C. 7703(b)(2).
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Excepted from these procedural protections and rights to appeal
conferred on other employees under chapter 75 are certain civil
servants described in 5 U.S.C. 7511(b), including, among other
categories not relevant here, those officers appointed by the President
with the advice and consent of the Senate and other officers whom the
President is permitted to appoint himself or herself. Also excepted are
individuals ``whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character.'' \64\ These determinations must be made by ``(A) the
President for a position that the President has excepted from the
competitive service; (B) the Office of Personnel Management for a
position
[[Page 24987]]
that the Office has excepted from the competitive service; or (C) the
President or the head of an agency for a position excepted from the
competitive service by statute.'' \65\ As detailed further in Section
IV(B), it is evident that Congress, in using this and similar language
in various parts of title 5, U.S. Code, intended this exception to
apply to the voluntary filling of noncareer political appointments that
carry no expectation of continued employment beyond the presidential
administration during which the appointment occurred.\66\
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\64\ 5 U.S.C. 7511(b)(2)(A), (B), and (C).
\65\ 5 U.S.C. 7511(b)(2).
\66\ See infra, Sec. IV.(B); see also 5 CFR 6.2 (``Positions of
a confidential or policy-determining character shall be listed in
Schedule C''); 213.3301 Schedule C (``positions which are policy-
determining or which involve a close and confidential working
relationship with the head of an agency or other key appointed
officials''). Political appointees serve at the pleasure of the
President or other appointing official and may be asked to resign or
be dismissed at any time. They are not covered by civil service
removal procedures, have no adverse action rights, and generally
have no right to appeal terminations. See, e.g., 5 U.S.C. 7511(b)(2)
(excluding noncareer, political appointees from definition of
``employees'' eligible for adverse action protections); 5 CFR
317.605 (``An agency may terminate a noncareer or limited
appointment at any time, unless a limited appointee is covered under
5 CFR 752.601(c)(2).''); 734.104 (listing employees who are
appointed by the President, noncareer SES members, and Schedule C
employees as ``employees who serve at the pleasure of the
President.''); 752.401(d)(2) (excluding noncareer, political
appointees under Schedule C from adverse action protections).
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The unique responsibilities of politically appointed employees,
many of whom are listed under excepted service Schedule C, allow hiring
and termination to be done purely at the discretion of the President or
the President's political appointees. This is a specific exception from
the competitive service and, for that reason, each position listed in
Schedule C is revoked immediately upon the position becoming
vacant.\67\ Agencies may terminate political appointees at any time.
This also means that, absent any unique circumstance provided in law
\68\ or a request to stay by an incoming administration, these
positions are vacated following a presidential transition.
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\67\ See 5 CFR 213.3301.
\68\ Such as 5 CFR 212.401, discussed further in Section IV.
---------------------------------------------------------------------------
Prior to the CSRA, agencies relied only on provisions codified at
chapter 75 to remove Federal employees or to change an employee to a
lower grade, even if the reason for removal was for unacceptable
performance. The CSRA created chapter 43 of title 5, U.S. Code, as an
additional process for empowering supervisors to address performance
concerns.\69\ Accordingly, in addition to using the provisions of
chapter 75, agencies can address performance concerns under chapter 43.
Under this scheme established by Congress, the decision of which
chapter to use is left to the discretion of the manager tasked with
pursuing the action.
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\69\ U.S. Merit Sys. Prots. Bd., ``Addressing Poor Performers
and the Law,'' p. 4. (Sept. 2009), https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf.
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Through various enactments currently reflected in chapters 43 and
75, Congress has created conditions under which certain employees--
i.e., those with the requisite tenure in continued employment--may earn
a property interest in that continued employment. For such employees,
Congress has mandated that removal and the other actions described in
subchapter II of chapter 75 may be taken only ``for such cause as will
promote the efficiency of the service.'' \70\ This property interest in
continued employment has been a feature of the Federal civil service
since at least 1912, when the Lloyd-La Follette Act required just cause
to remove a Federal employee. The Supreme Court in Board of Regents of
State Colleges v. Roth, recognized that restrictions on loss of
employment, such as tenure, can create a property right.\71\ In
Cleveland Board of Education v. Loudermill,\72\ the Court also held:
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\70\ See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a),
752.202(a).
\71\ 408 U.S. 564, 576-77 (1972). The Court described three
earlier decisions--Slochower v. Bd. of Educ., 350 U.S. 551 (1956),
Wieman v. Updegraff, 344 U.S. 183 (1952), and Connell v.
Higginbotham, 403 U.S. 207 (1971)--where the Court held that public
employees had due process rights. Before the Court explicitly
recognized that restrictions on the loss of employment could create
a property right, the Court protected statutorily-conferred public
employment rights under other legal theories. See, e.g., United
States v. Wickersham 210 U.S. 390, 398-399 (1906); Keim v. United
States, 177 U.S. 290, 296 (1900); see also Indiana ex rel. Anderson
v. Brand (303 U.S. 95 (1938); Hall v. Wisconsin, 103 U.S. 5 (1880)
(enforcing statutory rights to public employment benefits under
theories of contractual entitlement, even when legislatures changed
those statutory entitlements).
\72\ 470 U.S. 532 (1985).
Property cannot be defined by the procedures provided for its
deprivation any more than can life or liberty. The right to due
process is conferred, not by legislative grace, but by
constitutional guarantee. While the legislature may elect not to
confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest once
conferred, without appropriate procedural safeguards.\73\
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\73\ Id. at 541.
In short, once a government requires cause for removals,
constitutional due process protection will attach to that property
interest and determine the minimum procedures by which a removal may be
carried out. Any new law addressing the removal of a Federal employee
with a vested property interest in the employee's continued employment
must, at a minimum, comport with due process. This obligation drives
some of the procedures in both chapters 43 and 75, while other
procedures have been developed in accordance with Congress' assessments
of what is good policy.\74\ Regardless of the nature of the particular
action specified, agencies must follow the procedures specified by
Congress to effectuate a removal under those chapters, as a matter of
law, unless they are changed by Congress.
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\74\ The exact procedures required will turn on the factual
situation and may be different from instance to instance.
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An advocacy nonprofit organization opposed to this rule argued that
the Lloyd-La Follette Act and predecessor executive orders ``were not
understood (or applied)'' to give federal employees a property right to
their jobs before ``the Supreme Court interpreted the Act as having
that effect in Arnett v. Kennedy (1974).'' Comment 4097. Commenter's
point is incorrect, and, in any event, irrelevant. As observed in note
71 above, the Supreme Court recognized in earlier cases that due
process rights could attach to public employment. And Congress, far
from limiting or ending such rights, has enacted new statutes since
Arnett, notably the CSRA and the Civil Service Due Process Amendments
Act, conferring robust procedural rights on broader groups of Federal
employees. In any event, although Congress has, from time to time,
tinkered with the procedures required in various agency settings, it
has done nothing since Arnett purporting to remove due process rights
from incumbents who have accrued them, which suggests approval of the
Supreme Court's approach in that case.
Finally, in addition to establishing the requirements and
procedures for challenging adverse actions and performance-based
actions, the CSRA includes a mechanism for an employee in a ``covered
position'' to challenge a ``personnel action'' that constitutes a
``prohibited personnel practice'' because it has been taken for a
prohibited reason.\75\ ``Covered position'' means any position in the
competitive service, a career appointee in the Senior Executive
Service, or a position in the excepted service unless ``conditions of
good administration warrant'' a necessary
[[Page 24988]]
exception on the basis that the position is of a ``confidential,
policy-determining, policy-making, or policy-advocating character.''
\76\
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\75\ 5 U.S.C. 2302(a)(1), (a)(2), (b). Challenges to a personnel
action on the basis that it constitutes a prohibited personnel
practice may be brought by anyone in a covered position, regardless
of their entitlement to adverse action rights.
\76\ 5 U.S.C. 2302(a)(2)(B), 3302.
---------------------------------------------------------------------------
At 5 U.S.C. 2302(a)(2)(A), Congress lists personnel actions that
can form the basis of a prohibited personnel practice under 5 U.S.C.
2302(b). The CSRA, as described in the proposed rule,\77\ also codified
a comprehensive list of prohibited personnel practices.\78\
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\77\ See 88 FR 63862, 63866.
\78\ 5 U.S.C. 2302(b). OSC investigates allegations of
prohibited personnel practices brought by employees in covered
positions and may investigate in the absence of such an allegation,
to determine if a prohibited personnel practice occurred. 5 U.S.C.
1214(a)(1)(A), (a)(5). If OSC concludes that a prohibited personnel
practice has occurred and, if OSC is unable to obtain a satisfactory
correction from an agency responsible for a prohibited personnel
practice, OSC may petition the MSPB to grant corrective action. If
OSC proves its claim, the MSPB may order the corrective action it
deems appropriate. See 5 U.S.C. 1214(b)(2)(B), (C), (b)(4)(A).
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C. The Competitive, Excepted, and Senior Executive Services
The CSRA also established a new service--the Senior Executive
Service, or SES--``to ensure that the executive management of the
Government of the United States is responsive to the needs, policies,
and goals of the Nation and is otherwise of the highest quality.'' \79\
As described further below, the SES is distinct from the competitive
service and the excepted service.\80\ It consists of senior government
officials, both noncareer and career, who share a broad set of
responsibilities to help lead the work of the Federal Government.
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\79\ 5 U.S.C. 3131.
\80\ 5 U.S.C. 2101(a) (definition of civil service), 2102(a)(1)
(competitive service), 2103(a) (excepted service) 3132(a)(2) (Senior
Executive Service).
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In the competitive service, individuals must complete a competitive
hiring process before being appointed. This process may include a
written test or an equivalent evaluation of the individual's relative
level of knowledge, skills, and abilities necessary for successful
performance in the position to be filled.\81\
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\81\ See 5 U.S.C. 3304 (``An individual may be appointed in the
competitive service only if he has passed an examination or is
specifically excepted from examination under section 3302 of this
title.''); see also U.S. Off. of Pers. Mgmt., ``Competitive
Hiring,'' https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/.
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Although most government employees are in the competitive service,
about one-third are in the excepted service.\82\ The excepted service
includes all positions in the Executive Branch that are specifically
excepted from the competitive service by statute, Executive order, or
by OPM regulation.\83\ For positions excepted from the competitive
service by statute, selection must be made pursuant to the provisions
Congress enacted for those positions. Applicants for excepted service
positions under title 5, U.S. Code, like applicants for the competitive
service, are to be selected ``solely on the basis of relative ability,
knowledge, and skills, after fair and open competition which assures
that all receive equal opportunity.'' \84\ Agencies filling positions
in the excepted service ``shall select . . . from the qualified
applicants in the same manner and under the same conditions required
for the competitive service.'' \85\ This means that agencies should
generally afford veterans' preference in the same manner they would
have for the competitive service, though, in a few situations \86\
where the reason for the exception makes this essentially impossible,
OPM (or the President) has exempted the position from regulatory
requirements and imposed a less stringent standard.\87\
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\82\ See Cong. Rsch. Serv., ``Categories of Federal Civil
Service Employment; A Snapshot,'' at p. 4 (May 26, 2019), https://sgp.fas.org/crs/misc/R45635.pdf.
\83\ See 5 U.S.C. 2103; 5 CFR parts 213, 302.
\84\ 5 U.S.C. 2301(b)(1).
\85\ 5 U.S.C. 3320. Part 302 of title 5 of OPM's regulations
establishes the mechanisms by which compliance with section 3320 can
be achieved.
\86\ See infra notes 357-361.
\87\ 5 CFR 302.101(c).
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The President is authorized by statute to provide for ``necessary
exceptions of positions from the competitive service'' when warranted
by ``conditions of good administration.'' \88\ The President has
delegated to OPM--and, before that, to its predecessor, the CSC--
concurrent authority to except positions from the competitive service
when it determines that appointments thereto through competitive
examination are not practicable.\89\ The President has further
delegated authority to OPM to ``decide whether the duties of any
particular position are such that it may be filled as an excepted
position under the appropriate schedule.'' \90\
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\88\ 5 U.S.C. 3302.
\89\ E.O. 10577, sec. 6.1(a) (1954); 5 CFR 6.1(a) (1988) (``The
Commission is authorized to except positions for the competitive
service whenever it determines that appointments thereto through
competitive examination are not practicable'' and that ``[u]pon the
recommendation of the agency concerned, it may also except positions
which are of a confidential or policy-determining character.'').
\90\ E.O. 10577, sec. 6.1(b); 5 CFR 6.1(b); see 28 FR 10025
(Sept. 14, 1963) (reorganizing the civil service rules).
---------------------------------------------------------------------------
OPM has exercised its delegated authority, and implemented
exercises of presidential authority, by prescribing five schedules for
positions in the excepted service, which are currently listed in 5 CFR
part 213:
Schedule A--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants, such as attorneys, chaplains, and
short-term positions for which there is a critical hiring need.
Schedule B--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants. Unlike Schedule A positions,
Schedule B positions require an applicant to satisfy basic
qualification standards established by OPM for the relevant occupation
and grade level. Schedule B positions engage in a variety of
scientific, professional, and technical activities.
Schedule C--Includes positions that are policy-determining
or which involve a close and confidential working relationship with the
head of an agency or other key appointed officials. These positions
include most political appointees below the cabinet and subcabinet
levels.
Schedule D--Includes positions that are not of a
confidential or policy-determining character for which competitive
examination makes it difficult to recruit certain students or recent
graduates. Schedule D positions generally require an applicant to
satisfy basic qualification standards established by OPM for the
relevant occupation and grade level. Positions include those in the
Pathways Programs.
Schedule E--Includes positions of administrative law
judges.\91\
---------------------------------------------------------------------------
\91\ 5 CFR 6.2.
---------------------------------------------------------------------------
As described supra, competitive and excepted service incumbents,
except those in Schedule C--and others excluded under 5 U.S.C.
7511(b)--become ``employees'' for purpose of civil service protections
after they satisfy the probationary or length of service requirements
in 5 U.S.C. 7511(a). Excepted service employees, except those in
Schedule C and others excluded under section 7511(b), maintain the same
notice and appeal rights for adverse actions and performance-based
actions as competitive service employees.\92\
[[Page 24989]]
However, and as noted here, excepted service employees must satisfy
different durational requirements before these rights become available.
So-called ``preference eligibles''--specified military veterans and
family members with derived preference pursuant to statute \93\--in an
executive agency, the Postal Service, or the Postal Regulatory
Commission must complete 1 year of current continuous service to avail
themselves of the relevant notice and appeal rights.\94\ Employees in
the excepted service who are not preference eligibles and (1) are not
serving a probationary or trial period under an initial appointment
pending conversion to the competitive service, or (2) have completed 2
years of current or continuous service in the same or similar position,
have the same notice and appeal rights as qualifying employees in the
competitive service.\95\
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\92\ See 5 U.S.C. 4303, 7513(d). There are, however, some
notable differences between non-removal protections afforded to
competitive service and excepted service employees, such as
assignment rights in the event of a reduction in force. See 5 CFR
351.501 and 502. Employees who are reached for release from the
competitive service during a reduction in force are entitled to an
offer of assignment if they have ``bump'' or ``retreat'' rights to
an available position in the same competitive area. ``Bumping''
means displacement of an employee in a lower tenure group or a lower
subgroup within the same tenure group. ``Retreating'' means
displacement of an employee in the same tenure group and subgroup.
Meaning, they are entitled to the positions of employees with fewer
assignment rights. Employees in excepted service positions have no
assignment rights to other positions unless their agency, at the
agency's discretion, chooses to offer these rights to positions.
Even with these differences, merit system principles are at the core
of civil service protections relating to hiring, conduct, and
performance matters as applied to both career competitive and
excepted service employees.
\93\ See 5 U.S.C. 2108(3); see also supra note 61.
\94\ See 5 U.S.C. 7511(a)(1)(B).
\95\ See 5 U.S.C. 7511(a)(1)(C).
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Likewise, any employee who is (1) a preference eligible; (2) in the
competitive service; or (3) in the excepted service and covered by
subchapter II of chapter 75, and who has been reduced in grade or
removed under chapter 43, is entitled to appeal the action to the
MSPB.\96\ However, these appeal rights do not apply to (1) the
reduction to the grade previously held of a supervisor or manager who
has not completed the probationary period under 5 U.S.C. 3321(a)(2);
(2) the reduction in grade or removal of an employee in the competitive
service who is serving a probationary or trial period under an initial
appointment or who has not completed 1 year of current continuous
employment under other than a temporary appointment limited to 1 year
or less; or (3) the reduction in grade or removal of an employee in the
excepted service who has not completed 1 year of current continuous
employment in the same or similar positions.\97\
---------------------------------------------------------------------------
\96\ See 5 U.S.C. 4303(e).
\97\ See 5 U.S.C. 4303(f).
---------------------------------------------------------------------------
Finally, the SES is a service separate from the competitive and
excepted services.\98\ The SES has a separate system for hiring
executives, managing them, and compensating them.\99\ The SES is also
governed by separate adverse action procedures, in Subchapter V of
chapter 75. As described more fully in Section IV, the adverse action
processes in 5 U.S.C. 7501-7515 and the exclusion from such rights and
coverage in 5 U.S.C. 7511(b), do not apply to the SES. The SES adverse
action procedures, unlike the rules governing the competitive and
excepted services, make no mention--let alone an exception--for
positions of ``a confidential, policy-determining, policy-making, or
policy-advocating character.'' \100\
---------------------------------------------------------------------------
\98\ See 5 U.S.C. 2102 (competitive service does not include
SES), 2103 (excepted service does not include SES),
\99\ See 5 U.S.C. 5131-5136.
\100\ See 5 U.S.C. 7541-7543.
---------------------------------------------------------------------------
A member of the SES can be a career appointee, noncareer appointee,
limited term appointee or limited emergency appointee. These terms are
defined at 5 U.S.C. 3132(a).\101\ Congress established rules
restricting noncareer appointments, as well as limited term and limited
emergency appointments.\102\ The adverse action rights for SES set out
in Subchapter V, 5 U.S.C. 7541-7543, apply only to career appointees to
the SES. Removal of career employees for less than fully successful
executive performance is governed by a separate provision at 5 U.S.C.
3592. By contrast, none of these provisions affect an agency head's
ability to remove a member of the noncareer SES.
---------------------------------------------------------------------------
\101\ 5 U.S.C. 3393, 3394.
\102\ 5 U.S.C. 3134.
---------------------------------------------------------------------------
D. The Prior Schedule F
On October 21, 2020, President Donald Trump issued Executive Order
13957, ``Creating Schedule F in the Excepted Service,'' which risked
altering the carefully crafted legislative balance that Congress struck
in the CSRA.\103\ That Executive Order, if fully implemented, could
have transformed the civil service by purportedly stripping adverse and
performance-based action grievance and appeal rights from large swaths
of the Federal workforce--thereby turning them into at-will employees.
It could have also sidestepped statutory requirements built into the
Federal hiring process intended to promote the objective of merit-based
hiring decisions. It would have upended the longstanding principle that
a career Federal employee's tenure should be linked to their
performance and conduct, rather than to the nature of the position that
the employee encumbers. It also could have reversed longstanding
requirements that, among other things, prevent political appointees
from ``burrowing in'' to career civil service jobs in violation of
merit system principles.
---------------------------------------------------------------------------
\103\ 85 FR 67631 (Oct. 21, 2020).
---------------------------------------------------------------------------
Before it could be implemented, however, Executive Order 13957 was
revoked, and Schedule F abolished, by President Biden through Executive
Order 14003, ``Protecting the Federal Workforce.'' \104\
---------------------------------------------------------------------------
\104\ 86 FR 7231 (Jan. 22, 2021).
---------------------------------------------------------------------------
OPM received many comments related to Schedule F from both
proponents and critics of it and Executive Order 13957. The lawfulness
and wisdom of the policy choices embodied in now-revoked Schedule F are
in most respects outside the scope of this rulemaking. Regardless of
whether Executive Order 13957 was a valid exercise of authority, it is
not directly at issue here. Nonetheless, numerous commenters addressed
the topic and OPM has determined that it would be prudent to set forth
its views in response to those comments. The various parts of the
Executive Order, Schedule F, and related comments are thus addressed
below. The validity of this rule does not depend on the legality or
wisdom of Executive Order 13957.
1. Adverse Action Rights, Performance-Based Action Rights, and Appeals
Section 5 of Executive Order 13957 directed agency heads to review
their entire workforces to identify any employees covered by chapter
75's adverse action rules (which apply broadly to employees in the
competitive and excepted services) who occupied positions of a
``confidential, policy-determining, policy-making, or policy-advocating
character.'' These included positions the agency assessed for the first
time, without guidance or precedent, to allegedly include these
characteristics. Agencies were then to petition OPM for its approval to
place them in Schedule F, a newly-created category of positions to be
excepted from the competitive service. If these positions had been
placed in Schedule F, the employees encumbering them would have,
according to the text of the Executive Order, been stripped of any
adverse action procedural rights and MSPB appeal rights under chapter
75 discussed supra. Thus, the Order attempted to subject employees to
removal, at will, by virtue of the involuntary placement of the
positions they occupied in this new schedule (and regardless of any
rights they had already
[[Page 24990]]
accrued or any reliance on those rights).\105\
---------------------------------------------------------------------------
\105\ Since performance-based actions under 5 U.S.C. 4303 are
tied, in part, to subchapter II of chapter 75, employees would
purportedly have also been stripped of performance-based action
procedural rights and MSPB appeal rights, had an agency chosen to
proceed with an action under chapter 43.
---------------------------------------------------------------------------
An express rationale of this action was to make it easier for
agencies to ``expeditiously remove poorly performing employees from
these positions without facing extensive delays or litigation.'' \106\
This new sweeping authority was purportedly necessary for the President
to have ``appropriate management oversight regarding'' the career civil
servants working in positions deemed to be of a ``confidential, policy-
determining, policy-making, or policy-advocating character,'' and to
incentivize employees in these positions to display what presidential
appointees at an agency would deem to be ``appropriate temperament,
acumen, impartiality, and sound judgment,'' in light of the importance
of these functions.\107\ Executive Order 13957 did not acknowledge
existing mechanisms to provide ``appropriate management oversight,''
such as chapter 43 and chapter 75 procedures, or the multiple
management controls that agencies have in place to escalate matters of
importance to agency administrators.\108\
---------------------------------------------------------------------------
\106\ E.O. 13957, sec. 1.
\107\ The Executive Order stated that ``[c]onditions of good
administration . . . make necessary excepting such positions from
the adverse action procedures set forth in chapter 75 of title 5,
United States Code.'' E.O. 13957, sec. 1. The ``conditions of good
administration'' language appears in 5 U.S.C. 3302. We note that
Section 3302 is placed in Subchapter I of chapter 33, a subchapter
addressing examination, certification, and appointment. It relates
only to exclusions of positions from the competitive service
requirements relating to those topics when conditions of good
administration warrant and does not purport to confer authority on
the President to except positions from the adverse action provisions
of chapter 75. Similarly, chapter 75 does not itself purport to
confer authority on the President to except positions from the scope
of chapter 75. The authority to regulate under chapter 75 is
conferred directly upon OPM unlike the authority to regulate under
section 3302, which is conferred upon the President. Compare 5
U.S.C. 7514 (``The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter . . .) to 5
U.S.C. 3302 (``The President may prescribe rules governing the
competitive service.''). Of course, a President could order the
Director of OPM to promulgate regulations relating to chapter 75.
Any such rule, however, would then be subject to the requirements of
the Administrative Procedure Act.
\108\ Matters of importance can be raised to agency
administrators in various ways, such as by filing a complaint with
an agency's Inspector General, raising concerns with an agency's
human resources office, and filing a grievance.
---------------------------------------------------------------------------
Executive Order 13957 instructed agency heads to review existing
positions to determine which, if any, should be placed into Schedule F.
The Order also instructed that, after agency heads conducted their
initial review, they were to move quickly and petition OPM by January
19, 2021--the day before the Inauguration--to place positions within
Schedule F. After that, agency heads had another 120 days to petition
OPM to place additional positions in Schedule F.
In contrast to past excepted service schedules designed to address
unique hiring needs upon a determination that appointments through the
competitive service was ``not practicable,'' \109\ movement into
Schedule F was designed to be broad and numerically unlimited,
potentially affecting a substantial number of jobs across all Federal
agencies. For example, according to the Government Accountability
Office, the Office of Management and Budget petitioned to place 68
percent of its workforce within Schedule F.\110\ Moreover, the
Executive Order did not make the underlying determination that
particular positions were ``of a confidential, policy-determining,
policy-making or policy-advocating character.'' \111\ In essence, the
exception was created in advance of any determination. The Executive
Order instead announced that any position that could be described in
these terms, and which was not encumbered by an appointee under
Schedule C, should be placed in a separate and new excepted service
schedule. The Executive Order then directed agencies to determine which
of their positions met that criterion and compile a list of individuals
for OPM to consider placing in Schedule F.
---------------------------------------------------------------------------
\109\ See infra notes 355-359.
\110\ Gov't Accountability Off., ``Civil Service--Agency
Responses and Perspectives on Former Executive Order to Create a New
Schedule F Category for Federal Positions,'' (Sept. 2022), https://www.gao.gov/assets/gao-22-105504.pdf.
\111\ 5 U.S.C. 7511(b)(2) (``This subchapter does not apply to
an employee . . . (2) whose position has been determined to be of a
confidential, policy-determining, policy-making or policy-advocating
character by--(A) the President for a position that the President
has excepted from the competitive service.''); see also E.O. 13957,
sec. 5 (only listing broad duties--including ``viewing'' or
``circulating'' proposed regulations and other non-public policy
proposals--that agency heads should consider when petitioning the
OPM Director to place positions in Schedule F).
---------------------------------------------------------------------------
2. Hiring
Section 3 of Executive Order 13957 provided that ``[a]ppointments
of individuals to positions of a confidential, policy-determining,
policy-making, or policy-advocating character that are not normally
subject to change as a result of a presidential transition shall be
made under Schedule F.'' \112\ The stated rationale for removing these
positions from the competitive hiring process (or from other excepted
service schedules in which some of these positions were previously
placed) was, again, because of the importance of their corresponding
duties and the need to have employees in these positions that display
``appropriate temperament, acumen, impartiality, and sound judgment.''
\113\ The stated purpose was to ``provide agency heads with additional
flexibility to assess prospective appointees without the limitations
imposed by competitive service selection procedures'' \114\ or,
presumably, for positions already in the excepted service, without the
constraints imposed by 5 CFR part 302. The Order indicated that this
change was intended to ``mitigate undue limitations on their
selection'' and relieve agencies of ``complicated and elaborate
competitive service processes or rating procedures that do not
necessarily reflect their particular needs.'' \115\ These changes were
to give agencies ``greater ability and discretion to assess critical
qualities in applicants to fill these positions, such as work ethic,
judgment, and ability to meet the particular needs of the agency.''
\116\
---------------------------------------------------------------------------
\112\ 85 FR 67631, 67632.
\113\ 85 FR 67631.
\114\ Id.
\115\ 85 FR 67631, 67632. The procedures Congress has adopted
for hiring in the competitive service were designed, in part, to
implement the stated congressional policy of veterans' preference.
See 5 U.S.C. 1302. How this congressional mandate would be realized
in these circumstances was not addressed.
\116\ 85 FR 67632.
---------------------------------------------------------------------------
The Executive Order did not address that the competitive hiring
process permits agencies to assess all competencies that are related to
successful performance of the job, including appropriate temperament,
acumen, impartiality, and sound judgment. They also permit agencies to
fulfill the congressional policy to confer a preference on eligible
veterans or their family members entitled to derived preference. The
qualifications requirements, specialized experience, interview process,
and other assessment methodologies available to hiring managers
facilitate an agency's ability to identify the best candidate. The
Order also did not address the existence of longstanding rules,
grounded in the need to establish lack of unlawful bias in proceedings
under Federal anti-discrimination statutes, that require assessment of
any such competencies.\117\ The summary
[[Page 24991]]
imposition of new competencies would be contrary to existing statutory
requirements and could potentially be discriminatory in application,
even if that were not the agency's intent. Finally, the Order recited
that the normal statutory veterans' preference requirements that would
have applied to identified positions \118\ would not apply, and that
agencies would be required to apply veterans' preference requirements
only ``as far as administratively feasible.'' \119\
---------------------------------------------------------------------------
\117\ See 5 CFR part 300. Validation generally requires that the
criteria and methods by which job applicants are evaluated have a
rational relationship to performance in the position to be filled.
\118\ See 5 U.S.C. 3320.
\119\ 85 FR 67631, 67632-33 (sec. 4(i) (Schedule F)); see also 5
CFR part 302.
---------------------------------------------------------------------------
As noted above, OPM received many comments about the prior Schedule
F and its potential impacts on adverse action rights, performance-based
action rights, appeals, and hiring.
Comments Regarding Departure of Schedule F From Precedents
Many individuals and organizations commented that Schedule F
represented an unprecedented departure from Congressional intent,
longstanding legal interpretations, and past practices. A joint comment
by a nonprofit organization and former federal official agreed that
Schedule F was ``an aberration, divorced from established legal
interpretation and historical precedent'' and ``there can be no
doubting that it would have disrupted the functions of government, even
if ultimately overturned by the courts.'' Comment 2134. The comment
continued that ``even a small movement of positions into Schedule F
would have amounted to presidential usurpation of the role of Congress,
which has firmly enshrined the merit system in law to protect Americans
and preserve democracy against authoritarian overreach.'' Id. Other
commenters argued that the process in which Schedule F was created was
deficient because it intended to significantly alter longstanding
statutory protections. Comment 1316 argued that ``[i]f the executive,
or one of its appointees, wishes to change the operation of an agency,
they must do so by lobbying for a change in the law that authorizes it
or implement[ ] changes in accordance with those laws and the
constraints of the Administrative Procedure Act.'' A comment from
Members of Congress stated that Schedule F not only would have
``jeopardize[d] the livelihoods of tens of thousands of hard-working,
career civil servants,'' but also would ``upend civil service
precedent.'' Comment 48. As explained in the proposed rule \120\ and
here, OPM agrees that Schedule F risked altering the carefully crafted
legislative balance that Congress struck in the CSRA and the history of
protections leading up to it.
---------------------------------------------------------------------------
\120\ 88 FR 63862, 63867-69.
---------------------------------------------------------------------------
To be clear though, this rulemaking takes no position on whether
Executive Order 13957 was based on legal error, nor is this rulemaking
premised on such a conclusion. Instead, as OPM explained in the
proposed rule,\121\ there were a number of existing mechanisms that
would address the policy concerns identified in the Executive Order
without establishing a new schedule, and the creation of Schedule F
risked undermining other objectives of the civil service laws.\122\ The
basis for this rulemaking, as explained herein, is to clarify and
reinforce the retention of accrued rights and status following an
involuntary move to or within the excepted service and promulgate a
definition of what it means to be a ``confidential, policy-determining,
policy-making, or policy-advocating'' position consistent with decades
of practice and how the Executive Branch, Congress, and the courts have
understood that phrase to encompass political appointees.
---------------------------------------------------------------------------
\121\ Id.
\122\ See also E.O. 14003 at 2 (providing a similar assessment).
---------------------------------------------------------------------------
A few commenters opposed to this rule argued that the President has
the authority to issue civil service reform in a manner like Schedule
F. An advocacy nonprofit organization stated that the order was
``grounded on firm legal authority'' because title 5 specifically
authorizes the President to exempt policy-influencing positions from
civil service appeals. Comment 4097. Commenter argued that ``statutory
context makes clear'' this authority extends to both political
appointees and career officials. Commenter continued that the ``fact
that prior presidents have restrained themselves in their dealings with
subordinates does not imply they lacked this authority.'' Id. Commenter
asserted that the ``Supreme Court has already concluded that
`policymaking positions in government may be excepted from the
competitive service to ensure presidential control, see 5 U.S.C.
2302(a)(2)(B), 3302' (Free Enterprise Fund v. Public Company Accounting
Oversight Board, 2010).'' \123\
---------------------------------------------------------------------------
\123\ The full cite to this opinion is 561 U.S. 477 (2010).
---------------------------------------------------------------------------
The ``confidential, policy-determining, policy-making or policy-
advocating'' provision was intended to permit agency heads to directly
appoint a cadre of political appointees who have a close and
confidential working relationship with the President's appointees to
further and support the priorities of the President and the President's
appointees. As discussed extensively throughout this final rule, the
term of art, ``confidential, policy-determining, policy-making or
policy-advocating,'' has a longstanding meaning that equates to
political appointments, typically made under Schedule C. OPM, in this
rulemaking, is defining that phrase as it is used in the statutory
exception in 5 U.S.C. 7511(b)(2) for the reasons explained in the
proposed rule \124\ and in Section IV(B).\125\
---------------------------------------------------------------------------
\124\ 88 FR 63862, 63871-73.
\125\ See also Comment 2134 (``The preamble and the regulation
accurately reflect the executive branch's historical understanding
that Congress intended for the competitive service exception for
`confidential, policy-determining, policy-making, or policy-
advocating' positions to apply only to a small class of political
appointee positions.'').
---------------------------------------------------------------------------
Comment 4097 also argued that a separate provision, 5 U.S.C
2302(a)(2)(B), defining a ``covered position'' for the purposes of
protections from prohibited personnel practices, similarly excludes
from protections positions excepted from the competitive service
because of their ``confidential, policy-determining, policy-making, or
policy-advocating character.'' Commenter claimed this demonstrates that
``policymaking positions in government may be excepted from the
competitive service to ensure presidential control.'' Although this
final rule does not directly amend regulations dealing with prohibited
personnel practices, OPM construes this statutory language in 5 U.S.C
2302(a)(2)(B) as aligning with the reasoning in OPM's final rule with
respect to chapter 75. It simply means that positions of a
``confidential, policy-determining, policy-making, or policy-
advocating'' character have long been understood to be political
appointees and, in addition to not having adverse action rights, are
not covered by protections against prohibited personnel practices.\126\
That is perfectly consistent with the nature of Schedule C employees.
Congress has chosen to extend these protections only to the career
civil service as described further in Section IV(B).
---------------------------------------------------------------------------
\126\ OPM notes, though, that the rule does not amend
regulations related to prohibited personnel practices.
---------------------------------------------------------------------------
This commenter also cited 5 U.S.C. 3302, which says a President may
make necessary exceptions of positions from the competitive service if
``conditions of good administration warrant,'' to support the assertion
that career policymaking positions in government
[[Page 24992]]
may be excepted from the competitive service to ensure presidential
control. Again, OPM's rule does not change this Presidential authority
to except positions from the competitive service where necessary and
where conditions of good administration warrant such action. But, as
explained above, OPM disagrees that the authority to make exceptions in
section 3302 also allows for the removal of incumbents' accrued adverse
action rights under chapter 75.\127\ Section 3302 and the
``warrant[ed]'' by ``conditions of good administration'' standard
relates to whether positions should be excepted from the competitive
service. Congress did not suggest--in chapter 33 or chapter 75--that
the same standard also be used in determining whether to remove civil
service protections for the incumbents of such positions. Further, as
explained in Sections IV.(A)-(B), OPM does not believe the exception in
5 U.S.C. 7511(b)(2) can remove the previously accrued adverse action
rights of the incumbents of such positions.
---------------------------------------------------------------------------
\127\ See supra note 107.
---------------------------------------------------------------------------
As noted above, commenter also cited Free Enterprise Fund to
support its assertion that the President can issue an action like
Schedule F. The application of Free Enterprise Fund and other
Appointments Clause and removal cases to this rulemaking are addressed
further at Section III(F), but in short, commenter's reliance on this
case is beside the point and inapt. Whether a president can lawfully
enact Schedule F by executive order does not affect the ability of OPM
to promulgate this rule pursuant to its authority. In any event, in
Free Enterprise Fund, the Supreme Court examined the constitutionality
of multiple layers of removal restrictions for select positions at an
independent agency (one layer of removal protections for the
commissioners of the SEC and the next layer of protections for members
of the Public Company Accounting Oversight Board (PCAOB or Board)). As
an initial matter, most of the agencies that hire and fire subject to
title 5 are not independent agencies, so they would not have multiple
for-cause limitations on removal (i.e., most Secretaries, Directors,
and other agency heads can be removed at will by the President). But
even in most independent agencies, the removal restrictions at issue in
Free Enterprise Fund are of limited relevance. There, the Supreme Court
focused specifically on the removal protections of Board members, whom
the Court held were executive officers ``as the term is used in the
Constitution'' and who exercise ``significant authority.'' It clarified
that ``many civil servants within independent agencies would not
qualify'' as executive officers and none of the civil servants or
corresponding protections addressed by the dissenting opinion introduce
the same constitutional problems as those of the Board. One group the
dissent specifically mentions are employees in the Senior Executive
Service.\128\ Even though SES employees work on policy and have
significant leadership responsibilities, they also have civil service
protections. The majority states that ``none of the positions [the
dissent] identifies,'' which would include SES positions, ``are
similarly situated to the Board.'' \129\ ``Nor do the employees
referenced by the dissent enjoy the same significant and unusual
protections from Presidential oversight as members of the Board,'' the
majority added. In other words, Free Enterprise Fund explicitly
declined to hold that career SES positions, which have adverse action
protections under 5 U.S.C. 7541-7543, pose constitutional concerns in
and of themselves. Commenter invokes Free Enterprise Fund to argue that
a lower-level strata of career civil servants (with fewer
responsibilities and authority) cannot have civil service protections
if they keep confidences or work on policy. But the Court stressed that
``[n]othing in our opinion, therefore, should be read to cast doubt on
the use of what is colloquially known as the civil service system
within independent agencies.'' If nothing in Free Enterprise Fund casts
doubt on the civil service system within independent agencies, it does
not cast any doubt on the civil service system within the Executive
Branch generally.\130\
---------------------------------------------------------------------------
\128\ See 561 U.S. at 541.
\129\ Id. at 506.
\130\ Free Enterprise Fund notes that civil service statutes in
section 7511 contain an exception from adverse action rights for
positions of a confidential, policy-determining, policy-making, or
policy-advocating character, but it did not define what those
phrases mean. See 561 U.S. at 506.
---------------------------------------------------------------------------
Further, in Free Enterprise Fund, the Supreme Court crafted a
narrow remedy to address the unique problem the statute presented,
holding that members of the Board would have to be removable at will by
the Commission to render the statutory scheme consistent with the
Constitution. More recently, in United States v. Arthrex,\131\ the
Supreme Court crafted a different remedial solution for another
statutory scheme presenting employees with significant responsibilities
who enjoyed statutory removal protections. Arthrex concerned
Administrative Patent Judges (APJs), whose duties included sitting on
the Patent Trial and Appeal Board and issuing binding decisions. The
Federal Circuit, sitting en banc, had held that APJs were principal
officers whose appointments were unconstitutional because neither the
Secretary nor Director could review their decisions or remove them at
will. To remedy this constitutional violation, the Federal Circuit
invalidated the APJs' tenure protections, making them removable at will
by the Secretary. The Supreme Court, however, vacated and remanded,
concluding that it was preferable to reform the statute to require the
Director, a Presidential appointee who already oversaw APJs for other
functions, to serve as a final reviewing and issuing official for
decisions rendered by the Patent Trial and Appeal Board. The Court left
the APJs' tenure provisions intact. The limited solutions adopted by
the Supreme Court in Free Enterprise Fund and Arthrex are far removed
from a proposal to remove previously accrued adverse action rights from
thousands of traditional civil servants simply because, for example,
some of their work might touch on policymaking. Nothing in this
rulemaking is contrary to Free Enterprise Fund or any other binding
precedent. On the other hand, an overwhelming number of precedents are
contrary to commenter's positions, as described in this final rule.
---------------------------------------------------------------------------
\131\ 141 S. Ct. 1970 (2021).
---------------------------------------------------------------------------
Comment 4097 argued that ``[t]he CSRA also allows the President to
except positions from the competitive service for the purpose of
nullifying removal restrictions.'' The Supreme Court has cautioned
against using vague statutory provisions to alter ``fundamental details
of a regulatory scheme,'' stating that Congress ``does not hide
elephants in mouseholes.'' \132\ Commenter seems to suggest that
Congress did just that when it enacted the CSRA, even though that
authority went undiscovered and unexercised for these purposes in over
40 years. Under this assertion, all a President would have to do is
proclaim by unilateral order that ``good administration warrants'' a
change and the carefully balanced and longstanding civil service
protections provided by Congress would fall away if the positions could
be characterized as having a ``confidential'' \133\ or ``policy''
[[Page 24993]]
character--terms commenter argued require no further elaboration. That
would be contrary to the very purpose of the CSRA, a result that
Congress could not have possibly intended.
---------------------------------------------------------------------------
\132\ See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457,
468 (2001).
\133\ In describing positions with confidential or policy
characteristics, E.O. 13957 states ``The heads of executive
departments and agencies (agencies) and the American people also
entrust these career professionals with non-public information that
must be kept confidential.'' If that were the sole standard for a
``confidential'' position, it would be hard to think of a career
position that would not have been ``confidential,'' since the
incumbents of virtually all positions have this obligation regarding
non-public information. Such a novel reading of the adverse action
exclusion could have led to untenable results. Of course, Congress,
the courts, and the Federal Government have historically not read
these and similar terms so broadly and have instead long given them,
as used in 5 U.S.C. 7511(b)(2), a much narrower meaning.
---------------------------------------------------------------------------
As explained in Comment 2134, a joint comment by a nonprofit
organization and a former federal official, and further in Section
IV(B), Congress, courts, and the Federal Government have parsed the
meaning of the term of art ``confidential, policy-determining, policy-
making or policy-advocating'' over at least the past 90 years and
consistently viewed it as applying to noncareer political
appointees.\134\ Further, competitive service employees have in the
past been moved involuntarily to excepted service schedules that do not
contain adverse action rights, but those incumbents have kept rights
they have accrued (as detailed in Section IV(A)). Executive Order 13957
and Schedule F's attempt to strip accrued rights by moving positions
into the excepted service would run contrary to longstanding precedent,
including Roth v. Brownell,\135\ as explained in Section IV(A). See
Comment 2134. OPM therefore disagrees with commenter's broad assertion
that the CSRA allows the President to except positions from the
competitive service ``for the purpose of nullifying removal
restrictions.''
---------------------------------------------------------------------------
\134\ Comment 2134, as detailed in Section IV(B), explained that
the phrase ``confidential, policy determining, policy-making or
policy-advocating'' was first used in the CSRA in 1978. Before then,
though, phrases such as ``confidential or policy-determining'' and
``policy-making and confidential'' were used. Those phrases were
interchangeable and had the same meaning.
\135\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954) (confirming that employees
with competitive status retained their appeal rights upon
involuntary movement to the excepted service).
---------------------------------------------------------------------------
Comments Regarding Schedule F's Use of an Exception To Broadly
Eliminate Adverse Action Rights
Commenters supportive of the rule agreed with OPM and argued that,
because the terms ``confidential'' and ``policy-making, policy-
determining, or policy-advocating'' are so broad, Schedule F had no
limiting principle and used the exception in 7511(b)(2) to broadly
swallow adverse action rights. A professor commented that the ``lack of
clear definition and breadth of Schedule F allows it to serve as a
promise for wide scale partisan retribution for any federal employee
who might raise concerns about the legality of [a] policy agenda.''
Comment 50. A labor union argued that ``the plain purpose of Schedule F
was to create an exception so broad, it swallowed the rule of
apolitical, merit based Federal employment and rendered meaningless the
protections afforded to career Federal employees by the CSRA.'' Comment
2640. As described in the proposed rule \136\ and in this final rule,
OPM shares some of these concerns.
---------------------------------------------------------------------------
\136\ 88 FR 63862, 63871-73.
---------------------------------------------------------------------------
One commenter opposed to this rule argued that the statutory
exceptions in 7511(b)(2) are broad enough to include career positions.
Comment 4097 argued that ``[n]othing in the words `confidential,
policy-determining, policy-making, or policy-advocating' hints at
covering only political appointments or references the duration of an
employee's tenure. Instead, the CSRA makes clear these terms cover both
career and noncareer positions.'' OPM disagrees that these words can be
read in isolation or separated from their historical context and
development. As explained in Section IV(B) and shown in Comment 2134,
which extensively details the context, history, and meaning of these
terms of art, they have, except in Executive Order 13957, always meant
noncareer political appointees. Section 7511 was amended as part of the
Civil Service Due Process Amendments of 1990, in which Congress, for
the first time, extended the ability to accrue adverse action rights
(and for certain adverse actions, appeal rights) to individuals in the
excepted service other than preference eligibles, who already had the
ability to accrue such rights. Congress did not intend to undercut this
extension of rights by permitting broad exclusions. In discussing what
positions would be excluded from such rights, Congress stated that the
bill ``explicitly denies procedural protections'' to these types of
political appointees--``presidential appointees, individuals in
Schedule C positions [which are positions of a confidential or policy-
making character] and individuals appointed by the President and
confirmed by the Senate,'' and that ``[e]mployees in each of these
categories have little expectation of continuing employment beyond the
administration during which they were appointed'' because they
``explicitly serve at the pleasure of the President or the presidential
appointee who appointed them.'' \137\
---------------------------------------------------------------------------
\137\ H.R. Rep. No. 101-328, at 4-5, as reprinted in 1990
U.S.C.C.A.N. at 698-99.
---------------------------------------------------------------------------
We also discuss below the argument that Congress did not
distinguish between career and noncareer positions in the SES in
discussing the possibility that SES positions could involve policy-
influencing duties. In brief, the SES was a new service, created in the
CSRA and has its own distinct rules, rather than building on the
existing structure of the competitive and excepted services. In the SES
scheme, Congress did not need to address exclusions because the only
SES appointees covered by the sections addressing procedural and appeal
rights were career appointees. There was no attempt to distinguish
between those whose duties could be regarded as policy-influencing and
those whose duties could not be so characterized. Congress included
separate provisions limiting the number of noncareer appointees.
Comment 4097 also suggested that concerns about Schedule F are
misguided because the schedule would have been limited to a small group
of senior policy-influencing positions. There are approximately 4,000
political positions in the civil service (though some commenters noted
between 20-25 percent of those usually remain unfilled). See Comment
2134.\138\ Of these, between 1,000 to 1,500 positions are Schedule C
political appointees--a number that has stayed relatively steady since
the 1950s. See id. Comment 4097 estimates Schedule F would have covered
between two and three percent of the federal workforce, which would
have grown the positions vulnerable to political favor (even if not
explicitly ``subject'' to such favor) by over an order of magnitude,
from 4,000 to 50,000 positions. Comment 4097 attempts to
[[Page 24994]]
rationalize the scope of Schedule F by contending it would have been
limited to ``senior policy-influencing officials''--a term that does
not appear in Executive Order 13957. But as explained above and in the
proposed rule,\139\ the GAO found that Schedule F was interpreted by
agencies to have a broad reach, with one agency, for example,
petitioning to place 68 percent of its workforce within Schedule F,
including positions at the GS-9 level.\140\
---------------------------------------------------------------------------
\138\ See also U.S. Civil Serv. Comm'n, ``Maintaining the
Integrity of the Career Civil Service,'' p. 10 (1960), https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005815857&seq=20&q1=%22competitive+status%22; U.S. Off.
Of Pers. Mgmt., ``General, Questions and Answers'' (detailing the
different types of political appointments, including presidential
appointments requiring senate confirmation (PAS), presidential
appointments not requiring senate confirmation (PA), noncareer
Senior Executive Service positions, Schedule C positions, and
others), https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/; P'ship for Pub. Serv., Center for Presidential
Transition, ``Frequently Asked Questions About the Political
Appointment Process,'' (estimating there are 1,200 PAS positions,
750 noncareer SES positions, 450 PA positions, and 1,550 Schedule C
positions), https://presidentialtransition.org/appointee-resources/ready-to-serve-prospective-appointees/frequently-asked-questions-about-the-political-appointment-process/.
\139\ 88 FR 63862, 63868.
\140\ See supra note 110. A former OPM official involved in the
Schedule F approval process told GAO that ``positions above GS-11
were generally included'' but OMB's approved petition ``also
included positions at the GS-9 and GS-10 levels.'' Id. at p. 19 &
n.14.
---------------------------------------------------------------------------
Confirming that the number of employees that would have been
subject to Schedule F extends beyond senior positions responsible for
agency policy, Comment 4097 included a spreadsheet labelling a career
line attorney at an agency's general counsel's office as a ``policy''
employee. OPM notes that government attorneys are generally Schedule A
employees, and therefore, by definition, are specifically ``not of a
confidential or policy-determining character,'' \141\ but in any event,
whatever limiting principles commenter may have in mind for justifying
Schedule F, they remain unclear. While commenter states that two to
three percent of the federal workforce would have been impacted by
Schedule F, commenter then suggests that up to 10 percent of jobs \142\
could fit its interpretation of confidential and policy positions,
which would equate to approximately 250,000 employees. The number of
positions that could be covered by a Schedule F-type action is thus
indeterminate and without meaningful boundary.
---------------------------------------------------------------------------
\141\ 5 CFR 213.3101 (describing Schedule A positions).
\142\ See Comment 4097, p. 24 (surmising that 90% of jobs are
not policy-influencing). Because there are millions of civil
servants, each percentage point in this estimate equates to a
significant number of potentially impacted employees.
---------------------------------------------------------------------------
Commenter added that, because of Schedule F's allegedly limited
scope, OPM's recruitment concerns are ``meritless.'' It claimed that
``Schedule F would have virtually no applicability to technical
positions such as IT and cybersecurity that OPM cites as ongoing
recruitment challenges.'' This statement certainly does not capture the
nature of cybersecurity and other technical positions which require the
maintenance of confidences while fending off cyberattacks from foreign
countries or domestic bad actors with respect to data breaches, for
example. It is difficult to imagine situations where the requirement to
maintain confidences would be more important. Commenter concluded that
OPM does not ``offer any evidence that making confidential and policy-
influencing career positions at-will--as opposed to converting them to
political appointments--would create recruitment challenges.'' As
detailed further in Section V.(B), regarding the impact of
politicization on recruitment, hiring, and retention, OPM received a
significant number of comments concerned about the negative impacts of
Schedule F, or a similar effort, on federal civil service recruitment.
Because of Schedule F's unprecedented treatment of the confidential and
policy exception in 5 U.S.C. 7511(b), the concerns about such a
schedule were broad and not isolated to discrete parts of the
workforce. For instance, concerned commenters included academic
researchers showing the negative impact of politicization on
recruitment to individuals, including those in IT and technical
positions who expressed that the existence of an action like Schedule F
would dissuade them from seeking federal employment.
Comments Regarding Schedule F and Politicization in Hiring and Firing
Comment 4097 also argued that, contrary to widespread opinion,
Schedule F rejected the spoils system and was sufficiently protective
from the dangers of politicization. Commenter contended that ``if E.O.
13957 was intended to fill the bureaucracy with political loyalists,
President Trump chose an extremely odd way of doing it. He could have
directly converted career positions to political positions, dismissed
career incumbents through a reduction in force, and filled the roles
with political appointees.'' None of these alternatives is simple or
free of costs. For instance, additional Schedule C positions would
require an agency to budget for and create new slots, obtain OPM's
approval of such slots, and pursue a variety of other procedural steps
designed to sustain civil service protections and merit system
principles. Reductions in force are complex and the outcomes are
unpredictable. They have often been the subject of extended
litigation.\143\
---------------------------------------------------------------------------
\143\ See, e.g., James v. Von Zemensky, 284 F.3d 1310 (Fed. Cir.
2002) (construing whether a ``staff adjustment'' resulting in the
separation of a physician in the Veterans Health Administration of
the Department of Veterans Affairs, could be appealed under the
reduction-in-force statute and regulations, notwithstanding
Congress' placement of VHA positions under title 38, U.S. Code, for
at least some purposes); Harants v. U.S. Postal Serv., 130 F.3d 1466
(Fed. Cir. 1997) (construing a reassignment during a Postal Service
reorganization that the employee had accepted as an appealable
reduction-in-force action in the context of complex developments,
including intervening MPSB opinions, cancellations, and
restorations, a stay of enforcement, and a subsequent reduction-in-
force notice).
---------------------------------------------------------------------------
Commenter argued that the White House Office of Presidential
Personnel would not have been involved in Schedule F appointments, but
commenter does not address why that would promote efficiency or lead to
less agency politicization. The prior administration was slow to fill
even the political slots at its disposal and many remained unfilled.
See, e.g., Comment 2124 (``Increasing [politically-based appointments]
by a factor of 5 or more will certainly mean that more jobs will go
unfilled and more tasks will go uncompleted.''). Under Schedule F,
agency political and career leadership could target, interview, and/or
select politically-aligned applicants just as well as PPO.
Regarding Schedule F's purported protections from the dangers of
politicization, an advocacy nonprofit organization argued that
``Schedule F made sure to protect these policymaking employees from
discriminatory firing based on political beliefs or party allegiance.''
See Comment 3892; see also Comment 2346. Once hirings and firings are
at-will, however, the employee might not have an entitlement to written
notice of the reasons for the adverse action, an opportunity to
respond, or a written decision.\144\ Nor would the decision generally
be appealable.\145\ It would thus be, at a minimum, difficult for
employees to protect themselves from actions based on political beliefs
or party allegiance because no cause (or evidence) would be required
prior to such an action. Under Schedule F, because such an employee
would be at-will, the employer would need to give little or no reason
prior to a termination. In short, Schedule F leaves innumerable ways
for politics to factor into these traditionally merit-based decisions
in a manner that would be difficult to detect or remedy.
---------------------------------------------------------------------------
\144\ 5 U.S.C. 7513(b).
\145\ 5 U.S.C. 7513(d).
---------------------------------------------------------------------------
Comment 4097 contended that ``OPM's concerns about a return to the
patronage system also ignore the evidence that the Federal Government
ended patronage because it had become obsolete'' and passed the
Pendleton Act because ``patronage no longer served their interests.''
Although the influence of politics in the civil service was greatly
diminished following the Pendleton Act, it has taken consistent
legislative, executive, and regulatory action to stem the tide of
patronage over the past 140 years. For instance,
[[Page 24995]]
Comment 2134 gave an overview of the election of 1936, which featured
concerns about the return of the spoils system, and executive action in
the 1950s to create Schedule C due to concerns that political actors
were burrowing in as career civil servants. As previously mentioned,
the CSRA was enacted in the aftermath of the Nixon Administration's
plan to implement the Malek Manual, a blueprint to replace the civil
service merit system with a political hiring scheme that would begin by
purging all Democrats from federal employment.
Comment 4097 also contended that today's rank-and-file government
jobs are not enticing enough to invite patronage and that ``the really
big bucks aren't in the political appointments game.'' At the same
time, commenter argued that confidential and policy positions are so
important to the functioning of government that the President should
have unfettered control over these positions. Executive Order 13957
likewise justified removing protections from these positions because
the ``importance of the functions they discharge.'' Commenter seems to
recognize the threat of unqualified individuals discharging important
functions. OPM agrees that qualified individuals should discharge
important functions, and this rule is based on OPM's determination that
injecting politicization into the nonpartisan career civil service (or
creating the conditions where it can be injected by individual actors)
runs counter to merit system principles and would not only harm
government employees, agencies, and services, but also the American
people that rely on them, as discussed in the proposed rule \146\ and
further below.
---------------------------------------------------------------------------
\146\ 88 FR 63862, 63881.
---------------------------------------------------------------------------
Comments Regarding Schedule F as a Performance Management Tool
One of the justifications for Schedule F was that it allegedly
allowed agencies to address poor performance, but many commenters
asserted that this rationale was flawed and a pretext for removing
protections and culling the civil service of dissenting opinions.
Comment 13, a former OMB official, commented that ``[t]he proponents of
Schedule F claim that it is needed for accountability and to be able to
fire poor performers. Yet they offer little or no support for their
claims. Thousands of poor performers are dismissed annually, and even
more are transferred to other positions.'' This commenter argued that
the last Administration's ``own presidential appointees [were the ones]
who most visibly resisted his directives, not career civil servants.''
\147\ Comment 2816, a former federal official, argued that Schedule F
``relied on vague and conclusory assertions that competitive selection
procedures inhibit the hiring of candidates with appropriate `work
ethic, judgment, and ability to meet the particular needs of the
agency,' and that more `flexibility to expeditiously remove poorly
performing employees' was needed without any consideration of the
countervailing considerations that favor strong employee protections.''
See also Comment 3803. A professor argued that it was not civil service
incompetence that spurred Schedule F, but competence. Comment 42.
``This competence insisted on following scientific consensus on climate
change. It insisted that cures such as ivermectin and hydroxyquinoline
would not treat Covid-19. The legal expertise in the federal
bureaucracy insisted that impounding funds that Congress had explicitly
delegated for Ukraine was illegal. These are some of the most prominent
examples of bureaucratic competence coming into conflict with the
preferences'' of the previous Administration. Id. Finally, commenters
noted that, while some want to ``eliminate incompetent people or
redundant roles--[ ] allowing elected officials to hand-pick civil
service members prevents neither.'' Comment 2828.
---------------------------------------------------------------------------
\147\ Citing James P. Pfiffner, ``President Trump and the
Shallow State: Disloyalty at the Highest Levels,'' Presidential
Studies Quarterly, Vol. 53, Issue 3 (Sept. 2022), https://doi.org/10.1111/psq.12792.
---------------------------------------------------------------------------
OPM agrees that Schedule F was poorly designed as an effort to
meaningfully improve performance management or allow managers to more
effectively address performance issues. Agencies were directed to move
employees occupying ``confidential, policy-determining, policy-making,
or policy-advocating'' positions into Schedule F, thereby purportedly
making them at-will employees who could be terminated without any
adverse action procedures. But the characteristics of an employee's
job--including whether the employee works on policy--has nothing to do
with an employee's performance. Schedule F sought to streamline
terminations based on the type of work that an employee performs, not
based on how well the employee performs. It is therefore difficult to
understand how Schedule F can be reconciled with its purported aim of
addressing poor performance.
If the concern is that managers face some difficulties in
attempting to take actions under chapter 75 or chapter 43, the solution
is not for the Executive Branch to issue an executive order seeking to
undermine those statutory provisions. Nor would such an executive order
effectively address the complexity of the various remedial schemes
Congress has created. For example, creating Schedule F will do nothing
to prevent a particular employee from lodging a complaint of unlawful
discrimination under the various civil rights statutes; will do nothing
to stop administrative judges of the Equal Employment Opportunity
Commission from presiding over discovery in relation to such claims and
adjudicating them; and may result in decisions adverse to managers that
will then be non-reviewable in a Federal court. Similarly, excepting
individuals from adverse action rights would likely lead to attempts to
file constitutional claims in the Federal district courts, thereby
defeating the benefits of the claim-channeling provisions of the
CSRA.\148\
---------------------------------------------------------------------------
\148\ OPM discusses performance management further in Section
V.(B).
---------------------------------------------------------------------------
Still, some commenters argued that Schedule F was a valid tool to
remove poor performers and increase accountability. For instance,
Comment 7 contended that ``Schedule F and similar tools `aim[ ] to
increase accountability and efficiency in the Federal government by
removing `poor-performing employees.' '' See also Comments 45, 1811,
3130; 4097. Comment 4097, an advocacy nonprofit organization, argued
that civil service protections and merit-based hiring procedures ``make
it difficult to hire the best candidates and prohibitively difficult to
dismiss employees for all but the worst offenses.'' With respect to
merit-based hiring procedures, we observe that even if we accepted this
premise as true, which OPM does not, commenter ignores the fact that
merit-based hiring procedures contained in title 5 are the law of the
land. If a commenter believes they ``make it difficult to hire the best
candidates'' the solution is to make this argument to Congress, not
attempt to evade the requirements established in title 5. We also note
that many of the ``difficulties'' commenter observes arise from the
Veterans' Preference Act, as amended, which is codified throughout
title 5's provisions on hiring. An observer might argue that there
should be no veterans' preference, but that would seem a grave
disservice to the sacrifice and commitment of veterans across the
Nation. And even if a persuasive policy argument in favor of veterans'
preference reform could be made, it
[[Page 24996]]
would have to be made to Congress. Finally, the merit-based hiring
procedures are one of the ways agencies can defend themselves from
unsupported assertions of illegal discrimination. Attempts to create
unwarranted exceptions to avoid legal requirements have been
counterproductive and resulted in substantial litigation.\149\
---------------------------------------------------------------------------
\149\ See, e.g., Nat'l Treasury Employees Union v. Horner, 854
F.2d 490 (D.C. Cir. 1988), which overturned OPM's decision to place
all Professional and Administrative Career positions in Schedule B
of the excepted service after entering into a consent decree that
required OPM to develop a new examination for such positions. The
Federal court of appeals, on review from a district court
determination that OPM had violated the Administrative Procedure Act
in excepting this broad category from the competitive service, noted
that filling positions through the competitive process was the norm
and OPM could depart from that norm only when ``necessary'' for
``conditions of good administration,'' quoting 5 U.S.C. 3302. The
court also noted that OPM, while asserting that the cost of
developing a new examination was prohibitive, did not present
evidence that would meet the standard of review. Cf. Gingery v.
Dept. of Defense, 550 F.3d 1547 (Fed. Cir. 2008) (holding that
President Clinton's creation of the Federal Career Intern Program, a
Schedule B appointing authority, did not permit the agency to use
OPM's modified process for agency pass-overs of preference eligibles
in an excepted service hiring process, in light of Congress'
command, at 5 U.S.C. 3320, to apply the same procedures used for the
competitive service, i.e., the procedures specified in 5 U.S.C.
3318).
---------------------------------------------------------------------------
As to difficulties dealing with ``poor performers,'' there already
exist a variety of tools to address inappropriate conduct and
unacceptable performance and civil servants are removed using these
tools, as described above and explored further below in the Section
V.(B). Commenter also does not address civil servants who are
terminated during their probationary/trial periods or before they have
met their durational requirements when their civil service protections
would attach. The purpose of probation is to permit observation of new
appointees on the job before their appointments became permanent. It is
sometimes described as the final stage of the examining process. Such
filtering, when done properly, addresses many performance issues early
and grants the agency wide latitude to remove that worker.\150\
---------------------------------------------------------------------------
\150\ On December 13, 2023, OPM issued guidance to agencies on
Maximizing Effective Use of Probationary Periods, available at
https://www.chcoc.gov/content/maximizing-effective-use-probationary-periods. This guidance advises agencies to periodically remind
supervisors and managers about the value of the probationary period
and to make an affirmative decision regarding the probationer's
fitness for continued employment. The guidance also provides
practical tips for supervisors and recommends good management
practices for supervisors and managers to follow during this
critical assessment opportunity.
---------------------------------------------------------------------------
Commenter attributes any misalignment with a President's political
agenda (or ``policy resistance'') as ``misconduct'' which justifies
termination, even if such conflict cannot be proved. But a mere
difference of opinion with leadership does not qualify as misconduct or
unacceptable performance or otherwise implicate the efficiency of the
service in a manner that would warrant an adverse action. To the
contrary, identifying objections to government action early in internal
discussions ultimately strengthens government policy by addressing
meritorious considerations and explaining why other objections are
unwarranted. Moreover, Executive branch employees have an affirmative
obligation to report waste, fraud, and abuse to appropriate
authorities, which could fall under commenter's broad notion of
``policy resistance'' \151\ and is another reason this notion is
unworkable
---------------------------------------------------------------------------
\151\ See 5 CFR 2635.101(b)(11).
---------------------------------------------------------------------------
Comment 4097 cited some examples of what commenter considers to be
poor performance, misconduct, or other justifications for Schedule F.
Comment 2822, a legal nonprofit organization, examined many of those
examples and those in Tales from the Swamp, written by the same author
as Comments 3156 and 4097 and cited throughout those two comments. It
concluded that Tales from the Swamp ``regularly engages in cherry-
picking, slanted interpretation, and outright inaccuracy to justify its
conclusions in support of Schedule F.'' Regarding Tales from the
Swamp's complaints about agency losses in court, Comment 2822 stated it
``makes a substantial and baseless leap'' from the previous
Administration's ``loss rate in court (true) to career staff sabotage
being the culprit (unsupported).'' Comment 2822 explained that ``the
most thorough report prepared on the'' previous Administration's
``record in court found that the Administration regularly `ignored
clear-cut statutory and regulatory duties,' with losses on statutory
interpretation grounds making up the bulk (117) of the administration's
losses in court.'' \152\ In many of these cases, ``the Administration
lost `because the agency had acted outside of the bounds of its
authority or had adopted an interpretation that blatantly contradicted
the statute at issue.' These losses were the result of unlawful policy
efforts by political decisionmakers, not the product of agency staff
doing a poor job of building a rulemaking record.'' Comment 2822
criticized Tales from the Swamp's other examples of alleged poor
performance \153\ and finds ``many of the anecdotes relied on by TFTS
lack crucial context, or mischaracterize important facts about
agencies' work'' and the ``only thing these anecdotes consistently show
is that some political appointees'' during the last Administration
``occasionally found it challenging to implement their regulatory
goals. But that experience is not unique to Trump-era political
appointees, and it does not justify reorienting the civil service
towards political fealty.''
---------------------------------------------------------------------------
\152\ Citing Bethan A. Davis Noll, `` `Tired of Winning':
Judicial Review of Regulatory Policy in the Trump Era,'' 73 Admin.
L. Rev. 353, 397-98, 397 fig.5 (2021), https://www.law.nyu.edu/sites/default/files/DavisNoll-TiredofWinning_0.pdf.
\153\ These include Department of Education enforcement against
for-profit colleges, FDA laboratory test oversight, USDA attempts to
narrow food stamp eligibility, the rollback of offshore drilling
safety requirements, re-issuance of the school nutrition rule, and
the classical architecture mandate.
---------------------------------------------------------------------------
Many commenters argued that, instead of poor performance or
accountability, Schedule F was motivated by a desire to increase
political loyalty in nonpartisan career civil servants. A professor
argued that the previous administration has touted the prior Schedule F
as a way ``to impose personal loyalty tests, and to use government as
an instrument of his power. This is at odds with the purpose and
traditions of the American state.'' Comment 50; see also Comments 448,
1779. Other commenters pointed to numerous public statements which,
they argue, demonstrate the intent behind Schedule F, including calls
from the previous Administration to ``root out'' political opponents,
referring to civil servants as the ``deep state'' that needs to be
``destroyed'' or ``brought to heel,'' and statements that they would
``pass critical reforms making every executive branch employee fireable
by the president of the United States.'' See Comments 50, 668, 2512
(citing news articles documenting the previous Administration and its
supporters' desire to purge the civil service), 3398. Such firings
would likely be at odds with statutory, regulatory, or constitutional
protections and rights as explained in this final rule.
3. Political Appointees in Career Civil Service Positions
Executive Order 13957 could have facilitated burrowing in.
``Burrowing in'' occurs when a current (or recently departed) political
appointee is hired into a permanent competitive service, nonpolitical
excepted service, or career SES position without having to compete for
that position or having been appropriately selected in accordance with
merit system principles and the normal procedures applicable to the
[[Page 24997]]
position under civil service law. OPM has long required that ``politics
play no role when agencies hire political appointees for career Federal
jobs.'' \154\ OPM adopted procedures to review appointments of such
individuals for compliance and Congress has now essentially codified
that procedure by requiring OPM to submit periodic reports of its
findings.\155\ Executive Order 13957, interpreted broadly, could have
opened the door for agency heads to move current political appointees
into new Schedule F positions, or transferred vacancies in existing
positions to Schedule F, without competition and in a manner not based
on merit system principles. In effect, this would have allowed
political appointees on Schedule C appointments, who would normally
expect to depart upon a presidential transition, to ``burrow'' into
permanent civil service appointments.
---------------------------------------------------------------------------
\154\ U.S. Off. of Pers. Mgmt., ``Guidelines on Processing
Certain Appointments and Awards During the 2020 Election Period,''
https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.pdf.
\155\ See The Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvement Act of 2015, Public Law 114-136
(Mar. 18, 2016), which requires OPM to submit these reports to
Congress.
---------------------------------------------------------------------------
Comments Regarding Schedule F and Burrowing In
One commenter argued that Schedule F would have reduced burrowing
in because the burrowed employee would be removable at will anyway. See
Comment 4097. That view overlooks the ability of burrowed employees to
obtain a job in the first place because these employees could be hired
into Schedule F without the usual filters for qualifications currently
in place in the competitive civil service. Schedule F would have
allowed unqualified employees to be hired, albeit at will, who may
never have been able to enter the competitive service. Regardless of
whether employees moved would be ultimately removable, the opening of
the door to the conversion of Schedule C political appointees to
Schedule F positions--or, indeed, the hiring of any number of new
candidates because they were politically aligned with the existing
administration--increased the risk of burrowing in. We discuss
burrowing further in Section IV(A).
4. Additional Comments Regarding the Potential Impacts of Schedule F
Comments Regarding Potential Negative Outcomes of Schedule F
Several former and current civil servants, individuals,
organizations, and Members of Congress commented on what they perceived
as the negative aspects of Schedule F. A former OMB official contended
that Schedule F would inhibit, if not prevent, successful presidential
transitions and would degrade the performance of government employees
by replacing career civil servants with political appointees. Comment
13. A professor contended that ``[t]aking qualified and even expert
civil servants and making them weigh the tradeoff between voicing the
views based on their expertise and keeping their jobs would utterly
undermine their expertise.'' Comment 42. Also ``it would mean that
presidents would not be getting advice based on expertise but on what
employees thought they wanted to hear'' and ``Congressional will as
expressed in the statutes that enable the executive branch to make
policy would be discounted.'' Not only would career civil servants and
institutional expertise be harmed (see Comment 2267), but commenters,
including Members of Congress, detailed the potential impact of
Schedule F to communities, small businesses, and families across
America (Comment 48); the environment (Comment 33); National Park
Service personnel, national parks, and the public who values them
(Comment 1094); critical infrastructure (Comment 2501); federal
investigations and prosecutions (Comment 2616); and the SNAP program
and other hunger safety nets (Comment 3149); to name a few.
Several commenters expressed concerns about the potential impact of
Schedule F on whistleblowers. Comment 3340, a whistleblower protection
nonprofit organization, argued that ``Schedule F would have given the
President blank check discretion to cancel the Whistleblower Protection
Act by removing employees from the competitive service,'' removing
their civil service protections, and then firing them. See also
Comments 3466, 3894. If Schedule F allowed removals at will, commenters
claimed that it would be difficult to prove an employee was removed
because of protected and important whistleblowing activities. Also, if
an incumbent was in a ``confidential, policy-making, policy-
determining, or policy-advocating'' position for the purposes of
adverse action protections and excluded from such protections under
section 7511(b)(2), as Schedule F attempted, then such a position would
also presumably be excluded from the definition of ``covered position''
for the purposes of the prohibited personnel practices under section
2302(a)(2)(B)(i).
A professor commented that Schedule F would also have weakened
legislative power. Comment 50 expressed that ``[t]he Founders were
deeply concerned with the amassing of centralized power, and Schedule F
frustrates the institutional design of checks and balances. In
particular, it weakens legislative power. The creation of the civil
service system was a response to a spoils system that led to abuses of
state resources and power.''
Another commenter identified possible costs of Schedule F.
Commenter argued that ``a likely consequence of Schedule F would be a
greater reliance on private contractors to carry out the work of
federal government agencies'' and a ``[g]reater reliance on contractors
would, almost certainly, be more expensive than our current system.''
Comment 2109. Commenter further noted that ``the federal government is
the source of a considerable amount of scientific and economic data
that both businesses and researchers around the world trust and rely
upon'' and argued that this ``data is trusted precisely because it is
curated by career civil servants who are free from political influence.
If concerns about political influence in the generation of this data
begin to seep into the public consciousness, enormous amounts of social
value will be lost.'' Id.
Comments Regarding Schedule F and the Pendleton Act
One commenter who opposed the rule argued that the 19th-century
reformers who created America's civil service believed that tenure and
job protections were ``inimical to merit'' and that ``[t]he Pendleton
Act consequently deliberately made minimal changes to the dismissal
process'' besides prohibiting removal for making or failing to make
``political contributions.'' Comment 4097. Commenter, an advocacy
nonprofit organization, argued that Schedule F would have ``returned
the federal civil service to its foundations.'' While the Pendleton Act
focused on merit-based hirings, Congress did address removals even at
this early stage in the development of the career civil service--it
forbade removals on political or religious grounds.\156\
---------------------------------------------------------------------------
\156\ See Ari Hoogenboom, ``The Pendleton Act and the Civil
Service,'' The Am. Historical Rev., Vol. 64, No. 2c, p. 307 (Jan.
1959) (``The Pendleton Act forbade removals on political or
religious grounds.''); see also Nat'l Archives, supra note 18,
quoting Pendleton Civil Service Reform Act of 1883, sec. 2 (``[I]t
shall be the duty of [the commissioners of the Civil Service
Commission]: First. To aid the President, as he may request, in
preparing suitable rules for carrying this act into effect, . . .
Second. And, among other things, said rules shall provide and
declare, as nearly as the conditions of good administration will
warrant, as follows: . . . [T]hat no person in the public service is
for that reason under any obligations to contribute to any political
fund, or to render any political service, and that he will not be
removed or otherwise prejudiced for refusing to do so.''
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[[Page 24998]]
Commenter adds that the reformers who created the civil service
feared that requiring ``a virtual trial at law'' to dismiss an employee
would ``entrench incompetence and intransigence in the federal
workforce'' and that ``[n]ot until the 1960s did the general federal
workforce gain the ability to appeal dismissals. The experience of the
past six decades has demonstrated the folly of that decision.'' This
may be commenter's conclusion, but Congress has concluded otherwise and
repeatedly strengthened employee rights during the period in question--
through the CSRA, the Civil Service Due Process Amendments Act of 1990,
and the Whistleblower Protection Act and its amendments.\157\ Moreover,
at the time of the Pendleton Act's enactment, there was a rigorous
debate about the extent of merit-based hirings and removals protections
and the compromise position on the latter was that further removal
protections were unnecessary at the time because hiring based on merit
would ``remov[e] the temptation to an improper removal.'' \158\
Commenter quotes from George William Curtis, one of the drafters of the
Pendleton Act, regarding the ``fear'' of ``virtual trial[s] at law,''
but further context is important here too. Curtis' longer quote starts
``[h]aving annulled all reason from the improper exercise of the power
of dismissal, we hold that it is better to take the risk of occasional
injustice from passion and prejudice, which no law or regulation can
control, than to seal up incompetency, negligence, insubordination,
insolence, and every other mischief in the service, by requiring a
virtual trial at law before an unfit or incapable clerk can be
removed.'' \159\ Removing improper bases for removals was a key
antecedent to the statement regarding virtual trials at law. Curtis
added, ``If the front door [is] properly tended, the back door [will]
take care of itself.'' \160\ At the time, this meant that, if civil
service restrictions prevented the President from appointing a hand-
picked replacement for a person he removed, his incentive to remove for
political reasons would be diminished.\161\
---------------------------------------------------------------------------
\157\ Public employees have been challenging their removals in
court since at least the 1800s. See, e.g., Ex Parte Hennen, 38 U.S.
(13 Pet.) 230 (1839); United States. v. Wickersham, 201 U.S. 390,
398-399 (1906).
\158\ See, e.g., Debate in the Senate on the Civil Service
Reform Act of 1883, December 14th, 1882, https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24020.
\159\ George William Curtis, President, Address at the Annual
Meeting of the National Civil-Service Reform League, Nat'l Civil-
Serv. Reform League (Aug. 1, 1883), in Proceedings at the Annual
Meeting of the National Civil Service Reform League, pp. 3, 24-25.
\160\ Paul P. Van Riper, ``History of the United States Civil
Service,'' at p. 102 (1958).
\161\ David Rosenbloom, ``Federal Service and the
Constitution,'' at pp. 87-88; Van Riper, supra note 160, at p. 102.
---------------------------------------------------------------------------
Regardless of how the Pendleton Act should be best interpreted,
Congress has since established procedures set out in the CSRA and other
laws, which channels employee appeals to an administrative agency, the
MSPB, and reviewing courts.
Comments Regarding Comparison of Schedule F to State-Level Civil
Service Reforms
Comment 4097 also argued that several states have adopted policies
like Schedule F and that such efforts have proven successful. Commenter
asserted that Arizona, Florida, Georgia, Indiana, Mississippi,
Missouri, Texas, and Utah have instituted Schedule F-type reforms and
concluded that ``[e]valuations generally show positive results, while
fears of a return to patronage failed to materialize.''
As explained in the following sections, OPM received comments from
civil servants in these states that described the various ways in which
they believe that their jobs have worsened because of these reforms.
Also, a former federal official counters Comment 4097's assertion about
the benefits of these state reforms. See Comment 2816. The former
federal official cited a ``lengthy survey of state-level civil service
changes that reduced civil service protections in the 2000s'' which
found that ``in many cases, reforms were politically driven efforts to
establish and defend political actors' capacities . . . to carry out
the agendas of elected executives, legislators, and other policy
makers.'' The study notes that some State governors ``aggressively
pushed reforms designed to remove merit system barriers to direct and
tighten policy control over state agencies and their employees.'' These
types of initiatives, as with Schedule F, ``are often `sold' in terms
of a need to enhance executive leadership and accountability for
results and, inevitably, to allow the removal of the legions of
`unresponsive, incompetent, insulated, bureaucrats' who the public is
easily convinced lurk in the shadows of state agencies.'' The report
continues that ``there has been `[g]rowing awareness among policy
makers, public employees and their organizations, and human resource
professionals that' state-level reforms to weaken civil service
protections `have not delivered the benefits they promised and may well
dampen enthusiasm for [similar] initiatives by the states that
contemplate sudden, wholesale, changes in existing arrangements.' ''
Comment 2816 continued that, in their study of civil service employee
responses to Georgia's reforms, ``these authors found measurable
decline in the number of employees saying they liked their jobs and an
increase in those intending to leave employment within the coming year.
Employees did not believe the reforms would result in high-performing
employees being rewarded, did not trust that performance would take
precedence over office politics, and did not believe as much as before
the changes that performance appraisals were conducted fairly and
believing they understood their job expectations.'' The study concludes
that ``[o]ver 75 percent of state employees disagreed that the reforms
`had resulted in a state workforce that is now more productive and
responsive to the public.' '' OPM finds this comment and study
persuasive as a more rigorous examination than Comment 4097's
conclusions that some HR professionals believe at-will status is useful
and an ``essential piece of modern government management.'' It also
undercuts Comment 4097's argument that OPM ``ignore[s] the evidence
from the states that at-will employment is both consistent with a merit
system and can improve government performance.'' Comment 4097 does not
show that these changes are consistent with merit system principles nor
that they improve performance. It also did not identify the metrics by
which performance could improve; it just stated that they make
employees more responsive and give management more flexibility.
Comments Regarding Potential Effect of Schedule F on the Number of
Political Appointees
Commenters opposed to the rule argued that the civil service does
not have enough political appointees and Schedule F would have given
administrations greater control over the federal workforce and
priorities. Comment 3190, a law school clinic, contended that
``Schedule F proposed to expand the class of political appointees from
roughly 4,000 positions to 20,000-50,000 positions'' and that ``[u]nder
such a modest change, political appointees would still constitute only
2.5 percent of the federal workforce.'' As explained further below and
in Comment 2134, a joint comment by a nonprofit organization and former
[[Page 24999]]
federal official, the number of political appointees has stayed
relatively stable for 70 years, so such a change would be anything but
``modest.'' \162\ Also, this comment appears to concede that a
possible, and perhaps desired, effect of Schedule F was to create a new
category of ``political appointees.'' This runs counter to Comment
3156, written by the same author as Comment 4097. Comment 3156 takes
issue with Comment 50, saying Comment 50's characterization of Schedule
F positions as ``political appointees is simply wrong.'' Comment 4097
then argued that Schedule F was designed to ``keep these policy-
influencing positions in the career civil service,'' such that they
would not be political appointees. Even amongst proponents of Schedule
F and opponents of this rulemaking, there are disagreements regarding
what Schedule F meant and the breadth of its potential effects on the
civil service. And one aspect of a ``career'' appointment, as that term
has long been understood, is the opportunity to serve the United States
across administrations with the concomitant accrual of career status
and adverse action rights--an opportunity Schedule F would have
jeopardized.
---------------------------------------------------------------------------
\162\ The overall number of federal employees has also remained
relatively stable. In fact, there were more federal employees during
the last years of the Reagan Administration than there are today.
See, e.g., U.S. Off. of Pers. Mgmt., ``Executive Branch Employment
Since 1940,'' https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/executive-branch-civilian-employment-since-1940/.
---------------------------------------------------------------------------
Ultimately, President Biden rescinded Executive Order 13957 before
any positions could be placed into Schedule F. As noted above, on
January 22, 2021, President Biden issued Executive Order 14003,
``Protecting the Federal Workforce,'' rescinding Executive Order 13957,
stating that ``it is the policy of the United States to protect,
empower, and rebuild the career Federal workforce,'' and that the
Schedule F policy ``undermined the foundations of the civil service and
its merit system principles.'' \163\
---------------------------------------------------------------------------
\163\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021), https://www.federalregister.gov/documents/2021/01/27/2021-01924/protecting-the-federal-workforce.
---------------------------------------------------------------------------
If a future Administration concludes that a policy that implements
the principles of Schedule F is preferable to this rule and seeks to
rescind this rule and replace it with such a policy, a future
Administration would need to comply with the Administrative Procedure
Act and principles of reasoned decision-making.\164\ For example, to
rescind this rule and replace it with a new Schedule F-type policy, a
future Administration would need to, among other things: explain how
the new policy is consistent with the carefully crafted legislative
balance that Congress struck in the CSRA; set forth reasons for why it
is departing from OPM's prior determination, reconfirmed here, that
creating a new schedule for at-will employees who are not political
appointees--similar to Schedule F--is inconsistent with that balance;
justify the departure from the fundamental principle that career
Federal employees' tenure should be linked to their performance rather
than to the nature of their position; address whether that departure is
consistent with the accrued property interests of employees, the
settled expectations of career Federal employees' tenure, and the
decisions individuals have made in response to those expectations;
explain why any novel definition of ``confidential, policy-determining,
policy-making, or policy-advocating character'' is consistent with the
CSRA; discuss why that novel definition is being adopted even though it
departs from long-established understandings--reconfirmed in this
preamble--of what that phrase means; and explain how a new policy would
(1) ensure that new hires formerly required to go through the
competitive hiring process have the knowledge, ability, expertise, and
skills necessary to work effectively; (2) adequately protect career
Federal employees against potential political retaliation or coercion;
and (3) make certain that critical positions in the federal workforce
currently and ably held by career Federal employees will continue to
function even if they may be replaced by individuals regardless of
qualification or suitability.
---------------------------------------------------------------------------
\164\ See, e.g., Perez v. Mortgage Bankers Ass'n, 575 U.S. 92,
101 (2015) (agencies under the Administrative Procedure Act must
``use the same procedures when they amend or repeal a rule as they
used to issue the rule in the first instance'').
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E. General Comments
As explained in Section II, OPM received more than 4,000 comments
regarding this rulemaking whereby commenters provided useful insights
into various aspects of these regulatory amendments. The comments below
relate to general concepts regarding the civil service, civil service
protections, and merit system principles that inform this rulemaking.
In the following sections, OPM considers comments related to specific
provisions of this final rule, the need for this rule, regulatory
alternatives, and the costs and benefits of this rule.
Comments Regarding Why Civil Servants Should Be Nonpartisan
As a baseline concept, many commenters agreed with OPM that career
civil servants should be nonpartisan. An association of administrative
law judges cited Alexander Hamilton in Federalist No. 79, as saying
``[i]n the general course of human nature, a power over a man's
subsistence amounts to a power over his will.'' Comment 1042. The
association argued that ``[t]he principles of merit service require the
federal government to base hiring decisions upon experience and
expertise, and serve to ensure a nonpartisan, expert federal
workforce.'' An individual commenter cited research that politicization
of the civil service ``has significant consequences for the proper
functioning of government.'' Comment 1427. This research included that
of David Lewis (2008) on increased politicization of OPM during the
1980s and the resulting ill effects. Commenter argued that this report
shows that politicization had ``severe consequences for agency
competence.'' Experienced career professionals left the agency and it
was hard to replace them. These developments, in turn, discouraged
promising entry-level candidates from applying to work in the agency,
which resulted in decreased morale and difficulty conducting long-term
planning. By the 1990s, commenter argued, the agency had suffered
reputational damage. See also Comments 46 (supporting nonpartisan
career civil service with studies showing politicization undercuts
Federal Government performance and economic growth); 2822 (noting that
civil service laws ``emphasize responsibilities to the government, U.S.
citizens, the Constitution, laws, and ethical principles'' and not
``political agendas''). One commenter suggested a reason for the
differences in performance between neutral and politicized staff was
that that ``career civil servants who perceive their agencies to be
politicized are less likely to invest in training and more likely to
leave the agency'' thereby reducing long-term government expertise.
Comment 2446. OPM appreciates these views and agrees that the career
civil service should remain nonpartisan.
Commenters further argued that the United States civil service is
already more politicized than those of peer countries. A professor
argued that, among those countries, the United States ``is an outlier
in terms of its existing level of politicization.'' Comment 50. This is
because ``[w]e use about 4,000 political appointees to run the
executive branch. Up to the top five layers of leadership in a
department or agency can be appointees, a sharp
[[Page 25000]]
contrast with most peer countries where only the top layer is part of
the political class.'' Id. Commenter noted that this presents a problem
when Presidents invariably struggle to fill these slots, leading to
delays in appointments and vacancies in leadership. See also Comments
2186 (``[T]he United States' executive branch is more politicized than
our peers.'' (citing 2007 OECD survey)), 3359 (``Compared to other
major democracies, the United States already maintains a higher number
of political appointees.'').
Conversely, some commenters argued that career civil servants need
more political alignment with an administration's policies to be more
``accountable'' to the President. A former political appointee argued
that a merit system ``is important only as far as it helps the
government better serve the American people,'' and that ``the American
people are best served when the government is in the control of the
President they chose to entrust with control over the Executive
Branch.'' Comment 50; see also Comment 3892 (``The federal bureaucracy
is not currently adequately or constitutionally accountable to the
elected president.''). As explained in later sections, executive branch
employees are already tasked with executing the administration's
policies and there is little evidence that further politicization
improves government performance for the American people. Politicization
is associated with poorer performance outcomes, as described below.
Some commenters opposed to the rule asserted that the Constitution
allows a president to closely control executive branch civil servants.
A law school clinic argued that, ``as a general matter, the
Constitution gives the president the authority to remove those who
assist him in carrying out his duties,'' because ``[w]ithout such
power, the President could not be held fully accountable for
discharging his own responsibilities.'' Comment 3190. For this
proposition, commenter cited Seila Law LLC v. Consumer Financial
Protection Bureau \165\ (quoting Free Enterprise Fund).\166\ Commenter
cited general concepts in these cases regarding independent agencies--
the CFPB in Seila Law and the SEC in Free Enterprise Fund--which
explore the specific removal protections of principal officers therein,
and the constitutionality of multiple layers of removal protections, as
supportive of commenter's propositions. But as explained above
regarding Free Enterprise Fund and further in Section III(F), nothing
in those holdings or their progeny conflict with this final rule
regarding title 5 protections to the career civil service. Career
employees, the vast majority of whom would not be considered inferior
officers, are accountable through a supervisory chain that typically
runs upwards through layers of political appointees. As the official
ultimately responsible for the agency can generally be removed at the
President's will, and as those officials are ultimately responsible for
the performance management of their subordinates, accountability is
maintained. The fact that accountability in the form of removal may
involve certain processes for those employees covered by adverse action
procedures and, in some cases, appeal rights, does not make those
protections unconstitutional.
---------------------------------------------------------------------------
\165\ 140 S. Ct. 2183, 2191 (2020).
\166\ 561 U.S. at 513-14.
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Some commenters argued that a subset of civil servants actively
work against the policies of conservative administrations. A legal
organization opposed to the rule asserted that ``[i]nsulating federal
employees from removal and answerability emboldens political activists
with the federal government to disrupt or delay Presidential
initiatives.'' Comment 2866; see also Comment 2652. Comment 3156, an
advocacy nonprofit organization, further contended that ``[a]ny
authority civil servants purport to exercise derives its legitimacy
from the election of the President, and any attempt by civil servants
in the executive branch to undermine the lawful actions of a President
are an attack on the Constitution and on democracy itself.'' OPM does
not agree that employing civil servants--without consideration of their
political views--thwarts the agenda of any President, and commenter's
objections lack any well-founded support. Republican and Democratic
administrations have achieved important policy goals with a nonpartisan
career civil service whose members undoubtedly encompass a wide variety
of personal political perspectives. One former civil servant explained
that ``[t]he Reagan and later administrations successfully implemented
new policy directions with the professional Civil Service.'' Comment
3038. A legal nonprofit organization concurred and added that civil
servants ``did not stop [the last Administration's] deregulatory
efforts'' and to the extent that regulatory agenda was significantly
delayed, ``the best explanation is not left-wing civil servants'
resistance to a conservative agenda.'' Comment 2822.
For example, in the first term of the George W. Bush
Administration, agencies helped to establish new and reimagined
personnel systems for both the Department of Homeland Security and the
Department of Defense in response to the terrorist attacks on America
on September 11, 2001.\167\ Implementing these systems required two
sets of complex regulations promulgated jointly by OPM and each agency.
Government attorneys then vigorously defended these programs against
legal challenges in the Federal courts.\168\ As noted in the 2003
edition of Biography of an Ideal, with respect to DHS:
---------------------------------------------------------------------------
\167\ See Homeland Security Act of 2002, Public Law 107-296
(2002); National Defense Authorization Act for Fiscal Year 2004,
108-36 (2003).
\168\ See, e.g., Nat'l Treasury Employees Union v. Chertoff, 452
F.3d 839 (D.C. Cir. 2006) and Am. Fed. of Gov. Employees v. Gates,
rehearing denied, 486 F.3d 1316 (D.C. Cir. 2007).
OPM successfully advocated the paramount importance of equipping
the new Department with a modern human resources system that would
make possible the flexible use of all aspects of the system as tools
to help management accomplish strategic objectives and results. The
legislation establishing DHS granted authority for the Secretary of
Homeland Security and the Director of OPM to create, by jointly
issued regulation after extensive employee involvement and
consultation with stakeholders (such as unions, employee
associations, academic experts, and executives in the corporate and
nonprofit sectors), modern pay and job evaluation systems. . .
.\169\
---------------------------------------------------------------------------
\169\ U.S. Off. of Pers. Mgmt, supra note 20, at pp. 307-08.
The career civil service fulfilled the tasks they were asked to
perform to stand up these systems rapidly regardless of their personal
politics or views.
Comments Regarding Nonpartisan Career Civil Servants and Neutral
Competence
Several commenters supportive of this rule touted that a
significant benefit of a nonpartisan career civil service is their
``neutral competence.'' A former OMB official who joined the agency in
1980 commented that, ``[l]ike other OMB career staff, I was not
primarily a Democrat or a Republican, but instead I strongly endorsed
and practiced the ethos of `neutral competence' that served the
president, without regard to the party of the president.'' Comment 13.
An employee with the Bureau of Land Management commented that ``[c]ivil
service positions provide a continuous level of expertise and
neutrality to the functioning of the
[[Page 25001]]
federal government. Making these positions political appointees would
destroy institutional knowledge and result in crippling
inefficiencies.'' Comment 3758; see also Comments 659, 678, 1818
(touting ``value of the experience of those who have worked in [a
policy] area and the need to insulate them from political pressures of
a specific administration''). A federal policy analyst commented ``I
have worked closely and successfully with political appointees under
the Obama, Trump, and Biden administrations to issue regulations and
policy guidance consistent with the policy priorities of those
administrations.'' Comment 3195. Commenter continued that
``[n]aturally, I have personal opinions about the policy work I do, and
I sometimes disagree with my politically appointed leaders about
specific policies or projects. In fact, robust civil service
protections have empowered me--and, collectively, my coworkers and
other career employees--to occasionally share policy recommendations or
serious concerns with agency leadership, which sometimes results in
leadership changing course.'' Commenter concluded that this is a
``perfectly normal and healthy process, as career civil servants are
supposed to provide candid deliberative advice to the politically
appointed leaders which ultimately make the decisions. . . . At the
same time, I and other career federal employees certainly understand
that we are not decisionmakers. Elections in a democracy have
consequences, and it is entirely appropriate for agencies to pursue the
policy preferences of the elected President that appoints its
leaders.'' A former civil servant added ``[h]istory makes the case that
stable societies with healthy economies rely on steady, capable
administration. For security, for uninterrupted routine transactions
and for predictable decisions and communication. When things work,
unfortunately, few people notice.'' Comment 3038. A 32-year civil
servant described serving under six presidents--three Republicans and
three Democrats--and working ``every day devoted to serving the
Constitution, the laws and regulations, [ ] agency missions and the
American people.'' Commenter asserted that ``our system thereby strikes
an appropriate balance between presidential control and professional
independence.'' Comment 2371; see also Comments 2208 (33-year federal
attorney who served under several administrations), 2258 (former HHS
attorney who also served under several administrations).
A few commenters opposed to the rule argued that career civil
servants are not politically neutral--they instead seek to influence
policy through politicized competence. Comment 3156 argued that
contrary to the premise of OPM's rulemaking, career federal employees
``have strong views on policy and actively desire to shape it.''
Commenter asserted that they offer ``politicized competence'' instead
of ``neutral competence.'' An advocacy nonprofit organization commented
that the federal civil service is not politically neutral because in
the 2016 presidential election, for example, ``federal employee
donations--as recorded by the FEC--went 95 percent to the Democratic
nominee for president.'' Comment 3892. OPM recognizes that many federal
civil servants have their own constitutionally protected political and
policy preferences, which they are free to express subject to the
requirements of the Hatch Act and other statutes and regulations. But
even assuming commenter's beliefs about the policy and political
preferences of civil servants are accurate, these comments do not
convincingly tie a civil servant's personal beliefs to concrete and
actionable unacceptable performance or misconduct.
Comment 4097, an advocacy nonprofit organization, tried to equate
political misalignment with poor performance. Commenter argued that
``scholars virtually universally accept the fact that federal employees
have their own policy views and often seek to advance them.'' Commenter
cites one article, Nou (2019),\170\ for this proposition, but Nou's
analysis is much more nuanced and measured. Nou's article is about
hierarchical dynamics in government and she qualifies the findings as
``an initial exploration of the implication'' of overt (not covert)
civil servant disobedience. ``The aim is to . . . examine principles
for normatively evaluating the practice.'' The article's ``hope is to
start, not end, more nuanced conversations--to move past simplistic
references to the `deep state' or `the resistance' towards a greater
appreciation of the complexity of intra-executive branch dynamics.''
Nou's preliminary conclusions are that ``[b]ureaucratic resistance,
broadly defined, is neither exceptional nor unprecedented.'' Nou
contends that ``[e]ven the most ardent proponents of executive power
may have to acknowledge that some forms of it are inevitable in
hierarchies with imperfect information.'' Nou also explains that it
would be ``difficult, if not impossible, to verify empirically''
whether bureaucratic resistance changed qualitatively under the
previous Administration.\171\ Nou's article--focused on macro group
dynamics--does not support commenter's proffer that it is universally
understood that civil servants advance their own policy views instead
of those of the administration or their agencies.
---------------------------------------------------------------------------
\170\ See Jennifer Nou, ``Civil Servant Disobedience,'' Univ. of
Chicago Law Sch., Public Law and Legal Theory Working Papers (2019),
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory.
\171\ See id. at p. 351.
---------------------------------------------------------------------------
Comment 4097 continued, arguing that ``[s]cholars find it very
clear that bureaucrats are not neutral parties in the policymaking
process. Rather, they have their own set of interests that they
actively work to protect.'' For this, commenter also cited one article,
Potter (2017b).\172\ But commenter's proposition does not align with
Potter (2017b) nor with a related citation in the comment to Potter
(2017a).\173\ Potter does not examine the relationship between
individual bureaucrats' political ideologies and the speed with which
they act. Instead, she explains that ``[r]ules take a long time to
complete'' and ``[b]ecause agencies make important--and binding--policy
through rulemaking, political overseers keep a watchful eye over the
process. Each branch of government--the president, Congress, and the
courts--plays a role in overseeing agency rulemaking.'' Potter
continues that, ``[w]hile each branch of government's authority over
rulemaking is exercised in a different manner, the key insight here is
that each branch has the power to overturn an agency rule or, at a
minimum, raise the agency's cost of doing business.'' Rule reversals
and rebukes are significant setbacks with ``long-term consequences for
agency reputations, autonomy, and bureaucrats' career trajectories.''
Potter's thesis is that agencies can anticipate, and possibly stave
off, some types of oversight by pacing their rules to line up with a
favorable president, Congress, and/or courts. Potter finds that ``the
pace of rules slows significantly when [any of these three] are more
inclined to disagree with--and potentially punish--the agency issuing
the rule in
[[Page 25002]]
question.'' \174\ Instead of employees' personal politics or policy
preferences, Potter finds that agencies time regulation strategically
``[b]ecause bureaucrats seek to avoid negative political repercussions
such as rule overturns or reprimands.'' \175\
---------------------------------------------------------------------------
\172\ Rachel Augustine Potter, ``The strategic calculus of
bureaucratic delay,'' Midwest Pol. Sci. Assoc., (2017b), https://www.mpsanet.org/strategic-calculus-of-bureaucratic-delay/.
\173\ Rachel Augustine Potter, ``Slow-Rolling, Fast-Tracking,
and the Pace of Bureaucratic Decisions in Rulemaking. Journal of
Politics,'' (2017a), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759117.
\174\ Potter (2017b), supra note 172.
\175\ Potter (2017a), supra note 173, at p. 28.
---------------------------------------------------------------------------
Comment 4097 expressed frustration with career civil servants in
the last Administration, in which the author of the comment was a
political appointee, but does not consider the roles and impacts of the
court system or a divided Congress on the policy priorities of that
Administration--two key factors that Potter highlights as impacting
regulatory timing. Instead, Comment 4097 included a list of instances
that allegedly show career employees withholding information from
political appointees in the last Administration, refusing ideologically
distasteful work, delaying and ``slow-walking'' work, providing
unacceptable work product, leaking information, and being
insubordinate. For these points, the comment largely cited a separate
publication by the author of the comment, Tales from the Swamp. As
described above, another commenter, Comment 2822, addressed and many of
these examples.
In sum, Comment 4097 pointed to select articles and makes
conclusions that the articles do not fully support and with which OPM
does not agree. Still, commenter claimed OPM's rulemaking ignores
whether ``federal employees may have their own goals and motivations or
how they behave when their goals differ from the President's'' but, as
shown in the proposed rule and here, OPM has thoroughly examined this
dynamic, as has Congress when it enacted civil service protections and
merit system principles that include disciplinary mechanisms for when
employees do engage in improper behavior. Indeed, it is Congress' views
that are paramount, and this rule is in furtherance of the statutory
scheme and protections that Congress enacted through the CSRA.
Comments Regarding the Benefits of a Nonpartisan Civil Service
Many commenters agreed with OPM that career civil servants provide
experience and expertise that benefit the country. For instance,
Comments 148 and 686 described the work civil servants do to protect
``our legal system, our transportation networks, the safety of our food
and drugs, our borders, our air and water, our farmlands, and so much
more.'' Several other commenters asserted that a professional and
nonpartisan civil service bolsters legitimacy and public trust in
government. As a result, the American public holds civil servants in
higher esteem than elected officials and political officers. A former
federal official argued that, while as of May 2022, ``trust in career
employees at government agencies had declined from previous years, a
majority of Americans still reported having a great deal or fair amount
of confidence in career employees to act in the best interest of the
public; substantially more Americans believe this about career
employees than about political appointees.'' Comment 2186; see also
Comment 2814 (a research and advocacy nonprofit organization, arguing
``Americans tend to hold these public servants in relatively high
esteem, recognizing their professionalism and independence'' which
``contrasts particularly with Americans' views of elected officials and
political officers.''). The former federal official cited a study which
found that ``emphasizing the technocratic expertise of agency
officials, including that they could not be hired for their political
views or fired for disagreements with political leaders,'' resulted in
a ``statistically significant . . . [increase] in legitimacy scores.''
The study found smaller increases in perceived legitimacy from
emphasizing public participation and found no increase in perceived
legitimacy from emphasizing the responsiveness of the agency action to
the President's priorities and White House staff. The study also
cautioned that ``the conclusion that expertise and political insulation
boost legitimacy has a converse: those desiring to erode public support
for agencies ought to weaken the civil service.'' This risks a negative
feedback loop concerning agencies' legitimacy and civil-service
protections (i.e., fewer protections lead to worse perceptions, which
lead to fewer protections, and so on).
Relatedly, commenters noted that political appointees are
associated with lower program performance. A professor cited studies to
this effect.\176\ Comment 50. The research found a ``negative
relationship between political appointment status and program
performance, while showing that appointees selected because of their
campaign or party experience were especially likely to undermine
performance.'' \177\ The professor also cited findings that ``[m]ore
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' \178\ This proposition is supported by other comments that
discuss the potential effects of politicization on recruitment, hiring,
and retention (see Section V.(B)). Another professor noted that the
``consensus,'' as ``evidenced by a large volume of peer reviewed
research,'' is that ``highly politicized bureaucracies are less
transparent, less responsive and less accountable to the public, less
conducive to stable governance, less capable of operating effectively,
and more prone to corruption and clientelism than those with more
neutral bureaucratic structures.'' Comment 1927.
---------------------------------------------------------------------------
\176\ Citing David E. Lewis, ``Testing Pendleton's Premise: Do
Political Appointees Make Worse Bureaucrats?'' The Journal of Pol.
69, no. 4, pp. 1073-88 (2007), https://www.jstor.org/stable/10.1111/j.1468-2508.2007.00608.x.
\177\ Citing Nick Gallo and David E. Lewis, ``The Consequences
of Presidential Patronage for Federal Agency Performance,'' Journal
of Pub. Admin. Rsch. and Theory, Vol. 22, Issue 2, pp. 219-43 (Apr.
2012), https://doi.org/10.1093/jopart/mur010.
\178\ Citing Mark Richardson, ``Politicization and expertise:
Exit, effort, and investment.'' The Journal of Pol. 81, no. 3, pp.
878-91 (2019), https://doi.org/10.1086/703072.
---------------------------------------------------------------------------
This view regarding the performance benefits of career civil
servants as compared to political appointees is not new. A few
commenters pointed to a 1989 commission led by former Federal Reserve
Chair Paul Volcker proposing that the U.S. ``reduce the number of
political appointees, pointing to the delays and performance problems
associated with America's reliance on often inexperienced appointees.''
See Comment 3973 (an anti-poverty nonprofit organization). A similar
recommendation ``was made again in a 2003 report.'' Id.
Data submitted by other commenters also highlight the benefits of
civil service protections and merit system principles on performance
outcomes and reducing government corruption. A professor asserted that
a recent ``systemic review of empirical research'' on the use of merit-
based processes across countries concluded that ``factors such as
meritocratic appointments/recruitment, tenure protection, impartiality,
and professionalism are strongly associated with higher government
performance and lower corruption.'' Comment 50. A former federal
official presented that ``a professional and independent civil service
that is insulated from the whims of political appointees also has been
shown to meaningfully reduce opportunities for corruption.'' Comment
2816. This commenter cited a study of
[[Page 25003]]
520 experts across 52 countries that found, ``even when controlling for
a very broad range of political and institutional factors, bureaucratic
professionalism is a statistically significant deterrent of
corruption.''
This difference in performance is due in large part to civil
service job stability and the opportunity to accumulate expertise. A
former federal official cited one study that found that ``previous
experience within an agency's bureau, and prior length of tenure, had
significant positive impacts on program performance.'' Comment 2186.
While removing ``low performers who are hampering an agency's mission''
is important, proposals that would ``facilitate rapid mass firings of
experienced employees to suit a presidential administration's political
agenda would likely impact the ability of agencies to preserve
institutional knowledge and use it to improve agency operations over
time.'' Comment 1181, an individual, contended that research by
political scientists Sean Gailmard and John Patty shows that the
protections of the United States civil service system ``generate better
outcomes because they allow public officials a time horizon and
security to invest in task-specific expertise in public sector skills.
Politicizing the workplace does the opposite.'' \179\ Id.; see also
Comments 50, 1759 (professors citing the same research). This commenter
wrote that recent research confirms this point, ``showing that more
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' Commenter concluded that, ``[s]ince much of federal
employment work is technical in nature, and requires deep knowledge of
programs, this makes both task-specific knowledge and institutional
experience important, and impossible to easily replace.''
---------------------------------------------------------------------------
\179\ Citing Sean Gailmard and John W. Patty, ``Learning while
governing: Expertise and accountability in the executive branch,''
Univ. of Chicago Press (2012).
---------------------------------------------------------------------------
Comment 1427, an individual, cited James Rauch (1995), who
researched city governments during the Progressive Era and argued that
lessons learned there can apply to the Federal Government. Rauch
demonstrates that the ``institution of civil service protections was
responsible for a greater focus on larger and longer-term
infrastructure, which led to significantly increased economic
development for cities with civil service protections over those
without.'' Commenter concluded that the same can be extrapolated to the
Federal Government--``that civil servants with career protections will
be able to focus on long-term projects with beneficial economic impact,
rather than seeing their efforts driven only by their political
patron.''
Comment 4097, an advocacy nonprofit organization, took issue with
OPM's assertion, in the proposed rule, that there is little evidence
showing that firing of career civil servants without appropriate
process will improve the government's performance. In a footnote,
commenter argued that performance between political appointees and
career civil servants is not the relevant metric--it should be ``how
at-will career officials perform relative to tenured career
officials.'' Commenter then pointed again to ``state HR directors'' who
report that at-will employment ``is an essential modern management
tool,'' and that this rulemaking would deny federal agencies that
``tool.''
It is the Federal statutory scheme, as demonstrated by Section
7511(b)(2), not OPM rulemaking, that is ``denying'' Federal agencies
this purported ``tool.'' Through the CSRA, Congress chose to make
removal protections the default for career employees, allowing only for
limited exceptions.
In addition, commenter cited no data or studies demonstrating that
at-will employees outperform ``tenured career officials'' in state, let
alone federal, agencies. Also, unless a civil servant, whose
protections are governed by title 5, is in their probation/trial period
or has not met the durational requirements under 5 U.S.C. 7511, they
will generally \180\ have adverse action protections, as noted above.
So the pool of at-will federal employees is difficult to gauge for a
comparison. There is little doubt that at-will employment without
initial procedures or back-end review makes firing easier, but that
does not demonstrate that at-will employment produces better results.
And although there is a legitimate purpose for a small cadre of
Schedule C employees to act as confidantes and handle particularly
sensitive tasks for presidential appointees, turning a large segment of
the career staff--who do not ordinarily function in that fashion--into
at-will employees would be an altogether different proposition and
inconsistent with the historic trend of congressional enactments
extending protections to larger segments of the workforce.
---------------------------------------------------------------------------
\180\ For instance, they would not have adverse action
protections if excluded from the definition of ``employee'' under 5
U.S.C. 7511(b)(2).
---------------------------------------------------------------------------
Moreover, at-will civil servants would suffer from the same
deficiencies as political appointees under the studies cited above, in
that they would lack the job stability that incentivizes ``invest[ing]
in task-specific expertise in public sector skills.'' See Comment 1181.
Also, as shown by Comment 2186, a former federal official, studies
looking at state reforms leading to at-will employment found ``[o]ver
75 percent of state employees disagreed that the reforms `had resulted
in a state workforce that is now more productive and responsive to the
public.' '' For these reasons, Comment 4097 has not shown that
hypothetical at-will federal employees would outperform career civil
servants.
Commenters supportive of the rule also noted that career civil
servants tend to be more moderate than political appointees. Comments
50, a professor, and 1227, an individual, cited research by Brian
Feinstein and Abby K. Wood which looked at donation records and
concluded that political appointees tend to be at ideological extremes
on both the right and left, ``while career officials tend to be more
moderate.'' \181\ See also Comment 2822 (legal nonprofit organization).
---------------------------------------------------------------------------
\181\ See Brian Feinstein and Abby K. Wood, ``Divided
Agencies.'' S. Cal. L. Rev. 95, 731 (2021), https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf.
---------------------------------------------------------------------------
A few commenters opposed to the rule argued that career civil
servants are too partisan and skew left compared to the public. See
Comment 1958 (an advocacy nonprofit organization). Comment 3156, an
advocacy nonprofit organization, examined donor information, and
attempts to refute Comment 50's conclusions, above, by arguing that the
federal workforce has ``self-politicized'' and that the premise ``that
civil servants are more moderate than political appointees--no longer
holds.'' Whether or not there is probative value in examining donation
differences between career civil servants and political appointees, no
commenter established a connection between donation records or trends
in donations to unacceptable performance by career civil servants.
Federal workers are entitled to their political opinions and to support
candidates on their free time (subject to the Hatch Act and other
applicable laws). But they also must fulfill the duties of their
positions appropriately or face an adverse action.
Comments Regarding the Nonpartisan Career Civil Service's Support of
Presidential Transitions
Various commenters supportive of the rule argued that career civil
servants are important because they provide stability
[[Page 25004]]
and continuity between administrations. A former OMB official commented
that his ability to provide nonpartisan, objective, informed analyses--
``using the work of OMB's 400+ career staff--greatly assisted
[administration] transitions.'' Comment 13.
A group of former OMB employees expressed a similar commitment to
providing expertise through presidential transitions. Comment 2511
contended that having in place an effective and knowledgeable career
staff ``has proven to be a vital capability for new leaders after
Inauguration Day--especially as new Administrations seek solid footing
and/or confront unexpected challenges.'' Another former OMB employee
added that ``the virtues of institutional memory, dedication to
democratic governance principles, and professionalism evident at OMB
are comparably shared at every federal department and agency.'' Comment
2538. Career employees at OPM similarly play a significant role in
advising incoming administrations as to options for filling critical
positions during the first few days of the administration. OPM staff
produce a Presidential Transition Guide to Federal Human Resources
Management Matters that assists incoming leaders on this point.\182\
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\182\ For example, the Guide published for the 2020 election
year is available at https://www.opm.gov/about-us/reports-publications/presidential-transition-guide-2020.pdf. The importance
of an effective transition was also the subject of ``The Fifth
Risk'' (2018), a book by author Michael Lewis.
---------------------------------------------------------------------------
A public service nonprofit organization concurred, writing
``[c]areer employees allow a president to begin their administration by
tapping into valuable institutional expertise that can help drive their
agenda from day one, rather than starting from scratch.'' Comment 44;
see also Comment 46 (an individual). OPM agrees that civil servants are
a valuable bridge across administrations, especially during the
critical transition period. Our government, our democracy, and the
American public rely on this smooth transition of power so that
everything from the critical matters of the day to routine services are
not stalled.
Beyond the transition period, political appointees rely on career
civil servants to carry out their policies and missions, commenters
argued. Comment 1493, a former political appointee, stated, ``I relied
heavily on the experience, expertise, and advice of senior career civil
service employees in evaluating and managing programs, developing
policy and regulatory proposals, investigating and resolving cases, and
otherwise administering the laws Congress has authorized those agencies
to implement and enforce. I depended on those employees to provide
advice and guidance based not on their allegiance to a particular
politician or political party, but rather on their thorough
understanding of the applicable statutes and regulations, their
institutional knowledge of the history of the agencies, and their
substantial technical expertise.'' Even friction between political
appointees and career civil servants has benefits. OPM received a
comment from a former Schedule C political appointee who expressed
``[t]here was no problem accomplishing the agenda of the
administration. In fact, the expertise and experience of the civil
servants made it possible.'' Comment 3522. Comment 2816, a former
federal official, cited studies that found benefits to some ``friction
between political agency heads and career staff'' which ``have served
to protect the public interest in a variety of ways.'' For instance,
these agencies ``tend to move more cautiously through rulemakings,
utilizing less hurried rulemakings with particularly thorough records,
with these rulemakings just as likely to produce final rules as in
agencies with less internal conflict.''
Comments Regarding the American Public and Government's Reliance
Interests
Many commenters agreed with OPM that the American public relies on
the nonpartisan civil service in all aspects of their lives. Comments
148 and 686 explained that these civil servants are ``hired via fair
processes, are often paid less than their private sector counterparts,
and are retained via the benefit of steady work and pride of service.''
A private sector scientist described benefiting from the ``tremendous
value provided by fellow scientists and engineers employed by our
national agencies,'' and from ``the countless more who contribute to a
functioning society.'' Comment 451. An individual described relying
``on multiple agencies'' every day, from experts who protect consumers
from fraudulent business practices to those who manage the
infrastructure and transportation needs of the country. Comment 1201.
Commenter concluded that ``[a]llowing these workers to be fired for
political reasons would be disastrous.'' Comment 3641 (an individual)
adds that politicization ``would be bad for individuals and
businesses'' because many companies rely on civil servants and their
``public data to make decisions.''
Several others commented about the many ways they and other
Americans benefit from a nonpartisan career civil service. See Comments
136 (former air traffic controller who served for 25 years), 817 (an
economic researcher whose work ``relies heavily on the efforts of
career civil servants across the Federal Government''), 842 (adding
that other nations also rely on the work of our federal agencies), 1155
(plant scientist and assistant professor who works closely with career
employees at USDA), 1157 (former DOE, FWS, NPS, Forest Service, Army
Corps of Engineers, Bureau of Reclamation, EPA, and NOAA civil servant
who was ``consistently impressed with the dedication, expertise, and
professionalism of staff''), 1299 (small business owner who works
closely with federal agencies on climate change issues), 1518 (cancer
researcher who relies on HHS science and NIH grants), 2082 (small
business owner who relies on the ``stability of our government and its
rules to conduct business''). An individual argued that even high-level
political officials, such as members of Congress and the President,
``rely on the advice, expertise, and execution capabilities of a
professional civil service.'' Comment 1047. By ensuring that the civil
service is staffed by individuals chosen for their merit and
``protected from political winds, we ensure a more stable, effective,
and reliable government.'' Comment 1047 concluded that, ``[i]n essence,
this rule isn't just about protecting jobs; it's about protecting the
integrity of our government and the quality of our democracy. By
ensuring that our civil service is merit-based, we are fostering an
environment where the best and brightest can thrive, irrespective of
the political climate.''
Many nonprofit organizations commented that Congress relies on a
nonpartisan civil service to manage complex federal programs and
therefore has an interest in legislating civil service protections and
merit system principles. See Comments 2222, 2559, 2620, 3095 (coalition
of public interest organizations), 3149, 3687. They contended that
Congress directly creates agencies, details agency authority, and sets
policy goals for the agency to achieve using its authority, and ``may
choose to grant an agency the authority to issue legislative rules,
enforce provisions of law, or adjudicate claims.'' \183\ They asserted
that, while ``leaders in the executive branch may
[[Page 25005]]
shape implementation of agency programs, the agencies (and their staff)
are themselves supposed to be stewards of programs created, funded, and
given direction by acts of Congress,'' and protecting the expertise and
experience of agency staff ``ensures that agencies can fulfill this
role.'' A coalition of public interest organizations argued that
``[a]gencies exist to carry out programs created and authorized by
Congress that last much longer than any single administration, and our
organizations see significant value in preserving the knowledge civil
servants build over the course of many years carrying out these
programs.'' Comment 3095. A legal nonprofit organization concluded
that, while ``[s]ome critics argue that the role of civil servants is
`diligently following orders and implementing policies of elected
officials,' or `accomplishing the agenda of a president' rather than
protecting `the office of the president [or] their institutions,' ''
civil servants instead have ``responsibilities to the Constitution, to
Congress, to the law, and to the American people. The critics'
exclusive focus on implementation of a president's agenda
misunderstands and distorts the structural role of our civil
servants.'' Comment 2822 (citations omitted). OPM agrees that Congress,
as a co-equal branch of government, has a vested interest in a well-
functioning federal workforce, especially since that workforce is
tasked with carrying out the programs Congress authorizes. Congress
plays an important role in legislating civil service protections, as it
has done regularly since 1883.
---------------------------------------------------------------------------
\183\ Citing Todd Garvey & Sean M. Stiff, ``Congress's Authority
to Influence and Control Executive Branch Agencies,'' Cong. Rsch.
Serv., R45442, p. 10 (Mar. 2023), https://crsreports.congress.gov/product/pdf/R/R45442.
---------------------------------------------------------------------------
Another concern of politicization expressed by commenters is that
it lowers responsiveness to the public and Congress. A professor cited
research for this proposition.\184\ Comment 50; see also Comment 3687
(a science advocacy organization) (discussing the ``virtuous circle''
of feedback from positive customer experiences leading to improved
employee performance and back again). Commenter explained that, while
``Senate-confirmed appointees have been shown to be more reliable
trustees of Congressional intent based on scrutiny in appointment,
inserting thousands of unilateral appointments into the civil service
would effectively impede Congress's ability to provide oversight.''
---------------------------------------------------------------------------
\184\ See Abby K Wood and David E Lewis, ``Agency Performance
Challenges and Agency Politicization,'' Journal of Pub. Admin. Rsch.
And Theory, Vol. 27, Issue 4, pp. 581-95 (Oct. 2017), https://doi.org/10.1093/jopart/mux014.
---------------------------------------------------------------------------
Commenters cited data showing the many benefits that federal civil
servants provide to Americans across the country. Comment 44, a public
service nonprofit organization, argued that the approximately 2.2
million civil servants are ``primarily located outside of the
Washington DC region.'' At least 80% of the federal workforce is
located across the country as well as around the world. Commenter
continued, ``[o]ur nation's federal employees deliver essential
services including Social Security and Medicare benefits, assist small
businesses, care for veterans, disrupt international criminal
syndicates, maintain the safety of our transportation systems, protect
the food supply, find cures for diseases, carry out the nation's
foreign policy, and advance our national security.'' OPM agrees that
civil servants are fanned out across the country and the world, which
allows them to be more responsive to constituents regarding the local
and international functions of government.
Comments Regarding Regulated Entities' Reliance Interests
Another benefit of a nonpartisan civil service, many nonprofit
organizations commented, is that they provide valuable certainty to
regulated entities. See Comments 2222, 3095 (coalition of public
interest organizations), 3149, 3687, 3973. They argued that regulatory
certainty provides ``a stable framework for regulated entities,
partners, and federal grantees to understand their regulatory
obligations and plan for the future, including across presidential
administrations.'' This predictability provides the ``certainty that
these entities need to make investments, ensure compliance with legal
requirements, and focus on delivering impact in their work rather than
navigating uncertain and ever-changing legal frameworks.'' Further,
``stable regulatory frameworks advance values of uniformity and
fairness.'' By contrast, ``substantial turnover in federal staff in
service of whipsaw changes to federal regulations can cause turmoil for
partners and regulated entities.'' They concluded that ``purges of
agency staff are a poorly-tailored and excessively blunt tool for
policy change, handicapping agencies' ability to actually develop and
implement new policies while also potentially misdiagnosing barriers to
policy change as personnel-related rather than legal, political, or
practical.'' OPM agrees with these commenters and their conclusions
regarding benefits the nonpartisan civil service provides to regulated
entities.
Comments Regarding Concerns About Politicization of the Nonpartisan
Civil Service
OPM received several comments from individuals concerned about a
politicized civil service and the effects of politicization on them,
their communities, and larger society. See Comments 80, 502, 1030.
Comment 373, an individual, argued that the amount of ``institutional
knowledge and training that would be lost if these roles ever became
[politically] appointed would be unfathomable'' and that the people
that would be paying the cost from this constant churn would be
ordinary citizens who rely on the ``daily affairs of government that no
one ever thinks about.'' An individual from Ohio stated that government
employees account for a significant percentage of the workforce in that
state. Comment 312. Commenter concluded that protecting the federal
workforce ``is vital to protecting Ohio's economy.'' Id. Comment 460,
an individual, concluded that the ``rule will reinforce public trust in
our government institutions and ensure that civil servants can carry
out their duties without undue political interference, thus maintaining
the high standards of public service that our society expects and
deserves.''
OPM also received several comments from current and former civil
servants who are concerned about improper political influence and
removals. These included concerns like, ``[a]s a government employee, I
have worked with both [Republican and Democrat] appointees. I have
never feared for my job because of the civil service protections. My
expertise is what I am paid for, not my political party.'' Comment 470;
see also Comments 60, 1991. An attorney and current civilian employee
of the U.S. Department of Health and Human Services, expressed ``I have
long planned to build my career primarily in public service. While not
without its flaws, the minor miracle of the modern civil service system
is a major motivating factor in my decision to pursue this career in
public service and in particular to focus on the federal government.''
Comment 1401. Commenter adds ``[t]he already-published plans'' of some
organizations to ``fundamentally alter or eviscerate the civil service
system--and ultimately to vitiate the concept of professionalism
itself--would, in the micro, certainly require me to rethink my own
career and would, more broadly, drastically threaten the functioning of
our United States government.'' OPM received similar comments from a
career employee in the Department of Defense (Comment 1349), a member
of the Foreign Service (Comment 2320), a federal contractor (Comment
2338), and a contractor at the Office of Community
[[Page 25006]]
Oriented Policing Services (Comment 2749), to name a few.
Finally, commenters were concerned that experiences from other
countries and states with a politicized civil service showed possible
downsides of further politicizing the civil service. Comment 74
contended that, ``[a]s a scholar of India who has watched the
politicization of the bureaucracy unfold under the current ruling party
and its deeply detrimental effects on public welfare and civic
society,'' politicization ``represents an existential threat to
democracy and state functioning in the US.'' Comment 1649 stated ``I
have lived in a country with a political rather than merit based civil
service and can testify as to the appalling impact of that system on
public safety, institutional integrity, and community trust. There are
many things that don't work well in the American system, but our civil
service is one of the few that does.'' And Comment 2186, a former
federal official, cited a 2005 report for the European Institute of
Public Administration which argued that efforts to weaken state-level
civil service protections had a ``tendency to punish state employees''
with ``demoralizing `bureaucrat bashing' rhetoric of the ideologically
and politically driven reformers.'' But there has been ``[g]rowing
awareness among policy makers, public employees and their
organizations, and human resource professionals that'' state-level
reforms to weaken civil service protections ``have not delivered the
benefits they promised and may well dampen enthusiasm for [similar]
initiatives by the states that contemplate sudden, wholesale, changes
in existing arrangements.''
F. OPM's Authority To Regulate
The OPM Director has direct statutory authority to execute,
administer, and enforce all civil service rules and regulations as well
as the laws governing the civil service.\185\ The Director also has
authorities Presidents have conferred on OPM pursuant to the
President's statutory authority.\186\
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\185\ See 5 U.S.C. 1103(a)(5)(A). This authority does not
include functions for which either the MSPB or OSC is primarily
responsible. Among other authorities, the MSPB has specific
adjudicative and enforcement authority upon the satisfaction of
threshold showings that an employee has established appeal rights.
It also has authority to administer statutory provisions relating to
adjudication of adverse action appeals. OSC has specific and limited
investigative and prosecutorial authority. See 5 U.S.C. 1213-1216.
\186\ See Presidential rules codified at 5 CFR parts 1 through
10.
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As explained here, in enacting the CSRA, Congress conveyed broad
regulatory authority over Federal employment directly to OPM throughout
title 5.\187\ In addition, many of these specific statutory enactments,
including chapter 75, expressly confer on OPM authority to regulate.
Pursuant to 5 U.S.C. 7514, OPM may issue regulations to carry out the
purpose of subchapter II of chapter 75, and pursuant to 5 U.S.C. 7504,
OPM may issue regulations to carry out the purpose of subchapter I of
chapter 75.
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\187\ See, e.g., 5 U.S.C. 1103, 1302, 3308, 3317, 3318, 3320;
Chapters 43, 53, 55, 75.
---------------------------------------------------------------------------
The same is true with respect to chapter 43. Pursuant to 5 U.S.C.
4305, OPM may issue regulations to carry out subchapter I of chapter
43.
Prior to the reorganization proposal \188\ approved by Congress
that created OPM, the CSC exercised its broad authorities, in part, to
establish rules and procedures concerning the terms of being appointed
in the competitive or excepted services and of moving between these
services. Since its inception in 1978, OPM has used that same
authority, as well as other statutory authorities such as 5 U.S.C.
1103(a)(5) and 5 U.S.C. 1302, to establish rules and procedures
concerning the effects on an employee of being appointed in, and of
moving between, these services. OPM has used these authorities to
create government-wide rules for Federal employees regarding a broad
range of topics, such as hiring, promotion, performance assessment,
pay, leave, political activity, retirement, and health benefits.\189\
For instance:
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\188\ President Jimmy Carter, ``Reorganization Plan'' No. 2,
secs. 101 and 102 (May 23, 1978). The plan specifies in section 102
that ``[e]xcept as otherwise specified in this Plan, all functions
vested by statute in the United States Civil Service Commission, or
the Chairman of said Commission, or the Boards of Examiners
established by 5 U.S.C. 1105 are hereby transferred to the Director
of the Office of Personnel Management.''
\189\ See, e.g., 5 CFR parts 2, 6, 212, 213, 335, 430, 550, 630,
733, 734, 831, 890.
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5 CFR part 6 requires OPM to publish in the Federal
Register on a regular basis the list of positions that are in the
excepted service.\190\
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\190\ 5 CFR 6.1(c), 6.2; see 28 FR 10025 (Sept. 14, 1963), as
amended by E.O. 11315; E.O. 12043, 43 FR 9773 (Mar. 10, 1978); E.O.
13562, 75 FR 82587 (Dec. 30, 2010); see also E.O. 14029, 86 FR 27025
(May 19, 2021).
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5 CFR 212.401(b), promulgated in 1968,\191\ well before
the CSRA, provides that ``[a]n employee in the competitive service at
the time his position is first listed under Schedule A, B, or C remains
in the competitive service while he occupies that position.'' This
regulation, as discussed further in Section IV(A), was intended to
preserve competitive service status and rights for employees who were
initially appointed to positions in the competitive service and whose
positions were subsequently moved involuntarily into the excepted
service (such as administrative law judges).\192\
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\191\ See 33 FR 12408 (Sept. 4, 1968).
\192\ Id.
---------------------------------------------------------------------------
5 CFR 302.102, promulgated in part to implement 5 U.S.C.
3320, provides that when an agency wishes to move an employee from a
position in the competitive service to one in the excepted service, the
agency must: ``(1) Inform the employee that, because the position is in
the excepted service, it may not be filled by a competitive
appointment, and that acceptance of the proposed appointment will take
him/her out of the competitive service while he/she occupies the
position; and (2) Obtain from the employee a written statement that he/
she understands he/she is leaving the competitive service voluntarily
to accept an appointment in the excepted service.'' \193\
---------------------------------------------------------------------------
\193\ See 55 FR 9407 (Mar. 14, 1990), as amended at 58 FR 58261
(Nov. 1, 1993).
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5 CFR part 432 sets forth the procedures to be followed,
if an agency opts to pursue a performance-based action against an
employee under chapter 43 of title 5, U.S. Code. As with the adverse
action rules in part 752, the rules applicable to performance-based
actions apply broadly to employees in the competitive and excepted
services, with specific exceptions that include political
appointees.\194\
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\194\ See 54 FR 26179 (June 21, 1989), redesignated and amended
at 54 FR 49076 (Nov. 29, 1989), redesignated and amended at 58 FR
65534 (Dec. 15, 1993); 85 FR 65982 (Oct. 16, 2020); 87 FR 67782
(Nov. 10, 2022).
---------------------------------------------------------------------------
5 CFR part 752 implements chapter 75 of title 5, U.S.
Code, and sets forth the procedural rights that apply when an agency
commences the process for taking an adverse action against an
``employee,'' as defined in 5 U.S.C. 7511. These regulations apply
broadly to employees in the competitive and excepted services meeting
the section 7511 criteria.\195\
---------------------------------------------------------------------------
\195\ See 74 FR 63532 (Dec. 4, 2009), as amended at 85 FR 65985
(Oct. 16, 2020); 87 FR 67782 (Nov. 10, 2022).
---------------------------------------------------------------------------
Moreover, the President, pursuant to his own authorities under the
CSRA, as codified at 5 U.S.C. 3301 and 3302, has explicitly delegated a
variety of these authorities to OPM concerning execution,
administration, and enforcement of the competitive and excepted
services. For example, under Civil Service Rule 6.1(a), ``OPM may
except positions from the competitive service when it determines that .
. . appointments thereto through competitive examination are not
practicable.'' \196\ And under Civil
[[Page 25007]]
Service Rule 6.1(b), ``OPM shall decide whether the duties of any
particular position are such that it may be filled as an excepted
position under the appropriate schedule.'' \197\
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\196\ 5 CFR 6.1(a).
\197\ 5 CFR 6.1(b).
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Comments Regarding OPM's Statutory Authority
Several commenters, as discussed further in Section IV regarding
the specific regulatory amendments, argued that regulatory changes
proposed by OPM in its proposed rule fell within OPM's statutory
authority. Certain Members of Congress commented that these are
``critical regulatory updates that would continue the efforts of the
Pendleton Act of 1883 and the Civil Service Reform Act of 1978.''
Comment 48, see also Comment 2134 (joint comment by nonprofit
organization and former federal official, providing extensive
background on this point, as summarized in Section IV).
A few comments, like Comment 4097, commented that OPM does not have
the statutory authority to issue the regulatory amendments in this
rule. OPM will discuss these arguments further in the following section
because they relate to the specific amendments. See Sec. IV.
Comments Regarding the President's Constitutional Authority
A few commenters argued that this rule would improperly restrict
the powers of the President and is, therefore, unconstitutional. A
former political appointee argued that the rule ``is an attempt to
usurp Presidential authority by the bureaucrats in the Executive Branch
sworn to serve the Constitution.'' Comment 45. Comments 462 and 2012
(submitted by the same individual) argued that ``[a]ll employees of the
Executive Branch serve at the sole discretion of the President and any
laws, rules, regulations, or guidelines that restrict this
discretionary power subvert the authority of the U.S. Constitution and
as such are unconstitutional.'' As described above, in Executive Order
14003, the President declared that ``[c]areer civil servants are the
backbone of the Federal workforce, providing the expertise and
experience necessary for the critical functioning of the Federal
Government.'' \198\ The President ordered that ``[i]t is the policy of
the United States to protect, empower, and rebuild the career Federal
workforce,'' and that the Federal Government ``should serve as a model
employer.'' The Order described Executive Order 13957 (and Schedule F),
as ``unnecessary to the conditions of good administration,'' and
therefore revoked Executive Order 13957 because it ``undermined the
foundations of the civil service and its merit system principles, which
were essential'' to the Pendleton Act's ``repudiation of the spoils
system.'' Far from usurping the President's authority, this rule
effectuates the discretionary authority and policy positions of the
President.
---------------------------------------------------------------------------
\198\ 86 FR 7231.
---------------------------------------------------------------------------
Also, while it is true that the President has broad and significant
authority over the civil service, such as the power to create excepted
service schedules when ``necessary'' and when ``conditions of good
administration warrant'' or direct OPM to issue regulations, it is not
the case that all employees of the Executive Branch serve ``at the sole
discretion'' of the President. This argument disregards 140 years of
precedent and the role of Congress in shaping the civil service--which
is tasked with executing Congressional programs--as expressed most
notably in the Pendleton Act, the Lloyd-La Follette Act, the CSRA, and
other statutory changes designed to protect the civil service from
actions contrary to merit.
Comments 2866, a legal organization, and 4097, an advocacy
nonprofit organization, made a related argument that this final rule
would violate Supreme Court precedent in Free Enterprise Fund, which
the commenters argued ``held that the President has general authority
to remove subordinates, and it is unconstitutional to shield inferior
officers from Presidential control.'' These comments suggest that OPM's
construction in this final rule would ``give inferior officers with
substantive policymaking or administrative authority binding removal
protections.'' As previewed in Section III(E), above, relating to a
similar comment, nothing in this rule conflicts with Free Enterprise
Fund or its progeny.
First, these comments are mistaken in their assertion that ``many
senior career officials are inferior officers.'' OPM is not aware of
any judicial decision holding so and the comments cite none. Instead,
the comments cite Justice Breyer's dissent in Free Enterprise Fund,
which listed several civil service positions that the dissent worried
might be imperiled and subject to at-will removal under the majority's
analysis. The majority, however, responded to Justice Breyer's concerns
by explaining that ``none of the [civil service] positions [the
dissent] identifies are similarly situated to the [PCAOB].'' \199\ The
Court went on to clarify that ``many civil servants within independent
agencies would not qualify as `Officers of the United States' ''
because they do not `` `exercise[e] significant authority pursuant to
the laws of the United States.' '' \200\ Neither the comments nor the
Free Enterprise dissent explained which, if any, civil service
positions might exercise such ``significant authority,'' or which are
``established by law.'' \201\ That is not surprising, as even in 1879,
ninety percent of the government's workforce was undoubtedly composed
of employees rather than officers, and ``[t]he applicable proportion
has of course increased dramatically since'' then.\202\
---------------------------------------------------------------------------
\199\ 561 U.S. at 506.
\200\ Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
\201\ U.S. art. II, Sec. 2, cl. 2.
\202\ 561 U.S. at 506 n.9. (citing United States v. Germaine 99
U.S. 508, 509 (1879)).
---------------------------------------------------------------------------
Second, inferior officer status, even where it applies, does not
require employees to be at will. The Supreme Court has consistently
upheld for-cause and good-cause removal restrictions for inferior
officers. Over 130 years ago, the Supreme Court held that Congress may
constitutionally provide removal restrictions to inferior officers in
the military. In United States v. Perkins,\203\ an inferior officer in
the Navy challenged his removal without cause as unlawful, as Congress
had provided that such inferior officers could be removed in peacetime
only pursuant to a court-martial sentence.\204\ The Supreme Court
agreed, holding that it ``ha[d] no doubt'' that Congress ``may limit
and restrict the power of removal'' for inferior officers.\205\
---------------------------------------------------------------------------
\203\ 116 U.S. 483 (1886).
\204\ Id. at 483-84.
\205\ Id. at 485.
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Perkins was consistent with the contemporaneous judgment of both
Congress and the President that merit-based appointments and removals
from federal positions were in the Nation's interest. When Congress
enacted the Pendleton Act, it provided for merit-based selection and
prohibited removal based on partisan politics \206\ and those removal
restrictions applied to inferior officers appointed by the
President.\207\ President McKinley strengthened those removal
restrictions by amending the Civil Service rules to prohibit removals
``except for just cause and upon written charges filed with the head of
the department.'' \208\ And Congress soon thereafter codified those
restrictions to provide that ``no person'' in the Civil
[[Page 25008]]
Service may be removed ``except for such cause as will promote the
efficiency of said service.'' \209\
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\206\ 22 Stat. 403, 403-04 (1883).
\207\ See 29 Cong. Rec. 416-17 (1897).
\208\ United States v. Wickersham, 201 U.S. 390, 398 (1906).
\209\ Lloyd La-Follette Act, Public Law 62-336, sec. 6, 37 Stat.
539, 555 (1912).
---------------------------------------------------------------------------
Those longstanding removal restrictions constitutionally apply to
inferior officers. In United States v. Arthrex, Inc.,\210\ as discussed
above, the Supreme Court explained that administrative patent judges
can properly serve as inferior officers with restrictions on their
removal, so long as their decisions are subject to review by a superior
who is accountable to the President. Although the Federal court of
appeals had invalidated the officers' removal restrictions,\211\ the
Supreme Court reinstated them.\212\ Arthrex is just another decision
confirming the principle that Congress may permissibly restrict removal
of inferior officers, as it has for over a century.
---------------------------------------------------------------------------
\210\ 141 S. Ct. 1970, 1986-87 (2021).
\211\ Id. at 1987.
\212\ Id.
---------------------------------------------------------------------------
Indeed, the independent counsel in Morrison v. Olson,\213\
constitutionally enjoyed a restriction on her removal except for ``good
cause.'' \214\ By statute, the independent counsel had ``full power and
independent authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice,'' could conduct
``grand jury proceedings and other investigations,'' could pursue
``civil and criminal'' litigation, and could appeal any adverse court
decisions.\215\ The Supreme Court nonetheless held that the independent
counsel was constitutionally subordinate to the Attorney General
because, ``[m]ost importantly, the Attorney General retains the power
to remove the counsel for `good cause,' a power that we have already
concluded provides the Executive with substantial ability to ensure
that the laws are `faithfully executed.' '' \216\ Accordingly, the
Court held that the independent counsel properly served as an inferior
officer, and that the removal restriction ``does not violate the
separation-of-powers.'' \217\ And Free Enterprise Fund confirmed that
the holdings in Morrison and Perkins continue to stand for the
proposition that Congress may enact certain ``restrictions on the power
of principal executive officers--themselves responsible to the
President--to remove their own inferiors.'' \218\
---------------------------------------------------------------------------
\213\ 487 U.S. 654 (1988).
\214\ Id. at 663.
\215\ Id. at 662.
\216\ Id. at 696.
\217\ Id. at 697.
\218\ 561 U.S. at 483.
---------------------------------------------------------------------------
Third, these comments suggest that inferior officers within
independent agencies cannot have any removal restrictions. Both the
Trump and Biden Administrations, however, have consistently taken the
position that inferior officers within independent agencies can
constitutionally have removal restrictions.\219\ As the Solicitor
General explained in 2018, when inferior officers within an independent
agency can be removed for ``failure to perform adequately or to follow
agency policies,'' such removal restrictions ``afford[ ] a
constitutionally sufficient degree of accountability and Executive
Branch control.'' \220\
---------------------------------------------------------------------------
\219\ See, e.g., Resp. Br. 45-55, Lucia v. SEC, No. 17-130 (U.S.
Feb. 21, 2018); Petr. Br. 44-65, SEC v. Jarkesy, No. 22-859 (U.S.
Aug. 28, 2023).
\220\ Resp. Reply Br. 17, Lucia v. SEC, No. 17-130 (U.S. Apr.
16, 2018).
---------------------------------------------------------------------------
The comments' comparisons of civil service removal restrictions to
those at issue in Free Enterprise Fund fail to describe the materially
significant difference in degree of those restrictions. The inferior
officers in Free Enterprise Fund could be removed only for willful
violations of federal securities laws, willful abuse of authority, or
failure to enforce compliance with the securities laws ``without
reasonable justification or excuse.'' \221\ Thus, the inferior officers
of the PCAOB could not be removed ``for violations of other laws,'' and
could not be removed even if they were to ``cheat[ ] on [their]
taxes.'' \222\ Those ``rigorous'' removal restrictions,\223\ applied to
the Board's inferior officers, who had ``significant independence in
determining [their] priorities and intervening in the affairs of
regulated firms (and the lives of their associated persons) without . .
. preapproval or direction'' by any other officer.\224\ By contrast,
members of the civil service can be removed for ``the efficiency of the
service,'' \225\ subject to the civil service's prohibited personnel
practices which, as a general matter, is both good policy and
constitutional. And members of the civil service are overseen by other
officers within the Executive Branch, who can direct policy and approve
or disapprove of their actions. The Court in Free Enterprise Fund noted
that the removal provisions that apply to the more general civil
service are substantially different from the stringent removal
restrictions for the PCAOB, and the Court made clear that ``[n]othing
in our opinion'' should ``be read to cast doubt on the use of what is
colloquially known as the civil service system within independent
agencies.'' \226\
---------------------------------------------------------------------------
\221\ 561 U.S. at 486 (quoting 15 U.S.C. 7217(d)(3)).
\222\ Id. at 503.
\223\ Id.
\224\ Id. at 505.
\225\ 5 U.S.C. 7513(a).
\226\ 561 U.S. at 507.
---------------------------------------------------------------------------
Other commenters supportive of the rule argued that it in no way
infringes on the President's legal authority. Comment 422, an
individual, explained that ``the proposed rule does not eliminate the
ability of the executive to, within the confines of legislation,
execute policy decisions or discretion'' and ``the proposed provisions
retain the distinction between the career civil service and political/
excepted appointments, who retain their abilities to direct policy
within the delegation of authority provided to by law.'' As explained
above, OPM agrees that the President has significant power over the
civil service and this final rule does not infringe on those powers.
Instead, it makes regulatory changes, in line with OPM's authorities
(some conferred directly by Congress and others conferred by the
President, by re-delegation of an authority conferred upon him by
Congress) to clarify and reinforce statutory texts and advance the
President's policy, as stated in Executive Order 14003, ``to protect,
empower, and rebuild the career Federal workforce.''
Comments Regarding Regulatory Justifications
Some commenters argued that the rule is procedurally unlawful
because it is a pretext to block Schedule F. Comment 164, a form
comment, stated that ``[t]he attempt to counter Schedule F through this
rule amounts to a Deep State Protection Scheme that would
undemocratically undermine to [sic] core constitutional principle that
executive power is vested in the president.'' Comment 101, another form
comment, stated there is a ``discrepancy between the stated purpose of
the rule and its actual intended purpose'' which, the comment contends,
is to prevent Schedule F. Comment 1958, an advocacy nonprofit
organization, argued that ``[r]egulations are supposed to be responsive
to specific problems. OPM's proposal is not an attempt to address an
ongoing, active problem. Instead, it is a blatant defensive play''
against Schedule F. Comments 2866, a legal organization, and 3156
argued that Department of Commerce v. New York \227\ held that the
stated intent behind the actions of executive agencies cannot be
different from the agencies' actual motivation.'' They also argue that
``OPM's stated intent of enhancing efficiency is demonstrably different
[[Page 25009]]
from their actual motivation of impeding future implementation of
Schedule F to undermine future administrations.''
---------------------------------------------------------------------------
\227\ 139 S. Ct. 2551, 2573 (2019).
---------------------------------------------------------------------------
As explained extensively in the proposed rulemaking and in this
final rule, OPM set forth a variety of reasons for promulgating this
final rule. And, far from hiding concerns about Schedule F, the
proposed rulemaking includes extensive discussion \228\ about the prior
Schedule F and OPM's view that its implementation would have
constituted a stark and unwarranted departure from 140 years of civil
service protections and merit system principles. The proposed rule and
this final rule note that Schedule F sought to exploit the exception in
section 7511(b)(2). As observed in the proposed rule \229\ and by
several commenters responding to that notice,\230\ however, Congress,
OPM, and other agencies had long understood the meaning of the phrase
``confidential, policy-determining, policy-making, or policy-advocating
character'' to be a gloss on the description of positions that could be
placed in Schedule C of the excepted service at 5 CFR 213.3301(a),
i.e., ``positions of a confidential or policy-nature.'' In light of the
issuance of Executive Order 13957, and its departures from the common
understanding of the meaning of section 7511(b)(2), OPM determined to
issue this rule. Among other reasons, the rule elucidates the proper
scope of the exception in 5 U.S.C. 7511(b)(2) and clarifies any
confusion that may have been introduced by the promulgation of the now-
revoked order and schedule.
---------------------------------------------------------------------------
\228\ See 88 FR 63862, 63867-69, 63874, 63878.
\229\ Id. at 63883.
\230\ See, e.g., Comment 2134, a joint comment by a nonprofit
organization and former federal official, at pp. 12-33.
---------------------------------------------------------------------------
OPM is authorized by Congress and the President, throughout title
5, to regulate the civil service and carry out the purposes of the
civil service statutes. OPM does not and cannot prevent a President
from creating excepted service schedules or from moving employees, and
this rule does not do that. Instead, the rule promulgates certain
definitions clarifying the meaning of statutory language based on
longstanding legislative history and intent, legal precedent, and past
practices.
IV. Regulatory Amendments and Related Comments
In this section, OPM discusses the regulatory amendments to 5 CFR
parts 210, 212, 213, 302, 432, 451, and 752 and related comments. The
first subsection discusses the retention of status and civil service
protections upon an involuntary move to or within the excepted service
(revisions to parts 212 and 752). The second discusses the definition
for positions of a ``confidential, policy-determining, policy-making or
policy-advocating'' character as used in 5 U.S.C. 7511(b)(2) (revisions
to parts 210, 213, 302, 432, 451, and 752). And the third discusses
processes for moving employees and positions to or within the excepted
service and related appeal rights (revisions to part 302).
A. Retention of Status and Civil Service Protections Upon a Move
OPM amends 5 CFR part 752 (Adverse Actions) to reflect OPM's
longstanding interpretation of 5 U.S.C. 7501 and 7511 and the
congressional intent underlying the statutes, including exceptions to
civil service protections outlined in 5 U.S.C. 7511(b). These
amendments clarify that ``employees,'' under 5 U.S.C. 7501, 7511(a), in
the competitive service or excepted service will retain the rights
previously accrued upon an involuntary move from the competitive
service to the excepted service, or from one excepted service schedule
to another, or any subsequent involuntary move, unless the employee
relinquishes such rights or status by voluntarily encumbering a
position that explicitly results in a loss of, or different, rights.
The rule also conforms the regulation for non-appealable adverse
actions with statutory language in 5 U.S.C. 7501 and Federal Circuit
precedent to clarify which employees are covered. OPM amends 5 CFR part
212 (Competitive Service and Competitive Status) to further clarify a
competitive service employee's status in the event the employee and/or
their position is moved involuntarily to Schedules A, B, C, or any
schedule created after the promulgation of this rule.
A voluntary movement is generally characterized by an employee
initiating a reassignment, conversion, or transfer by pursuing and
accepting an offer to serve in a different position, either at the
employee's own agency or another Federal agency. A voluntary move may
extinguish accrued rights, depending on the circumstances of each such
situation.\231\ If, on the other hand, an agency initiates an action to
move the employee's position from the competitive service to the
excepted service or from one schedule in the excepted service to
another, based on the nature of the position, that movement will be
regarded as involuntary, vis a vis the incumbent, and should not affect
previously accrued rights. Similarly, if an employee is reassigned to a
different position by the agency, on the agency's own initiative, to
better meet agency needs, the reassignment or conversion will be
regarded as involuntary and should not affect previously accrued
rights.
---------------------------------------------------------------------------
\231\ See, e.g., Garcia v. Dep't of Homeland Sec., 437 F.3d
1322, 1328 (Fed. Cir 2006); Shoaf v. Dep't of Agriculture, 260 F.3d
1336, 1341-42 (Fed. Cir. 2001); Staats v. U.S. Postal Serv., 99 F.3d
1120, 1123 (Fed. Cir. 1996) (regarding voluntariness in the
retirement context).
---------------------------------------------------------------------------
As noted above in Section III(B), adverse action protections and
related eligibility and procedures are covered in 5 U.S.C. chapter 75.
Subchapter I covers suspensions for 14 days or less and 5 U.S.C. 7501
defines ``employee'' for the purposes of adverse action procedures for
suspensions of this duration. Under 5 U.S.C. 7504, OPM may prescribe
regulations to carry out the purpose of subchapter I. Subchapter II
covers removals, suspensions for more than 14 days, reductions in grade
or pay, or furloughs for 30 days or less. In subchapter II, 5 U.S.C.
7511 defines ``employee'' for the purposes of entitlement to adverse
action procedures. Under 5 U.S.C. 7514, OPM may prescribe regulations
to carry out the purposes of subchapter II except as it concerns any
matter where the MSPB may prescribe regulations.
Performance-based actions under chapter 43 and related eligibility
and processes are covered in 5 U.S.C. 4303. Section 4303(e) defines
when an employee is entitled to appeal rights to the MSPB. Chapter 43
cross-references chapter 75, providing that any employee who is a
preference eligible, in the competitive service, or covered by
subchapter II of chapter 75, and who has been reduced in grade or
removed under section 4303, is entitled to appeal the action to the
MSPB under 5 U.S.C. 7701. Under 5 U.S.C. 4305, OPM may issue
regulations to carry out subchapter I of chapter 43.
OPM received several overarching comments regarding the proposed
changes to Parts 212 and 752. OPM will discuss these comments, followed
by specific comments related to these regulatory changes.
Comment Regarding the History of Status and Rights Upon an Involuntary
Move
A joint comment from a nonprofit organization and a former federal
official provided an extensive history of retention of accrued status
and civil service protections upon the involuntary movement to an
excepted service schedule or within the excepted service and agreed
with OPM that this rulemaking would reinforce and clarify the
longstanding legal interpretations
[[Page 25010]]
and practice pertaining to employees' retention of accrued civil
service status and protections. See Comment 2134. Commenter concluded
that OPM's proposed regulatory provisions on retention are a
clarification, rather than an expansion, of rights. Because of its
thorough citation to facts and sources relevant to these regulatory
changes, OPM will summarize portions of the comment here.
Commenter began the analysis with a detailed historical treatment
of status and civil service protections and then turned to Roth v.
Brownell,\232\ a key precedent on this issue, and its progeny.
---------------------------------------------------------------------------
\232\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954).
---------------------------------------------------------------------------
Commenter detailed that, before Roth, the enactment of the Veterans
Preference Act of 1944 enhanced the civil service rights of preference
eligible employees. Consistent with the Ramspeck Act of 1940 and
applicable executive orders,\233\ the CSC's regulations at the time
acknowledged that some employees in excepted service positions enjoyed
competitive status.
---------------------------------------------------------------------------
\233\ Citing Ramspeck Act, Public Law 76-880, sec. 1, 54 Stat.
1211 (1940), https://www.loc.gov/resource/llsalvol.llsal_054/?sp=1245&st=image; E.O. 9830 (Feb. 24, 1947), https://www.archives.gov/federal-register/codification/executive-order/09830.html; E.O. 8743 (Apr. 23, 1941), https://www.archives.gov/federal-register/codification/executive-order/08743.html.
---------------------------------------------------------------------------
Commenter noted that, in 1950, the United States Court of Claims
reviewed the CSC's regulations applicable to nonveterans and explained
that ``employees serving under other than a probational or temporary
appointment in the competitive service, and employees having a
competitive status who occupy positions in Schedule A and B, shall not
be removed or demoted except for such cause as will promote the
efficiency of the service and in accordance with set procedures.''
(emphasis in original).\234\
---------------------------------------------------------------------------
\234\ Citing Lamb v. United States, 90 F. Supp. 369, 372-73 (Ct.
Cl. 1950) (``[W]e conclude that a government employee having
competitive status and serving in an excepted position in Schedule
A, must be separated from such position in accordance with the Civil
Service Regulations, regardless of the length of time he has
occupied such excepted position.'').
---------------------------------------------------------------------------
In 1953, President Eisenhower created Schedule C in Executive Order
10440, which purported to strip employees, ``[e]xcept as may be
required by the Veterans' Preference Act,'' of accrued procedural
protections upon their movement to Schedule C.\235\ President
Eisenhower then issued Executive Order 10463, which purported to remove
accrued procedural protections from employees in Schedule A, as well.
An unfavorable decision in Roth v. Brownell would later lead President
Eisenhower to revoke and replace both executive orders.
---------------------------------------------------------------------------
\235\ Citing E.O. 10440, sec. 6.4 (Mar. 31, 1953) (``Except as
may be required by the Veterans' Preference Act, the Civil Service
Rules and Regulations shall not apply to removals from positions
listed in Schedule C or from positions excepted from the competitive
service by statute. The Civil Service Rules and Regulations shall
apply to removals from positions listed in Schedules A and B of
persons who have competitive status, however they may have been or
may be appointed.''), https://www.presidency.ucsb.edu/documents/executive-order-10440-amendment-civil-service-rule-vi.
---------------------------------------------------------------------------
Commenter explained that, in Roth, the D.C. Circuit considered a
decision by Attorney General Herbert Brownell to challenge these civil
service protections. Though plaintiff, Roth, had been appointed to the
competitive service under the Ramspeck Act and President Roosevelt's
1941 Executive Order, a 1947 order by President Truman moved his
position to a reestablished Schedule A. In 1953, the Eisenhower
Administration moved his Schedule A position to Schedule C and
purported to remove his civil service status and procedural
protections. The Executive Director of the CSC had stated in a letter
to Roth that career employees whose jobs were moved to Schedule C
retained their civil service protections. The D.C. Circuit ruled for
plaintiff and ordered his reinstatement. The court held that neither of
these moves stripped Roth of the competitive status and protections he
had accrued, explaining that ``[t]he power of Congress thus to limit
the President's otherwise plenary control over appointments and
removals is clear,'' and ``[i]t is immaterial here that the President
has long been `authorized to prescribe such regulations for the
admission of persons into the civil service of the United States as may
best promote the efficiency thereof . . . [because] [c]omplete control
over admissions does not obviate the removal requirements of the Lloyd-
La Follette Act.' '' \236\
---------------------------------------------------------------------------
\236\ Roth, 215 F.2d at 501-02.
---------------------------------------------------------------------------
Commenter explained that, a month after the Roth decision,
President Eisenhower issued Executive Order 10577, revoking Executive
Orders 10440 and 10463.\237\ The new Executive Order provided that ``an
employee who is in the competitive service at the time his position is
first listed under Schedule A, B, or C shall be considered as
continuing in the competitive service as long as he continues to occupy
such position.'' In January 1955, the CSC issued new guidance
consistent with the court's order in Roth and Executive Order 10577,
redefining for Federal agencies the coverage of the competitive civil
service and the removal protection of certain Federal employees under
the Lloyd-La Follette Act. The CSC explained that an employee who is
serving with competitive status in a competitive position at the time
his position is listed under Schedules A, B, or C, continues to be in
the competitive service during his occupancy of that position (thus the
employee is entitled to the removal protection of the Lloyd-La Follette
Act, which applies to the competitive civil service). The CSC also
explained that, where proposed appointees to a Schedule A, B, or C
position are serving in the competitive service, the employees shall
not be appointed until they are advised in writing that acceptance of
the excepted appointment will result in their leaving the competitive
service. This will put the employees clearly on notice that, upon
acceptance of the excepted position, they will no longer be under the
protection of the Lloyd-La Follette Act.\238\ A few days after this
issuance, the CSC published a Federal Register notice to codify the
Eisenhower Administration's recognition of these rights.\239\
---------------------------------------------------------------------------
\237\ Citing E.O. 10577 (Nov. 23, 1954), https://www.presidency.ucsb.edu/documents/executive-order-10577-amending-the-civil-service-rules-and-authorizing-new-appointment.
\238\ Citing Press Release, U.S. Civil Sev. Comm'n, 1 (Jan. 24,
1955).
\239\ Citing Appeals from Employees Entitled to But Denied
Protection of Lloyd-La Follette Act, Civil Serv. Comm'n Prop. Reg. 5
CFR pts. 9 &20, 20 FR 599, 601 (Jan. 28, 1953), https://archive.org/details/sim_federal-register-find_1955-01-28_20_20/mode/2up.
---------------------------------------------------------------------------
In giving its instructions to agencies about movement of employees
after January 23, 1955, to Schedule A, B, or C positions, the CSC also
took steps to protect employees who were moved prior to that time. It
stated that employees in three groups who were moved prior to January
23, 1955, would still be considered to be in the competitive
service.\240\
---------------------------------------------------------------------------
\240\ Citing Press Release, U.S. Civil Serv. Comm'n, pp. 1-2
(Jan. 24, 1955).
---------------------------------------------------------------------------
Commenter showed that contemporaneous legal analyses, such as a
1955 law review article, concluded that Roth had confirmed the
durability of personally accrued status, at least in the case of an
involuntary move.\241\ That same year, the Comptroller General
demonstrated the broad applicability of Roth by confirming the
appropriateness of the National Labor Relations Board's award of
backpay to a similarly situated
[[Page 25011]]
employee who had been improperly removed.\242\
---------------------------------------------------------------------------
\241\ Citing De Seife, Rodulphe, 5 Cath. U.L. Rev. 110 (1955),
https://scholarship.law.edu/cgi/viewcontent.cgi?article=3073&context=lawreview.
\242\ Citing Gov. Accountability Off., Op. for Guy Farmer,
Chairman, NLRB (July 25, 1955), https://www.gao.gov/products/b-123414.
---------------------------------------------------------------------------
On May 12, 1955, the CSC highlighted the difference between an
employee's voluntary and involuntary movement to Schedule C, explaining
that under civil service rules, ``a vacant Schedule C job may not be
filled by the appointment of an employee serving in the competitive
service until the employee has been given notice in writing that
acceptance of the position will result in his leaving the competitive
service. Leaving the competitive service would result in his giving up
the job-removal protections of the Lloyd La Follette Act.'' On the
other hand, ``if an occupied job in the competitive civil service is
moved to Schedule C, an incumbent who has civil-service status
continues to have the removal protection of the Lloyd-La Follette Act
during his occupancy of the position.'' \243\
---------------------------------------------------------------------------
\243\ Citing Press Release, U.S. Civil Serv. Comm'n, 3 (May. 12,
1955).
---------------------------------------------------------------------------
As commenter demonstrated, the next several presidential
administrations did not differ in their interpretation regarding the
retention of status and rights. Under President Lyndon Johnson, for
example, the CSC codified the principle of retained status at 5 CFR
212.401(b).\244\ OPM notes that this regulation remained unchanged
until this final rule, which, consistent with the intent of the
original regulation, modifies the regulation to cover any newly created
schedules.
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\244\ Citing Revision of Regulations, U.S. Civil Serv. Comm'n,
Final Reg. 5 CFR ch. I, subch. B (other than pt. 213), 33 FR 12402-
08 (Sep. 4, 1968) (``An employee in the competitive service at the
time his position is first listed under Schedule A, B, or C remains
in the competitive service while he occupies that position.''),
https://archives.federalregister.gov/issue_slice/1968/9/4/12396-12526.pdf#page=23.
---------------------------------------------------------------------------
Under President Ford, the CSC acknowledged the continuing relevance
of Roth in a memorandum emphasizing that employees retained accrued
status and civil service protections upon movement to positions
designated as confidential or policy-determining.\245\ A related
handout for officials with presidential transition responsibilities
explained that Schedule C employees with status were entitled to appeal
their removal to the CSC under the commission's regulations at 5 CFR
part 752.\246\
---------------------------------------------------------------------------
\245\ Citing Memo. from Raymond Jacobson, Exec. Dir., CSC, 5
(Nov. 10, 1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf.
\246\ Citing CSC, Procedures for Removals from Excepted
Positions, p. 2 (1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf.
---------------------------------------------------------------------------
Still further, a decade after enactment of the CSRA, and during the
Reagan Administration, OPM issued a government-wide advisory that cited
Roth as establishing the guiding principle for removing employees with
status from Schedule C positions, explaining that an employee who was
serving in a position in the competitive service when OPM authorized
its conversion to Schedule C and who is still serving in that position
may be removed from that position only ``for such cause as will promote
the efficiency of the service'' and in accordance with the procedures
established by 5 U.S.C. 7511 et seq. and part 752 of OPM's
regulations.\247\
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\247\ Citing Memo. from Constance Horner, Dir., U.S. Off. of
Pers. Mgmt. to heads of departments and agencies, ``Civil Service
and Transition to a New Presidential Administration,'' pp. 8-9 (Nov.
30, 1988), https://www.cia.gov/readingroom/docs/CIA-RDP90M01364R000800330004-0.pdf.
---------------------------------------------------------------------------
Commenter also referenced subsequent cases and administrative
opinions where this reasoning prevailed. For instance, in Saltzman v.
United States,\248\ the Court of Claims held that the plaintiff,
despite occupying a position that was now in the excepted service, was
entitled to the civil service protections afforded to competitive
service employees, explaining that ``Plaintiff never lost the rights he
acquired under the Lloyd La Follette Act when he acquired permanent
competitive status in the classified civil service.''
---------------------------------------------------------------------------
\248\ 161 Ct. Cl. 634 (1963).
---------------------------------------------------------------------------
Commenter then discussed Stanley v. Department of Justice,\249\
where the Federal Circuit reviewed the adverse action rights of term-
limited Bankruptcy Trustees who were moved into Schedule C because they
were proclaimed to be encumbering positions that were ``confidential,
policy-determining, policy-making or policy-advocating'' in character.
As explained below in response to another contention in Comment 4097,
this 2005 ruling was entirely consistent with the longstanding view
that an employee cannot be stripped of status involuntarily but can
waive it voluntarily.
---------------------------------------------------------------------------
\249\ 423 F.3d 1271 (Fed. Cir. 2005), cert. denied, 547 U.S.
1098 (2006).
---------------------------------------------------------------------------
Analogous principles apply to employees subject to transfers of
functions.\250\ In 1980, for instance, the Comptroller General agreed
with OPM guidance determining ``that employees who transfer to the
Peace Corps would be transferred incident to a transfer of functions
and accordingly would retain their status as employees with competitive
civil service appointments notwithstanding that the Peace Corps'
appointment authority is solely under the Foreign Service Act of 1946
as amended.'' \251\
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\250\ See 5 U.S.C. 3503, 5 CFR 351.301-302.
\251\ Citing Matter of Clement J. Zalocki, House of Reps., B-
19818 L/M, 1980 WL 16731 (Comp. Gen. 1980), https://www.gao.gov/products/b-198187-lm.
---------------------------------------------------------------------------
Further, the MSPB has held that a determination under 5 U.S.C.
7511(b)(2) is not adequate unless it is made before the employee is
appointed to the position.\252\ The MSPB has also required agencies to
follow applicable procedures when making determinations under 5 U.S.C.
7511(b)(2). In Blalock v. Department of Agriculture,\253\ for example,
the MSPB rejected an agency's claim that it had removed employees from
their Schedule A positions by reduction-in-force (RIF) procedures and
appointed them to new Schedule C positions. It found that this RIF was
improper and the redesignation was not a ``reorganization.'' Therefore,
the agency could not have conducted a RIF and the agency's abolishment
of their Schedule A positions constituted individual adverse actions
against the incumbents. The MSPB directed the agency to reinstate
preference eligible employees whom it had separated without adhering to
applicable adverse action procedures.
---------------------------------------------------------------------------
\252\ Citing Thompson v. Dep't of Justice, 61 M.S.P.R. 364 (Mar.
30, 1994) (No. DE-1221-92-0182-W-1), subsequent history at 70
M.S.P.R. 251, aff'd, 106 F.3d 426 (Fed. Cir. 1997), Chambers v.
Dep't of the Interior, No. DC-0752-004-0642-M-2, 2011 WL 81797
(M.S.P.B. Jan. 11, 2011) (Member Rose concurring) (inadvertently
citing paragraph (b)(8) instead of (b)(2): ``For the section
7511(b)(8) exclusion to be effective as to a particular individual,
the appropriate official must designate the position in question as
confidential, policy-determining, policy-making, or policy-
advocating before the individual is appointed.''); Owens v. Dep't of
Health & Human Servs., 2017 WL 3400172 (July 31, 2017) (No. AT-0752-
17-0516-I-1) (citing Briggs for the proposition that ``a
determination under 5 U.S.C. 751l(b)(2) is not adequate unless it is
made before the employee is appointed to the position''); Vergos v.
Dep't of Justice, 2003 WL 21417091 (June 6, 2003) (No. AT-0752-03-
0372-I-1) (citing Thompson for the proposition that a
``determination under the 5 U.S.C. 7511(b)(2) is not adequate unless
it is made before the employee is appointed to the position''). See
also King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996) (noting, in
affirming a Board decision reinstating the Executive Director of the
Council on Disabilities, that the administrative judge who
adjudicated the Director's appeal had found that ``the Council `had
never made a determination that [Briggs'] position was a
confidential, policy-making, policy-determining, or policy-
advocating position,' and thus excluded from the definition of
employee in section 7511(a),'' and ``even if the Council had made
such a determination, `it never communicated that fact' to
Briggs.'').
\253\ 28 M.S.P.R. 17, 20 (1985), aff'd sub nom., Huber v. MSPB,
793 F.2d 284 (Fed. Cir. 1986).
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OPM appreciates Comment 2134 providing such extensive and detailed
factual history and agrees with the comment's analyses and conclusion
that
[[Page 25012]]
``OPM correctly characterized as `longstanding' the executive branch's
interpretations of sections 7501 and 7511 of title 5, as well as the
congressional intent as to the meanings of those sections.''
Comments Regarding Property Interests in a Position and the Retention
of Accrued Status and Rights Upon an Involuntary Move
A coalition of national and local unions agreed with OPM's
contention in the proposed rule,\254\ as recognized in Supreme Court
precedent, that in light of congressional enactments creating various
prerequisites to a removal for employees who meet specified conditions,
employees can earn a property interest in their positions once they
satisfy their probationary/trial period or their durational requirement
of current continuous service under 5 U.S.C. 7511 and retain those
rights upon an involuntary move from the competitive service to the
excepted service or within the excepted service. See Comments 41.
---------------------------------------------------------------------------
\254\ See 88 FR 63862, 63865-66, 63877.
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Commenters supportive of the rule argued that the President cannot
take away a vested property right through an executive order. The same
coalition of national and local labor unions wrote that no President,
through an ``Executive Order or other action can override the
Constitution or Chapter 75'' and remove the property interest that
certain career employees accrue in their continued federal employment.
See Comment 41. A former federal official argued that OPM's rulemaking
regarding part 752 would help protect career civil servants against
``arbitrary adverse actions while serving in their positions'' and
would help preserve those employees' protections even when a
competitive service position is moved into the excepted service. See
Comment 2816. Commenter continued that this rule would reduce the risk
of misapplying the civil service statutes by using rescheduling to
bypass civil service protections. OPM agrees with the contention
regarding property rights and the expected benefits of this rule.
A commenter opposed to the rule argued that the President can use
rescheduling to eliminate civil service protections. Comment 4097
conceded that OPM accurately explains in the proposed rule that the
Supreme Court has held that civil service protections give government
employees a property interest in their job, and that those same cases
also state that the government cannot constitutionally remove these
property interests without due process. Commenter contended,
nevertheless, that the government can eliminate civil service
procedures and, in doing so, extinguish the underlying property
interest previously created. The cases and examples commenter cited in
support (see Comment 4097, fn. 8), however, involve state legislative
action, not executive action, to alter or remove civil service
protections. This appears to be in line with Loudermill which instructs
that a ``legislature may elect not to confer a property interest in
public employment, [but] it may not constitutionally authorize the
deprivation of such an interest once conferred, without appropriate
procedural safeguards.'' \255\ Federal appellate courts have held that
rights conferred on state employees by legislative action can be
revoked, but that revocation also requires legislative action.\256\
Also, it is unclear which, if any, cited cases removed protections from
incumbents as opposed to unencumbered positions, which could run
contrary to Roth and its progeny as explained above.
---------------------------------------------------------------------------
\255\ 470 U.S. at 541.
\256\ See, e.g., id.; Correa-Ruiz v. Fortuno, 573 F.3d 1, 14-15
(1st Cir. 2009); Gattis v. Gavett, 806 F.2d 778, 779-81 (8th Cir.
1986).
---------------------------------------------------------------------------
Commenter also argued that, in light of section 7511(b)(2), courts
have held that federal agencies can declare positions policy-
influencing and thereby eliminate civil service removal requirements
that previously attached, citing Stanley v. Department of Justice \257\
and Stanley v. Gonzales.\258\ OPM disagrees with commenter's
characterization of these two cases, in which the Federal and Ninth
Circuits heard challenges to the removal of two U.S. Trustees who were
serving five-year terms. The original text of the statutory provision
concerning U.S. Trustees, 28 U.S.C. 581, provided that the Attorney
General could remove a U.S. Trustee only for cause.\259\ In 1986,
however, Congress amended the statute to eliminate the ``for cause''
requirement.\260\ At the time the trustees were initially appointed, no
Attorney General had made a determination that the position should be
considered confidential, policy-determining, policy-making, or policy-
advocating. Later, however, Attorney General Janet Reno declared U.S.
Trustee positions to be ``confidential, policy-determining, policy-
making or policy-advocating'' in character, and therefore not subject
to chapter 75's protections.\261\ Several years later, Attorney General
John Ashcroft fired the Trustees.\262\ Commenter argued that the
``courts upheld these dismissals because the trustees now occupied
policy-influencing positions; they no longer had MSPB appeal rights.''
But this glosses over the actual facts of these cases. As noted by
Comment 2134, and as explained in Stanley v. Department of Justice,
even though Attorney General Reno made this determination, the
Department of Justice acknowledged in writing ``that Trustees appointed
prior to the proclamation would not be affected--they would retain
appeal rights--but that all those appointed after the proclamation were
exempt from the due process provisions contained in Title 5.'' \263\
And these appointments were subject to a term of five years.
Accordingly, any rights in the original appointment would have ended at
the end of that term. The initial five-year terms of these two Trustees
later expired. When the individuals affected voluntarily accepted new
appointments to subsequent five-year terms, those appointments were now
subject to Attorney General Reno's intervening determination that the
positions were confidential, policy-determining, policy-influencing, or
policy-advocating. During the Trustees' second five-year term, a new
presidential administration removed them. The Federal Circuit found
that the intervening determination by Attorney General Reno, before
their voluntary acceptance of a second term, deprived them of any
entitlement to particular procedures before they could be terminated
from the positions.
---------------------------------------------------------------------------
\257\ 423 F.3d 1271 (Fed. Cir. 2005), cert. denied, 547 U.S.
1098 (2006).
\258\ 476 F.3d 653 (9th Cir. 2007).
\259\ 423 F.3d at 1273-74.
\260\ Id.
\261\ Id. at 1273.
\262\ Id.
\263\ Id.
---------------------------------------------------------------------------
Thus, far from demonstrating that ``courts have held that federal
agencies can declare positions policy-influencing and thereby eliminate
civil service removal requirements that previously attached,'' Stanley
v. Department of Justice demonstrates only that when Congress excepts a
position from the competitive service by statute and confers authority
on the agency head to remove without cause, and when the agency head
thereafter determines that the position is policy-influencing, the
subjects of new appointments thereafter will not be entitled to
procedural or appeal rights under chapter 75 and 5 U.S.C. 7701.
Reliance upon the related Stanley v. Gonzales case also does not
support commenter's position. In that case, the Ninth Circuit affirmed
a holding by a
[[Page 25013]]
Federal district court that that court lacked jurisdiction over Ms.
Stanley's new constitutional claims arising from the same facts.
Although Ms. Stanley argued that the CSRA did not preclude her from
pursuing relief directly under the Constitution, the Ninth Circuit
concluded that it could not even reach that question because she had
failed to allege a colorable constitutional claim. More specifically,
in concluding she could not state a cognizable property interest in her
position, the Ninth Circuit focused on the key details that Stanley was
on a time-limited second appointment and that, by statute (citing 28
U.S.C. 581), she could be removed without cause by the Attorney
General.
There is nothing about these decisions that is inconsistent with
OPM's position that a career employee's accrued rights cannot be
stripped involuntarily.
A former political appointee opposed to the rule argued that OPM
claimed it is acting in accordance with statutory text, legislative
history for that text, and Congressional intent but there is nothing in
the CSRA that states congressional intent to preserve rights upon a
move. See Comment 45. Commenter argued that OPM's rulemaking is
speculative with regard to the intent of the statutes, especially
``since neither 5 U.S.C. 7501 nor 5 U.S.C. 7511 clearly state their
intents'' and ``neither statute talks about or insinuates
`congressional intent.' '' It is unclear what this commenter is
attempting to convey. The language in chapter 75 does not provide an
explicit definition for certain terms used therein. OPM notes, however,
that congressional intent is not always spelled out in statutory text,
especially in a comprehensive statute that deals with many discrete
topics. In that situation, courts, regulated entities, and others
seeking to interpret statutory language may look to traditional tools
of statutory interpretation, including structure, statutory and
legislative history and other indicia of intent, as well as relevant
precedents. As explained throughout this final rule, these statutes
have extensive statutory and legislative history and there are
precedents that support OPM's rulemaking. The extensive history
discussed in Comment 2134, for example, supports OPM's rule regarding
the retention of status and rights upon an involuntary move.
A nonprofit organization opposed to the rule commented that 5
U.S.C. 7501 and 7511 refer to current continuous service in a same or
similar position, but do not contemplate a move from the competitive
service to the excepted service. See Comment 1811. The organization
asserted that OPM offers no case law ``relevant to this specific
instance'' and because ``the current regulations do not address this
particular situation,'' commenter believes rulemaking ``is not the
proper way for OPM to address this concern.'' Instead, ``Congress ought
to clarify worker protection here.'' The reference to current
continuous service relates to how rights are accrued in the first
place. Once an employee has accrued the requisite service, different
considerations apply with respect to the consequences of an involuntary
move of a position or person from the competitive to the excepted
service. A different advocacy nonprofit organization stated that ``OPM
does not have the authority to permanently attach removal
protections.'' See Comment 1958. Moreover, commenter argued that
``worker classifications exist to tie different levels of protection to
different types of jobs.'' Allowing a worker to carry over a protection
to a new classification ``undercuts the purpose of worker
classifications.'' Commenter argued that this ``provision is a
significant change in law, not a mere clarification[.]''
OPM will make no revisions based upon these comments. As explained
previously, Roth held that once a Federal employee has accrued civil
service status and procedural rights, the employee retains the status
and rights even if the employee's position is later moved to an
excepted service schedule that would otherwise lack such status and
rights. Roth was consistent with the cases that followed, such as
Loudermill and its progeny, which OPM describes here and in the
proposed rulemaking. In the absence of specific examples, we are
unaware what commenter means by ``different levels of protection'' for
``different types of jobs.'' An ``employee'' as defined in section
7511, who has met the requisite service requirement, is entitled to the
procedures specified in section 7513, whether the employee is in the
competitive service or the career excepted service.
A nonprofit organization opposed to the rule commented that
employees moved from the competitive service to the excepted service
should not as a matter of policy retain their accrued rights. Comment
1811. Commenter asserted that the changes to part 752 would make
terminations harder for agencies by strengthening civil service
protections. OPM notes that these revisions largely clarify the status
quo so they would not make it more difficult to remove employees for
the efficiency of the service or pursuant to the optional procedures in
chapter 43 for action based on unacceptable performance. Section
212.401(b) of this part, promulgated in 1968, already provides that
``[a]n employee in the competitive service at the time his position is
first listed under Schedule A, B, or C remains in the competitive
service while he occupies that position.'' As noted in the proposed
rule,\264\ this regulation was intended to preserve civil service
protections and adverse action rights when positions are moved. Comment
1811 then argued that ``[w]hen employees move from the Competitive
Service to the Excepted Service, it is not logical that their accrued
worker protections should follow them. They will report to new
supervisors, have new work, and different responsibilities.'' For the
reasons described above regarding Comment 2134 and its analysis of Roth
and its progeny, OPM disagrees that such retention of rights is
illogical. On the contrary, it is well grounded in decades of civil
service precedent and practice. Without these protections, an agency
might try to defeat accrued rights by reassigning individuals to new
positions in another service or schedule. Although we believe the case
law would already make such an attempt futile, we have chosen to
clarify our regulations by addressing the consequences of such a move
explicitly in this final rule. Moreover, there is nothing to support
the contention that moving an employee to the excepted service would
necessarily result in new supervisors, new work, or different
responsibilities.
---------------------------------------------------------------------------
\264\ See 88 FR 63862, 63869.
---------------------------------------------------------------------------
Comments Regarding the Regulatory Changes and Creation of ``New
Rights''
Two commenters opposed to this rule argued that it grants new
rights that are contrary to statute. One former political appointee
argued that ``Congress has distinguished between the competitive
service and exempted [sic] service'' in that they are different
classifications with different hiring processes, responsibilities, and
protections. Comment 45. Commenter continued that it ``is unfair that
civil servants who have worked in the exempted [sic] service for years
would not have protections, while those who had just been moved from
the competitive service would have protections, solely by virtue of
their previous classification.'' We assume, for purposes of responding
to this comment, that commenter meant to refer to the excepted service,
as there is no
[[Page 25014]]
``exempted service'' category.\265\ Commenter appears to suggest that
excepted service employees do not have civil service protections.
Excepted service positions may accrue the same adverse action rights as
competitive service employees once they satisfactorily complete their
probationary/trial period or satisfy their durational requirement. See
5 U.S.C. 7511. Following a decade of experience under the CSRA,
Congress expanded the scope of employees covered by adverse action
procedures in the 1990 Amendments by conferring such rights on
employees who had been appointed to career excepted service positions
and had accrued 2 years of continuous service in the same or a similar
position.\266\ The main exception to this, as discussed throughout this
rule, are those excluded under 5 U.S.C. 7511(b), including political
appointments requiring senate confirmation, Schedule C political
appointees, and presidential appointments. Also, as explained
previously, for almost 60 years, executive action, legal precedent, and
regulations have recognized that civil servants moved involuntarily
from the competitive service to the excepted service keep their rights.
---------------------------------------------------------------------------
\265\ The confusion may arise from section 302.101(c) of this
part, which lists a small set of positions in the excepted service
that are also exempt from the part 302 procedures that would
normally apply to the hiring of employees into the excepted service.
As noted above, section 3320 of title 5, U.S. Code, requires
appointing authorities hiring individuals into the excepted service
to use the same procedures described in sections 3308 to 3318 of
title 5 to effectuate veterans' preference. OPM's regulations at
part 302 are intended to provide the means for an agency to meet
that requirement. Part 302 provides for limited exemptions where
compliance is essentially impossible (e.g., attorney positions, for
which Congress has forbidden examination in annual appropriation
provisions). For those discrete positions, veterans' preference must
still be applied as far as administratively feasible. 5 CFR
302.101(c).
\266\ See Civil Service Due Process Amendments Act, 101 Public
Law 376 (Aug. 17, 1990).
---------------------------------------------------------------------------
Another commenter argued that 5 U.S.C. 7511(b) categorically
exempts policy-influencing excepted service positions from chapter 75's
adverse action procedures and OPM has no authority to extend civil
service removal restrictions to employees in such positions. Comment
4097.\267\ This misstates this final rule. OPM is not extending civil
service protections to employees excluded by section 7511(b). OPM's
regulatory amendments elaborate upon and clarify the retention of
rights upon an involuntary move and further define the exception in 5
U.S.C. 7511(b)(2), as explained further in Section IV(B), based on its
longstanding interpretation of the statute, elucidated by legislative
and statutory history, additional indicia of intent, and precedent.
Commenter then contended that OPM fails to cite any cases holding that
employees retain removal restrictions after their positions are
determined to be policy-influencing and instead OPM cited two cases
``that deal with an entirely different issue.'' (referring to footnote
117 of the proposed rule, which cites McCormick v. Department of the
Air Force (2002) and Greene v. Defense Intelligence Agency (2005)). See
Comment 4097. OPM did not cite either of those cases for this
proposition. They were cited in this rulemaking because OPM is making
conforming regulatory changes based on the precedent, holding that once
an employee satisfactorily completes their probationary/trial period or
durational requirement under 5 U.S.C. 7511, they are entitled to
adverse action rights. Footnote 117 from the proposed rule states,
``[t]hese proposed regulatory changes are consistent with how similar
statutory rights have been interpreted by Federal courts and MSPB when
employees change jobs by moving to a different Federal agency.'' \268\
That is precisely the reason these two cases were cited. Also, as
previously explained, longstanding precedent shows that employees
retain adverse action protections if moved to or within the excepted
service. See also Comment 2134, (detailing precedent, starting with
Roth and including the Stanley cases, which explain that incumbent
employees can retain rights even after their position is found to be
policy-influencing).
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\267\ We also note that section 7511(b)(2) does not
automatically exempt policy-influencing General Schedule positions
from chapter 75 protections. The position must be placed in the
excepted service by the President, OPM, or Congress, and a
determination must be made, by the appropriate person or entity, as
described in more detailed subparagraphs under subparagraph (b)(2),
that the position is of a confidential, policy-determining, policy-
making, or policy-advocating character. The provision is not self-
executing, as the Stanley cases demonstrate. In the absence of a
determination by the appropriate party, and communicated at the time
of appointment, section 7511(b)(2) would not limit adverse action
rights.
\268\ See 88 FR 63862, 63871.
---------------------------------------------------------------------------
Finally, some commenters opposed to the rule argued that pay and
privileges should flow with the position, not the person. One professor
emeritus commented that a basic principle of the civil service has been
that pay and privileges flow to the position and it would be
inconsistent for individuals to permanently carry with them the
attributes and protections that applied to their previous positions.
Comment 3953, see also Comment 4097 (``Nothing in title 5 says or
implies those restrictions follow individual employees.''). Comment
3953 continued that it would be unreasonable to expect that individuals
who move from ``career to noncareer positions'' would, or could,
permanently carry with them the protections they once enjoyed. But
federal workers become ``employees'' entitled to rights under chapter
75 based on their ability to complete a probationary/trial period and
continuous service in a position or similar position.\269\ Once those
rights are earned, employees retain that status even if they are moved
to an excepted service schedule or within the excepted service, so long
as the move was involuntary. A move from ``career to noncareer
positions'' would only retain adverse action rights, as explained
above, if such a move was involuntary. For instance, a voluntary
movement from the competitive service to Schedule C would require an
acknowledgment from the employee that adverse action rights would be
waived.\270\ A contrary rule would allow Federal workers to be
reclassified at the whim of an agency without regard to how the civil
service system has operated for decades, despite longstanding reliance
on these protections by the Federal workforce.
---------------------------------------------------------------------------
\269\ See 5 U.S.C. 7501, 7511.
\270\ See 5 CFR 302.102 (regarding processes for voluntary
movements).
---------------------------------------------------------------------------
OPM is promulgating the following changes to 5 CFR parts 212 and
752:
Part 212--Competitive Service and Competitive Status
Subpart D--Effect of Competitive Status on Position
Section 212.401 Effect of Competitive Status on Position
Part 212 addresses competitive service and competitive status and
this final rule revises the regulations in 5 CFR 212.401(b) regarding
the effect of an employee's competitive status on the employee's
position. This final rule establishes that a competitive service
employee whose position is first listed under Schedule A, B, C, or any
future excepted service schedule remains in the competitive service for
the purposes of status and protections, while the employee continues to
occupy the position or any other positions to which the employee is
moved involuntarily.
As described throughout this final rule, OPM's longstanding view is
that Federal employees maintain the civil service status and
protections that they have accrued. Since 1968, civil service
regulations have provided that an employee with competitive service
[[Page 25015]]
status (i.e., in the competitive service), at the time the employee's
position is first listed (i.e., moved) under Schedule A, B, or C of the
excepted service, remains in the competitive service as long as the
employee continues to occupy the position.\271\ OPM is updating 5 CFR
212.401(b) consistent with this final rule to establish that a
competitive service employee whose position is first listed
involuntarily under any future excepted service schedule remains in the
competitive service. OPM is updating to account for the possibility of
new excepted service schedules which may be established after
promulgation of this rule or other efforts to involuntarily move
positions to or within the excepted service.
---------------------------------------------------------------------------
\271\ 33 FR 12402, 12408 (Sept. 4, 1968).
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 212.401
One commenter opposed to the rule expressed a view that OPM
believes is a misreading of the regulatory change. Comment 3190, a law
school clinic, argued that the rulemaking creates ``a new pathway for
burrowing'' because it would amend 5 CFR 212.401(b) to allow that an
``employee in the competitive service at the time his position is first
listed under Schedule A, B, or C, or whose position is otherwise moved
from the competitive service and listed under a schedule created
subsequent to'' the effective date of final rule, to remain in the
competitive service.\272\ Commenter argued that, under such a
provision, an outgoing administration could burrow personnel by
promoting ideologically aligned competitive service civil servants to
Schedule C positions. A president would then be stuck with individuals
who oppose his agenda, even though Schedule C positions are ``policy
determining'' positions that often ``involve a close and confidential
working relationship with the head of an agency or other key appointed
officials.'' \273\ OPM believes this concern is misplaced. The portion
of the regulation that commenter identifies, relating to Schedules A,
B, and C, is not a ``new'' revision in this final rule. That language
already existed in 5 CFR 212.401(b) prior to this rule's amendment and
dates to 1968.\274\ The final rule adds the language, ``or whose
position is otherwise moved from the competitive service and listed
under a schedule created subsequent to [effective date of final
rule],'' to establish that a competitive service employee whose
position is first listed under any future excepted service schedule
remains in the competitive service as long as the employee continues to
occupy the position, or any other positions, in sequence to which the
employee is moved involuntarily, as has been the case for almost 60
years.
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\272\ 88 FR, 63862, 63882.
\273\ Id. at 63872.
\274\ Citing Revision of Regulations, Civil Serv. Comm'n Final
Reg. 5 CFR ch. I, subch. B (other than pt. 213), 33 FR 12402-08
(Sep. 4, 1968) (``An employee in the competitive service at the time
his position is first listed under Schedule A, B, or C remains in
the competitive service while he occupies that position.''), https://archives.federalregister.gov/issue_slice/1968/9/4/12396-12526.pdf#page=23. Fifty-five years later, this regulation remains
unchanged. 5 CFR 212.401(b).
---------------------------------------------------------------------------
As explained above and in Comment 2134, the original language in 5
CFR 212.401(b) was added during the Johnson Administration to track
judicial decisions finding that employees retained accrued status and
civil service protection upon an involuntary movement to excepted
service positions. Regarding Schedule C, specifically, the CSC in 1955
noted the difference between an employee's voluntary and involuntary
movement to that schedule. Regarding a voluntary move, the CSC
explained that competitive service employees would lose adverse action
rights. It stated, ``a vacant Schedule C job may not be filled by the
appointment of an employee serving in the competitive service until the
employee has been given notice in writing that acceptance of the
position will result in his leaving the competitive service. Leaving
the competitive service would result in his giving up the job-removal
protections of the Lloyd La Follette Act.'' Conversely, in the case of
an involuntary movement, the CSC noted that a competitive service
employee would retain their rights, explaining, ``if an occupied job in
the competitive civil service is moved to Schedule C, an incumbent who
has civil-service status continues to have the removal protection of
the Lloyd-La Follette Act during his occupancy of the position.'' See
Comment 2134.\275\ OPM also issued an advisory during the Reagan
Administration that explained, ``[t]he only Schedule C employees
covered by statutory appeal procedures [under 5 U.S.C. 7513] and who,
therefore, may appeal removal actions to the Merit Systems Protection
Board (MSPB) are those who were serving in a position in the
competitive service when OPM authorized its conversion to Schedule C
and who still serve in those positions (i.e., have status in the
position--cf. Roth v. Brownell, 215 F.2d 500 (D.C. Cir. 1954)).'' See
Comment 2134 (brackets in original). In that advisory, OPM continued,
``[a]n employee who was serving in a position in the competitive
service when OPM authorized its conversion to Schedule C and is still
serving in that position may be removed from that position `for such
cause as will promote the efficiency of the service.' Moreover, the
action must be taken in accordance with the procedures established by 5
U.S.C. 7511 et seq. and part 752 of OPM's regulations. These procedures
provide for the right: (1) to a 30-day advance written notice which
states the reasons for the proposed removal specifically and in detail;
(2) to reply personally and in writing; (3) to be represented; (4) to
have the reply considered; and (5) to a written decision stating the
reasons for the action. The employee may appeal the action to MSPB.''
For these reasons, OPM disagrees with Comment 3190 and the conclusions
that this provision regarding Schedules A, B, and C is new or
problematic.
---------------------------------------------------------------------------
\275\ Citing Press Release, U.S. Civil Serv. Comm'n, p. 3 (May
12, 1955).
---------------------------------------------------------------------------
Other commenters were generally supportive of this regulatory
change. Comment 2134, a joint comment by a nonprofit organization and
former federal official, was supportive but suggested that Sec.
212.401(b) be revised to clarify that competitive status is defined in
Sec. 212.301. OPM will adopt this suggestion and revise Sec.
212.401(b) to specifically reference an employee in the competitive
service who had competitive status as defined in Sec. 212.301. This
revision reduces the risk of inconsistent interpretation or application
of the regulations by referring to competitive status with uniform
language.
This comment also suggested that OPM revise Sec. 212.401(b) to
address the movement of employees and not only the movement of
positions. The comment also suggested that OPM revise the rule to make
explicit that employees who otherwise meet the conditions of Sec.
212.401 retain their competitive status regardless of the number of
times the position or employee is moved involuntarily (so long as the
sequence is not broken by a voluntary decision to apply for and accept
a different position, in which case, different rules may apply). OPM
will revise the language to clarify, based on the context and history
described above, that once status and rights are accrued, the key to
determining whether they are retained upon a move is whether the move
was voluntary or involuntary. The number of times the employee is moved
is immaterial to this analysis if all such movements are involuntary.
OPM will therefore revise the end of Sec. 212.401(b) accordingly.
[[Page 25016]]
Part 752--Adverse Actions
Part 752 addresses the procedural requirements for suspensions of
14 days or less, suspension for more than 14 days, reduction in grade
or pay, or furlough for 30 days or less for covered employees.
General Comments Regarding Amendments to 5 CFR Part 752
One management association offered strong support for OPM's
proposed changes. Comment 2849. It stated, with respect to the part 752
amendments, that ``[i]f an administration can bypass the civil service
framework established by Congress in the CSRA by moving employees to a
new excepted service, it would undermine the intention of the CSRA and
make its extensive employee protections obsolete.'' Another management
association said that, with respect to part 752, OPM's rule provides
sufficient protections and clarity. Comment 763.
A national union stated the proposed language for part 752 ``would
effectively deter moving a federal employee's position to the excepted
service for the purpose of retaliation, circumvention of due process,
or discriminatory action against any federal employee.'' Comment 3278.
A different national union stated that one reason for their support of
the amendments to part 752 was because ``employees will not feel safe
reporting fraud, waste, and abuse unless they have the ability to
challenge arbitrary, unfounded, and/or unreasonable disciplinary
actions.'' Comment 2640.
A local union stated that OPM's proposed language to amend 5 CFR
part 752 ``ensures that employees moved into excepted positions retain
their critical rights and should be enacted as proposed.'' Comment
1042. The local union maintained that adverse action procedures and
appeal rights ensure that Federal employees are retained based on merit
and are protected from retaliation and discrimination, including due to
their political affiliation. This commenter further asserted that the
rights accrued in a prior Federal position should not be lost solely
because the employee has been moved involuntarily, as such an approach
would encourage retaliation and limit agencies' ability to recruit top
candidates due to applicants' fears that they could eventually lose
protections they earned in that federal position by administrative
reassignment.
Another organization said that they ``particularly support'' the
amendments to part 752 to clarify that employees who are moved from the
competitive service or from one excepted service schedule to another
retain the protections they had already accrued. Comment 1904.
As stated above, other commenters expressed general disapproval of
OPM's regulatory amendments to part 752. OPM is not persuaded to make
any revisions based on those comments for the reasons stated above,
namely the comments are at odds with existing protections in chapter 75
that OPM's final rule clarifies, and the statutory text, legislative
history, and legal precedents construing it.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
This subpart addresses the procedural requirements for suspensions
of 14 days or less for covered employees. Chapter 75 of title 5, U.S.
Code, provides a straightforward process for agencies to use in adverse
actions involving suspensions of this duration. The changes conform
this subpart with statutory language to clarify which employees are
covered by subpart B when an agency takes an action for such cause as
will promote the efficiency of the service.
Section 752.201 Coverage
This section describes when an employee has or retains coverage
under the procedures of this subpart. Paragraphs (b)(1) through (b)(6)
of 5 CFR 752.201 enumerate the conditions under which an individual
would qualify for coverage. OPM's revision to 5 CFR 752.201(b)(1)
prescribes that, even if an agency intends to suspend for 14 days or
less an employee in the competitive service who is serving a
probationary or trial period, the employee is entitled to the
procedural rights provided under 5 U.S.C. 7503 if the individual has
completed 1 year of current service in the same or similar position
under other than a temporary appointment limited to 1 year or less.
As set forth in the proposed rule,\276\ OPM is revising subpart B
of part 752 to conform to the Federal Circuit decisions in Van Wersch
v. Department of Health & Human Services \277\ and McCormick v.
Department of the Air Force.\278\ These cases now guide the way the
MSPB applies 5 U.S.C. 7511(a)(1), which defines employees who have the
right to appeal major adverse actions, such as removals, to the MSPB.
Van Wersch addressed the definition of ``employee'' for purposes of
nonpreference eligibles in the excepted service and, a few years later,
McCormick addressed the meaning of ``employee'' for purposes of the
competitive service. As explained supra, section 7511(a)(1) states that
``employees'' include individuals who meet specified conditions
relating to the duration of their service or, for nonpreference
eligibles, relating to their probationary or trial period status. The
Federal Circuit explained that the word ``or,'' here, refers to
alternatives: some individuals who traditionally had been considered
probationers with limited rights are actually entitled to the same
appeal rights afforded to non-probationers if the individuals meet the
other requirements of section 7511(a)(1), namely (1) their prior
service is ``current continuous service,'' (2) the current continuous
service is in the ``same or similar positions'' for purposes of
nonpreference eligibles in the excepted service, and (3) the total
amount of such service meets a 1 or 2-year requirement, and was not in
a temporary appointment limited to 1 or 2 years, depending on the
service.\279\
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\276\ 88 FR 63862, 63871, 63881.
\277\ 197 F.3d 1144 (Fed. Cir. 1999).
\278\ 307 F.3d 1339 (Fed. Cir. 2002).
\279\ See McCormick, 307 F.3d at 1341-43; Van Wersch, 197 F.3d
at 1151-52.
---------------------------------------------------------------------------
In a prior rulemaking,\280\ OPM modified its regulations for
appealable adverse actions in 5 CFR part 752, subpart D, to align with
Van Wersch and McCormick and statutory language. OPM has consistently
advised agencies construing 5 U.S.C. 7501 to do so in light of the
Federal Circuit's interpretation of similar statutory language in 5
U.S.C. 7511. In this rule, OPM modifies language in 5 CFR 752.201(b)(1)
to conform to that understanding (and thus with the statutory language
in 5 U.S.C. 7501, as construed by the Federal Circuit in a precedential
decision). OPM's revision to section 752.201(b)(1) prescribes that,
even if an employee in the competitive service who has been suspended
for 14 days or less is serving a probationary or trial period, the
employee retains the procedural rights provided under 5 U.S.C. 7503 if
the individual has completed 1 year of current continuous service in
the same or similar position under other than a temporary appointment
limited to 1 year or less.
---------------------------------------------------------------------------
\280\ U.S. Off. of Pers. Mgmt., ``Career and Career-Conditional
Employment and Adverse Actions,'' 73 FR 7187 (Feb. 7, 2008).
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 752.201
Some commenters discussed OPM's changes to conform regulations to
Federal Circuit precedent in Van Wersch and McCormick and most were
supportive. A coalition of national and local unions expressed support
for
[[Page 25017]]
aligning the language of section 752.201(b)(1) for suspensions of less
than 14 days ``with the language of 5 U.S.C. 7501 and its interpreting
jurisprudence.'' Comment 41. An organization emphasized its support of
OPM's change to section 752.201 regarding the employees eligible for
grievance rights for suspensions. Comment 1904.
One former political appointee opposed to the rule questioned how
an individual meets the criterion for ``continuous service'' in this
regulatory change. Comment 45. Commenter asked how ``continuous
service'' applies to individuals who are teleworking or ``not turning
on their government computers given certain data from the Government
Accountability Office about the `massive increase in telework and
underutilization of office buildings.''' OPM is unclear whether this is
a serious inquiry, but notes that the term ``current continuous
employment'' is defined in 5 CFR 752.201(d) for suspensions of 14 days
or less as ``a period of employment or service immediately preceding a
suspension action without a break in Federal civilian employment of a
workday,'' and does not turn on whether the employee is exercising
flexibilities such as remote work or telework. Although commenter
raised concerns about ``continuous service'' with respect to section
752.201, OPM also notes that the language is present in subpart D of
part 752 as it applies to regulatory requirements for removals,
suspensions for more than 14 days, reductions in grade or pay, and
furloughs for 30 days or less. In section 752.402, the term ``current
continuous employment'' is defined as ``a period of employment or
service immediately preceding an adverse action without a break in
Federal civilian employment of a workday.'' This rulemaking does not
amend these definitions. Apart from the fact that these definitions are
unrelated to an individual's use of telework or occupancy in government
office buildings, we note that, during a lengthy period starting in
March 2020 and extending into the beginning of the Biden
Administration, Federal office buildings were closed to all but a few
employees whose work required their physical presence, making it
unavoidable that most employees were working from alternative
locations.\281\ Accordingly, the need to monitor whether employees are
actually working when not in the agency's brick-and-mortar workplace is
not a new consideration and can be addressed, as always, through
traditional performance management tools. OPM has already issued
extensive guidance on this topic.\282\
---------------------------------------------------------------------------
\281\ See, e.g., U.S. Off. of Mgmt. and Budget, M-20-15 (Mar.
15, 2020); M-20-16 (Mar. 17, 2020); M-20-23 (April 20, 2020).
\282\ See U.S. Off. of Pers. Mgmt., ``2021 Guide to Telework and
Remote Work in the Federal Government,'' https://www.opm.gov/telework/documents-for-telework/2021-guide-to-telework-and-remote-work.pdf.
---------------------------------------------------------------------------
In addition, the amended regulations section 752.201(b)(1) through
(b)(6) explain that individuals retain their status as covered
employees if they are moved involuntarily from the competitive service
to the excepted service, unless specifically prohibited by law.
One joint comment by a nonprofit organization and former federal
official supportive of the rule argued that OPM's proposed language for
section 752.201(b)(1), (b)(2), and (b)(6) provides coverage if the
employee is moved involuntarily and ``still occupies that position or a
similar position[.]'' Comment 2134. Likewise, commenter noted that
section 752.201(b)(4) applies only if the employee still occupies that
position. Commenter stated that these provisions collectively may be
too narrow to achieve OPM's purpose and that the ``number of
involuntary moves should not be relevant to the coverage of this
subsection.'' Commenter noted that an agency might deliberately move an
employee to a dissimilar position for the purpose of stripping the
employee of their rights. For these reasons, the organization
``suggest[s] that OPM end these paragraphs with the following language:
`that position or another position to which the employee is moved
involuntarily.'''
OPM agrees with commenter that the revision suggested would better
meet and strengthen the policy that OPM is advancing with the final
rule, and we will revise these provisions accordingly. OPM's proposed
rule was based the procedural rights in section 752.201(b)(1), (b)(2),
and (b)(6) in Subchapter I of chapter 75, title 5, U.S. Code. The
definitions for that subchapter are codified at 5 U.S.C. 7501, which
defines an employee as ``an individual in the competitive service who
is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous
employment in the same or similar positions under other than a
temporary appointment limited to 1 year or less.'' (emphasis added).
OPM agrees with commenter, though, that the ``same or similar
positions'' language used in chapter 75 relates to how rights are
accrued in the first instance. Based on the precedent described above,
the key factor to whether accrued status and rights are retained
following a move to or within the excepted service is whether the move
was voluntary or involuntary. The position to which an employee is
involuntarily moved need not be the ``same or similar'' for the
employee who has already accrued rights to continue to retain such
rights. OPM will therefore revise the provisions in paragraphs 5 CFR
752.201(b)(1), (b)(2), and- (b)(6) by clarifying that the provision
applies where the employee is moved involuntarily and continues to
occupy that position or any other position to which the employee is
moved involuntarily. In addition, based on the precedent explained
above, OPM will revise 5 CFR 752.201(b)(3) through (5) to apply the
same language.
The final rule also establishes a new 5 CFR 752.201(c)(7) to make
clear that employees in positions determined to be of a confidential,
policy-determining, policy-making, or policy-advocating character as
defined in 5 CFR 210.102 are excluded from coverage under subpart B of
part 752, consistent with congressional intent and as described more
fully below.\283\
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\283\ Please see also the discussion in Section IV(B) regarding
the definition of the phrases ``confidential, policy-determining,
policy-making or policy-advocating'' and ``confidential or policy-
determining.''
---------------------------------------------------------------------------
An agency commented that the ``inclusions/exclusions in 5 CFR
752.201 appear to conflict.'' Comment 2766. The agency explained that
the subsection of the proposed regulation addressing employees included
at Sec. 752.201(b) indicates that in many cases, ``an employee will be
covered if the employee is moved involuntarily into the excepted
service (or [into a] different schedule[ ]of the excepted service) and
still occupies this position.'' The agency noted, however, that the
subsection addressing employees excluded at Sec. 752.201(c) would
preclude coverage of individuals whose position has been determined to
be of a confidential, policy-determining, policy-making, or policy-
advocating character. The agency noted that subsection (c) does not
specify that the exclusion would apply only if the individual lacked
the accrued rights referenced in paragraph (b). The agency then
recommended a change to Sec. 752.201(c)(7) to address the perceived
conflict.
Based on this agency's comment, OPM is persuaded that a change is
necessary to effectuate the policy advanced by this final rule
consistent with statutory text, legislative history, and legal
precedents. As Comment 2134
[[Page 25018]]
noted, under Roth and other precedents, it is well-established that
when an employee with accrued rights is involuntarily moved from the
competitive service to an excepted service schedule without such
rights, the employee retains the accrued rights while the employee
remains in that position or any subsequent position to which the
employee is involuntarily moved. OPM will accept the agency's
recommendation to revise the exclusion at Sec. 752.201(c)(7) by
clarifying that the exclusion does not apply if the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
Sec. 752.201(b).
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
This subpart addresses the procedural requirements for removal,
suspension for more than 14 days, reduction in grade or pay, or
furlough for 30 days or less for covered employees. This includes, but
is not limited to, adverse actions based on misconduct or unacceptable
performance. The changes are intended to reinforce the civil service
protections that apply when an agency pursues certain adverse actions
for the efficiency of the service under chapter 75.
Section 752.401 Coverage
The changes add language to provide that an ``employee'' (i.e., for
purposes of this part, an individual who has accrued adverse action
rights by completing probation or a current continuous service
requirement) who occupies a position that is moved from the competitive
service into the excepted service, or from one excepted service
schedule to another, is covered by the regulatory requirements for
removal, suspension for more than 14 days, reduction in grade or pay,
or furlough for 30 days or less.
The changes to Sec. 752.401 reflect the impact of statutory
requirements--namely, that once an employee meets certain conditions,
the individual gains certain statutory procedural rights and civil
service protections which cannot be taken away from the individual by
moving the employee's position involuntarily into the excepted service,
or within the excepted service. These regulatory changes are consistent
with how similar statutory rights have been interpreted by Federal
courts and the MSPB when employees change jobs by moving to a different
Federal agency.\284\
---------------------------------------------------------------------------
\284\ See, e.g., McCormick, 307 F.3d at 1341-43; Greene v. Def.
Intel. Agency, 100 M.S.P.R. 447 (2005).
---------------------------------------------------------------------------
Paragraph (c) of 5 CFR 752.401 enumerates the conditions under
which an individual would qualify for coverage. The amended regulation
explains that those individuals retain their status if moved
involuntarily unless specifically prohibited by law.
Consistent with the proposed rule,\285\ OPM's final rule revises
Sec. 752.401(c) to clarify that employees in the competitive and
excepted services who have fulfilled their probationary or trial period
requirement or the durational requirements under 5 U.S.C. 7511 will
retain the rights conferred by subchapter II if moved involuntarily
from the competitive service to the excepted service or within the
excepted service to a new excepted service schedule, except in the case
where an employee relinquishes such rights or status by voluntarily
seeking, accepting, and encumbering a position that explicitly results
in a loss of, or different, rights.
---------------------------------------------------------------------------
\285\ 88 FR 63862, 63871.
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 752.401
One former political appointee opposed to the rule cited language
in the proposed rule regarding the retention of rights on an
involuntary move or the relinquishment of rights on a voluntary move
and characterized it as OPM wanting ``employees being transferred to
have the authority to determine if they relinquish their pay/benefits/
protections'' which would be, commenter argued, the ``equivalent of
placing someone on paid leave but allowing them to decide how much pay
to receive while they are gone.'' Comment 45. OPM disagrees with this
assessment. This section of OPM's proposed rule addressed rights
following the movement of an employee and differentiated between
voluntary and involuntary movements.\286\ It is not, as Commenter seems
to suggest, similar to leave following a disciplinary action. As
explained in the proposed rule and this final rule, absent a voluntary
movement, accrued rights are established in statute, as confirmed by
case law construing the statute, and cannot be taken from employees by
involuntarily moving them. Commenter's comparison of the retention of
rights following a move to an employee's rights following a
disciplinary action is therefore inapt.
---------------------------------------------------------------------------
\286\ See 5 CFR 302.102 (regarding processes for voluntary
movements).
---------------------------------------------------------------------------
As with 5 CFR 752.201, Comment 2134, which strongly supported the
proposed amendments, requested modifications to ensure that if ``an
agency moves an employee involuntarily more than once, the employee''
would ``retain any applicable status and civil service protections.''
Comment 2134. Commenter contended that an agency might deliberately
move an employee multiple times to a dissimilar position for the
purpose of stripping the employee of rights. Commenter noted that OPM's
proposed language for Sec. 752.401(c)(3), (4), (5), and (7) provides
coverage if the employee is moved involuntarily and ``still occupies
that position or a similar position[.]'' Commenter recommended
``replacing language that refers to a subsequent movement to a `similar
position' with language that refers to any position to which an
employee is moved involuntarily.'' For these reasons, commenter
recommended adding the language, ``or another position to which the
employee is moved involuntarily'' directly after ``and still occupies
that position'' in each of these paragraphs.
OPM is persuaded that this concern is well-founded and that the
change would strengthen the policy that the final rule advances. OPM
will revise these provisions accordingly. Section 752.401(c)(3) covers
an ``employee in the excepted service who is a preference eligible in
an Executive agency as defined at section 105 of title 5, United States
Code, the U.S. Postal Service, or the Postal Regulatory Commission[.]''
Section 752.401(c)(4) covers certain individuals in the Postal Service,
and Sec. 752.401(c)(5) covers certain nonpreference eligibles in the
excepted service. OPM's proposed rule focused on the fact that all such
individuals derive their rights and protections from 5 U.S.C.
7511(a)(1)(B) or (a)(1)(C), both of which require the work to have been
performed ``in the same or similar positions[.]'' With respect to Sec.
752.401(c)(7), the language covers an employee who previously ``was''
in the competitive service with competitive status and is currently in
the excepted service. As explained above, OPM agrees with commenter
that the ``same or similar positions'' language used in chapter 75
relates to how rights are accrued in the first instance and the key
factor in determining whether accrued status and rights are retained
following a move to or within the excepted service is whether the move
was voluntary or involuntary. OPM will therefore revise the provisions
in 5 CFR 752.401(c)(3), (c)(4), and (c)(5) to replace the words ``a
[[Page 25019]]
similar position'' with the words ``any other position to which the
employee is moved involuntarily.'' In addition, OPM will revise 5 CFR
752.401(c)(6) and (c)(8) to apply the same language. In 5 CFR
752.401(c)(7), OPM will replace ``a similar position'' with the words
``any other position to which the employee is moved involuntarily.''
OPM will also correct a typographical error by changing the period at
the end of 5 CFR 752.401(d)(2)(iii) to a semicolon.
In addition, the final rule modifies 5 CFR 752.401(d)(2) to make
clear that employees in positions determined to be of a confidential,
policy-determining, policy-making, or policy-advocating character as
defined in 5 CFR 210.102 are excluded from coverage under subpart D of
part 752. In this final rule, OPM defines these terms as descriptors
for the positions held by noncareer political appointees, as discussed
in Section IV(B).
As with 5 CFR 752.201, an agency asserted that the ``inclusions/
exclusions in 5 CFR 752.401 appear to conflict.'' Comment 2766. The
agency expressed that the subsection addressing employees excluded at
section 752.401(d) would preclude coverage of individuals whose
position has been determined to be of a confidential, policy-
determining, policy-making, or policy-advocating character but does not
specify that the exclusion would apply only if the individual lacked
the accrued rights referenced in paragraph (c). The agency then
recommended a change to 5 CFR 752.401(d)(2) to address the perceived
conflict. Based on this agency's comment, OPM is persuaded that a
change is necessary for the same reasons explained above relating to 5
CFR 752.201. OPM will revise the exclusion at Sec. 752.401(d)(2) by
clarifying that the exclusion does not apply if the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
Sec. 752.401(c).''
Finally, this final rule revises 5 CFR 752.401(c)(2)(ii) to reflect
the repeal of 10 U.S.C. 1599e, effective December 31, 2022, by the
National Defense Authorization Act for Fiscal Year 2022.\287\ The
repeal restores a 1-year probationary period for covered Department of
Defense employees (and also reduces the alternative continuous service
prong to 1 year). With respect to OPM's amendment to reflect the repeal
of the 2-year probationary period in the Department of Defense, an
individual disagreed with OPM's chosen language, stating that the
proposed regulation would ``codify an erroneous reading of the clear
language'' of sections 7501 and 7511 of title 5, U.S. Code. Comment
474. Commenter expressed concern that under OPM's proposed regulation,
individuals who were in a 2-year probationary period at the time of
their appointment (due to the now-repealed law) would not benefit from
the conforming amendment that modified 5 U.S.C. 7511 to remove
references to the now-repealed 2-year period. Commenter discussed both
Department of Defense guidance and multiple canons of statutory
construction. Commenter stated that the provision in 5 CFR
752.401(c)(2)(ii) in the proposed rule should be deleted in the final
rule to reflect the language of 5 U.S.C. 7501(1) and 7511(a)(1)(A)(ii).
---------------------------------------------------------------------------
\287\ See Public Law 117-81, 135 Stat. 1541, Sec. 1106(a)(1).
---------------------------------------------------------------------------
OPM will not adopt commenter's suggested revision but will make a
clarification. Section 1106 of Public Law 117-81 had two sections, (a)
and (b). Section (a) repealed a 2-year probationary period in the
Department of Defense. Section (b) provided the ``Technical and
Conforming Amendments.'' Section (a) states that the modifications of
probationary periods created by the repeal ``shall only apply to an
individual appointed as such an employee on or after the effective date
specified'' by the statute.\288\ The amendments to the U.S. Code that
follow in section (b) are alterations intended to conform the code to
the intent of the legislation, including the repeal of similar
provisions in 5 U.S.C. 7501 and 5 U.S.C. 7511. OPM interprets Public
Law 117-81 section 1106(a)(1) to mean that someone who was on a 2-year
probationary period (or 2-year continuous service requirement) under
section 1599e as of the effective date of the repeal, must still
complete one of those 2-year periods notwithstanding the repeal. Anyone
hired on or after the effective date, need only complete a 1-year
period. The current regulatory text indicates that covered employee
includes an employee ``[e]xcept as provided in section 1599e of title
10, United States Code, who has completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or
less.'' OPM will therefore revise this provision to clarify that the 2-
year probationary period applies to individuals hired prior to December
31, 2022, the date that section was otherwise repealed by Public Law
117-81, section 1106.
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\288\ See Public Law 117-81, Sec. 1106(a)(1).
---------------------------------------------------------------------------
Additional Comments Regarding Amendments to 5 CFR Part 752
A former federal official supportive of the rule suggested that OPM
clarify that the changes proposed in 5 CFR part 752 include SES
Positions. Comment 2816. Commenter included proposed language that
would modify 5 CFR 752.601, which deals with regulatory requirements
for taking adverse action relating to the SES. Commenter suggested
adding ``including such an employee who is moved involuntarily into the
excepted service and still occupies that position or a similar
position'' at the end of 5 CFR 752.601(c)(1)(i), (ii), (iii), and
(2)(i). OPM agrees with the policy goal that SES employees maintain
their adverse action protections, but we will not make any changes in
response to this comment. As described further in Section IV(B), this
rule addresses the competitive and excepted services, specifically the
retention of status and rights upon an involuntary movement from the
competitive service into or within the excepted service, the exclusion
of adverse action rights for excepted service positions of a
``confidential, policy-determining, policy-making or policy-advocating
character,'' and processes for moving employees and positions from the
competitive service into or within the excepted service. As described
above, the SES is its own separate service that it is not governed by
provisions applicable to the competitive or excepted services. Any
transfer of SES employees and positions would be governed by the SES
statute and regulations. Importantly, the exception to adverse action
rights under 5 U.S.C. 7511(b)(2) does also not apply to the SES. The
career SES is governed by separate adverse action procedures that,
unlike the rules governing the competitive and excepted services, make
no mention of whether a position is of ``a confidential, policy-
determining, policy-making or policy-advocating character.'' \289\ For
these reasons, as explained more fully below in Section IV(B), OPM will
make no modifications to the rule based on this suggestion.
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\289\ See 5 U.S.C. 7541-7543.
---------------------------------------------------------------------------
B. Positions of a Confidential, Policy-Determining, Policy-Making, or
Policy-Advocating Character
Part 210 of title 5, Code of Federal Regulations, addresses basic
concepts and definitions used throughout the Civil Service regulations
in 5 CFR chapter I, subchapter B. This final rule
[[Page 25020]]
adds a definition for the phrases ``confidential, policy-determining,
policy-making, or policy-advocating'' and ``confidential or policy-
determining.'' Positions of this character are excepted from the
chapter 75 protections described above.
OPM defines these phrases to make explicit OPM's interpretation of
this exception in 5 U.S.C. 7511(b)(2)--grounded in the statute,
traditional tools of statutory interpretation, and longstanding
policy--that Congress intended to except from chapter 75's civil
service protections individuals in positions of a character exclusively
associated with a noncareer political appointment that is both (a)
identified by its close working relationship with the President, head
of an agency, or other key appointed officials who are responsible for
furthering the goals and policies of the President and the
administration, and (b) that carries no expectation of continued
employment beyond the presidential administration during which the
appointment occurred.
OPM is also defining these phrases as descriptors for the positions
held by noncareer political appointees because the phrases are
currently used in the regulations to describe, among other things, a
``position'' or the ``character'' of a position. OPM is conforming
changes to 5 CFR 213.3301, 302.101, 432.101, 451.302, 752.201, and
752.401 to standardize the phrasing used to describe this type of
position.
As explained in this section and in the proposed rule,\290\
Congress has been careful to strike a balance between career
employees--who are covered by civil service protections under chapter
75 because of the need for a professional civil service no matter
whether they are in the competitive or excepted service--and political
appointees who serve as confidential assistants and advisors to the
President and other politically appointed officials who have direct
responsibility for carrying out the Administration's political
objectives. These political appointees are not required to compete for
their positions in the same manner as career employees, serve at the
pleasure of their superiors, and have no expectation of continued
employment beyond the presidential administration during which their
appointment occurred.
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\290\ 88 FR 63862, 63871-73.
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When Congress created the adverse action protections under chapter
75, it excluded, among others, employees appointed by the President,
with or without Senate confirmation,\291\ and employees in the excepted
service ``whose position has been determined to be of a confidential,
policy-determining, policy-making or policy-advocating character.''
\292\ Likewise, Congress specifically excluded from the positions
safeguarded against prohibited personnel practices under 5 U.S.C.
2302(a)(2)(B)(i) any position that is ``excepted from the competitive
service because of its confidential, policy-determining, policy-making,
or policy-advocating character.''
---------------------------------------------------------------------------
\291\ See 5 U.S.C. 7511(b)(1), (b)(3).
\292\ See 5 U.S.C. 7511(b)(2).
---------------------------------------------------------------------------
Chapter 75 does not specifically define the phrase as used in the 5
U.S.C. 7511(b)(2) exception, but as described in the proposed rule--and
as made further clear by public comments--this is a term of art and the
history of the phrase and the exception have long meant political
appointees.
Comments Regarding the Need To Clarify the Exception
Several commenters agreed with OPM that the phrase in this
exception needs further clarification because of the risk it could be
read, counter to the history of its usage, unreasonably broadly to
strip rights from career civil servants. One commenter discussed the
difficulty in identifying which employees have duties that are of a
``[c]onfidential, policy-determining, policy-making, or policy-
advocating'' character if the phrase is interpreted not to mean, as has
been broadly understood for decades, political appointees. Comment 6.
Merely being in an office or position titled ``policy,'' ``policy
analysis,'' ``policy implementation'' or such is not determinative.
Likewise, some employees with a title such as ``policy analyst'' or in
an office with a policy or planning-related title may be mid- or lower-
level. And countless federal employees work on issues that relate to or
touch upon policy. Thus, commenter argued, OPM's proposal to define
these policy positions as used in 5 U.S.C. 7511(b)(2) to noncareer
political appointees will be ``helpful in limiting the adverse
impacts'' of politicization to policy roles. Another commenter argued
that, without these changes, there is a risk of overbroad
classification of positions as ``policy-making,'' potentially
subjecting a substantial number of federal employees to unwarranted
political interference. Comment 2516. Commenter argued that this
interference could adversely impact employees' ability to perform their
duties effectively and could potentially paralyze the essential
functions of their agencies. Therefore, ``the need for clear
delineation in the interpretation of these terms is paramount to
prevent unintended consequences that could impede vital government
services.'' Id., see also Comment 3491. A professor emeritus noted that
the different potential interpretations of the exception are
represented in the various estimates on the potential scope of Schedule
F. See Comment 3953. Commenter showed that, in the early days of
Schedule F, the estimates were ``in the thousands.'' Since then, the
proponents have varyingly suggested that the number would be at least
50,000 and perhaps as many as 100,000.\293\ In public discussions, some
Schedule F supporters have made clear that their goal is for all 2.2
million federal employees to serve at the pleasure of the president.
Id.
---------------------------------------------------------------------------
\293\ Citing, for example, Drew Friedman, ``Divide over Schedule
F reveals deeper need for federal workforce reform, Partnership
says,'' Federal News Network (July 3, 2023), https://federalnewsnetwork.com/workforce/2023/07/divide-over-schedule-f-reveals-deeper-need-for-federal-workforce-reform-partnership-says/.
---------------------------------------------------------------------------
Conversely, a former political appointee argued that the statutory
exception was clear and did not require further definition. See Comment
45. OPM believes that the phrase itself--``confidential, policy-making,
policy-determining or policy-advocating''--may be, when viewed in
isolation, capable of more than one interpretation. But employing the
standard tools of statutory interpretation, including past practice,
legislative history, intent, and legal precedents, provides that the
best reading of the exception refers to noncareer political appointees
typically listed in Schedule C.
Comment Regarding the History of the Exception
The same joint comment by a nonprofit organization and former
federal official that extensively detailed the historical treatment of
accrued status and civil service protections upon an involuntary move
to an excepted service schedule, summarized in Section IV(A), also
commented at length regarding the executive branch's historical
understanding that the exception for ``confidential, policy-
determining, policy-making or policy-advocating'' positions applies
only to a small class of political appointee positions. See Comment
2134. This phrase and the related phrase, ``confidential or policy-
determining,'' have ``been used with consistency for between seven and
nine decades.'' This history is important because, as OPM recounts in
its proposed rule and in this final rule, a common understanding of the
terminology gave meaning to the
[[Page 25021]]
language of 5 U.S.C. 7511(b) when Congress enacted the CSRA. Commenter
concluded, after exhaustively detailing the relevant history, that
OPM's proposed regulatory definition is fully consistent with the
phrase's historical meaning.
Commenter also showed that the executive branch has consistently
designated only around 1,500 positions as confidential or policy
positions and has applied that definition to political appointees with
no expectation of continued employment beyond the presidential
administration during which the appointment occurred. See Comment 2134.
Because of the extensive citation to facts and history relevant to
this regulatory change, OPM summarizes commenter's arguments here.
Commenter began with the legal context of the exception. While the
phrase ``confidential, policy-determining, policy-making or policy-
advocating'' is not further defined in chapter 75, commenter argued
that other sections of the U.S. Code make clear that this phrase refers
to political appointees. Commenter cited as examples four laws that
directly state that incumbents of ``confidential, policy-determining,
policy-making or policy-advocating'' positions are political
appointees. One law applicable to the Department of Homeland Security
declares plainly that ``the term `political appointee' means any
employee who occupies a position which has been excepted from the
competitive service by reason of its confidential, policy-determining,
policy-making, or policy-advocating character.'' \294\ Congress used
similar language in laws applicable to the Department of
Agriculture,\295\ the National Aeronautics and Space
Administration,\296\ and the Department of Veterans Affairs.\297\
Commenter also showed that Congress has enacted laws that apply
restrictions to classes of political appointees that include incumbents
of positions of a ``confidential, policy-determining, policy-making or
policy-advocating'' character, including laws with government-wide
applicability.\298\
---------------------------------------------------------------------------
\294\ Citing 6 U.S.C. 349(d)(3) (``For purposes of paragraph
(1)--(A) the term `career employee' means any employee (as such term
is defined in section 2105 of title 5), but does not include a
political appointee; and (B) the term `political appointee' means
any employee who occupies a position which has been excepted from
the competitive service by reason of its confidential, policy-
determining, policy-making, or policy-advocating character.'').
\295\ Citing 7 U.S.C. 6992(e)(2).
\296\ Citing 5 U.S.C. 9803(c)(2).
\297\ Citing U.S. Dep't of Veterans Affairs, ``VA's
Administrations,'' https://www.ruralhealth.va.gov/aboutus/
structure.asp#:~:text=VA%20is%20the%20federal%20government's,Veterans
%2C%20their%20families%20and%20survivors.
\298\ Citing 5 U.S.C. 4107(b)(3), 5753(a)(2), 5754, 5758,
10104(d), see also 12 U.S.C. 4511, 5584; 22 U.S.C. 3983(d)(3); 38
U.S.C. 308(d)(2).
---------------------------------------------------------------------------
Further illustrating the political nature of positions excluded
under 5 U.S.C. 7511(b)(2), commenter cited a law applicable to the
Social Security Administration that imposes an aggregate limit on the
total number of noncareer (i.e., political) SES positions and
confidential or policy positions.\299\
---------------------------------------------------------------------------
\299\ Citing 42 U.S.C. 904(c), see also 5 U.S.C. 1215(b) (Office
of Special Counsel statute that requires that office to notify the
President of a Hatch Act violation by ``an employee in a
confidential, policy-making, policy-determining, or policy-
advocating position appointed by the President, by and with the
advice and consent of the Senate,'' which reinforces political
meaning of the phrase), 2 U.S.C. 1601 (Lobbying Disclosure Act
listing ``confidential, policy-determining, policy-making, policy-
advocating'' with other political appointees and executive and
military officers).
---------------------------------------------------------------------------
In addition to pointing to Congress' understanding of the phrases,
commenter also extensively detailed the history of these phrases
through various administrations, beginning in 1936 with the Roosevelt
Administration, and concluded that this context further supports OPM's
definition in this rulemaking. The history confirms that these phrases
have the same meaning, refer to political appointees, and cover only a
small number of positions in the executive branch (roughly 1,500).
As commenter points out, at least as early as the Roosevelt
Administration, the executive branch sought to treat confidential and
policy positions differently than it treated career excepted and
competitive service employees.\300\ In 1937, President Roosevelt called
for converting all positions other than ``policy-forming'' positions to
the classified (i.e., competitive) service, a position with which the
CSC agreed.\301\
---------------------------------------------------------------------------
\300\ Citing Democratic Party Platform of 1936 (June 23, 1936)
(``For the protection of government itself and promotion of its
efficiency, we pledge the immediate extension of the merit system
through the classified civil service . . . to all non-policy-making
positions in the Federal service.''), https://www.presidency.ucsb.edu/documents/1936-democratic-party-platform.
\301\ Citing Task Force on Pers. & Civil Serv., Report on
Personnel and Civil Service, 6 (1955) https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC; U.S.
Civil Serv. Comm'n, Fifty-Fourth Report, 2 (1937), https://babel.hathitrust.org/cgi/pt?id=hvd.hl29qu&seq=10&q1=policy&format=plaintext.
---------------------------------------------------------------------------
Further, as commenter noted, and as OPM explained in its proposed
rulemaking, the Roosevelt Administration's Brownlow Committee, studying
the executive branch organization, issued a report explaining that its
conception of policy-determining positions was extremely narrow and
such positions should be ``relatively few in number,'' consisting
mainly of ``the heads of executive departments, under secretaries and
assistant secretaries, the members of the regulatory commissions, the
heads of a few of the large bureaus engaged in activities with
important policy implications, the chief diplomatic posts, and a
limited number of other key positions.'' \302\
---------------------------------------------------------------------------
\302\ Citing ``Hearings on Reorganization of the Executive
Departments, before Joint Comm. on Gov't Org.,'' 75th Cong., 112
(1937) (testimony of Louis Brownlow), https://babel.hathitrust.org/cgi/pt?id=mdp.39015022777190&seq=124&q1=policy&format=plaintext.
---------------------------------------------------------------------------
Testifying before Congress, Louis Brownlow, the committee chair,
explained the meaning of this policy-determining position exception:
``[P]olicy-determining officers should be political officers and, in my
opinion, should change when the President changes.'' \303\
Contemporaneous materials support this meaning of the term ``policy-
determining.'' \304\
---------------------------------------------------------------------------
\303\ Id.
\304\ Citing ``Civil Service Aide Defends Federal Plan, Cites
Administration's increase in Employes Under System,'' Cincinnati
Post (May 11 1936); Nat'l Civil Service Reform League, ``The Civil
Service in Modern Government, A Study of the Merit System,'' p. 19
(1937), https://babel.hathitrust.org/cgi/pt?id=mdp.39015005609923&seq=27.
---------------------------------------------------------------------------
President Roosevelt then pursued the Committee's recommendation and
issued Executive Order 7916,\305\ adopting the term ``policy-
determining'' in lieu of the term ``policy-forming'' which his
Administration had initially used. The order created a framework for
giving employees in excepted service positions, other than those in
``policy-determining'' positions, competitive status.
---------------------------------------------------------------------------
\305\ Citing E.O. 7916 (June 24, 1938), https://www.presidency.ucsb.edu/documents/executive-order-7916-extending-the-competitive-classified-civil-service.
---------------------------------------------------------------------------
Two commissions led by former President Herbert Hoover agreed with
the same reading of this exception. During the Truman Administration,
the first Hoover Commission recommended a civil service exception for
``policy-making'' positions, saying that ``[t]op policy-making
officials must and should be appointed by the President. But all
employment activities below these levels, including some positions now
in the exempt category, should be carried on within the framework of
the decentralized civil service system recommended in this report.''
\306\ Later,
[[Page 25022]]
a second Hoover commission determined the term ``policy-determining''
was ``used to describe positions which should properly be reserved for
political executives, and hence not be converted to classified
status.'' \307\
---------------------------------------------------------------------------
\306\ Citing U.S. Dep't of Justice, ``Hiring Procedures for
Attorneys,'' 3 Op. O.L.C. 140, 145, n.7 (1979) (``[Attorneys] were,
pursuant to Exec. Order No. 8743, in the competitive service.''),
https://www.justice.gov/d9/olc/opinions/1979/04/31/op-olc-v003-p0140_0.pdf.
\307\ Citing Task Force on Pers. and Civil Serv., Report on
Personnel and Civil service, p. 6 (1955) (emphasis added)), https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC.
---------------------------------------------------------------------------
The Eisenhower Administration maintained this same distinction
between career positions and political positions. In March 1953, the
White House issued a press release describing ``types of positions that
do not belong in the Civil Service System'' which included (1) those
positions that received a delegation to shape the policies of the
Government and (2) those where the duties required a close personal and
confidential relationship.\308\ As commenter noted, the focus of this
press release was Schedule A because, at the time, career positions had
been comingled with political positions under that schedule. Later that
month, President Eisenhower created a new home for political positions
through Executive Order 10440, which established Schedule C for both
types of positions described in the press release. The order combined
these types of positions, referring to them as ``positions of a
confidential or policy-determining character.'' \309\
---------------------------------------------------------------------------
\308\ Citing Press Release, The White House, p. 1 (Mar. 5, 1953)
(signed by James C. Hagerty, Press Sec'y to the President).
\309\ Citing E.O. 10440 (Mar. 31, 1953), https://www.presidency.ucsb.edu/documents/executive-order-10440-amendment-civil-service-rule-vi.
---------------------------------------------------------------------------
The CSC explained that Schedule C aimed ``to enable the
Administration to make appointments directly to those positions
involving the determination of major executive policies'' and
identified the purpose of the new schedule for positions of a
confidential or policy-determining character: ``This action was taken
in order to make a clear distinction between jobs which belong in the
career service and those which should be subject to change with a
change in administration.'' \310\
---------------------------------------------------------------------------
\310\ Citing Memo. From Philip Young, Chairman, CSC, to Heads of
Dep'ts and Indep. Estabs. (Apr. 1, 1953); CSC, 70th Annual Report,
p. 2 (Nov. 16, 1953), https://babel.hathitrust.org/cgi/pt?id=uiug.30112069434923&seq=532&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
As commenter asserts, the Eisenhower Administration recognized that
the universe of political positions was small and showed restraint in
redesignating or creating Schedule C positions. By mid-1954, there were
only 1,086 Schedule C positions.\311\ This understanding about the
limited nature of this Schedule and corresponding restraint has endured
to this day.
---------------------------------------------------------------------------
\311\ Citing Press Release, U.S. Civil Serv. Comm'n, p. 2 (Aug.
6, 1954); U.S. Civil Serv. Comm'n, Schedule C Approvals and
Disapprovals by Agency Based Upon Civil Service Commission Decisions
(Jul. 23, 1954).
---------------------------------------------------------------------------
The precedent from 1936-1960 gave meaning to the phrase
``confidential or policy-determining'' by recognizing that it applied
to political appointees and only a small number of positions. As
commenter showed, Presidents Kennedy, Johnson, Nixon, Ford, and Carter
solidified that meaning by continuing to recognize the appropriate
scope of the phrase ``confidential or policy-determining.'' Under those
five presidents, the number of confidential and policy-determining
positions remained consistent, never exceeding 1,590 positions.\312\
---------------------------------------------------------------------------
\312\ Citing Mike Causey, ``Reagan's Plum Book Plumper Than
Carters,'' Wash. Post (May 11, 1984), https://www.washingtonpost.com/archive/local/1984/05/11/reagans-plum-book-plumper-than-carters/4b45ea11-5f41-4b0b-a3c3-f0e4b5774543/;
Attachment to Memo. from Raymond Jacobson, Exec. Dir., U.S. Civil
Serv. Comm'n, to Dirs. Of Pers., at p. 5 (Nov. 10, 1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf; H.
Comm. On Post Off. And Civil Serv., 94th Cong., the Merit System in
the United States Civil Service, p. 22 n.1 (Comm. Print 94-10 1975)
(monograph by Bernard Rosen), https://babel.hathitrust.org/cgi/pt?id=mdp.39015078700211&view=1up&seq=1&q1=%22schedule+c%22.
---------------------------------------------------------------------------
By the time Congress enacted the CSRA in 1978, the meaning of
``confidential or policy-determining'' was firmly established as
referring only to a small class of political positions. In enacting the
CSRA, Congress opted for the slightly longer and more descriptive
phrase ``confidential, policy-determining, policy-making or policy-
advocating.'' But as commenter showed, the two phrases have always
meant the same thing.
Congressional deliberations over the CSRA exception for
``confidential, policy-determining, policy-making or policy-
advocating'' positions reflected a contemporaneous understanding that
the legislature's longer phrase referred to the same thing as the
executive branch's shorter phrase.\313\ During hearings on the bill
that would become the CSRA, participants used the terms ``policy-
determining,'' ``policy-making'' and ``policy-advocating''
interchangeably. Floor debate in the Senate, for example, discussed
reports of the two Hoover Commissions,\314\ demonstrating that Congress
was aware of the history of the terms when it enacted the CSRA. The
House Committee on the Post Office and Civil Service issued a report in
1978 that showed congressional understanding and approval of the
historical use of the ``confidential or policy-determining'' exception,
stating ``[a]n employee whose position is of a confidential or policy
determining character, generally political appointees, would not be
entitled to the benefits of this legislation.'' \315\ The House
Committee continued that the CSC ``issues regulations to define
positions which are of a policy or confidential nature, and the
committee believes the current regulatory definitions for these
positions are adequate.''
---------------------------------------------------------------------------
\313\ Citing ``Hearings on H.R. 12080, Civil Service Amendments
of 1976, Before the Subcomm. on Manpower and Civil Serv., H. Comm.
on Post Off. and Civil Serv.,'' Serial No. 94-67, 29 (1976), https://babel.hathitrust.org/cgi/pt?id=pur1.32754078079963&seq=33&q1=advocating&format=plaintext.
\314\ Citing 124 Cong. Rec. (Senate) 27540 (Aug. 24, 1978)
(remarks of Senator Charles Percy (R-IL)) (``The Hoover Commission
believed that in a true career service, the employee could go as far
as his ability and initiative and qualifications indicated,
excepting only decisionmaking or confidential posts. It held: [`]Top
policy-making officials must and should be appointed by the
President. But all employment activities below these levels,
including some positions now in the exempt category, should be
carried on within the framework of (the civil service
system).[']''), https://www.govinfo.gov/content/pkg/GPO-CRECB-1978-pt20/pdf/GPO-CRECB-1978-pt20-7-1.pdf.
\315\ Citing H.R. Rep. No. 95-1207, at 5 (1978), https://babel.hathitrust.org/cgi/pt?id=mdp.39015087614379&seq=1053&q1=policy-determining.
---------------------------------------------------------------------------
Commenter showed that the House of Representatives committee
responsible for the CSRA explicitly indicated in its 1978 report that
it meant for the new language, ``confidential, policy-determining,
policy-making or policy-advocating,'' to cover only the types of
positions that the executive branch had already included in Schedule C
or designated as noncareer (i.e., politically appointed) executive
positions.\316\
---------------------------------------------------------------------------
\316\ Citing H. Comm. on Post Off. and Civil Serv., Legislative
History of the Civil Service Reform Act of 1978, vol. II, 242 (Comm.
Print 96-2 1979), https://babel.hathitrust.org/cgi/pt?id=uc1.b4177360&seq=242&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
This limitation, confining the language to political appointees,
was well understood after the CSRA's enactment as well. In 1990, when
Congress amended 5 U.S.C. 7511 to grant nonpreference eligible
employees a right to appeal removals and other major adverse actions to
the MSPB, the relevant congressional committee was again clear in
describing confidential and policy positions as political
appointees.\317\
---------------------------------------------------------------------------
\317\ H.R. Rep. 101-328, 5, 1990 U.S.C.C.A.N. 695, 699
(``Schedule C, positions of a confidential or policy-determining
character. These are political appointees who are specifically
excluded from coverage under section 7511(b) of title 5. H.R. 3086
does not change the fact that these individuals do not have appeal
rights.'').
---------------------------------------------------------------------------
[[Page 25023]]
In 1992, a bipartisan group of senators and congressional
representatives filed an amicus brief emphasizing that ``the effective
synonym for confidential policy positions is `political appointees.' ''
\318\ Their brief cited an MSPB decision that had said the phrase was,
``after all, only a shorthand way of describing positions to be filled
by so-called `political appointees.' ''
---------------------------------------------------------------------------
\318\ Citing Amicus Curiae Brief of Sens. Charles Grassley and
David Pryor and Reps. Connie Morella, Patricia Schroeder, and Gerry
Sikorski, reprinted in ``Hearing on S. 1981 To Extend Authorization
of Appropriations for the U.S. Office of Special Counsel, and for
Other Purposes before S. Comm. on Govt'l Affairs, Subcomm. on Fed.
Servs., Post Off., and Civil Serv.,'' 102d Cong., 101-10 (1992),
https://babel.hathitrust.org/cgi/pt?id=pst.000022216847&seq=59&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
Comment 2134 also showed that, in 1994, the Senate Select Committee
on Ethics reaffirmed this common understanding. Following the enactment
of the Hatch Act Reform Amendments, the committee issued guidance on a
new prohibition applicable to members of Congress regarding personnel
action recommendations or statements for ``all non-political Federal
employment.'' This meant that the prohibition did not apply to
political appointments. The committee specifically noted that the
prohibition did not apply to recommendations for presidential
appointments or for positions determined to be of a ``confidential,
policy-determining, policy-making, or policy-advocating character.''
\319\ The committee understood the term of art to mean political
positions.
---------------------------------------------------------------------------
\319\ Citing ``Dear Colleague'' Letter from the Senate Select
Committee on Ethics to United States Senators, 1 (Mar. 2, 1994),
reprinted in the 1996 Senate Ethics Manual, 1996 Ed., 238, https://babel.hathitrust.org/cgi/pt?id=mdp.39015038182369&seq=256&q1=advocating; see also U.S. Off.
of Pers. Mgmt., ``The status of the Senior Executive Service,'' p.
12 (1994) (``Executive branch agencies are barred from accepting or
considering prohibited political recommendations and are required to
return any prohibited recommendations to the sender, marked as in
violation of the law. Presidential appointees and employees in
confidential, policy-making or policy-advocating positions are
exempted from the regulations.'').
---------------------------------------------------------------------------
Finally, commenter noted that OPM further affirmed the common
understanding of this phrase when it responded to questions posed by
Senator Christopher Shays (R-CT) during a hearing in 1996. Illustrating
the consistency of OPM's position on the meaning of the phrase it now
defines, OPM wrote: ``OPM has authority to except positions from the
competitive service on the basis that they are of a confidential or
policy-making, policy-determining, or policy-advocating character
(`political' positions).'' \320\
---------------------------------------------------------------------------
\320\ Citing ``Hearing before the S. Comm. on Govt'l Affairs,''
104th Cong, S. Hrg. 104-483, 20, 92 (Feb. 7, 1996) (responses of
Off. of Pers. Mgmt. to Questions for the Record by Rep. C. Shays
(Mar. 21, 1996) as read into the record by Chairman Ted Stevens (R-
AK)), https://babel.hathitrust.org/cgi/pt?id=uc1.b5141898&seq=1&q1=policy-determining.
---------------------------------------------------------------------------
Commenter concluded, correctly, that this extensive history shows
that the ``terms mean precisely what OPM's proposed definition says
they mean. They describe positions meant to be filled by political
appointees who have no expectation of continuing beyond the terms of
either the president who appointed them or the term-limited
presidential appointees they support.'' The history also reveals there
are few such positions. The number has remained steady at around 1,500
positions and has never exceeded 1,800 positions.
Other Comments Regarding the History of the Exception
Several other comments supportive of the rule concurred with OPM's
understanding that Congress intended the phrase ``confidential, policy-
determining, policy-making or policy-advocating'' to mean political
appointees. A labor union expressed that the clarification is
consistent with the general understanding that the exception was
intended to only cover political appointees and was not intended to
extend to all federal employees whose jobs touch on policy in some way,
which, if read broadly, could encompass a substantial portion of the
federal civil service. Comment 40. The potential for turning the
exception into one that ``eats the rule'' is clear and the rule is a
sensible approach to prevent such future abuses. Id. A coalition of
national and local unions agreed with OPM's contention that there has
been a long, consistent understanding that this exception should
encompass only a category of political appointees. Comment 41.
Comments Opposing this Regulatory Change
An advocacy nonprofit organization opposed to the rule argued that
the legislative history for this exception merely confirms that it
covers Schedule C political appointees. Comment 4097. But commenter
contended that the legislative history does not state that the policy
influencing exception covers only political appointments and excludes
career employees. OPM disagrees with this position for the reasons
detailed in the proposed rule, this final rule, and Comment 2134. Since
at least 1936, this phrase and the resulting exception in 5 U.S.C.
7511(b)(2) have been understood to mean political appointees. Commenter
cites nothing that counters this extensive record. Even if there were
some uncertainty regarding the scope of section 7511(b)(2), OPM would
adopt the same definition because it is the best reading of the
statute, reflects the understanding articulated by Congress in enacting
the CSRA and, as discussed throughout this preamble, reasonably
reinforces and clarifies longstanding civil service protections and
merit system principles.
The same commenter opposed to the rule argued that OPM's
clarification of the longtime understanding of this exception would be
unconstitutional. Comment 4097 argued that OPM ``does not appear to
have considered the implications of its interpretation: accepting this
construction would render many inferior officers' civil service
protections unconstitutional.'' For this, commenter again cited Free
Enterprise Fund. For the reasons explained above in Sections III.(E),
(F), OPM does not agree with this conclusion or that Free Enterprise
Fund supports commenter's position. That case dealt with an independent
agency with multiple layers of removal protections for their inferior
officers (which generally do not exist in agencies where the President
can remove a Secretary, Director, or other agency head at will). In
Free Enterprise Fund, the second layer of protection was also
``significant and unusual'' \321\ and the Court specifically said that
other civil servants, like members of the SES, did not have such
rigorous protections even when they worked in independent agencies, and
further noted that many such employees would not qualify as
constitutional officers. Free Enterprise Fund casts no doubt on the
constitutionality of the civil service within independent agencies and
that decision provides no support to commenter's assertion that lower-
ranking employees in all agencies must lose civil service rights if
they work on policy or that somehow confirming their rights is
unconstitutional. And commenter made no showing that career civil
servants working on policy matters, especially below the ranks of the
SES--those to which this definition would apply--are always, or by
definition, inferior officers, nor is OPM aware of any judicial
decisions holding so.
---------------------------------------------------------------------------
\321\ 561 U.S. at 506.
---------------------------------------------------------------------------
[[Page 25024]]
One former political appointee appears to have argued that 5 U.S.C.
7511(b)(3) \322\ already exempts presidential appointees from adverse
action protections, so OPM's definition applicable to the exception in
7511(b)(2) would be superfluous. See Comment 45. But subsections
7511(b)(1)-(3) exclude three distinct types of political appointments
from the definition of ``employee,'' and by extension, from adverse
action rights.\323\ The first excludes high-level presidential
appointees requiring Senate confirmation (PAS).\324\ The third excludes
other presidential appointees who do not require Senate
confirmation.\325\ The middle category, and the subject of this
regulatory change, excludes those in positions determined to be of a
``confidential, policy-determining, policy-making or policy-advocating
character''--traditionally understood to refer, in the main, to
Schedule C political appointees.\326\ The creation of such a position
is approved in advance by OPM. Although the appointments are approved
by the Presidential Personnel Office, the individuals selected are
actually appointed by the head of the agency (or a designee) where the
individual will be assigned. Section 7511(b)(2) was enacted as part of
the Civil Service Due Process Amendments Act of 1990,\327\ where
Congress sought, inter alia, to eliminate the general exclusion of
nonpreference eligible excepted-service employees from ``independent
[MSPB] review.'' \328\ Accordingly, unlike the presidential appointees
discussed in (b)(1) and (b)(3), which are automatically excluded from
the adverse action procedures in chapter 75, some person or entity must
make an affirmative determination whether a position in the excepted
service is of a ``confidential, policy-determining, policy-making, or
policy-advocating'' character, a description which, as we have noted
above, was consistent with Congress' understanding of the unique set of
excepted service positions comprising Schedule C. Subparagraph (A) of
section 7511(b)(2) specifies that any such determination must be made
by the President, for a position that the President has excepted from
the competitive service; subparagraph (B) specifies that any such
determination must be made by OPM, for a position that OPM has excepted
from the competitive service; and subparagraph (C) specifies that any
such determination must be made by the President or the agency head for
a position that Congress itself has excepted from the competitive
service. As noted above, Congress explained that ``the key to the
distinction between those to whom appeal rights are extended and those
to whom such rights are not extended is the expectation of continuing
employment with the Federal Government.'' Congress stated that the bill
that would become the Civil Service Due Process Amendments Act of 1990
``explicitly denies procedural protections'' to these types of
political appointees--``presidential appointees, individuals in
Schedule C positions [which are positions of a confidential or policy-
making character] and individuals appointed by the President and
confirmed by the Senate,'' and that ``[e]mployees in each of these
categories have little expectation of continuing employment beyond the
administration during which they were appointed'' because they
``explicitly serve at the pleasure of the President or the presidential
appointee who appointed them.'' \329\ By enacting section 7511(b)(3),
therefore, Congress intended to exclude from the procedural and appeal
rights of 5 U.S.C. chapter 75 a discrete group of political appointees
separate from those described in section 7511(b)(2), namely those
individuals appointed directly by the President \330\ but who do not
require Senate confirmation.
---------------------------------------------------------------------------
\322\ Commenter argued ``Chapter 75 Sec. 7511(c) says that all
Presidential appointees are exempt. However, other subsections
enumerate other categories for exemption. Chapter 75 Sec. 7511
(b)(2) outlines exemptions for policymaking employees. If Congress
had intended that ONLY political appointees be exempt, they would
not have outlined under what circumstances other employees would
have been exempt for policymaking reasons. Therefore, Congressional
intent was for there to be members of the civil service who are
considered `policymaking.' '' Comment 45. Commenter cited 5 U.S.C.
7511(c) but appears to mean 7511(b)(3). Also, OPM never argues that
only political appointees are excepted from adverse action rights.
It is defining the exception in 5 U.S.C. 7511(b)(2) to mean
political appointees.
\323\ See supra note 138 (detailing the different types and
numbers of political appointments).
\324\ See 5 U.S.C. 7511(b)(1).
\325\ See 5 U.S.C. 7511(b)(3).
\326\ See 5 U.S.C. 7511(b)(2). Paragraph (b)(2) also specifies
who may make the determination for positions that Congress itself
excepts from the competitive service. See 5 U.S.C. 7511(b)(2)(C). An
example of such a position is the U.S. Trustee position discussed in
Stanley v. Dep't of Justice, 423 F.3d 1271 (Fed. Cir. 2005).
\327\ Public Law 101-376, 2, 104 Stat. 461, 461-62.
\328\ H.R. Rep. No. 101-328, at 3, as reprinted in 1990
U.S.C.C.A.N. 695, 697.
\329\ H.R. Rep. No. 101-328, at pp. 4-5, as reprinted in 1990
U.S.C.C.A.N. at 698-99.
\330\ See, e.g., 5 CFR 213.3102(c); U.S. Off. of Pers. Mgmt.,
``Frequently Asked Questions: Political Appointees and Career Civil
Service Positions FAQ'' (listing various types of political
appointments), https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/.
---------------------------------------------------------------------------
Some commenters opposed to the rule argued that career civil
servants, not just political appointees, can be ``policymakers'' and
excluded from the definition of ``employee'' and stripped of rights
under 5 U.S.C. 7511(b)(2). One former political appointee contended
that career civil servants significantly impact policy in agencies
across the Federal Government and that it makes little sense to say
they are not policymakers. See Comment 45. Comment 4097, an advocacy
nonprofit organization, argued that the CSRA expressly applies the
terms ``policy-determining'' and ``policy-making'' to career positions.
To support this point, commenter points to 5 U.S.C. 3132, which relates
to the duties of both career and noncareer SES and states that SES
members exercise ``important policy-making, policy-determining, or
other executive functions.'' 5 U.S.C. 3132(2)(E). Commenter concludes
similar phrasing in 5 U.S.C. 7511(b)(2) must also apply to career
members of the competitive and excepted services. OPM disagrees, for
multiple reasons.
As an initial matter, the terminology and the structure of 5 U.S.C.
7511(b) are different from 5 U.S.C. 3132. As explained extensively
throughout this final rule, the phrase ``confidential, policy-
determining, policy-making or policy-advocating,'' as Congress used it
in 5 U.S.C. 7511(b)(2), is a term of art with a clear history and a
consistent usage. By contrast, Congress, in enacting the provisions
establishing the SES, was writing on a clean slate and used a different
statutory structure and language. Section 3132(2)(E) describes the SES
as exercising ``important policy-making, policy-determining, or other
executive functions'' (emphasis supplied), a new formulation of
characteristics. Congress, in creating the SES, also established a
different mechanism to provide flexibility for hiring a certain number
of noncareer appointees, while limiting such appointments pursuant to a
numerical formula.\331\
---------------------------------------------------------------------------
\331\ See 5 U.S.C. 3133.
---------------------------------------------------------------------------
Further, Comment 4097's comparison to language in the SES cuts
against its larger argument--that Congress contemplated that career
civil servants, by the function of having confidential or policy
responsibilities, can and should lose adverse action rights. As
commenter points out, the law acknowledges that all SES positions,
career and noncareer, ``exercise[ ] important policy-making, policy-
determining, or other executive
[[Page 25025]]
functions,'' yet the career SES appointees under these positions are
entitled to adverse action protections.\332\ And these protections do
not include any exception for career SES officials, similar to 5 U.S.C.
7511(b)(2), for positions of a ``confidential, policy-determining,
policy-making or policy-advocating'' character.\333\ To the contrary,
all career SES officials who have completed a probationary period--
again, officials who, by statute, ``exercise important policy-making''
and ``policy-determining'' functions--receive adverse action
protections.\334\ It does not follow that Congress would create a
statutory scheme where the SES could have policy responsibilities and
adverse action rights but a lower-ranking strata of career civil
servants--managed by that SES--could lose adverse action rights the
moment they worked on policy.
---------------------------------------------------------------------------
\332\ See 5 U.S.C. 7541-7543.
\333\ As explained, the exception at 5 U.S.C. 7511(b)(2) does
not apply to the SES. That exception applies to the excepted service
and whether those civil servants have adverse action rights. But the
excepted service does not include the SES. See 5 U.S.C. 2103(a)
(defining ``excepted service,'' and stating, ``[f]or the purpose of
this title, the `excepted service' consists of those civil service
positions which are not in the competitive service or the Senior
Executive Service.'').
\334\ The Subchapter on adverse actions establishes the at-will
status of noncareer SES by simply defining ``employee'' for purposes
of that Subchapter as career employees, at section 7541(1)). Thus,
there was no need, in crafting, sections 7541-7543, to make an
exception similar to 5 U.S.C. 7511(b)(2), for positions of a
``confidential, policy-determining, policy-making or policy-
advocating'' character.''
---------------------------------------------------------------------------
A professor emeritus opposed to this rule made a related argument
that, in practice, career civil servants perform policy roles. See
Comment 3953. Commenter argued that OPM's definition of the statutory
exception fails to recognize that there is a significant number of
career employees who exercise ``confidential, policy-determining,
policy-making, or policy-advocating'' roles within the government. The
rulemaking, commenter argued, therefore presumes a separation of
policymaking and policy implementation and between political appointees
and career officials that does not exist. As explained above, however,
this final rule does not say that only political appointees should or
do work on policy. Instead, it clarifies the longtime understanding of
the exception in 5 U.S.C. 7511(b)(2) as political appointees.
Comment 4097 further argued that a 1994 amendment to 5 U.S.C. 2302,
relating to prohibited personnel practices, shows that career
incumbents ``can lose statutory protections if their positions are
declared policy-influencing.'' Section 2302(a)(2)(B) defines ``covered
position'' with respect to any personnel action, but excludes from
coverage any position which is, ``prior to the personnel action . . .
excepted from the competitive service because of its confidential,
policy-determining, policy-making, or policy-advocating character.'' 5
U.S.C. 2302(a)(2)(B) (emphasis added). Commenter suggests that the 1994
amendment added ``prior to the personnel action'' to this clause, and
this means that Congress contemplated the designation of a position as
confidential, policy-making, policy-determining, or policy-advocating
and the subsequent removal of those positions as ``covered'' under
section 2302. That career incumbent, according to commenter, would then
lose the corresponding protections from prohibited personnel practices
after the position's move to the excepted service. Section
2302(a)(2)(B) clarifies that the status of the underlying position at
the time of the personnel action determines whether the incumbent can
pursue relief pursuant to section 2302. OPM notes that this final rule
deals with adverse action rights under 5 U.S.C. chapter 75 and
corresponding regulations, but not prohibited personnel practices.
Adverse action protections and the ability to seek corrective action in
response to a prohibited personnel practice are two separate types of
rights with distinct processes. Nothing about the 1994 amendments
change the meaning of the exclusion in section 7511(b)(2) as explained
above. OPM, moreover, agrees that a select few employees have been
moved from the competitive service to Schedule C because conditions of
good administration warranted such a move, or have been placed in the
excepted service by Congress, via a statute creating unique appointment
and removal provisions, as in the Stanley cases.\335\ But as these
cases show, when it comes to adverse action rights, even the incumbents
of confidential, policy-determining, policy-making, or policy-
advocating positions, when moved to Schedule C, retain previously
accrued adverse action rights if the move was involuntary.
---------------------------------------------------------------------------
\335\ See also 5 CFR 6.8(c) (moving USDA Agriculture
Stabilization and Conservation state executive directors and Farmers
Home Administration state directors into Schedule C).
---------------------------------------------------------------------------
Comments Regarding the MSPB's Interpretation of This Exception
Other commenters supporting the rule contended that the MSPB has
interpreted the phrase to mean political appointees. A coalition of
national and local labor unions noted, as did OPM in its proposed
rule,\336\ that the MSPB has construed this phrase for decades. Comment
41. The Board has explained that the phrase ``confidential, policy-
determining, policy-making or policy-advocating'' is ``only a shorthand
way of describing positions to be filled by so-called `political
appointees.' '' \337\
---------------------------------------------------------------------------
\336\ See 88 FR 63862, 63872.
\337\ Citing Special Counsel v. Peace Corps, 31 M.S.P.R. 225,
231 (1986).
---------------------------------------------------------------------------
One commenter opposed to the rule argued that MSPB decisions have
``little relevance here'' since chapter 75 gives the President, OPM,
and agency heads responsibility for determining that positions are
policy-influencing. Comment 4097. Commenter argued that MSPB case law
does not and cannot determine the scope of these exceptions. The MSPB
is authorized to hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the jurisdiction of the Board.\338\
Subject to otherwise applicable provisions of law, it may take final
action on any such matter.\339\ It may order any Federal agency or
employee to comply with any order or decision it issues and enforce
compliance with any such order.\340\ It is true that the MSPB cannot
compel the Federal Circuit or the Supreme Court to adopt a different
position, but MSPB's interpretations of title 5's terms are
nevertheless significant. Where possible, it is prudent to interpret
statutes harmoniously and in a manner that will not expose agencies to
unwarranted liability. Also, as Comment 2134 described, Congress itself
has relied on the MSPB decisions and viewed them as persuasive in
defining terms in title 5. In 1992, a bipartisan group of senators and
congressional representatives filed an amicus brief emphasizing that
``the effective synonym for confidential policy positions is `political
appointees.' '' See Comment 2134. Their brief cited an MSPB decision
that said the phrase was, ``after all, only a shorthand way of
describing positions to be filled by so-called `political appointees.'
'' Id. OPM is not simply deferring to existing MSPB decisions, but
rather has considered those decisions and finds their reasoning to be
compelling and in accord with our own. The fact that multiple agencies
within the Executive Branch with authority to interpret and apply title
5 have reached the same determination about what this title 5
[[Page 25026]]
term of art means only underscores the persuasiveness of that
conclusion.
---------------------------------------------------------------------------
\338\ 5 U.S.C. 1204(a)(1).
\339\ Id.
\340\ 5 U.S.C. 1204(a)(1)(2).
---------------------------------------------------------------------------
Finally, a former political appointee argued that ``policy-making''
under 5 U.S.C. 7511(b)(2) is not determined by how employees are
hired--as a political appointee or career civil servant--but rather, it
is determined based on holding an excepted position. Comment 45. Under
5 U.S.C. 3302, however, excepted service positions can be created for a
variety of reasons when conditions of good administration warrant. The
President has delegated to OPM--and, before that, to its predecessor,
the CSC--concurrent authority to except positions from the competitive
service when it determines that appointments thereto through
competitive examination are not practicable. Merely holding an excepted
service position does not make someone a policy-making employee nor
does working on policy necessitate being in an excepted service.
As Congress described during the 1990 Amendments, the ``key to the
distinction'' between those civil servants on whom appeal rights are
conferred and those to whom such rights are not conferred is the
``expectation of continuing employment with the Federal Government.''
Some commenters opposed to this rule ignore this distinction. Comment
4097 argued that certain employees would not enjoy adverse action
rights but would keep their jobs if they ``faithfully advanced the
President's agenda.'' Such a scheme would be directly contrary to this
``key'' distinction that Congress identified as animating the adverse
action exceptions.
Improperly applying the phrase ``confidential, policy-determining,
policy-making, or policy-advocating'' to describe positions held by
career employees, who have an expectation of continuing employment
beyond the presidential administration during which they were
appointed, and to strip them of civil service protections, even when
the Senior Executives to whom such individuals report retain
protections, would be inconsistent with the statute. OPM's rule, on the
contrary, is the best reading of the statute--as confirmed by the
statutory scheme, congressional intent, legislative history, and
decades of applicable case law and practice. Congress carefully
balanced the need for long-term employees who have knowledge of the
history, mission, and operations of their agencies with the need of the
President for individuals in certain positions who will ensure that the
specific policies of the Administration will be pursued. The phrase has
long been interpreted as ``a shorthand way of describing positions to
be filled by political appointees,'' including any appointment required
or authorized to be made by the President, or by an agency head when
there are ``indications that the appointment was intended to be, or in
fact was, made with any political considerations in mind.'' \341\ In
this final rule, therefore, OPM is making explicit this longtime,
consistent understanding.
---------------------------------------------------------------------------
\341\ O'Brien v. Off. of Indep. Counsel, 74 M.S.P.R. 192, 206
(1997) (quoting Special Counsel, 31 M.S.P.R. at 231).
---------------------------------------------------------------------------
OPM is promulgating the following changes to 5 CFR parts 210, 213,
432, 451, and 752:
Part 210--Basic Concepts and Definitions (General)
Subpart A--Applicability of Regulations; Definitions
Section 210.102 Definitions
The final rule amends 5 CFR 210.102 to add a definition for the
phrase ``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining'' to describe
positions generally excepted from chapter 75's protections to reinforce
the longstanding interpretation that, in creating this exception to 5
U.S.C. 7511(b), Congress intended to except noncareer political
appointments from the civil service protections, which are identified
by their close working relationship with the President, head of an
agency, or other key appointed officials who are responsible for
furthering the goals and policies of the President and the
administration, and that carry no expectation of continued employment
beyond the presidential administration during which the appointment
occurred. OPM defines the phrase as descriptors for the positions held
by noncareer political employees because the phrase is currently used
in the regulations to describe, among other things, a ``position'' or
the ``character'' of a position.
OPM also conforms changes to 5 CFR 213.3301, 302.101, 432.101,
451.302, 752.201, and 752.401 to standardize the phrasing used to
describe this type of position. Additional comments related to this
definition are addressed here.
Comments Regarding Amendments to 5 CFR 210.102
An oversight nonprofit organization supportive of this rule
suggested that it would be improved if OPM provided a list of the
positions that do not meet the definition of ``confidential, policy-
determining, policy-making, or policy-advocating.'' Comment 3894. This
commenter was especially concerned that OPM enumerate the non-
confidential, policy-determining, policy-making, and policy-advocating
positions involving national security, public health, emergency
management, whistleblower protection, government ethics, audits, legal
and regulatory interpretation, budget development and execution,
medical and scientific research, and data collection and analysis.
Commenter suggested that an explicit enumeration is necessary to ensure
that the appropriate positions in critical areas are not mistakenly
categorized as confidential, policy-determining, policy-making, or
policy-advocating. OPM will not make revisions based on this comment.
OPM has adequately and thoroughly clarified the exception in 5 U.S.C.
7511(b)(2) by explaining that it applies to noncareer political
appointees. It would be impracticable for OPM to effectively enumerate
all such political positions, especially since new positions may be
created over time. OPM also notes that a (necessarily partial) list of
positions that do not meet the definition may be misunderstood as an
attempt at an exhaustive list, generating confusion rather than
clarity.
Several commenters requested that OPM clarify how the definition of
``confidential, policy-determining, policy-making, or policy-
advocating'' in this final rule applies, if at all, to the members of
the SES.\342\ Comments 44, a public service nonprofit organization, and
3687, a science advocacy organization, asked that OPM clarify how this
definition affects SES employees. Comment 763, a management
association, expressed concern that OPM's clarification of these types
of positions will lead to SES employees getting cut out of their
current policy supporting roles. They recommended that OPM define
``policy determining, making, and advocating'' as covering issues that
rise to a level needing decisions by Presidential appointees. They
further recommended that OPM address how our proposed amendments to 5
CFR part 210 interact with the statutes and regulations governing the
SES and other senior career leaders that make clear that career SES are
involved in many policy-related activities, explicitly including
support for policy advocacy. Comments 2442 and 3428 (submitted by the
same individual) request further clarification in light of the
provisions of 5 U.S.C.
[[Page 25027]]
3132, which states career members of the SES exercise ``important
policymaking, policy-determining, or other executive functions.'' As
described above and further below, no changes to the proposed rule are
necessary, as the SES is governed by a separate statutory structure
that protects the career SES in different ways from the framework
governing the competitive and excepted services.
---------------------------------------------------------------------------
\342\ The extension of all parts of this rule to the SES was a
common request and theme in the comments. See Comments 2193, 2222,
2260, 2796, 2816, 2822, 3049, 3095, 3149, 3687, 3973.
---------------------------------------------------------------------------
As explained in Section III(D), the Federal civil service created
by the CSRA consists of three ``services'': the competitive service,
the excepted service, and the SES.\343\ This regulation addresses the
competitive and excepted services, which are governed by the statutory
and regulatory provisions cited in the proposed rule and this final
rule, including, specifically, the adverse action rules set forth at 5
U.S.C. 7501-7515. Congress established the SES as a separate service
``to ensure that the executive management of the Government of the
United States is responsive to the needs, policies, and goals of the
Nation and otherwise is of the highest quality for executive-level
Federal employees.'' \344\ The SES has a different system for hiring
executives, managing them, and compensating them.\345\ It provides for
both career and noncareer positions and sets its own limitations on the
appointment of noncareer positions. Career SES employees are governed
by separate adverse action procedures. Because, pursuant to the
definitions in 5 U.S.C. 7541, those adverse actions are limited to
``career'' employees, there was no need, unlike with the rules
governing adverse actions for employees in the General Schedule, to
call out and exclude positions of ``a confidential, policy-determining,
policy-making or policy-advocating character,'' and thus there is no
reference to such positions in the provisions at section 7541-7543.
---------------------------------------------------------------------------
\343\ There are also a small number of officials, typically
those appointed by the President with or without consent of the
Senate, who are paid on the Executive Schedule and not considered
part of any of these services.
\344\ 5 U.S.C. 3131.
\345\ See 5 U.S.C. 5131-5136.
---------------------------------------------------------------------------
Instead, chapter 75's adverse action procedures for the SES,
codified at 5 U.S.C. 7543, indisputably apply to any career appointee
in the SES who has completed the relevant probationary period in the
SES or had accrued adverse action protections while serving in the
competitive or excepted services prior to joining the SES.\346\
Accordingly, even though SES employees engage in important policy-
related work, the phrase ``confidential, policy-determining, policy-
making or policy-advocating character,'' as used to describe positions
that are excepted from chapter 75's adverse action protections, does
not apply to the SES.
---------------------------------------------------------------------------
\346\ 5 U.S.C. 7541.
---------------------------------------------------------------------------
Further, in addition to providing explicit adverse action
protections for career SES, Congress also sought to protect and
preserve a career SES free from undue partisan political influence in
other ways, including by setting strict limits on the number of SES
positions that could be designated as ``noncareer'' (i.e.,
political).\347\ The rules are clear: the number of noncareer SES in
any agency is to be determined annually by OPM, not by the agency;
``the total number of noncareer appointees in all agencies may not
exceed 10 percent of the total number of Senior Executive Service
positions in all agencies''; and the number of noncareer SES in any
single agency may not be more than ``25 percent of the total number of
Senior Executive Service positions in the agency'' or ``the number of
[certain executive and Executive Schedule] positions in the agency
which were filled on the date of the enactment of'' the CSRA.\348\
There are also limits on the number of emergency and limited-term SES
appointments. The governmentwide total may not exceed 5 percent of the
governmentwide total of all SES.\349\
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\347\ See 5 U.S.C. 3134.
\348\ See id.
\349\ See 5 U.S.C. 3134(e).
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As discussed above, any suggestion that Congress provided more
protections for SES employees who work on policy than it did for
competitive and excepted service employees who work on policy would
make little sense within the statutory scheme. Members of the SES make
up the most senior ranks of the civil service beneath the presidential
appointment level. They work most directly with the President's
political appointees. They have managerial authority over employees in
the competitive and excepted services. This includes the ability to
direct their work and hold them accountable for poor performance or
misconduct. A system that provided greater protections to its senior
executives than it does to its rank-and-file employees would be
ineffective and impractical.
Another commenter expressed concern that the proposed definition
would lead to a reduction in the responsibilities of current positions,
and a reclassification of those positions into the excepted service.
Comment 2445 (an individual), see also Comment 763 (management
association, expressing concern about career staff who support the
policy development process through their work but do not have
confidential, policy-determining, policy-making, or policy-advocating
positions). Comment 2445 suggested that OPM clarify that some
confidential, policy-determining, policy-making, or policy-advocating
work may be delegated without changing the character of the delegee's
position. The comment also suggested that OPM clarify that duties
typically performed by those in competitive service positions are not
confidential, policy-determining, policy-making, or policy-advocating.
OPM will not make revisions based on these comments. OPM will clarify
though, as described above, that OPM acknowledges and understands that
career employees across government touch, support, and otherwise work
on policy. This final rule in no way suggests that only political
appointees do or should work on policy. Instead, the purpose of this
rule is much more specific--to clarify the meaning of the exception to
adverse action rights in section 7511(b)(2)--which, as explained, is a
term of art that has long meant political appointees.
Finally, one individual encouraged OPM to define positions of a
``confidential, policy-determining, policy-making, or policy-
advocating'' character as narrowly as possible. Comment 920. OPM will
not make revisions based on this comment. OPM notes that the definition
adopted accords with Congressional intent, legislative history, and
past practices and is the best reading of the statute. The comment also
suggested that OPM add additional protections to prevent positions from
being moved into Schedule C and to prevent the creation of a new
schedule of political appointees. OPM will not make revisions based on
this comment. The President has the authority to create excepted
service schedules and except positions where necessary and if
conditions of good administrations warrant such exceptions. What this
rule is addressing is the retention of accrued status and rights
following an involuntary move to or within the excepted service and a
clarification of when the exception of 5 U.S.C. 7511(b)(2) applies.
Part 213--Excepted Service
Part 213 sets forth provisions for positions and appointments in
the excepted service. OPM is amending 5 CFR 213.3301 to conform to the
revised 5 CFR 210.102.
OPM received no comments specifically about the regulatory changes
to 5 CFR part 213, sees no
[[Page 25028]]
reason to amend the proposal, and will finalize the language as
proposed.
Part 432--Performance Based Reduction in Grade and Removal Actions
Section 432.102 Coverage
Part 432 sets forth the procedures to be followed if an agency opts
to pursue a performance-based action against an employee under chapter
43 of title 5, U.S. Code. As with the adverse action rules in part 752,
the rules applicable to performance-based actions apply broadly to
employees in the competitive and excepted services, with specific
exceptions that include political appointees. The final rule amends 5
CFR 432.102 to make clear that employees in positions determined to be
of a confidential policy-determining, policy-making, or policy-
advocating character as defined in 5 CFR 210.102 are excluded from
coverage under part 432, consistent with congressional intent.
Comments Regarding Changes to 5 CFR 432.102
An agency expressed the view that part 752 would provide ``coverage
to employees who are involuntarily moved into roles in the excepted
service that have confidential, policy-determining, policy-making, or
policy-advocating character,'' as described in Section IV(A) and then
requested that part 432 be treated similarly by revising the exclusion
at 5 CFR 432.102(f)(10). See Comment 2766. OPM will accept the agency's
recommendation for the same reasons it adopted similar suggested
revisions to part 752 and will revise section 432.102(f)(10) by adding
``unless the incumbent was moved involuntarily to such a position after
accruing rights as delineated in paragraph (e) of this section.''
Part 451--Awards
Section 451.302 Ranks for Senior Career Employees
Part 451 applies to awards and 5 CFR 451.302 addresses ranks for
senior career employees. OPM is amending 5 CFR 451.302 to conform to
the revised 5 CFR 210.102. This amendment standardizes the phrasing
used to describe this type of position.
OPM received no comments specifically about the regulatory changes
to 5 CFR 451.302, sees no reason to amend the proposal, and will
finalize the language as proposed.
C. Agency Procedures for Moving Employees
OPM revises 5 CFR part 302 (Employment in the Excepted Service) to
require that Federal agencies follow specific procedures upon moving
positions from the competitive service to the excepted service or, if
the position is already in the excepted service, to a different
excepted service schedule following a direction from the President,
Congress, OPM, or their designees (hereinafter, ``a directive'').\350\
This final rule sets the procedures an agency must follow before taking
these actions, outlines the notice requirements that apply when the
positions are encumbered, and provides a right of appeal to the MSPB to
the extent any such move is involuntary and characterized as stripping
individuals of any previously accrued civil service status and
protections. OPM discusses the public comments related to these
provisions in turn.
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\350\ There are only three possible sources of a direction to
move a position from the competitive service to the excepted service
or from one schedule of the excepted service to another. The
direction may come from the President, 5 U.S.C. 3302; from OPM, id.;
see 5 CFR part 6.1(a); or from Congress, via an enactment that
creates an exception to the default rules established under 5 U.S.C.
3301 and 3302. If an agency purported to act at its own initiative,
that effort would be unauthorized and thus contrary to law.
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1. Procedures for Moving Positions
In enacting the CSRA, Congress made certain findings relevant to
the changes discussed here. It noted that the merit system principles,
many of which have existed since 1883,\351\ ``shall govern in the
competitive service'' and that these principles and the prohibited
personnel practices should be ``expressly stated'' in statute to
``furnish guidance to Federal agencies.'' \352\ As explained
previously, Congress then proceeded to divide functions previously
performed by the CSC among OPM, the MSPB, and OSC. It found that the
function of filling positions in the Executive Branch should be
delegated to agencies ``in appropriate cases'' but that OPM should
maintain control and oversight ``to protect against prohibited
personnel practices and the use of unsound management practices by the
agencies.'' \353\
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\351\ See supra note 53.
\352\ Public Law 95-454, sec. 3.2.
\353\ Id. at sec. 3.5
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OPM has concluded that imposing additional safeguards when agencies
move positions from one service to another, or one excepted service
schedule to another, will help OPM determine whether appointments to
the competitive service are ``not practicable,'' \354\ protect against
prohibited personnel practices, secure appropriate enforcement of the
laws governing the civil service, and avoid unsound management
practices with respect to the civil service. It is important to the
effective administration of the civil service that exceptions from the
competitive service norm be enforced within the terms of the specific
authority creating them and that employees who are said to have
voluntarily accepted positions that affect their rights share the same
understanding as their agencies and are aware of the potential
consequences of those moves.
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\354\ 5 CFR 6.1.
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Some background demonstrates why these changes are important.
Positions in the Federal Government are, by default, placed in the
competitive service. As noted by the D.C. Circuit, 5 U.S.C. 3301 and
3302 ``make it clear . . . that `competitive service [is] the norm
rather than the exception.' '' \355\ The President, however, is
authorized by Congress to provide for ``necessary exceptions of
positions from the competitive service'' whenever warranted by
``conditions of good administration.'' \356\ The President, in turn,
has delegated to OPM the authority to except positions from the
competitive service, which means either the President or OPM may except
positions, as situations warrant.\357\ It has been a longstanding
practice under these authorities for the President, and for OPM
exercising its delegated authority, to permit positions that would
otherwise be in the competitive service to be filled through excepted
service appointments where conditions of good administration warrant
exceptions from competitive examining procedures (e.g., for people with
disabilities and students). In some cases, positions have been placed
in the excepted service because it is not practicable to examine for
the position. For example, a perennial rider to OPM appropriations
prohibits OPM--and before that, its predecessor CSC--from examining for
attorney positions.\358\
[[Page 25029]]
This appropriations bar makes examinations not practicable, and
attorney positions have been placed in Schedule A of the excepted
service since at least 1947.\359\ See Comment 2134 (detailing history
of federal attorneys in the competitive service and Congress' bar of
attorney examinations resulting in Schedule A). In all these cases, OPM
is subject to the standard that any departure must be compelled by
conditions of good administration.\360\
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\355\ Nat'l Treasury Employees Union v. Horner, 854 F.2d 490,
493 (D.C. Cir. 1988); accord, Dean v. Off. of Pers. Mgmt., 115
M.S.P.R. 157, ] 15 (2010); see also supra note 149.
\356\ 5 U.S.C. 3302.
\357\ 5 CFR 6.1(a).
\358\ See, e.g., Treasury, Postal Service and General
Appropriation Act, 1982, H.R. 4121, 97th Cong., 1st Sess. (1981);
Fiorentino v. United States, 607 F.2d 963, 965-66 (Ct. Cl. 1979)
(``It has long been known . . . that the Congress has been always
opposed to Civil Service Commission (CSC) testing and examining of
attorney positions in the Executive branch under the competitive
system. . . . Defendant cites as the enacted expression of this
[opposition] the annual prohibition against appropriated funds of
the CSC being used for the Commission's Legal Examining Unit. An
unbroken series of such clauses runs from the Act of June 26, 1943,
Pub. L. 90, 57 Stat. 169, 173, to the Act of October 10, 1978, Pub.
L. 95-429, 92 Stat. 1001, 1007. The President had set up a Board of
Legal Examiners (Legal Examining Unit), by E.O. 9358, July 1, 1943.
By E.O. 9830, 12 FR 1259 (1947), the President in s 6.1 provided
that positions in Schedule A and B should be excepted from the
competitive service. Section 6.4 is Schedule A. Item IV therein is
`attorneys.' Whether the legislative intent is obvious to
`outsiders,' it certainly has been to the Executive branch, which
has never, since May 1, 1947, put attorney positions anywhere but in
the excepted service.'').
\359\ Fiorentino, 607 F.2d at 965-66.
\360\ See 5 U.S.C. 3302; see also Nat'l Treasury Employees Union
v. Horner, supra note 149.
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Traditionally, the President has exercised his authority to except
General Schedule positions from the competitive service through
executive orders.\361\ OPM has also authorized excepted service hiring
to address urgent needs of agencies,\362\ such as the need to bring on
staff quickly to respond to the COVID-19 pandemic.\363\ When OPM
exercises such authority, it determines that the characteristics of the
position make it impracticable to use the processes associated with
conducting a competitive examination.\364\ For example, it may be that
the qualification requirements established for competitive service
positions cannot be used because the series has been newly created. In
other instances, OPM determines that open competition is not conducive
to filling certain positions quickly because the applicant pool is
narrow.
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\361\ See, e.g., E.O. 13562, 75 FR 82583 (Dec. 30, 2010)
(establishing Schedule D for the Pathways programs); E.O. 13843, 83
FR 32755 (July 10, 2018) (establishing Schedule E for administrative
law judges).
\362\ 5 CFR part 213.
\363\ See U.S. Off. of Pers. Mgmt. Memo., ``Coronavirus (COVID-
19) Schedule A Hiring Authority,'' (March 20, 2020).
\364\ Even in those cases, however, OPM has provided that ``the
principle of veteran preference'' must be followed ``as far as
administratively feasible.'' 5 CFR 302.101(c). In practice, this
standard has been held to be satisfied by using veterans' preference
as a plus factor, and thus a tie-breaker, in comparing candidates at
similar levels of knowledge, skills, and abilities. See Patterson v.
Dep't of Interior, 424 F.3d 1151 (Fed. Cir. 2005).
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Sometimes, excepted service determinations are prescriptive, and
agencies need only execute the operational tasks necessary to implement
the direction of the President or OPM (for example, Schedule A
attorneys, Schedule E administrative law judges, or any number of other
positions specifically identified for excepted service status, such as
through Executive Orders 5560 and 6655). In other circumstances, either
the President or OPM establishes standards and conditions for agencies
to apply in deciding which positions should be moved--either
temporarily or permanently into the excepted service (for example,
Schedule D appointments for students and recent graduates and Schedule
A appointments related to the COVID-19 pandemic). In the latter
category, the determination of whether to place a position in the
excepted service has typically occurred prior to the position being
filled. In other words, with the notable exceptions of Schedule E,
established by Executive Order 13843,\365\ and of the prior Schedule F,
established by the now-revoked Executive Order 13957, these are
intended to be used as hiring authorities. It is notable that, in the
case of the creation of Schedule E, the President remarked that the
exigency presented by pending litigation was one of the motivations,
and expressly provided that incumbents who were in the competitive
service as of the date of enactment would remain in the competitive
service as long as they remained in their current positions.\366\
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\365\ 83 FR 32755 (July 10, 2018).
\366\ 83 FR 32755, 32756.
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When the President or OPM has chosen to establish standards for
agencies to apply in creating new positions or moving existing
positions into the excepted service (rather than specifically directing
that certain positions be excepted service positions), they have also
routinely required agencies to follow certain procedures subject to OPM
oversight.
The Pathways programs, originally established by President Barack
Obama in Executive Order 13562, is a good example. Under 5 CFR part
362, agencies seeking to use the Pathways programs to hire students and
recent graduates into excepted service positions must adhere to various
policies and procedures. There are rules governing how agencies must
use the Pathways programs as part of a larger workforce planning
effort, specifying procedures that are conditions of the agency's use
of the programs, identifying how Pathways positions are to be
announced, and setting parameters for eligibility for the
programs.\367\ OPM has the authority to cap Pathways hiring \368\ and
can even shut down an agency's ability to use Pathways altogether.\369\
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\367\ See, e.g., 5 CFR 362.105 (Pathways workforce planning
requirements) and 362.303 (Recent Graduate announcements).
\368\ See 5 CFR 362.108.
\369\ See 5 CFR 362.104(b).
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Based on this history and experience, OPM proposed and is now
establishing appropriate safeguards--i.e., a floor of procedures--that
would apply whenever an agency is executing discretion to move any
position or positions from the competitive service to the excepted
service, or from one excepted service schedule to another, under
authority exercised by the President, Congress, OPM, or their
designees. In each instance, the agency would have to adhere to the
following procedures:
1. Identify the types, numbers, and locations of the employee(s) or
position(s) that the agency proposes to move into or within the
excepted service;
2. Document the basis for its determination that movement of the
employee(s) or position(s) is consistent with the standards set forth
by the President, Congress, OPM, or their designees, as applicable;
3. Obtain certification from the agency's Chief Human Capital
Officer (CHCO) \370\ that the documentation is sufficient and movement
of the employee(s) or position(s) is both consistent with the standards
set forth by the President, Congress, OPM, or their designees, as
applicable, and advances sound merit system principles;
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\370\ The Chief Human Capital Officers Act of 2002, enacted as
part of the Homeland Security Act of 2002, established the role of
the CHCO in the Federal Government. CHCOs advise and assist in
carrying out agencies' responsibilities for selecting, developing,
training, and managing a high-quality, productive workforce in
accordance with merit system principles. See 5 U.S.C. 1401-1402.
They are also responsible for ``implement[ing] the rules and
regulations of the President, the Office of Personnel Management
(OPM), and the laws governing the civil service within an agency.''
5 CFR 250.202. OPM has delegated various responsibilities directly
to CHCOs. See, e.g., U.S. Off. of Pers. Mgmt., ``Personnel
Management in Agencies'' 81 FR 89357 (Dec. 12, 2016) (tasking CHCOs
with developing a Human Capital Operating Plan); U.S. Off. of Pers.
Mgmt, ``Human Resources Management in Agencies,'' 73 FR 23012 (Apr.
28, 2008) (implementing regulations for agencies and CHCOs regarding
the strategic management of the Federal workforce); 5 CFR 337.201
(giving CHCOs the ability to request direct-hire authority when OPM
determines there is a hiring need).
---------------------------------------------------------------------------
4. Submit the CHCO certification and supporting documentation to
OPM (to include the types, numbers, and locations of the employee(s) or
position(s)) in advance of using the excepted service authority;
5. Use the excepted service authority only after obtaining written
approval from the OPM Director to do so; and
[[Page 25030]]
6. Initiate any hiring actions under the excepted service authority
only after OPM publishes any such authorizations in the Federal
Register, to include the types, numbers, and locations of the positions
moved to the excepted service.
Comments Regarding the Implications of This Regulatory Change
Most of the comments regarding these changes were supportive, but
some, including a former political appointee, argued that creating
further procedures impedes the President's ability to act with his
constitutionally vested authority over the Executive Branch and its
functions. See Comment 45. Commenter also argued that ``Congress has
granted the President the authority to move Federal employees. This
rule seeks to impede this authority.'' As noted in Section III(F), the
CSRA, as codified, imposed upon OPM both authority and an obligation
to, among other things, ``execut[e], administer[ ], and enforce[ ] . .
. the civil service rules and regulations of the President and the
Office and the laws governing the civil service.'' \371\
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\371\ 5 U.S.C. 1103(a)(5).
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We will not make any changes as a result of this comment. The
President, pursuant to his own authorities under the CSRA, as codified
at 5 U.S.C. 3301 and 3302, has also delegated a variety of these
authorities to OPM concerning execution, administration, and
enforcement of the competitive and excepted services. Among other
things, the President has authorized OPM to ``promulgate and enforce
regulations necessary to carry out the provisions of the Civil Service
Act and the Veterans' Preference Act, as reenacted in title 5, United
States Code, the Civil Service Rules, and all other statutes and
Executive orders imposing responsibilities on the Office,'' \372\ and
to collect information and records regarding matters falling within the
civil service laws, rules, and regulations.\373\ OPM has acted pursuant
to these authorities to create government-wide rules for Federal
employees regarding a broad range of topics, such as hiring, promotion,
performance assessment, pay, leave, political activity, retirement, and
health benefits. Both the President and OPM also establish standards
and conditions for agencies to apply in deciding which positions should
be moved from the competitive into the excepted service. This rule is
squarely within these authorities.
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\372\ 5 CFR 5.1, 6.1, 6.2.
\373\ 5 CFR 5.4.
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Also, while the President can create excepted service schedules and
move positions into the excepted service, that ability is not
unqualified. For instance, Congress has mandated that exceptions occur
only when ``necessary'' and warranted by ``conditions of good
administration.'' \374\ Although the Administrative Procedure Act (APA)
does not apply to the President, it is applicable to OPM and the
agencies that implement directions from the President or OPM. The D.C.
Circuit has determined, for purposes of challenges under the APA, that
``several provisions of title 5 of the U.S. Code, viewed together,
provide a meaningful--not a rigorous, but neither a meaningless--
standard against which to judge'' a decision to except positions from
the competitive service, when it is OPM that creates the
exception.\375\ If determinations by agencies or OPM that certain
positions belong in a newly-created excepted service schedule would
similarly be reviewable, it is prudent for OPM to establish procedural
regularity into this process.
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\374\ 5 U.S.C. 3302; 5 CFR 6.1.
\375\ Horner, supra note 149, 854 F.2d at 495.
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Finally, this rule does not restrict the President's authorities.
These procedures, which establish uniform processes when agencies move
positions or people, will help OPM determine whether appointments to
the competitive service are ``not practicable,'' protect against
prohibited personnel practices, secure appropriate enforcement of the
law governing the civil service, and avoid unsound management practices
with respect to the civil service.
OPM is promulgating the following changes to 5 CFR part 302:
Part 302--Employment in the Excepted Service
Part 302 governs employment in the excepted service, including the
procedures an agency must follow when an employee serving under a
nontemporary appointment is selected for an excepted appointment. The
authority citation provided in the proposed rule did not reflect
changes made by the Fair Chance to Compete for Jobs final rule
published on September 1, 2023 (88 FR 60317). The updated authority
citation is reflected in this final rule.
Section 302.101 Positions Covered by Regulations
This section describes positions covered by part 302. OPM is
amending 5 CFR 302.101 to conform to the revised 5 CFR 210.102, which
adds a definition to the phrases ``confidential, policy-determining,
policy-making, or policy-advocating'' and ``confidential or policy-
determining.'' \376\
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\376\ See Section IV(B).
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Subpart F--Moving Employees and Positions Into and Within the Excepted
Service
OPM adds subpart F titled, ``Moving Employees and Positions Into
and Within the Excepted Service.'' In the event of a directive by the
President, Congress, OPM, or their designees, to move employee(s) or
position(s) from the competitive service to the excepted service, or
from one excepted service schedule to another, this new subpart
describes the processes and procedures an agency must follow to carry
out such a move.
Section 302.601 ``Scope''
This subsection describes the scope of the positions that would be
subject to the new procedures in subpart F.
Comments Regarding Amendments to 5 CFR 302.601
Comment 2134, a joint comment by a nonprofit organization and
former federal official, supported the rule but suggested that 5 CFR
302.601 be revised for clarity. Commenter noted that the proposed rule
clearly covered the movement of positions into an excepted service
schedule but was unclear about the involuntary movement of employees
from their current positions to other positions in an excepted service
schedule. Commenter suggested a revision to make clear that the
movement of employees, not just positions, falls within the scope of
Subpart F. OPM agrees with this comment and has revised this provision
accordingly.
One intended purpose of Subpart F is to regulate the movement of
positions to and within the excepted service. But covering the movement
of employees is an important feature of the subpart. For instance,
section 302.602(c) requires that agencies that seek to move an
encumbered position into or within the excepted service notify affected
employees of the movement and relevant rights. Covering both employees
and positions in this regulatory scheme is important because, once a
position is filled by an incumbent, that incumbent gains certain rights
and status over time as detailed in 5 U.S.C. 7511(a) and as explained
in Section IV(A). And once those rights and status accrue, the employee
retains those rights upon a move to or within the excepted service so
long as the moves, however many they may be or into whichever positions
they may be,
[[Page 25031]]
are involuntary. In this way, both positions and employees are covered
by this regulatory amendment.
OPM will modify the regulatory language to clarify this point. The
revised language at 5 CFR 302.601 will state that the subpart applies
to any situation where an agency moves--(1) a position from the
competitive service to the excepted service, or between excepted
services, whether pursuant to statute, Executive order, or an OPM
issuance, to the extent that this subpart is not inconsistent with
applicable statutory provisions; or (2) an employee who has accrued
status and civil service protections under 5 U.S.C. chapter 75,\377\
subchapter II, involuntarily to any position that is not covered by
that chapter or subchapter. It will also explain that the subpart
applies in situations where a position previously governed by title 5,
U.S. Code, will be governed by another title of the U.S. Code going
forward, unless the statute governing the exception provides otherwise.
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\377\ Commenter also suggests that we include regulatory
language addressing accrued civil service protections under 5 U.S.C.
chapter 23, relating to merit system principles and prohibited
personnel practices, in addition to those accrued under chapter 75.
As explained above, this final rule deals with adverse action rights
under chapter 75 and corresponding regulations, but not prohibited
personnel practices. Adverse action protections and the ability to
seek corrective action in response to a prohibited personnel
practices are two separate types of rights with distinct processes.
Also, OPM notes that 5 U.S.C. 2302 addresses certain prohibited
personnel actions with respect to ``covered'' positions, rather than
rights ``accrued'' by individuals over time.
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Another commenter, a former federal official, suggested that OPM
revise Subpart F to include movement of positions from the career-
reserved SES into the excepted service. See Comment 2816. For the
reasons described in the previous sections, OPM will not adopt these
suggestions. The SES, as noted above, is not in the excepted service
and is governed by a separate statutory structure that addresses access
to adverse action protections by type of appointment. The statute
expressly provides for ``career'' and ``noncareer'' positions. But an
``employee,'' for purposes of the SES adverse action provisions, is
defined as a ``career'' employee. Accordingly, the adverse action
provisions, which apply only to career employees, contain no explicit
exclusions, akin to section 7511(b)(2), based upon the character of the
position. Moreover, the provisions governing the SES directly address
reassignments and transfers of career senior executives,\378\ removal
of a career employee from the SES into a civil service position outside
of the SES during probation or as a result of less than fully
successful executive performance,\379\ and the circumstances in which
there may be guaranteed placement in other personnel systems for a
senior executive who has been removed from the SES.\380\
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\378\ 5 U.S.C. 3395.
\379\ 5 U.S.C. 3592.
\380\ 5 U.S.C. 3594.
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Section 302.602(a) ``Basic Requirements''
This section requires an agency to take certain steps after a
directive from the President, Congress, OPM or their designees to move
a position or positions from the competitive service to the excepted
service, or from one excepted service schedule to another. This final
rule establishes additional procedural requirements that apply when one
or more of the positions the agency seeks to move is encumbered by an
employee.
Section 302.602(a)(1) states that, if the directive explicitly
delineates the specific positions that are covered, the agency need
only list the positions moved in accordance with that directive, and
their location within the organization and provide the list to OPM.
Section 302.602(a)(2) states that, if the directive requires the
agency to select the positions to be moved pursuant to criteria
articulated in the directive, then the agency must provide OPM with a
list of the positions to be moved in accordance with those criteria,
those positions' location in the organization, and, upon request from
OPM, an explanation of how the positions met those criteria.
Section 302.602(a)(3) states that, if the directive confers
discretion on the agency to establish objective criteria for
identifying the positions to be covered, or which specific slots of a
particular type of position the agency intends to move, then the agency
must, in addition to supplying a list, supply OPM with the locations in
the organization, the objective criteria to be used, and an explanation
of how these criteria are relevant.
Section 302.602(b) describes the steps agency management must take,
independent of the impacted employees, with respect to such moves.
Section 302.602(b)(1) requires an agency to identify the types,
numbers, and locations of positions that the agency proposes to move
into the excepted service.
Section 302.602(b)(2) requires the agency to document the basis for
its determination that movement of the positions is consistent with the
standards set forth by the President, Congress, OPM, or their designees
as applicable.
Section 302.602(b)(3) requires the agency to obtain certification
from the agency's CHCO that the documentation is sufficient and
movement of the positions is both consistent with the standards set
forth by the President, Congress, OPM, or their designees as
applicable, and with merit system principles.
Section 302.602(b)(4) requires the agency to submit the CHCO
certification and supporting documentation to OPM (to include the
types, numbers, and locations of positions) in advance of using the
excepted service authority.
Section 302.602(b)(5) specifies that OPM shall then review the CHCO
certification and supporting documentation, and the agency shall be
able to use the excepted service authority only after obtaining written
approval from the OPM Director to do so.
Section 302.602(b)(6) specifies that OPM shall publish any such
authorizations in the Federal Register, to include the types, numbers,
and locations of the positions moved to the excepted service and that
the agency is not permitted to initiate any hiring actions under the
excepted service authority until such publication occurs.
Comments Regarding Amendments to 5 CFR 302.602(a) and (b)
Comment 2134 proposed several changes to OPM's proposed addition of
section 302.602. Commenter correctly noted that in paragraph (a)(1),
the second instance of the word ``list'' (following ``in accordance
with that'') is a mistake. OPM meant to write ``directive'' instead and
will adopt this suggestion. Paragraphs (a)(2) and (a)(3) require that
agencies provide a list or lists of the positions to be moved, the
locations in the organization, the objective criteria to be used, and
an explanation of how these criteria are relevant. Commenter is correct
that the list or lists should be provided to OPM. and OPM will make
that clear in the final regulatory language. Paragraphs (b)(1) and
(b)(2) require agencies to ``Identify'' and ``Document'' certain
information, respectively. Commenter asserted it is not clear how
agencies are to accomplish the identification and documentation and
suggested adding ``in a report to OPM'' after the words ``Identify''
and ``Document'' in these paragraphs. OPM will not adopt this
suggestion. OPM believes the reporting is implicit in the certification
by the CHCO and the accompanying data and
[[Page 25032]]
lists. OPM will consider providing further instructions about the forms
this information should take in guidance and will also consider
providing templates. For the reasons discussed above regarding
suggested revisions to section 302.601, commenter also suggested
expanding the coverage of section 302.602 to include not only the
movement of positions but also the movement of individual employees by
adding a new subsection (d) that reads: ``In addition to applying to
the movement of positions, the requirements of this section apply to
the involuntary movement of competitive service or excepted service
employees who have accrued status or civil service protections under 5
U.S.C. [ ] chapter 75, subchapter II, to positions that are not covered
by such chapter or subchapter.'' OPM will adopt this suggestion for the
same reasons it adopted the similar suggestion regarding section
302.601.\381\ OPM will modify this suggestion so that subsection (d)
reads: ``In addition to applying to the movement of positions, the
requirements of this section apply to the involuntary movement of
competitive service or excepted service employees with respect to any
earned competitive status, any accrued procedural rights, or depending
on the action involved, any appeal rights under chapter 75, subchapter
II, or section 4303 of title 5, United States Code, even when moved to
the new positions.''
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\381\ Commenter also suggests that we include regulatory
language addressing accrued civil service protections under 5 U.S.C.
chapter 23, but for the reasons discussed in note 377, we decline to
do so.
---------------------------------------------------------------------------
Commenter then suggested that OPM consider increasing transparency
by ensuring that the public has access to the information discussed in
section 302.602. To enforce any such transparency requirement,
commenter suggested that OPM provide that personnel actions
implementing the movement of positions or employees will be ineffective
until 90 days after the release of this information to the public. This
period, commenter argued, would also provide Congress an opportunity to
conduct meaningful oversight in the event of a major upheaval of civil
service processes and protections. OPM believes that the processes in
this final rule already strike the appropriate balance among a variety
of factors, including transparency, the preservation of merit, and good
governance while also allowing for the efficiency and flexibility to
conduct normal government operations governed by statute, which can
include reorganizations or moving positions to or within the excepted
service if necessary and warranted by conditions of good
administration. Further, the presentation of information as described
in this subpart may lead to communications between OPM and an agency
that would generally be protected by the privilege afforded to the
deliberative process. OPM will not adopt these suggestions.
Finally, this commenter suggested that because section 302.602
refers to the movement of ``positions'' and uses other plural words,
this section might be construed to be inapplicable in the case of the
movement of only one employee or position. OPM agrees and will add a
new subsection (e) that reads: Notwithstanding the use of the plural
words ``positions,'' ``employees,'' and ``personnel actions,'' this
section also applies if the directive of the President, Congress, OPM,
or a designee thereof affects only one position or one individual.
Another commenter supportive of the rule suggested that OPM shift
documentation and other duties under section 302.602(b)(3) from agency
human resources to Department-level human resources or OPM. Comment 6.
OPM will not make revisions based on this comment. A CHCO is well
positioned to certify the sufficiency of an agency's documentation
pursuant to section 302.602(b). By law, CHCOs advise and assist in
carrying out agencies' responsibilities for selecting, developing,
training, and managing a high-quality, productive workforce in
accordance with merit system principles.\382\ They are responsible for
``implement[ing] the rules and regulations of the President, the Office
of Personnel Management (OPM), and the laws governing the civil service
within an agency.'' \383\ They are also experienced with these types of
duties because OPM has delegated various similar responsibilities
directly to CHCOs in the past. Commenter also suggested that the rule
require agencies, Departments, and OPM to consult with bargaining units
and unions concerning the effects of the movement of a position on
bargaining unit employees, prior to moving a position. OPM will not
make revisions based on this comment. Collective bargaining obligations
can arise with any new policies which impact bargaining unit employees.
This includes implementation of policies found in any new or revised
government-wide regulation, such as the final rule, so no new
consultation process is required. The proposed rule did not purport to
address new labor relations provisions and such matters are already
subject to requirements in the Federal Service Labor-Management
Relations Statute of 1978.
---------------------------------------------------------------------------
\382\ See 5 U.S.C. 1401-1402.
\383\ 5 CFR 250.202.
---------------------------------------------------------------------------
Another commenter, an individual, suggested that these regulatory
amendments should be broadened to require that agencies disclose the
underlying reasons for the movement. Comment 407. Comment 3894, an
oversight nonprofit organization, also suggested that section
302.602(b)(6), regarding OPM publishing any such authorizations to move
positions in the Federal Register, should be revised to require a
solicitation for public comment. As stated above, OPM believes these
amendments already strike the appropriate balance between being
protective of rights and merit system principles and allowing for the
efficiency and flexibility of normal government operations, so OPM does
not believe that further process is necessary. Regarding Comment 407,
there may be many underlying reasons for a move and a precise
underlying reason, while potentially probative, does not get to the
central inquiry for the retention of rights and status, which is
whether the move was voluntary or involuntary. Still, those general
reasons are implicit in 5 CFR 302.602(b)(2), which requires that an
agency ``[d]ocument the basis for its determination that movement of
the positions is consistent with the standards set forth by the
President, Congress, OPM, or their designees as applicable.'' OPM does
not believe that further requirements on this point are necessary.
Regarding Comment 3894, the purpose of publishing this information in
the Federal Register is to increase transparency. OPM believes that
publishing this information is sufficient and that public comment would
add little further value. It would also risk the process becoming
unduly burdensome. For these reasons, OPM will not adopt these
suggestions.
Finally, Comment 2816, by a former federal official, again suggests
that OPM clarify that the changes proposed within 5 CFR 302.602 include
SES Positions. OPM will not adopt this suggestion for the same reasons
it did not adopt a similar suggestion regarding section 302.601. The
SES is not in the excepted service and is governed by a separate
statutory structure that protects the career SES in different ways from
the framework governing the competitive and excepted services.
2. Notice Rights for Encumbered Positions
OPM is promulgating additional requirements, under 5 CFR
302.602(c),
[[Page 25033]]
that would apply when one or more of the positions the agency wishes to
move is encumbered by an employee. It describes the information an
agency must provide an employee whose position is being moved from the
competitive service and placed in the excepted service, other than in
Schedules D or E, or with an excepted service employee whose position
is moved to another excepted service schedule, other than Schedules D
or E.\384\ In that case, under section 302.602(c)(1)(i), no less than
30 days prior to moving the position, the agency must provide written
notification to the employee of the intent to move the position. Under
section 302.602(c)(1)(ii), if the move is involuntary, the notice must
inform the employee that the employee maintains their civil service
status and protections, if any, notwithstanding the movement of the
position.
---------------------------------------------------------------------------
\384\ OPM is omitting Schedules D and E from this regulatory
change because these schedules, for the Pathways programs
participants and Administrative Law Judges (ALJs), see 5 CFR 6.2,
respectively, have specific and unique requirements regarding
eligibility and entrance into these positions. In particular, the
Pathways programs, which were created by the President, not OPM,
already have highly reticulated schemes for conversion of the
appointee from the excepted service to the competitive service
following the successful conclusion of the initial excepted service
appointment. It is unlikely that the initial time-limited
appointments to the excepted service would be appropriate vehicles
for conversion to a different excepted service position, and, in any
event, the incumbent would likely not yet have accrued adverse
action rights in the excepted service positions they encumbered.
Even if such rights had accrued, these appointees would enjoy such
rights only for the balance of the original time-limited
appointment. ALJ appointments were changed in light of ALJs'
significant responsibilities in ``taking testimony,'' ``conducting
trials,'' ``enforcing compliance with their orders,'' and in some
cases issuing ``the final word [for] the agencies they serve.'' See
E.O. 13843. Those specific duties, carried out with ``significant
discretion,'' combined with a desire to eliminate any constitutional
concerns regarding the method of ALJ appointments, were the reasons
that ALJs were placed in the excepted service by the President as a
matter of ``sound policy,'' which allowed agencies to ``assess
critical qualities in ALJs candidates'' to ``meet the particular
needs of the agency,'' such as subject matter expertise relevant to
the agency's work. Id. In addition, special chapter 75 procedures
apply to incumbent ALJs, and they can be removed from ALJ positions
only by the employing agency at the conclusion of a specified
proceeding at the MSPB.
---------------------------------------------------------------------------
Employees who are in the competitive service--and who the agency is
not planning to move--may wish to apply for a new position in the
excepted service and potentially relinquish accrued rights (such as a
voluntary move from a competitive service position to a position as a
Schedule C political appointee). In that situation, agencies must
continue to comply with longstanding rules--codified at 5 CFR
302.102(b)--providing that employees be given notice that they are
leaving the competitive service and requiring that employees
acknowledge they understand that they are voluntarily leaving the
competitive service to accept an appointment in the excepted
service.\385\
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\385\ Under 5 CFR 302.102(b), when an employee serving under a
temporary appointment in the competitive service is selected for an
excepted appointment, the agency must:
1. Inform the employee that, because the position is in the
excepted service, it may not be filled by a competitive appointment,
and that acceptance of the proposed appointment will take him/her
out of the competitive service while he/she occupies the position;
and
2. Obtain from the employee a written statement that he/she
understands he/she is leaving the competitive service voluntarily to
accept an appointment in the excepted service.
---------------------------------------------------------------------------
OPM did not receive comments specifically relating to 5 CFR
302.602(c). In this final rule, though, OPM is clarifying that a notice
under section 302.602(c)(1)(ii), informing the employee that the
employee maintains their civil service status and protections
notwithstanding the movement of the position, applies where the move is
involuntary.
3. Appeal Rights for Encumbered Positions
OPM further amends 5 CFR part 302 to establish that a competitive
service employee whose position is moved involuntarily into the
excepted service, or an excepted service employee whose position is
moved involuntarily into a different schedule of the excepted service,
may directly appeal to the MSPB if, contrary to these regulations, the
entity perpetuating the move asserts that the move will strip the
individual of any status and civil service protections they had already
accrued. This rulemaking would not apply to situations where the
employee applies for, is selected for, and accepts a new position with
fewer or different civil service protections, since acceptance of that
new position voluntarily relinquishes the protections the employee had
already accrued.
As explained previously in Section III(F), under 5 U.S.C.
1103(a)(5), a variety of other provisions governing specific topics
under title 5, and delegations from the President, OPM has broad
authority to execute, administer, and enforce civil service rules and
regulations. Exercising these authorities, OPM has previously conferred
rights of appeal to the MSPB with respect to a variety of personnel
determinations, including, for example, final suitability
determinations.\386\ The Federal Circuit has repeatedly sustained this
practice and ruled that where an appeal is solely by regulation, the
regulation circumscribes the scope of the appeal.\387\ Title 5
explicitly provides that an employee may appeal a personnel action made
appealable by regulation.\388\ The MSPB, in turn, has the
responsibility to ``hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the jurisdiction of the Board under
. . . law, rule or regulation.\389\
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\386\ 88 FR 63862, 63876-77 (citing to 5 CFR part 731, subpart E
and identifying twelve instances in which OPM has provided in
regulation a basis for an appeal to the MSPB).
\387\ See Roberto v. Dep't of the Navy, 440 F.3d 1341, 1350
(Fed. Cir. 2006); Folio v. Dep't of Homeland Sec., 402 F.3d 1350,
1355 (Fed. Cir. 2005); Dowd v. United States, 713 F.2d 720, 722-23
(Fed. Cir. 1983); see also Gaxiola v. Dep't of the Air Force, 6
M.S.P.R. 515, 519 (1981).
\388\ 5 U.S.C. 7701(a).
\389\ 5 U.S.C. 1204(a)(1).
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Section 302.603 ``Appeals''
In these final regulations, OPM is prescribing an MSPB appeal right
for an employee whose position in the competitive service is moved to
the excepted service involuntarily, or whose position in the excepted
service is moved into a different schedule of the excepted service
involuntarily, and when an entity effectuating such a move, contrary to
these regulations, asserts that the individual loses any status and
civil service protections they had already accrued. This provision
would not apply when the employee voluntarily relinquishes such rights
by applying for and accepting a new position with different rights.
Such an appeal right would, however, cover an employee's allegation
that an agency coerced the employee to ``voluntarily'' move to a new
position that would require the employee to relinquish their
competitive status or any civil service protections. OPM notes that an
individual may choose to assert in any appeal to the MSPB that the
agency committed procedural error, if applicable, by failing to act in
accordance with the procedural requirements of section 302.602 while
effecting any placement from the competitive service into the excepted
service or from the excepted service to a different schedule of the
excepted service. In cases where an individual asserts procedural error
by the agency, OPM expects the MSPB would typically determine whether
the procedural error was harmful as a pre-requisite for any reversal of
the agency's action. The MSPB will find that an agency error is harmful
only when the record shows that it was likely to have caused the
[[Page 25034]]
agency to reach a different conclusion.\390\
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\390\ See 5 CFR 1201.3 (Appellate Jurisdiction); 1201.4(r)
(Definitions, MSPB Practices and Procedures), 1205 (Powers and
functions of the Merit Systems Protection Board); Ramey v. U.S.
Postal Serv., 70 M.S.P.R. 463, 467 (1996) (``An [MSPB]
administrative judge's adjudication of an action not only embraces
the provisions of law giving the Board jurisdiction over the action,
but includes review of any other relevant provision of law,
regulation or negotiated procedures as circumstances warrant.'');
Adakai v. Dep't of Interior, 20 M.S.P.R. 196, 201 (1984) (``There is
no question that an agency is obligated to conform to procedures and
regulations it adopts, and the Board is required to enforce such
procedures.'').
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 302.603
Comment 2134 is supportive of the rule and the conferral of a
regulatory appeal right premised specifically on the movement of an
employee but suggested that OPM explain that, ``in creating this appeal
right, OPM is not taking a position as to whether employees would
otherwise lack appeal rights in all cases involving an involuntary
move.'' OPM agrees and is not in this rule addressing whether employees
would otherwise lack appeal rights in all cases involving an
involuntary move.
Commenter also suggested a revision regarding the proposed language
in section 302.603, which would allow employees to appeal to have their
rights ``reinstated.'' Commenter contended that the proposed text of
the rule implied that rights were lost upon the move but could then be
``restored'' by a successful appeal. Commenter also noted this
regulatory language does not specify a time in which an aggrieved
employee must file an appeal and expressed concern that this ``might
not fully achieve OPM's aims.'' Commenter expressed that, as proposed,
the language could suggest that an agency could strip an employee of
civil service status and protections in a manner contrary to this final
rule and put the onus on the employee to rectify such an action before
the MSPB. Or an agency might use silence or take a chance that an
employee will not timely appeal, but that outcome would be unjust.
Commenter therefore proposed a 180-day period for the employee to
appeal, which commenter offered would allow sufficient time for the
employee to gather information necessary for that appeal. OPM does not
believe the final rule should specify a time period; the timing
procedures should instead follow the normal processes associated with
appeals to the MSPB. But OPM agrees that it should add a clause to this
section specifying that the appeal rights conferred in part 302 are in
addition to, and not in derogation of, any right the employee would
otherwise have to appeal a subsequent personnel action undertaken
without following appropriate chapter 75 or chapter 43 procedures. The
appeal right created by this rule merely provides an additional avenue
for immediate correction if the agency asserts that accrued status or
rights will no longer apply or fails to provide notice of the impact on
accrued status or rights. To better capture OPM's intent, OPM will
revise 5 CFR 302.603(a) to read: (a) A competitive service employee
whose position is placed into the excepted service or who is otherwise
moved involuntarily to the excepted service, or an excepted service
employee whose position is placed into a different schedule of the
excepted service or who is otherwise involuntarily moved to a position
in a different schedule of the excepted service, may directly appeal to
the Merit Systems Protection Board, as provided in paragraphs (b), (c),
and (d) of this section. The appeal rights conferred in this section
are in addition to, and not in derogation of, any right the individual
would otherwise have to appeal a subsequent personnel action undertaken
without following appropriate procedures under chapter 75, subchapter
II, or section 4303 of title 5, United States Code.
Commenter also suggested that the right in section 302.603(b) to
appeal moves which ``purportedly'' strip protections is too narrow.
Commenter contended that it is possible that agencies will remain
silent on an employee's civil service status and protections, and
thereby could avoid an appeal because the agency has not ``purported''
to have any effect on employee status and protections. Commenter also
contended that subsection (b) addresses only the movement of a
position. In contrast, subsections (a) and (c) of section 302.603 also
cover the movement of an employee to a new position. OPM will revise
this language to clarify that agencies cannot circumvent this final
rule by moving an individual instead of a position. To better capture
OPM's intent in this final rule, OPM will revise 5 CFR 302.602(b) to
read: (b) Where the agency, notwithstanding the requirements of section
302.602 of this part, asserts that the move of the original position or
any subsequent position to which the individual is involuntarily moved
thereafter, will eliminate competitive status or any procedural and
appeal rights that had previously accrued, the affected individual may
appeal from that determination and request an order directing the
agency (A) to correct the notice to provide that any previously accrued
status or procedural and appeal rights under those provisions continue
to apply, and (B) to comply with the requirements of either chapter 75,
subchapter II or section 4303 of title 5, United States Code, in
pursuing any action available under those provisions, except to the
extent that any such order would be inconsistent with an applicable
statute.
To address the concern that an agency could remain silent regarding
an employee's status and rights upon a move, OPM will modify section
302.603(c) to read that: Where the agency fails to comply with Sec.
302.602(c)(1) of this part, and fails to provide an individual with the
requisite notice, the affected individual may appeal and request an
order directing the agency to comply with that provision.
Finally, this commenter suggested that OPM modify section 302.603
to also allow for appeals based on involuntary though not necessarily
coercive movements. OPM will adopt this suggestion. Employees retain
their civil service status and protections during involuntary movement
into or within the excepted service, regardless of whether the movement
was coerced or performed by other involuntary means. OPM will add a 5
CFR 302.603(d) to read: (d) An individual may appeal under this part on
the basis that (A) a facially voluntary move was coerced or otherwise
involuntary for purposes of this section or (B) a facially voluntary
move to a new position would require the individual to relinquish their
competitive status or any civil service protections and was coerced or
was otherwise involuntary.
Another comment from an employment lawyers association supportive
of the rule suggested that OPM revise the rule to bring section 302.603
appeals under 5 U.S.C. 7701, so that successful appellants are not
burdened with attorney's fees or the costs of litigation. Comment 40.
OPM appreciates this suggestion but will not add regulatory language to
this effect as it goes beyond the scope contemplated in the proposed
rule. If experience with such appeals indicates further changes might
be warranted, OPM can pursue regulatory options then.
Comment 920, an individual, was supportive of the rule but
expressed concern that it would not be sufficiently protective in cases
of ``wholesale reclassification.'' The comment questioned whether
individual appeals would be effective if an agency
[[Page 25035]]
attempted to involuntarily move a majority of its workforce all at once
while purportedly stripping them of civil service status and
protections. The President and OPM have the authority to reschedule
positions but, as explained in this rule, there are ways to do so
without infringing on this authority that are protective of the civil
service and merit system principles as envisioned by Congress. Further,
to the extent ``wholesale reclassification'' is unlawful, there exist
other avenues to challenge such a move besides the processes in this
final rule.\391\
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\391\ For example, in Blalock v. Dep't of Agric., 28 M.S.P.R.
17, 20 (1985), aff'd sub nom., Huber v. MSPB, 793 F.2d 284 (Fed.
Cir. 1986) the MSPB rejected an agency's claim that it had removed
employees from their Schedule A positions by RIF procedures and
appointed them to new Schedule C positions. It found that this RIF
was improper, there was no reclassification warranting a RIF, and
the redesignation was not a ``reorganization.'' Therefore, the
agency could not have conducted a RIF and the agency's abolishment
of their Schedule A positions constituted individual adverse actions
against the incumbents. The MSPB directed the agency to reinstate
the employees whom it had separated without adhering to applicable
adverse action procedures.
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A few commenters supportive of the rule queried what happens when,
by deliberative or inadvertent act, the MSPB is without a quorum. See
Comments 44, 2442, 3687. As explained above, the appeals described in 5
CFR 302.603 should be treated like all other appeals to the MSPB.
Therefore, OPM does not believe that it should revise this final rule
to account for the possibility of a lack of a MSPB quorum. Even without
a quorum, OPM notes, administrative judges (AJs) can issue initial
decisions. If neither party to a case files a petition for review, the
AJ's initial decision becomes the final decision of the Board.
Appellants could then choose to exercise their judicial review
rights.\392\ If either party files a petition for review to the MSPB, a
Board decision could not be issued until a quorum of at least two Board
members is restored but the Clerk of the Board can still exercise
delegated authority to ``grant a withdrawal of a petition for review
when requested by a petitioner.'' \393\
---------------------------------------------------------------------------
\392\ See 5 U.S.C. 7703.
\393\ See U.S. Merit Sys. Prot. Bd., ``Frequently Asked
Questions about the Lack of a Quorum Period and Restoration of the
Full Board, Updated: February 27, 2023,'' https://www.mspb.gov/New_FAQ_Lack_of_Quorum_Period_and_Restoration_of_the_full_board.pdf.
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Finally, Comment 2816, from a former federal official, again
suggests that OPM clarify that the changes proposed within 5 CFR
302.603 include SES Positions. OPM will not adopt it for the same
reasons it did not adopt a similar suggestion regarding sections
302.601 and 302.602.
V. Regulatory Analysis and Related Comments
A. Statement of Need
On December 12, 2022, OPM received a petition from the National
Treasury Employees Union (NTEU), which represents Federal workers in 34
agencies and departments,\394\ to amend OPM regulations in a manner
that would ensure compliance with civil service protections and merit
system principles for competitive service positions moved to the
excepted service.\395\ NTEU contends in its petition that Congress has
established protections for ``employees'' under chapter 75 in the
competitive service and these protections create a constitutionally
protected property interest in continued Federal employment. NTEU
argued that no President can take away these rights, once accrued,
without due process.
---------------------------------------------------------------------------
\394\ See Nat'l Treasury Employees Union, ``Our Agencies,''
https://www.nteu.org/who-we-are/our-agencies.
\395\ See Nat'l Treasury Employees Union, Petition for
Regulations to Ensure Compliance with Civil Service Protections and
Merit System Principles for Excepted Service Positions, (Dec. 12.
2022), https://www.nteu.org/~/media/Files/nteu/docs/public/opm/nteu-
petition.pdf?la=en.
---------------------------------------------------------------------------
On May 23, 2023, the Federal Workers Alliance, a coalition of 13
labor unions representing over 550,000 Federal and postal workers,
wrote OPM in support of the rulemaking changes proposed by NTEU. On May
26, 2023, the American Federation of Government Employees, AFL-CIO, the
largest union of Federal employees representing more than 750,000
Federal and District of Columbia workers, did the same. For the reasons
described in the proposed rule and this final rule, OPM determined it
was prudent to consider the points raised.
By operation of law, certain Federal employees accrue a property
interest in their continued employment and are entitled to adverse
action rights under chapter 75 before they may be removed from career
positions. Agencies are statutorily obligated to extend the specific
protections codified at chapter 75 to eligible employees as defined in
5 U.S.C. 7511. OPM notes that this section precludes noncareer
political appointees and other statutorily specified categories of
employees from accruing these procedural rights, but OPM does not
interpret chapter 75 as allowing the President, OPM, or an agency to
waive the statutory rights that covered employees have accrued. These
final rules are to clarify and reinforce that point.
The now-revoked Executive Order 13957 introduced a new conception
of the phrase ``confidential, policy-determining, policy-making or
policy-advocating character,'' as used in the adverse action exception
in 5 U.S.C. 7511(b)(2), and sought to employ that conception to expand
the category of employees excluded from adverse action procedural
rights.\396\ This phrase is a term of art with a long history. It has
been broadly understood, based upon context, history, and practice, to
mean political appointees. Using that language as the former President
used it in Executive Order 13957--to remove rights from career civil
servants--departed from this established understanding. OPM has
determined that a regulation interpreting and clarifying this
provision, pursuant to OPM's statutory authority to prescribe
regulations to carry out the purpose of subchapter II of chapter 75, is
warranted.\397\
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\396\ 85 FR 67361-62.
\397\ 5 U.S.C. 7514.
---------------------------------------------------------------------------
The CSRA and merit system principles have informed OPM's
regulations regarding the competitive and excepted services, and
employee movement between them. One of those principles is that the
creation of new positions in--and movement of existing positions into--
the excepted service is meant to be an exception to the normal
procedure for filling competitive service positions and maintaining the
positions in that service thereafter. Accordingly, OPM has maintained
for decades several safeguards and transparency measures associated
with any such movements. These safeguards and measures may include
agency reporting to OPM,\398\ such as where positions are placed
temporarily in the excepted service for the purpose of a trial period
leading to a permanent appointment in the
[[Page 25036]]
competitive service; \399\ OPM authorization to create certain new
positions in--or move certain existing positions into--the excepted
service; \400\ publication in the Federal Register; \401\ and an
acknowledgment of the consent of affected employees when an existing
employee obtains a different position in another service or
schedule.\402\ The now-revoked directions to agencies contained in
Executive Order 13957, for implementing the now-defunct Schedule F,
called into question the continued vitality of these longstanding
principles with respect to employees who had accrued adverse action
rights. We seek to confirm these principles through this final rule.
---------------------------------------------------------------------------
\398\ See 5 CFR 5.1 (``The Director, Office of Personnel
Management, shall promulgate and enforce regulations necessary to
carry out the provisions of the Civil Service Act and the Veterans'
Preference Act, as reenacted in title 5, United States Code, the
Civil Service Rules, and all other statutes and Executive orders
imposing responsibilities on the Office.''); 5 CFR 5.4 (``When
required by the Office, the Merit Systems Protection Board, or the
Special Counsel of the Merit Systems Protection Board, or by
authorized representatives of these bodies, agencies shall make
available to them, or to their authorized representatives, employees
to testify in regard to matters inquired of under the civil service
laws, rules, and regulations, and records pertinent to these
matters''); 5 CFR 10.2 (OPM authority to set up accountability
systems); 5 CFR 10.3 (OPM authority to review agency personnel
management programs and practices).
\399\ See, e.g., 5 CFR part 362.
\400\ 5 CFR 6.1.
\401\ Id.
\402\ 5 CFR 302.102(b).
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OPM received numerous comments relating to the need for this rule.
Most of the comments were supportive.
Comments Regarding the Need for This Final Rule
Several comments agreed with OPM that this rule would protect the
nonpartisan career civil service and merit system principles. Comment
684, an individual, contended that ``[t]he rule will help preserve the
autonomy of the civil service, allowing its professionals to complete
their work without arbitrary fear or favor of current elected office
holders and making it possible for the government of the United States
to serve its people consistently and evenhandedly across
administrations.'' See also Comments 9 (arguing that the government
``cannot properly function if civil servants are forced to curry
political favor rather than carry out the work laid out for them by
law,''), 1310 (explaining that the rule will help preserve the many
benefits of the civil service), 3687 (same). Comment 1691, an
individual, contended that ``[b]y ensuring that federal employees
retain their civil service protections and status during transitions
between the competitive and excepted services, the rule enhances job
security and employee rights.'' Also, the rule ``clarifies the
definitions of roles exempt from these protections, bringing greater
transparency and adherence to legislative intent. Importantly, the
introduction of procedural safeguards and the right to appeal to the
Merit Systems Protection Board empowers employees, fostering a fairer
and more accountable federal workforce.'' Commenter concluded that
``[t]his rule change is not just a regulatory update; it's a
reaffirmation of our commitment to a merit-based, transparent, and
equitable civil service.'' See also Comment 949 (an individual,
expressing concern that ambiguities in the civil service statutes,
addressed by this rule, could allow for mass firings based on political
favor).
Regarding the rule's protection of merit system principles, an
individual wrote, ``[i]n a time when preserving the merit-based and
non-partisan principles of the federal workforce is of paramount
importance, this proposed rule stands as a beacon of clarity and
fairness.'' Comment 3800. It is ``essential to safeguard the rights and
protections of federal employees while also maintaining flexibility for
necessary personnel movements. It is my firm belief that implementing
this rule will promote good administration, uphold merit system
principles, and provide federal employees with the confidence that
their careers and rights are protected.'' Id. Commenter concluded that
the rule ``ensures that decisions related to the movement of positions
are made judiciously, with adherence to the rule of law and
congressional intent.''
Some commenters opposed to this rule argued that civil service
procedures cause hiring, performance management, and misconduct
challenges and this rule would only exacerbate those challenges and
hurt accountability. Comment 4097 stated, ``Chapters 43 and 75 have
proven to be longstanding and entrenched barriers to effectively
addressing performance and conduct issues. . . . The reality is that
they give federal employees `a de facto form of life tenure, akin to
that of Article III judges . . . What's more, federal employees know
it--and they take full-throated advantage of it.' '' \403\
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\403\ Citing Feds for Med. Freedom v. Biden, 63 F. 4th 366 (5th
Cir. 2023) (J. Ho concurrence).
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As noted in prior sections, OPM does not agree with commenter's
characterizations of the futility of chapters 43 and 75 or that career
civil servants are broadly ``taking advantage'' of those protections to
some inappropriate end. Under commenter's theory, Federal employment
should be at-will. As discussed above and in the following Section
V.(B), the civil service has sufficient and longstanding tools to deal
with actual misconduct or unacceptable performance. If a Federal
employee refuses to implement lawful direction from leadership, there
are appropriate vehicles for agencies to respond through discipline
and, ultimately, removal under chapter 75 or, alternatively, if
performance related, chapter 43 and other authorities. More
importantly, if commenter believes that the current performance
management system, as reflected in chapters 43 and 75, is inadequate,
then the appropriate solution is to try to convince Congress of that
proposition and suggest corresponding changes to the statutory scheme.
In contrast, distorting existing provisions to have a meaning
untethered to long-settled understandings and removing adverse action
rights from thousands of employees whom Congress intended to protect is
not an appropriate means of addressing the putative problem with the
statutory scheme.
Commenter 4097 also argued that this rule, and its removal
restrictions, are unnecessary to protect merit. Commenter wrote ``the
merit system operated for eight decades with federal employees
generally unable to appeal dismissals; the Lloyd-La Follette Act
expressly provided that no trial or hearing would be required to
effectuate removals. Many state governments currently operate at will.
Nonpartisan, merit-based civil services can, do, and did operate
effectively at will. Schedule F's elimination of those restrictions is
fully consistent with an effective merit service.'' Commenter then
added ``[n]onetheless, OPM's confusion on these points is
understandable'' because ``federal unions prompted this rulemaking''
and ``have long used the specter of the spoils system to oppose civil
service reforms.''
While a labor union petitioned OPM to promulgate regulations
regarding civil service protections, OPM is fully capable of analyzing
these issues on its own, and is promulgating measured amendments, using
its own expertise, and based squarely within statutory and regulatory
authority, legal precedent, and history, to reinforce and clarify these
longstanding civil service protections and merit system principles.
Also, as noted above, other commenters (see Comment 2822) take
issue with Comment 4097's interpretation of history and law in support
of Schedule F. Since the Pendleton Act, Congress has barred
terminations based on political grounds to preserve merit-system
principles. A few years later President McKinley required just cause
and written charges prior to removal--requirements which were codified
in the Lloyd La Follette Act to establish that covered Federal
employees were to be both hired and removed based on merit. Comment
2816, a former federal official, cited studies showing the negative
impacts of at-will employment on states and several other state
employees commented how these reforms have been harmful. OPM therefore
does not
[[Page 25037]]
agree that the elimination of civil service protections is ``fully
consistent with an effective merit service.''
Several individuals supportive of the rule argued that it would
effectively protect civil servants from politicization. Comment 11
wrote that the ``proposed rule is a necessary and timely response'' to
efforts that could ``undermine the civil service system and politicize
it for partisan purposes.'' Comment 371 stated that the rulemaking
would protect the civil service from ``employment decisions based on
anything but job performance and qualifications.'' See also Comments
704 (arguing that the rule ``acts as a necessary buffer against the
potential upheaval and erosion of our institutions, and would help to
ensure stability of essential government agencies.''), 711, 3751. A
professor contended the rule ``provides appropriate protection against
these negative effects'' of politicization. Comment 1971.
A coalition of national and local unions, including the union that
submitted the petition for rulemaking referenced above, expressed their
support for this rule. They stated, ``OPM would make important
clarifications regarding the rights of federal employees whose
positions might be shifted from the competitive service to the excepted
service or from one excepted service schedule to another. We urge OPM
to finalize the rule promptly.'' Comment 41.
Commenters opposed to this rule argued that the civil service needs
performance management, and this rule will have a negative effect on
the stated intent, resulting in government inefficiency and waste.
Comment 2866, a legal organization, argued that ``American taxpayers
should not be forced to fund lazy, incompetent, or insubordinate
federal employees who fail to complete their work, seek to undermine
the democratic process by failing to carry out the President's agenda,
or both.'' Comment 4097 argued ``OPM's proposed rule would instead make
dismissing employees in senior policy-influencing positions for poor
performance or intransigence considerably more difficult. This would
`seal up' poor performers in the bureaucracy. . . . [C]hapter 43 and 75
procedures are insufficient to combat these `levers of resistance.' ''
For the reasons stated above, OPM disagrees with commenters' views
as to the sufficiency of performance management tools. These tools are
also addressed further in Section V.(B). Moreover, this rule tracks the
status quo, so it would not make performance management more difficult.
The amendments to parts 210, 212, 432, and 752 clarify longstanding
civil service law and agency procedures. Nor do commenters explain how
the changes to part 302 and resulting procedures would impact
performance management. They are instead directed at potential
movements of positions or employees from the competitive to the
excepted service or between schedules in the excepted service, and
added for the purposes of good administration, to enhance transparency,
and to provide employees with a right of appeal to the MSPB to protect
against potential abuses. In essence, they provide an avenue of relief
to an employee in the event the employing agency fails to inform the
employee of the impact of the move on the employee's rights or the
employee is concerned that the move is an attempt to strip the employee
of civil service status and protections.
Further, actual resistance to supervisory direction would generally
be expected to produce unacceptable performance that could be
demonstrated on the record under either chapters 43 or 75.
Comment 4097, from an advocacy nonprofit organization, also argued
that this rule would increase politicization. See also Comment 3156
(the same commenter, arguing that ``political appointees rationally
respond to intransigent career staff by cutting them out of the policy
process.''). Comment 4097 argued that this rule would ``discourage
vetting prospective policies with career staff'' because ``the
practical consequence of insulating career staff from accountability is
political appointees cut them out of the loop to avoid leaks.''
Commenter added ``[i]f career officials feared leaking draft policies
could end their careers, political appointees would have more freedom
to seek their input.'' As an example, commenter states, ``OPM career
staff were entirely cut out of the development of Schedule F. The White
House realized sharing policy proposals with OPM career staff was
tantamount to sending them to federal unions and other reform
opponents.''
Generations of civil servants have worked with administrations and
political appointees of both parties to advance their policies. For
instance, as explained above, Comments 2822, a legal nonprofit
organization, and 3038, a former civil servant, observe that the
Reagan, Bush, and Trump Administrations succeeded in advancing many of
their policy efforts even if, as Commenter 4097 contends, federal
employees lean liberal.
Commenter adds ``[i]f there were no restrictions on removing
policy-influencing career staff political appointees could simply
dismiss employees they knew or strongly suspected leaked deliberative
policy documents.'' (emphasis added). This comment suggests that, under
its preferred scheme, suspicion of leaking, without proof, would be a
basis for removal. OPM believes such an environment would chill
employees broadly and interfere with their willingness to present
objective analyses and frank views in carrying out their duties, thus
diminishing the reasoned consideration of policy options. Moreover, by
instilling fear of reprisal and loss of employment, it would damage
retention and recruitment efforts, as explored in the following
section, thus further fracturing the successful functioning of
government and our democracy.
Individuals opposed to this rule also added that it is a means for
the ``bureaucracy'' to ``protect itself from any disruption or risk to
its continued employment.'' Comment 20, see also Comment 3130. Comment
45, a former political appointee, stated this rule ``is a truly clear
demonstration of bureaucrats in full self-protection mode, operating as
an independent, unaccountable, deep state fourth branch of government,
outside the United States Constitution'' and its ``goal is simply to
expand more protections to as many of the current administrative
state's lackeys as possible.'' Comment 31 adds ``[t]here is probably no
private business that allows its `employees' to first make up & approve
their own policy, salary, benefits, performance etc. and then to
`manage' and `interpret' their duties to the general public.''
OPM is headed by a presidentially appointed and Senate-confirmed
Director, who is accountable to the current President. It has both
career staff and political appointees. Accordingly, this rule is not
the work product of unaccountable bureaucrats. OPM also does not,
through this rule or any rule, ``make up'' the ``bureaucracy's''
adverse action rights--those rights have been granted to incumbents of
various positions in the civil service by Congress after vigorous and
careful debate. In that way, and many other ways, the civil service is
also unlike employees in private businesses in the same way that
government agencies, though mindful of sound business practices where
they appropriately apply, are not and cannot be identical to a
business. Congress decided, long ago, to create a civil service based
upon merit system principles (and has added,
[[Page 25038]]
over time, various protections for career employees) to protect against
politicization, build competencies, enhance the ability to transmit
knowledge during transitions, and generally advance the public
interest. OPM is tasked by statute with the authority to execute,
administer, and enforce all civil service rules and regulations as well
as the laws governing the civil service.\404\ All of its rules give
effect to Congress' intentions under title 5, including civil service
protections and merit system principles. This rule is a standard
exercise of the delegated authority Congress provided to OPM.
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\404\ See 5 U.S.C. 1103(a)(5)(A).
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Several commenters expressed support for the rule, in part, because
it is being promulgated through notice and comment in accordance with
the APA. This is contrasted with Executive Order 13957 establishing
Schedule F, which a professor argued ``was developed in secret, with no
consultation of public management researchers or experts who could
provide evidence to inform its adoption.'' Comment 50. It ``sought no
consultation of researchers or experts in public management, so the
Executive Order is free of any peer-reviewed evidence to support its
adoption.'' Comment 2594 (an individual), see also Comment 3213 (an
individual). The rule, commenters argued, ``is thoroughly researched,
and invites public comment,'' demonstrating a high degree of public
engagement. Comments 50, see also Comments 1677 (an individual), 1780
(same). OPM takes no position as to the executive processes leading to
Executive Order 13957 but does acknowledge this rulemaking process
resulted from OPM's own research, informed by 60 days of public
comment, and now reflects the review and consideration of the thousands
of comments received. This final rule, moreover, furthers the
objectives of Executive Order 14003. In the findings underpinning that
Executive order, President Biden observed that the foundations of the
civil service and its merit system principles were essential to the
Pendleton Act's repudiation of the spoils system.\405\ The President
further noted that revoking Schedule F was necessary ``to enhance the
efficiency of the civil service and to promote good administration and
systematic application of merit system principles.'' \406\ The
amendments in this final rule support the civil service and merit
system principles for career Federal employees.
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\405\ E.O 14003, sec. 2.
\406\ Id.
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B. Regulatory Alternatives
An alternative to this rulemaking is to not issue a regulation. OPM
has determined this is not a viable option. The risks of not issuing
this final rulemaking are many and include both fiscal as well as non-
fiscal consequences. As noted in the preamble, this rulemaking is
important for preserving the integrity of the Federal career workforce
as an independent entity selected in a manner that is free of political
influence, and free of personal loyalties to political leaders,
consistent with merit system principles. Promulgating measures that
help ensure that career employees maintain any status and procedural
rights they have accrued under law is a means of preserving the
integrity of the Federal career workforce. It preserves and promotes
employee morale and settled expectations, minimizes workforce
disruptions by preventing potential losses of seasoned or experienced
personnel, and contributes to a positive impact on agencies' ability to
meet mission requirements. Finally, and importantly, these changes will
promote compliance with statutory enactments.
The option of not regulating in this area carries with it fiscal
costs as well. These costs include that of recruiting and replacing
staff who separate before or after their positions are moved to the
excepted service in a manner that purportedly strips them of their
civil service protections, as well as the loss of or delay in services,
benefits, and entitlements owed to many of our nation's citizens. Many
of the citizens receiving these entitlements depend on them to meet
their basic living expenses.
Many commenters discussing regulatory alternatives focused on the
potential impact of this final rule on performance management and the
ability to recruit, hire, and retain talent.
Comments Regarding Performance Management
Commenters opposed to the rule commented that career civil servants
have too many poor performance issues and therefore fewer, not more,
protections are needed to allow for their removal. See, e.g., Comment
1802 (an advocacy organization). Comment 90, a form comment, points to
a 2020 Federal Employee Viewpoint Survey (FEVS) to say, generally, that
``the existing system . . . already faces challenges in addressing poor
performance.'' Comment 45, a former political appointee in favor in
Schedule F, similarly cited the 2020 FEVS results \407\ showing that
42% of employees agreed with the question: ``In my work unit, steps are
taken to deal with a poor performer who cannot or will not improve.''
Commenter then cited a different question in that FEVS which asked,
``In my organization, senior leaders generate high levels of motivation
and commitment in the workforce.'' (emphasis added). Commenter argued
that ``[a]cross five years from 2016 to 2020, we see worryingly low
rates of workers responding in the affirmative, with only 51% of
workers doing so in 2020 and it being lower in all previous years
surveyed.'' Commenter concluded that this ``not only signals a
demoralizing effect on those workers who do strive for efficiency and
satisfactory performance but is also a cause of poor performance
itself.''
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\407\ U.S. Off. of Pers. Mgmt., 2020 Federal Employee Viewpoint
Survey, https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf.
---------------------------------------------------------------------------
OPM disagrees with commenter's analysis and conclusions. ``Senior
leaders'' in the FEVS are defined as the heads of departments/agencies
and their immediate leadership team responsible for directing the
policies and priorities of the department/agency.\408\ These can be
career employees but are most often political appointees. It is unclear
how the motivation and commitment question relating to senior leaders
ties to performance management, as commenter concluded, especially
since immediate supervisors--the personnel most likely to handle
performance management--scored higher than senior leaders in relevant
metrics in that same 2020 FEVS. For instance, 78% of respondents said
their immediate supervisor was doing a ``good job'' overall and 87%
said their supervisor treated them with respect. Regarding their close
colleagues, 82% of respondents said their work unit had the ``job-
relevant knowledge and skills necessary to accomplish organizational
goals'' and 84% said the people they worked with ``cooperate to get the
job done.''
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\408\ U.S. Off. of Pers. Mgmt., ``Federal Employee Viewpoint
Survey,'' https://www.opm.gov/fevs/, see also U.S. Off. of Pers.
Mgmt., ``2022 Federal Employee Viewpoint Survey Results: Technical
Report,'' (defining ``Senior Leader''), https://www.opm.gov/fevs/reports/technical-reports/technical-report/technical-report/2022/2022-technical-report.pdf.
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Comment 4097 and others also argued that FEVS data shows
``[a]gencies fail to address poor performers effectively,''
[[Page 25039]]
citing 2021-2023 FEVS data and the same question as above, this time
showing approximately 40% of respondents agreeing that ``their agency
had taken steps to deal with a poor performer who cannot or will not
improve.'' See also Comments 1811, 3190, 3892. A few also argued (or
cited surveys that they allege show) that public trust in government is
low. See Comments 1811, 1958. Comment 4097 adds that ``[m]isconduct--
including policy resistance--occurs at unacceptably high levels. The
federal hiring process is also widely recognized as broken. The federal
workforce needs reform.''
As explained above, under the law, a mere difference of opinion
with leadership does not qualify as misconduct or unacceptable
performance or otherwise implicate the efficiency of the service in a
manner that would warrant an adverse action. The FEVS data that
commenters argued shows there are too many poor performers in
government does not, in fact, show a numerical prevalence of poor
performers. There is an important difference between (a) data showing a
belief by respondents that poor performers exist and the agency has not
adequately addressed their performance and (b) the existence of too
many poor performers. For example, if a work unit contains one employee
with performance issues out of a 100, then 99 might have one example of
a poor performer who has not yet been removed or demoted, but that does
not necessarily mean the work unit has a prevalence of poor performers.
Also, unless the respondents are in the supervisory chain of an
employee with performance issues, they would have little way of knowing
what ``steps are being taken to deal with a poor performer who cannot
or will not improve,'' which is the FEVS question repeatedly cited in
these comments. For privacy reasons, supervisors would not normally
share information about a particular employee's performance or behavior
with other employees, nor would the supervisor be likely to disclose
what actions had been taken in response. Commenters have not shown that
there are significant numbers of poor performers in government. OPM
notes that a 2016 GAO report showed ``99 percent of all permanent, non-
SES employees received a rating at or above `fully successful' in
cal