Proposed Rule2025-06904
Improving Performance, Accountability and Responsiveness in the Civil Service
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
April 23, 2025
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is proposing a rule to increase career employee accountability. Agency supervisors report great difficulty removing employees for poor performance or misconduct. The proposed rule lets policy-influencing positions be moved into Schedule Policy/Career. These positions will remain career jobs filled on a nonpartisan basis. Yet they will be at-will positions excepted from adverse action procedures or appeals. This will allow agencies to quickly remove employees from critical positions who engage in misconduct, perform poorly, or undermine the democratic process by intentionally subverting Presidential directives.
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<title>Federal Register, Volume 90 Issue 77 (Wednesday, April 23, 2025)</title>
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[Federal Register Volume 90, Number 77 (Wednesday, April 23, 2025)]
[Proposed Rules]
[Pages 17182-17224]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-06904]
[[Page 17181]]
Vol. 90
Wednesday,
No. 77
April 23, 2025
Part II
Office of Personnel Management
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5 CFR Parts 210, 212, 213, et al.
Improving Performance, Accountability and Responsiveness in the Civil
Service; Proposed Rule
Federal Register / Vol. 90 , No. 77 / Wednesday, April 23, 2025 /
Proposed Rules
[[Page 17182]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
[Docket ID: OPM-2025-0004]
RIN 3206-AO80
Improving Performance, Accountability and Responsiveness in the
Civil Service
AGENCY: Office of Personnel Management.
ACTION: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing a rule
to increase career employee accountability. Agency supervisors report
great difficulty removing employees for poor performance or misconduct.
The proposed rule lets policy-influencing positions be moved into
Schedule Policy/Career. These positions will remain career jobs filled
on a nonpartisan basis. Yet they will be at-will positions excepted
from adverse action procedures or appeals. This will allow agencies to
quickly remove employees from critical positions who engage in
misconduct, perform poorly, or undermine the democratic process by
intentionally subverting Presidential directives.
DATES: Comments must be received on or before May 23, 2025.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by the
following method:
Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the
instructions for sending comments.
All submissions must include the agency name and docket number or
RIN for this rulemaking. Please arrange and identify your comments on
the regulatory text by subpart and section number; if your comments
relate to the supplementary information, please refer to the heading
and page number. All comments received will be posted without change,
including any personal information provided. To ensure that your
comments will be considered, you must submit them within the specified
open comment period. Before finalizing this rule, OPM will consider all
comments within the scope of the regulations received on or before the
closing date for comments. OPM may make changes to the final rule after
considering the comments received.
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be
found in the docket for this rulemaking at <a href="http://www.regulations.gov">www.regulations.gov</a>.
FOR FURTHER INFORMATION CONTACT: Noah Peters, Senior Advisor to the
Director, by email at <a href="/cdn-cgi/l/email-protection#6d08001d01021408080c0e0e021803190c0f04010419142d021d00430a021b"><span class="__cf_email__" data-cfemail="0e6b637e6261776b6b6f6d6d617b607a6f6c6762677a774e617e6320696178">[email protected]</span></a> or by phone at
(202) 606-2930.
SUPPLEMENTARY INFORMATION:
OPM proposes this rule to strengthen employee accountability and
the democratic responsiveness of American government, while addressing
longstanding performance management challenges in the Federal
workforce. Chapter 75 of title 5, United States Code (chapter 75)
requires most agencies \1\ to follow specific procedures to take
``adverse actions'' against employees for misconduct or poor
performance--these actions include principally removals, suspensions,
or reductions in pay or grade.\2\ Most agencies take performance-based
adverse actions following procedures set forth in chapter 43 of title 5
(chapter 43).\3\ Whether taken under chapter 75 or chapter 43
procedures, employees can appeal such adverse or performance-based
actions to the Merit Systems Protection Board (MSPB) and, if
unsuccessful, to the Federal Circuit Court of Appeals.\4\
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\1\ Chapter 75 does not apply to all employees or all agencies.
See 5 U.S.C. 7511(b).
\2\ See 5 U.S.C. 7512, 7513.
\3\ 5 U.S.C. 4303. Chapter 43 does not apply to all employees or
all agencies. See 5 U.S.C. 4301.
\4\ See 5 U.S.C. 7701, 7703.
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As described below, decades of experience have shown that chapter
43 and 75 procedures make it very difficult for agencies to hold
employees accountable for their performance or conduct. The processes
are time-consuming and difficult, and removals are not infrequently
subject to a protracted appeal process with an uncertain outcome.
Surveys show few agency supervisors believe they could dismiss
subordinates for serious misconduct or unacceptable performance. This
dynamic undermines Federal merit system principles, which call for
employees to maintain high standards of conduct and for agencies to
separate employees who cannot or will not improve their performance to
meet required standards.\5\
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\5\ 5 U.S.C. 2301(b).
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The adverse action procedures and appeals that make it difficult
for agency leadership to hold employees accountable also empower career
employees to insert partisan or personal preferences into their
official duties. While most Federal employees nonetheless faithfully
perform their jobs, some do not. As discussed in greater detail later
in this proposed rulemaking, it is well documented that many career
federal employees use their positions to advance their personal
political or policy preferences instead of implementing the elected
President's agenda. Such behavior undermines democracy, as it enables
government power to be wielded without accountability to the voters or
their elected representatives.
On October 21, 2020, President Donald J. Trump addressed these
challenges with Executive Order 13957, ``Creating Schedule F in the
Excepted Service.'' \6\ Title 5 generally authorizes the President or
OPM to exclude employees in excepted service positions of a
``confidential, policy-determining, policy-making, or policy-advocating
character'' (hereafter ``policy-influencing positions'') from chapter
75 procedural requirements and MSPB appeals.\7\ Chapter 43 also
authorizes OPM to exclude excepted service positions from its
procedural requirements and concomitant MSPB appeals.\8\ Executive
Order 13957 used this authority to create a new Schedule F in the
excepted service for policy-influencing career employees. The order
required nonpartisan appointments to and removals from Schedule F;
these positions remained career appointments filled based on merit and
not political affiliation.\9\ However, chapter 43 and 75 procedural
requirements and appeals would no longer apply. This would enable
agencies to expeditiously remove career employees in policy-influencing
positions for poor performance or misconduct, such as corruption or for
injecting partisanship into the performance of their official duties.
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\6\ 85 FR 67631 (Oct. 26, 2020).
\7\ 5 U.S.C. 7511(b)(2).
\8\ 5 U.S.C. 4301(2)(G).
\9\ E.O. 13957, sec. 6.
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Executive Order 13957 recognized the value of a nonpartisan merit
service that develops and maintains institutional knowledge and
experience. It strengthened the merit service by giving agencies the
tools necessary to hold policy-influencing employees accountable when
they fail to uphold high standards of conduct and performance.
On January 22, 2021, President Joseph Biden issued Executive Order
14003, which abolished Schedule F before any positions were transferred
into it.\10\ In April 2024 OPM issued a final rule (hereinafter the
``April 2024 final rule'') amending the civil service regulations to
(1) define policy-influencing positions to encompass only political
appointments and have no applicability
[[Page 17183]]
to career Federal positions; (2) establish comprehensive procedures,
including MSPB appeals, governing the transfer of positions to policy-
influencing schedules in the excepted service; and (3) provide that any
career incumbents moved into such policy-influencing excepted service
schedules would remain subject to adverse actions procedural
requirements and retain adverse action appeals.\11\
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\10\ 86 FR 7231 (Jan. 27, 2021).
\11\ See 89 FR 24982 (Apr. 9, 2024).
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On the first day of his second term President Trump signed
Executive Order 14171 on ``Restoring Accountability to Policy-
Influencing Positions within the Federal Workforce.'' \12\ As described
below, until the 1960s the general Federal workforce could not appeal
adverse actions. Executive Order 14171 used an express grant of
statutory authority to return policy-influencing positions to this
historical baseline. To this end, Executive Order 14171 created a new
Schedule Policy/Career in the excepted service for policy-influencing
positions and made several related modifications to the civil service
rules. Under the order Schedule Policy/Career positions remain career
positions, filled on a nonpartisan basis using standard career employee
hiring procedures. At the same time, employees in such positions will
serve at-will and will not be covered by chapter 43 or 75 procedures.
This will enable the President and his appointed agency heads to hold
Schedule Policy/Career employees meaningfully accountable for their
performance and conduct.
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\12\ 90 FR 8625 (Jan. 31, 2025).
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The OPM Director is generally charged with executing,
administering, and enforcing the civil service rules and regulations of
the President and the laws governing the civil service. Accordingly,
OPM proposes this rule to strengthen employee accountability and
implement Executive Order 14171. OPM proposes amending its regulations
in 5 CFR chapter I, subchapter B, as follows:
1. Amending 5 CFR part 213 (Excepted Service) to include Schedule
Policy/Career as an excepted service schedule for policy-influencing
career positions, while clarifying that Schedule C appointments are
exclusively for noncareer (i.e., political) appointments with policy
responsibilities. The proposed regulations further clarify that
employees filling excepted service positions are in the excepted
service, regardless of whether they retain competitive status, and
lists increasing accountability to the President as grounds for
excepting positions from the competitive service.
2. Amending 5 CFR part 212 (Competitive Service and Competitive
Status) to provide that employees with competitive status whose
positions are subsequently listed in the excepted service or who are
involuntarily transferred into an excepted service position retain
competitive status but do not remain in the competitive service while
in the excepted position.
3. Amending 5 CFR part 752 (Adverse Actions) to remove the
amendments made by the April 2024 final rule and provide that
individuals whose positions are reclassified into or who are otherwise
transferred into Schedule Policy/Career are not covered by chapter 75
procedural requirements or adverse actions appeals. Additionally, OPM
proposes to amend 5 CFR part 752 to remove language pertaining to 10
U.S.C. 1599e, which provided for a 2-year probationary period in the
Department of Defense. This language has become obsolete as section
1599e was repealed, effective December 31, 2022, by Public Law 117-81,
Sec. 1106(a)(1). The proposed rule further amends 5 CFR part 432
(Performance Based Reduction in Grade and Removal Actions) to remove
the amendments made by the April 2024 final rule and to exclude all
policy-influencing positions in the excepted service from chapter 43
procedural requirements for performance-based removals.
4. Amending 5 CFR part 210 (Basic Concepts and Definitions
(General)) to remove the amendments made by the April 2024 final rule
stating that policy-influencing positions are exclusively associated
with noncareer political appointments. The proposed rule also amends 5
CFR 213.3301 and 451.302 to conform to the rescission of these
definitions.
5. Amending 5 CFR part 302 to remove the amendments made by the
April 2024 final rule imposing procedural requirements on movements of
positions or employees into policy-influencing excepted service
positions (including subsequent MSPB appeals). The proposed regulations
also provide that moving or transferring positions into Schedule
Policy/Career will not change how appointments to those positions are
made. Positions moved from the competitive service will be filled using
competitive hiring procedures and employees so appointed may acquire
competitive status. Positions moved from the excepted service will
continue to be filled using the procedures that applied to their prior
excepted service schedule.
As further detailed below, this rulemaking will promote Federal
employee accountability and strengthen American democracy while
addressing performance management challenges and issues with misconduct
within the Federal workforce. It will give agencies the practical
ability to separate employees who insert partisanship into their
official duties, engage in corruption, or otherwise fail to uphold
merit principles. OPM may set forth policies, procedures, standards,
and supplementary guidance for the implementation of any final rule.
I. Background
A. History of the Civil Service and Removal Restrictions
Beginning with the Administration of George Washington, the
appointment--subject to the advice and consent of the Senate where
appropriate--and removal of federal officers occurred at the
President's discretion by virtue of Article II of the Constitution.
Washington appointed Federalists friendly to the new form of
government. Subsequent presidents made appointments and removals to
advance their agendas.
However, over the course of the Nineteenth Century, presidents
began to lose control of the appointment and removal process due to the
rise of the patronage system. By the 1880s appointments to positions in
the executive branch were predominantly made based on political
connections, typically as a reward for loyal supporters of the party in
power. Members of Congress and local party machines would use their
influence with the President to get their preferred candidate's Federal
appointments. The patronage system began showing strain as the Federal
Government expanded rapidly after the Civil War. The Federal civilian
workforce nearly doubled in size between 1871 and 1881, from 51,000 to
100,000 employees.\13\ The expanded scale made monitoring and managing
patronage employees harder for both the President and his Congressional
allies. Elected officials spent a significant proportion of their time
arranging patronage appointments; future President James Garfield
estimated a third of Congress members' waking hours were spent on such
tasks. At the same time, the President spent an inordinate amount of
time as a ``position broker,'' handing out many jobs under great
political pressure.\14\
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\13\ Ronald N. Johnson and Gary D. Libecap, ``The Federal Civil
Service and the Problem of Bureaucracy,'' University of Chicago
Press, (1994), p. 17. <a href="https://www.nber.org/system/files/chapters/c8633/c8633.pdf">https://www.nber.org/system/files/chapters/c8633/c8633.pdf</a>.
\14\ Id. at 18.
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[[Page 17184]]
These time demands also meant that patronage appointees became
subject to little scrutiny once in office. They often provided poor
services that frustrated the President, members of Congress, and the
voting public. For example, in the increasingly commercialized U.S.
economy of the late 19th Century, businesses needed a well-functioning
postal system for shipments and customhouses for imports. They saw how
the spoils system often prevented the Government from providing these
services reliably; perhaps unsurprisingly a majority of civil service
reform association members came from business organizations.\15\
Patronage also focused Federal appointees' attention on the local
concerns of party machines instead of the national concerns of the
President and Congress.\16\ By the 1880s, the President and Congress
had concluded that the costs of the spoils system outweighed its
benefits, and that in many cases patronage appointments made advancing
their agendas harder.\17\ The final straw was the assassination of
President James Garfield by a disappointed office seeker.
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\15\ Id. at 19.
\16\ Id. at 22-24.
\17\ Id. at 25-41.
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This dynamic led Congress to pass, and President Chester A. Arthur
to sign, the Pendleton Act of 1883.\18\ The Pendleton Act established
the classified service--what is today known as the competitive service.
Appointments to classified positions were to be made based on merit,
assessed through competitive examinations. Executive branch officials
could not consider campaign contributions or ``political service'' in
appointments to or removals from classified positions.\19\ The
Pendleton Act also established the Civil Service Commission (CSC) to
help implement and enforce its requirements.
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\18\ Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883)
(22 Stat. 403).
\19\ Id. at sec. 2, fifth.
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When the Pendleton Act became law, President Arthur placed
approximately one-tenth of the Federal workforce into the classified
service, including half of positions in the postal service and three-
quarters of positions in customhouses.\20\ The civil service expanded
rapidly under subsequent administrations, covering just under half of
the Federal workforce by 1896.\21\
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\20\ George F. Howe, ``Chester A. Arthur, A Quarter-Century of
Machine Politics,'' F. Ungar Publishing Co. (1966) [1935], pp. 209-
210.
\21\ See Gerald E. Frug, ``Does the Constitution Prevent the
Discharge of Civil Service Employees,'' U. Pa. L. Rev., 124, at 955-
966. <a href="https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4997&context=penn_law_review">https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4997&context=penn_law_review</a>.
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Though the Pendleton Act extensively regulated the process of
filling classified positions, employees in the new civil service
remained at-will. While the law prohibited executive branch officials
from dismissing classified employees because they declined to render
political services, they otherwise served at the pleasure of the
President.\22\ Civil service employees also had no right to appeal or
otherwise contest removals. Instead, the Pendleton Act was enforced
through penalties on officials who violated its requirements.
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\22\ Classified employees' status under the Pendleton Act was
similar to most private sector workers today. Businesses today
cannot fire workers for certain discriminatory reasons, such as race
or religion, but employees otherwise serve at the pleasure of their
employer.
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The reformers who created the Pendleton Act made a conscious
decision to keep the civil service at-will. They wanted to create a
merit system that would provide high-quality services; they feared that
cumbersome removal protections would entrench poor performers. Civil
service reformers saw little risk of patronage-based dismissals as long
as civil service hiring forbid rewarding campaign supporters with new
appointments.\23\ George William Curtis, the president of the National
Civil Service Reform League who helped draft the Pendleton Act and
secure its passage, explained:
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\23\ P.P. Van Riper, ``History of the United States Civil
Service,'' Row, Peterson & Co. (1958), p. 102.
[I]t 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.\24\
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\24\ See Frug, supra note 21, at 955.
In other words, ``if the front door [is] properly tended, the back
door [will] take care of itself.'' \25\ Reflecting this contemporaneous
understanding of the law, President Benjamin Harrison's CSC ``refused
to construe the Civil Service Act of 1883 as imposing any limits on the
president's removal power and disclaimed any authority to investigate
removals aside from those for failure to pay political assessments.''
\26\
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\25\ See P.P. Van Riper, supra note 25, at 102.
\26\ S. Calabresi & C. Yoo, The Unitary Executive: Presidential
Power from Washington to Bush (2008), p. 221 (citing 9 U.S. Civ.
Serv. Comm'n Ann. Rep. 77 (1892)).
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The CSC requested an Executive Order requiring officials to
formally memorialize the reasons for dismissing civil service
employees. The CSC believed this would further discourage covert
patronage-based removals. President William McKinley subsequently
issued Executive Order 101 on July 27, 1897. This order provided that
``No 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.'' \27\ The CSC became concerned that some were construing
Executive Order 101's ``just cause'' requirement to mandate the
equivalent of a trial to dismiss civil service employees. The
Commission believed this ``would give a performance of tenure in the
public service quite inconsistent with the efficiency of that
service.'' \28\ The CSC therefore asked President Theodore Roosevelt to
issue an executive order clarifying that ``just cause'' meant any
legitimate, non-political reason, and that trials were unnecessary.\29\
President Roosevelt did so on May 29, 1902, by issuing Executive Order
173. That order provided that ``just cause'' means any cause, other
than political or religious, that promotes the efficiency of the
service, and trials or hearings were not required to dismiss an
employee.
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\27\ E.O. 101, July 27, 1897.
\28\ U.S. Civil Service Commission Annual Report (1902), p. 18.
\29\ Id. at 19.
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President William Howard Taft issued Executive Order 1471 in
February 1912 reaffirming and restating the prior McKinley and
Roosevelt orders. Congress subsequently codified Executive Order 1471
as the Lloyd-La Follette Act of 1912.\30\ The Lloyd-La Follette Act
mandated that ``no examination of witnesses nor any trial or hearing
shall be required except in the discretion of the officer making the
removal.'' \31\ The next year the CSC explained the policy governing
civil service dismissals:
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\30\ 37 Stat. 555 (1912).
\31\ Id.
The rules are not framed on a theory of life tenure, fixed
permanence, nor vested right in office. It is recognized that
subordination and discipline are essential, and that therefore
dismissal for just cause shall be not unduly hampered. The rules
have at all times left the power of removal as free as possible,
providing restraints only to ensure its proper exercise . . .
Appointing officers, therefore, are entirely free to make removals
for any reasons relating to the interests of good administration,
and they are made the final judges of the sufficiency of the
reasons. No examination of witnesses or any trial or hearing is
required . . . The rule is merely intended to prevent removals upon
secret charges and to stop political pressure for removals . . . .
No tenure of office is created
[[Page 17185]]
except that based upon efficiency and good behavior.\32\
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\32\ U.S. Civil Service Commission Annual Report (1913), pp. 21-
22.
The Lloyd-La Follette Act and its predecessor executive orders did
not give classified civil service employees tenure. They instead
imposed procedural requirements to prevent merely political or
religiously-motivated removals. Agencies remained the sole judge of
employee conduct and performance.
For the first six decades of the merit service employees could not
appeal removals. That only began to change during the Second World War.
The Veterans Preference Act (VPA) of 1944 gave veterans significant
hiring preferences for Federal jobs.\33\ It also provided that
veterans--including those in the excepted service--could be dismissed
only to promote the efficiency of the service and allowed veterans to
appeal adverse actions to the CSC. The congressional record on this
provision is scarce, but commentors have suggested it was motivated by
concerns that agencies would honor veteran hiring procedures on the
front end, only to pretextually dismiss veterans on the back end.\34\
In 1948, Congress amended the law to make CSC appeals binding on
agencies.\35\ These amendments gave preference-eligible veterans the
ability to appeal removals outside their agency.
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\33\ 58 Stat. 387 (1944).
\34\ Frug, supra note 21, at 959-960.
\35\ 62 Stat. 575 (1948).
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Until the 1950s, courts would entertain procedural challenges to
civil service removals, overturning them where agencies did not follow
Lloyd-La Follette procedures. But courts generally avoided examining
the substance of removal actions.\36\ A significant precedent was
established in 1954 when the D.C. Circuit Court of Appeals decided Roth
v. Brownell.\37\ The plaintiff, Roth, had been hired into a competitive
service position in the Department of Justice (DOJ). President Truman
subsequently moved his position into Schedule A of the excepted
service. In 1953 President Eisenhower moved Roth's position into the
then-newly created Schedule C and shortly thereafter dismissed him.
Roth was not a veteran and could not appeal to the CSC. He instead
filed suit in federal court, arguing that DOJ had failed to follow
Lloyd-La Follette procedures before removing him.
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\36\ Frug, supra note 21, at 70, n. 134.
\37\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954).
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Analyzing the text of the Lloyd-La Follette Act, the D.C. Circuit
agreed. The law provided that ``[n]o person in the classified civil
service of the United States shall be removed or suspended without pay
therefrom except for such cause as will promote the efficiency of such
service and for reasons given in writing.'' \38\ The court explained
that Roth was either removed from the civil service in 1947--when his
position was moved into Schedule A--or in 1953, when he was dismissed.
Without deciding which action removed him from the civil service, the
court ordered his discharge reversed because Lloyd-La Follette
procedures had not been followed in either case.\39\ Roth thus held
that Lloyd-La Follette procedures must be followed to take employees
out of the competitive service--either through a discharge or through
moving the position into the excepted service.
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\38\ 37 Stat. 555 (1912).
\39\ Roth v. Brownell, 215 F.2d 500, 502 (D.C. Cir. 1954).
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Notably, Roth did not allow employees to contest the substance of
removals--only whether proper procedures were followed. The D.C.
Circuit subsequently clarified that agencies could dismiss employees
from confidential or policy-making positions based purely on loss of
confidence. In Leonard v. Douglas (1963) the D.C. Circuit concluded
that removing an employee from a policy-making position because his
superiors did not find him suitable to advance their policies promoted
``the efficiency of the service'' and was therefore lawful.\40\ While
the Lloyd-La Follette Act and Veterans Preference Act imposed
procedural requirements on removals, agencies generally retained broad
authority to dismiss employees for non-discriminatory reasons. Those
reasons included removing employees from policy-influencing positions
based purely on the belief they would not effectively advance the
President's policies.
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\40\ Leonard v. Douglas, 321 F.2d 749, 751-753 (D.C. Cir. 1963).
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In the 1950s the courts began to permit limited judicial
examination of the substance of removals. In a series of cases, the
Supreme Court held that the Due Process clause of the 14th Amendment
prohibited the government from dismissing employees for exercising
constitutionally protected rights when those activities were unrelated
to their job duties.\41\
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\41\ See Wieman v. Updegraff, 344 U.S. 183 (1952) (overturning
Oklahoma law forbidding state employees from associating with
certain organizations); Slochower v. Board of Education, 350 U.S.
551 (1956) (overturning New York City law requiring termination of
employees who invoke the 5th Amendment right to avoid self-
incrimination); Pickering v. Board of Education, 391 U.S. 563 (1968)
(School board cannot terminate a teacher for writing a letter to the
editor critical of Board policies). OPM notes that none of these
cases examined federal employees or considered Article II's vesting
of the executive power in the President.
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Consequently, until the 1960s agencies had to follow statutory
procedures to dismiss employees, but they could broadly remove
employees for any work-related grounds. These grounds included loss of
confidence in an employee in a policy-making position. The procedural
requirements--notice and an opportunity to respond, followed by a
written explanation of the reason for removal--were also modest. For
the general Federal workforce, agencies were also the final judge of
whether cause existed for dismissal. The Lloyd-La Follette Act was
neither interpreted nor applied to give employees a right to their
jobs. Courts would rarely evaluate the substance of adverse actions,
except if they occurred in response to employees exercising their
constitutional rights.
This changed in the 1960s and 1970s. In 1962 President Kennedy's
Executive Order 10987 required agencies to create internal procedures
for non-veterans to appeal adverse actions.\42\ President Richard
Nixon's Executive Orders 11491 and 11787 transferred these internal
appeals to the CSC, aligning the process for veterans and non-
veterans.\43\ The Supreme Court also dramatically changed the legal
landscape in Arnett v. Kennedy (1974).\44\ In that case the Supreme
Court held that a federal employee has a constitutional due process
interest in continued federal employment. Arnett made constitutional
due process challenges generally applicable to civil service removals,
not just when employees were fired for exercising constitutional
rights.
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\42\ 27 FR 550 (Jan. 17, 1962).
\43\ 34 FR 17605 (Oct. 29, 1969), 39 FR 20675 (June 13, 1974).
\44\ 416 U.S. 134.
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Congress legislated against this backdrop when it passed the Civil
Service Reform Act of 1978 (CSRA).\45\ The CSRA replaced the Lloyd-La
Follette Act, VPA, executive orders, and private rights of action in
Federal court with a new unified framework governing adverse actions
and subsequent appeals. President Jimmy Carter explained the law was
meant ``to bring efficiency and accountability to the Federal
Government.'' \46\
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\45\ 92 Stat. 1111; Public Law 95-454 (Oct. 13, 1978).
\46\ James Carter, ``Statement on Signing S. 2640 Into Law,''
Oct. 13, 1978. <a href="https://www.presidency.ucsb.edu/documents/civil-service-reform-act-1978-statement-signing-s-2640-into-law">https://www.presidency.ucsb.edu/documents/civil-service-reform-act-1978-statement-signing-s-2640-into-law</a>.
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[[Page 17186]]
The CSRA maintained prohibitions on patronage and restricted
adverse actions in some respects. For example, the CSRA gave non-
preference eligible employees in the competitive service the same right
to appeal demotions that preference eligible employees
possessed.<SUP>47 48</SUP> The CSRA also expanded preference-eligible
employees' ability to appeal suspensions. Under the VPA preference-
eligible employees could appeal suspensions of greater than 30 days.
The CSRA allowed appeals of suspensions of more than 14 days.\49\
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\47\ 5 U.S.C. 7512.
\48\ The Veterans Preference Act required agencies to follow
adverse action procedures before reducing a preference-eligible
veteran's pay or grade, whether the veteran was in the competitive
or excepted service. This requirement did not apply to non-
preference eligibles.
\49\ 5 U.S.C. 7512.
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In other ways, the CSRA made taking adverse actions easier. It
created chapter 43, intended to be a faster process for removing poor
performers.\50\ It further prevented Federal employees from directly
challenging removals in Federal district court. The CSRA instead
channeled adverse action appeals to the MSPB, with judicial review of
the MSPB rulings. Congress subsequently transferred most appeals of
MSPB decisions to the Federal Circuit Court of Appeals when it created
that court in 1982.\51\ This was intended to create a uniform body of
procedures and case law governing the Federal workforce. The CSRA also
repealed Lloyd-La Follette provisions governing removal from the
competitive service, replacing it with a new unified framework of
adverse action appeals for both competitive service employees and
excepted service preference-eligibles. The CSRA thus removed from
Federal law the language the D.C. Circuit interpreted in Roth.
---------------------------------------------------------------------------
\50\ See 5 U.S.C. ch. 43.
\51\ See 5 U.S.C. ch. 77.
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The CSRA originally excluded from chapter 75 adverse action
procedures excepted service employees who were not preference
eligibles. Chapter 75 also excluded any excepted service employees--
preference eligible or not--whose positions the President, OPM, or an
agency head, as applicable, determined had a policy-influencing
character.\52\
---------------------------------------------------------------------------
\52\ 5 U.S.C. 7511(b).
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In United States v. Fausto (1988), the Supreme Court held that
employees statutorily excluded from chapter 75 could not contest
removals in Federal district court.\53\ The Court explained that the
CSRA created a comprehensive review system for adverse actions;
exclusion from CSRA coverage meant employees could not appeal adverse
actions elsewhere. Shortly thereafter, Congress passed the Civil
Service Due Process Amendments Act of 1990.\54\ This law, which remains
in effect, amended the CSRA by extending chapter 75 to generally cover
excepted service employees--preference eligible or not--after an
initial trial period. At the same time, Congress retained the exclusion
for excepted service employees in policy-influencing positions.\55\
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\53\ 484 U.S. 439.
\54\ Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17,
1990).
\55\ 5 U.S.C. 7511(b)(2).
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To summarize, the Pendleton Act of 1883 did not substantively limit
the ability of agencies to remove employees for non-political reasons.
Nor did subsequent executive orders or the Lloyd-La Follette Act. They
instead required agencies to follow procedural steps and document the
basis for their actions, but agencies remained the final judge of the
reasons for dismissal. For the first six decades of the merit service
employees could not appeal removals outside their agency.
Adverse action appeals began in the 1940s and were initially
limited to preference eligible employees. Only in the 1960s did
executive orders extend dismissal appeals to the broader Federal
workforce. In the 1970s, the Supreme Court construed the Lloyd-La
Follette Act to give civil service employees a property interest in
their jobs, thus requiring constitutional due process before removals.
The Civil Service Reform Act of 1978 reorganized and codified these
procedures, creating the civil service framework that remains in effect
today. The CSRA and the subsequent Due Process Amendments Act also
authorized OPM and the President to exempt employees in policy-
influencing positions from chapter 75 adverse action procedures and
appeals.
B. Executive Orders 13957, 14003, 14171, and the Prior OPM Rulemaking
President Donald Trump issued Executive Order 13957 creating
``Schedule F'' in October 2020. As previously discussed, chapter 75
adverse action procedures do not cover employees in excepted service
positions that the President, OPM, or an agency head have determined
are policy-influencing.\56\ Prior administrations had only applied this
exemption only to political appointments, principally positions in
Schedule C of the excepted service.\57\ Executive Order 13957 created a
new Schedule F (following the pre-existing schedules A through E) for
career employees in policy-influencing positions.\58\
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\56\ 5 U.S.C. 7511(b)(2).
\57\ 5 CFR 6.2.
\58\ Executive Order 13957, 85 FR 67631 (Oct. 26, 2020).
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Schedule F applied to policy-influencing positions ``not normally
subject to changes as a result of a Presidential transition.'' \59\
Executive Order 13957 set up a process for agencies to review their
workforce, identify such policy-influencing career positions, and ask
OPM to move them into Schedule F. The order provided guideposts for
that analysis, identifying positions such as regulation writers or
officials in agency policy offices as likely belonging in Schedule
F.\60\ Under 5 U.S.C. 7511(b)(2), any career positions moved into
Schedule F would be excluded from chapter 75 adverse action procedures
and their associated MSPB appeals.
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\59\ E.O. 13957, sec. 3.
\60\ Id. sec. 5.
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At the same time, Schedule F positions remained career jobs filled
based on merit, not political connections. Any positions filled with
the involvement of the White House Office of Presidential Personnel--
the White House office responsible for selecting political appointees--
could not go in Schedule F.\61\ Executive Order 13957 also prohibited
hiring or firing Schedule F employees based on their political
affiliation or for other discriminatory reasons. It further required
agencies to establish internal procedures to ensure compliance with
this directive.\62\ Executive Order 13957 put policy-influencing career
Federal employees in the same position as most private sector workers,
generally serving at-will but protected from discriminatory removals.
---------------------------------------------------------------------------
\61\ Id. sec. 2.
\62\ Id. sec. 6.
---------------------------------------------------------------------------
The order explained that these changes were necessary to enable
agencies to more effectively address poor performance. It cited
findings from the MSPB's Merit Principles Survey that less than a
quarter of Federal employees believe their agency addresses poor
performers effectively. Executive Order 13957 explained that poor
performance in policy-influencing positions is especially problematic,
as it can affect the performance of the entire agency.\63\ The order
also explained that competitive hiring procedures do not provide enough
flexibility to select applicants with the necessary intangible
qualities for these important positions,
[[Page 17187]]
such as sound judgment, acumen, or impartiality.\64\
---------------------------------------------------------------------------
\63\ Id. sec. 1.
\64\ Id.
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Schedule F also came in the context of widespread reports of career
staff ``resistance'' to Trump Administration policies.\65\ While
Schedule F employees would not be dismissed based on their personal
beliefs, agencies could swiftly dismiss any who did not perform their
duties in a nonpartisan manner. However, no agencies moved positions
into Schedule F before President Trump left office.\66\
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\65\ See, e.g., Juliet Eilperin, Lisa Rein, and Marc Fisher,
``Resistance from within: Federal workers push back against Trump,''
the Washington Post, January 31, 2017, <a href="https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html">https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html</a>.
\66\ 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), <a href="https://www.gao.gov/assets/gao-22-105504.pdf">https://www.gao.gov/assets/gao-22-105504.pdf</a>.
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1. Executive Order 14003 and OPM Rulemaking
Shortly after taking office President Biden issued Executive Order
14003 revoking Executive Order 13957 and abolishing Schedule F.\67\
Executive Order 14003 described Schedule F as ``undermin[ing] the
foundations of the civil service and its merit system principles, which
were essential to the Pendleton Civil Service Reform Act of 1883's
repudiation of the spoils system'' and that it was necessary to
``rebuild the career Federal workforce.'' \68\
---------------------------------------------------------------------------
\67\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021).
\68\ Id. sections 1 and 2.
---------------------------------------------------------------------------
This analysis ignored the fact that Schedule F gave employees
stronger removal protections than the Pendleton Act did.\69\ It also
ignored the fact that the Federal Employee Viewpoint Survey (FEVS)
showed career Federal employee job satisfaction rising throughout the
first Trump Administration, reaching a record high of 72 percent in
2020.\70\ Based on their survey responses, Federal employees did not
feel their workforces needed rebuilding.
---------------------------------------------------------------------------
\69\ The Pendleton Act merely prohibited hiring or dismissing
classified employees based on their politics or failure to make
political contributions. Section 6 of E.O. 13957 forbid taking any
personnel actions prohibited by 5 U.S.C. 2302(b). In addition to
political discrimination, this generally forbids any discrimination
based on protected characteristics (such as race, sex, or religion)
or retaliation against whistleblowers.
\70\ U.S. Off. of Pers. Mgmt., 2020 Federal Employee Viewpoint
Survey, at 11, <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf</a>.
---------------------------------------------------------------------------
During the 2024 election cycle President Trump announced plans to
reissue Executive Order 13957 if re-elected.\71\ Under the Biden
Administration, OPM proposed, and in April 2024 finalized, new
regulations related to the order.\72\ The April 2024 final regulations
had three principal components. First, OPM used presidential authority
delegated under 5 U.S.C. 3301, 3302, and Executive Order 10577 to
regulatorily define the phrases ``confidential, policy-determining,
policy-making or policy-advocating'' and ``confidential or policy-
determining'' to refer exclusively to political appointments, with no
application to career employees.
---------------------------------------------------------------------------
\71\ See, e.g., Agenda47, ``President Trump's Plan to Dismantle
the Deep State and Return Power to the American People,'' March 21,
2023, <a href="https://www.donaldjtrump.com/agenda47/agenda47-president-trumps-plan-to-dismantle-the-deep-state-and-return-power-to-the-american-people">https://www.donaldjtrump.com/agenda47/agenda47-president-trumps-plan-to-dismantle-the-deep-state-and-return-power-to-the-american-people</a>.
\72\ 89 FR 24982 (April 9, 2024).
---------------------------------------------------------------------------
Second, OPM used those same delegated presidential authorities to
add a new subpart F to 5 CFR part 302. Subpart F prescribed mandatory
procedures for transferring positions into the excepted service, or
into a new excepted service schedule. Subpart F also required agencies
notify employees that involuntary movements or transfers into a policy-
influencing position would not affect their competitive status or civil
service appeals and would allow employees to appeal to MSPB to the
extent that an agency committed procedural error or indicated that the
transfer would terminate adverse action appeals.
Third, OPM used its own statutory authority under 5 U.S.C. 7514 to
provide that, notwithstanding 5 U.S.C. 7511(b)(2), any tenured civil
service employees whose positions were moved, or who were otherwise
involuntarily transferred into policy-influencing excepted service
positions, would remain covered by chapter 75 procedures.
Under the April 2024 final rule, a re-issued Schedule F could not
cover career positions, MSPB adjudicators could overturn transfers into
Schedule F, and incumbent employees could keep MSPB appeal rights even
if their positions were transferred into Schedule F.
The rulemaking responded to a National Treasury Employees Union
petition for regulations to prevent the reinstatement of Schedule
F.\73\ The final rule candidly acknowledged disagreement with Executive
Order 13957, but explained that ``OPM does not and cannot prevent a
President from creating excepted service schedules or from moving
employees.'' \74\
---------------------------------------------------------------------------
\73\ 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.
\74\ See 89 FR 25009.
---------------------------------------------------------------------------
2. Executive Order 14171
Donald Trump won the 2024 Presidential election and promptly
fulfilled his commitment, issuing Executive Order 14171 on January 20,
2025. The new order reinstated Executive Order 13957, while amending it
in several ways. The order redesignates ``Schedule F'' as ``Schedule
Policy/Career.'' This change in nomenclature emphasizes that covered
positions remain career positions and are not being converted into
political appointments--a common misperception of the original order.
The order emphasizes that patronage remains prohibited by defining
Schedule Policy/Career to only cover ``career positions.'' \75\ It also
expressly describes what is and is not required of Schedule Policy/
Career employees. They ``are not required to personally or politically
support the current President or the policies of the current
administration. They are required to faithfully implement
administration policies to the best of their ability, consistent with
their constitutional oath and the vesting of executive authority solely
in the President. Failure to do so is grounds for dismissal.'' \76\
---------------------------------------------------------------------------
\75\ E.O. 13957, sec. 4(a)(i).
\76\ Id., sec. 6(b).
---------------------------------------------------------------------------
Executive Order 14171 also requires OPM to apply Civil Service Rule
6.3(a) to Schedule Policy/Career positions.\77\ This rule authorizes
OPM to prescribe by regulation conditions under which excepted
positions may be filled in the same manner as competitive positions are
filled and conditions under which persons so appointed may acquire a
competitive status in accordance with the Civil Service Rules and
Regulations. This directive requires OPM to generally provide for
competitive hiring procedures for Schedule Policy/Career positions.
---------------------------------------------------------------------------
\77\ E.O. 14171, sec. 3(d).
---------------------------------------------------------------------------
Executive Order 14171 also overrode significant parts of the April
2024 final rule. That rule used delegated presidential authority to
amend parts 210 and 302 of the civil service regulations.\78\ President
Trump used his executive authority to directly render those amendments
inoperative. Executive Order 14171 requires that OPM rescind the
amendments made by the April 2024 final rule. It further
[[Page 17188]]
provides that ``[u]ntil such rescissions are effectuated (including the
resolution of any judicial review) 5 CFR part 302, subpart F, 5 CFR
210.102(b)(3), and 5 CFR 210.102(b)(4) shall be held inoperative and
without effect.'' \79\ Consequently, both the April 2024 final rule's
definition of '' ``confidential, policy-determining, policy-making, or
policy-advocating'' as a term of art that refers exclusively to
political appointees and its procedural requirements for moving
employees into such policy-influencing positions are no longer in
effect.
---------------------------------------------------------------------------
\78\ OPM relied on delegated Presidential authority under 5
U.S.C. 3301 and 3302 to make these changes.
\79\ E.O. 14171, sec. 4.
---------------------------------------------------------------------------
In a structural difference with the original Executive Order 13957,
the President--not OPM--will now move positions into Schedule Policy/
Career. Pursuant to that Executive Order, agencies will review their
workforces and petition OPM to recommend that the President move
specific positions into Schedule Policy/Career. OPM will review these
petitions and make the recommendations it deems appropriate.\80\
However, the President will make the final decision about which
positions go into Schedule Policy/Career. That decision will be
effectuated by a new executive order issued under Presidential--not
OPM--authority.
---------------------------------------------------------------------------
\80\ E.O. 13957, sec. 5.
---------------------------------------------------------------------------
Executive Order 14171 also added new guideposts about positions
that may belong in Schedule Policy/Career. Under the order agencies
will consider recommending both immediate and higher-level supervisors
of Schedule Policy/Career employees for inclusion.\81\ If a subordinate
employee is in a policy-influencing role, superior officials with
authority to tell that employee what to do are also likely policy-
influencing. The order further required agencies to consider positions
with duties that the OPM Director indicates may be appropriate for
inclusion in Schedule Policy/Career.\82\
---------------------------------------------------------------------------
\81\ E.O. 13957, sec. 5(c)(vi).
\82\ Id., sec. 5(c)(vii).
---------------------------------------------------------------------------
OPM has issued guidance about positions agencies should consider in
their Schedule Policy/Career positions.\83\ These additional guideposts
consist of:
---------------------------------------------------------------------------
\83\ OPM, Guidance on Implementing President Trump's Executive
Order titled, ``Restoring Accountability To Policy-Influencing
Positions Within the Federal Workforce'' (January 27, 2025),
available at <a href="https://www.chcoc.gov/content/guidance-implementing-president-trump%E2%80%99s-executive-order-titled-restoring-accountability">https://www.chcoc.gov/content/guidance-implementing-president-trump%E2%80%99s-executive-order-titled-restoring-accountability</a>.
---------------------------------------------------------------------------
<bullet> Delegated or subdelegated authority to make decisions
committed by law to the discretion of the agency head. This identifies
a specific subcategory of employees with ``substantial discretion to
determine the manner in which the agency exercises functions committed
to the agency by law,'' which was one of the categories originally
flagged for potential inclusion.\84\
---------------------------------------------------------------------------
\84\ E.O. 13957, sec. 5(c)(iii).
---------------------------------------------------------------------------
<bullet> Authority to bind an agency to a position, policy, or
course of action without higher level review or with only limited
higher-level review. If an employee has authority to bind their agency
without higher-level review they are straightforwardly policy-
determining. Such officials are largely--but not exclusively--political
appointees out of scope for Schedule Policy/Career.
<bullet> Positions statutorily described as exercising important
policy-determining or policy-making functions: directing the work of an
organizational unit, being held accountable for the success of one or
more specific programs or projects, or monitoring progress towards
organizational goals and periodically evaluating and making appropriate
adjustments to such goals.\85\
---------------------------------------------------------------------------
\85\ See 5 U.S.C. 3132(a)(2)), which defines the Senior
Executive Service as positions classified above GS-15 that perform
various important policy-making or policy-determining functions.
Positions classified at or below grade 15 of the General Schedule
that perform those same functions are consequently policy-
determining or policy-making and appropriate for consideration for
inclusion in Schedule Policy/Career.
---------------------------------------------------------------------------
<bullet> Substantive participation and discretionary authority in
agency grantmaking, such as the substantive exercise of discretion in
the drafting of funding opportunity announcements, evaluation of grant
applications, or recommending or selecting grant recipients.
Grantmaking is an important form of policymaking, so employees with a
substantive discretionary role in how federal funding gets allocated
may occupy policymaking positions.\86\
---------------------------------------------------------------------------
\86\ OPM notes that employees involved in administering formula
or block grant programs will rarely, if ever, have substantive
discretionary authority over how those grants are allocated. This
guidepost will be primarily applicable to employees with involvement
in discretionary grants.
---------------------------------------------------------------------------
<bullet> Advocacy for administration policy, either in public or
before other governmental entities, such as Congress or state
governments.
<bullet> Positions otherwise described in the applicable position
description as entailing policy-making, policy-determining, or policy-
advocating duties.
Executive Order 14171 rescinded Executive Order 14003 and directed
agencies to reverse any changes to discipline or unacceptable
performance policies that followed from it. This requires agencies to
restore changes to disciplinary and performance policies from the first
Trump Administration that the Biden Administration reversed.
President Trump also explained why he issued this order. Executive
Order 14171 cited MSPB research showing only a 41 percent of
supervisors are confident they could remove a subordinate for serious
misconduct, and just 26 percent are confident they could remove one for
poor performance.\87\ The order explained that accountability is
essential for all Federal employees, but it is especially important for
those who are in policy-influencing positions. These personnel are
entrusted to shape and implement actions that have a significant impact
on all Americans. Under Article II, they must be accountable to the
President, who is the only member of the executive branch, other than
the Vice President, elected and directly accountable to the American
people. Recently, however, there have been numerous and well-documented
cases of career Federal employees resisting and undermining the
policies and directives of their executive leadership.\88\ President
Trump concluded that conditions of good administration necessitated
issuing the order to restore accountability to the career civil
service.\89\
---------------------------------------------------------------------------
\87\ U.S. Merit Sys. Prot. Bd., ``Remedying Unacceptable
Employee Performance in the Federal Civil Service,'' p. 15 (June 18,
2019), available at <a href="https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf">https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf</a>.
\88\ See section I(C)(2)(ii).
\89\ E.O. 14171, Sec. 1.
---------------------------------------------------------------------------
C. Reasons for New Rulemaking
OPM now proposes regulations to rescind the changes made by the
April 2024 final rule, implement E.O. 14171, and establish Schedule
Policy/Career for policy-influencing career positions. Schedule Policy/
Career posts will be filled using standard career hiring procedures,
while those who encumber such positions will be excepted from chapter
43 and 75 procedures for adverse actions and performance-based actions.
Schedule Policy/Career employees will remain career employees, while
being subject to elevated accountability for their performance and
conduct. OPM proposes these changes for the reasons set forth below.
1. Change in Administration Policy and Operative Legal Standards
The Constitution gives the President authority to set federal
workforce policy, vesting executive power exclusively in the
President.\90\ Congress
[[Page 17189]]
has further tasked OPM with helping the President manage the Federal
workforce.\91\ President Trump believes Schedule Policy/Career--the
successor to Schedule F--is necessary to effectively supervise the
executive branch. He was elected on a platform of doing just that and
reinstated Executive Order 13957 within hours of taking office. OPM is
now proposing to modify its civil service regulations to support the
new President's policies. Executive Order 14171 also expressly
instructed OPM to rescind the relevant portions of the April 2024 final
rule.
---------------------------------------------------------------------------
\90\ U.S. Constitution, Article II, section 1, clause 1. See
also Seila Law v. Consumer Finance Protection Bureau, 140 S. Ct.
2183, 2191 (2020) (``Under our Constitution, the `executive Power'--
all of it--is `vested in a President' '').
\91\ 5 U.S.C. 1103(a).
---------------------------------------------------------------------------
Relatedly, Executive Order 14171 has changed the underlying legal
authorities under which OPM operates. Sections 3301 and 3302 of 5
U.S.C. recognize the constitutional vesting of Federal workforce
management authority in the President. They statutorily authorize the
President to prescribe regulations for the admission of individuals
into the civil service and to issue rules governing the civil service,
respectively. The President can, and has, delegated that authority to
OPM. In the April 2024 final rule OPM used this delegated presidential
authority, as well as authority delegated under Executive Order 10577,
to modify parts 210 and 302 of the civil service
regulations.<SUP>92 93</SUP> The President has now directly used his
authority to render OPM's amendments inoperative. This directive
supersedes OPM's prior regulations. Agencies can no longer give effect
to 5 CFR 210.102(b)(3), 210.102(b)(4) or subpart F of part 302. OPM is
proposing these regulations to align the civil service regulations with
the President's policies and operative legal requirements. OPM is also
independently basing these regulations on the policy analysis contained
herein, and believes that the policy reasons provided herein, standing
alone, provide a sufficient basis for this rulemaking.
---------------------------------------------------------------------------
\92\ 19 FR 7521 (November 23, 1953).
\93\ The April 2024 final rule did not change the authorities
OPM cites for its authority to issue 5 CFR part 210 and Part 302.
Those are 5 U.S.C. 1302, 3301, 3302, 8151 and E.O. 10577. These
authorities are either grounded in Presidential authority or
irrelevant to the instant rulemaking. 5 U.S.C. 3301 and 3302 provide
for the President to issue civil service rules and regulations, and
in E.O. 10577 the President has delegated certain civil service
functions to OPM. 5 U.S.C. 1302(a) authorizes OPM, subject to the
President's civil service rules, to prescribe regulations governing
civil service examinations, while Sec. 1302(b) and (c) authorize
OPM to prescribe regulations implementing veterans' preference. The
Sec. 1302(a) authorities are expressly subject to the President's
civil service rules, while the Sec. 1302(b) and (c) authorities are
not relevant to either the changes made in the April 2024 final rule
or this proposed rule; neither alters veterans' preference. 5 U.S.C.
8151 governs civil service retention rights when an employee returns
to Federal employment. That authority is likewise inapplicable to
the instant rulemaking.
---------------------------------------------------------------------------
2. Needed To Address Factors Inadequately Considered in Prior
Rulemaking
OPM also now believes that it gave inadequate consideration to
several factors when issuing the April 2024 final rule. Upon further
consideration, OPM has concluded that these factors call for issuing
the proposed regulations.
i. Adverse Action Procedures Make Addressing Poor Performance,
Misconduct, and Corruption Challenging
OPM received comments in the prior rulemaking showing that adverse
action procedures and appeals make it very challenging for agencies to
effectively address poor performance or serious misconduct.\94\ These
comments, and research which OPM now better appreciates, show that
Federal supervisors and employees believe agencies do not effectively
address poor performance or serious misconduct--and there is ample
basis for this belief.
---------------------------------------------------------------------------
\94\ See, e.g., Comments 45, 3156, and 4097. Comments filed in
response to the prior rulemaking are available at <a href="https://www.regulations.gov/comment/OPM-2023-0013-nnnn">https://www.regulations.gov/comment/OPM-2023-0013-nnnn</a>, where ``nnnn'' is
the comment number. Note that the number must be four digits, so
insert preceding zeroes as appropriate.
---------------------------------------------------------------------------
The MSPB's 2016 Merit Principles Survey shows that less than a
quarter of Federal employees believe their ``organization addresses
poor performers effectively.'' \95\ OPM's FEVS has also long reported
similar results. OPM formerly regularly asked Federal employees if they
believed that ``in my work unit, steps are taken to deal with a poor
performer who cannot or will not improve.'' Agreement with this
statement historically ranged from a low of 25 percent to a high of 42
percent. In the history of the FEVS, a majority of Federal employees
have never agreed that agencies uphold Merit Principle Six regarding
performance standards and employee retention.\96\
---------------------------------------------------------------------------
\95\ U.S. Merit Sys. Prot. Bd., ``Issues of Merit,'' (Sept.
2019), p. 3, <a href="https://www.mspb.gov/studies/newsletters/Issues_of_Merit_September_2019_1656130.pdf">https://www.mspb.gov/studies/newsletters/Issues_of_Merit_September_2019_1656130.pdf</a>.
\96\ Merit System Principle 6, Performance Standards states in
full: ``Employees should be retained on the basis of the adequacy of
their performance, inadequate performance should be corrected, and
employees should be separated who cannot or will not improve their
performance to meet required standards.'' https://www.mspb.gov/msp/
msp6.htm#:~:text=Merit%20System%20Principle%206%3A%20Performance,perf
ormance%20to%20meet%20required%20standards.%22 (last accessed Feb.
14, 2025).
---------------------------------------------------------------------------
OPM removed this question from the FEVS in 2022. The FEVS now asks
employees what usually happens to poor performers in their work unit.
The modal response--ranging from between 40 to 56 percent of the
workforce across survey years--is that the work unit has poor
performers, but they remain on the job and continue to
underperform.\97\
---------------------------------------------------------------------------
\97\ See U.S. Off. of Pers. Mgmt., 2020 Federal Employee
Viewpoint Survey, <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf</a>; U.S. Off. of Pers.
Mgmt., 2023 Federal Employee Viewpoint Survey, <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2023/2023-governmentwide-management-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2023/2023-governmentwide-management-report.pdf</a>.
---------------------------------------------------------------------------
Third-party researchers report similar findings. Researchers at
Princeton and Vanderbilt Universities surveyed Federal executives,
asking when under-performing managers and non-managers were reassigned
or dismissed. The executives answered ``rarely or never'' in 64 and 70
percent of cases, respectively.\98\ Another survey by the Government
Business Council found that only 11 percent of federal employees say
their agency fires poor performers who do not improve after
counseling.\99\ The National Commission on Public Service concluded
that ``Federal employees themselves are unhappy with the conditions
they face . . . [t]hey resent the protections provided to those poor
performers among them who impede their own work and drag down the
reputation of all government workers.'' \100\
---------------------------------------------------------------------------
\98\ David E. Lewis & Mark D. Richardson, ``2014 Survey on the
Future of Government Service,'' (July 16, 2015), p. 34, <a href="https://www.vanderbilt.edu/csdi/research/SFGSforMayDCv12_weighted_n.pdf">https://www.vanderbilt.edu/csdi/research/SFGSforMayDCv12_weighted_n.pdf</a>.
\99\ Eric Katz, ``Firing Line,'' Government Executive, <a href="https://www.govexec.com/feature/firing-line/">https://www.govexec.com/feature/firing-line/</a>.
\100\ Report of the National Commission on Public Service
(January 2003), p. 12, <a href="https://www.brookings.edu/wp-content/uploads/2016/06/01governance.pdf">https://www.brookings.edu/wp-content/uploads/2016/06/01governance.pdf</a>.
---------------------------------------------------------------------------
Research further shows that supervisors rarely take action because
they do not believe their efforts will succeed. The 2016 Merit
Principles Survey finds that only 41 percent of Federal supervisors are
confident that they could remove a subordinate for serious misconduct,
and just 26 percent are confident they could remove an employee for
poor performance.\101\ The Government Business Council survey found
nearly 80 percent of Federal employees agree that removal procedures
and appeals discourage removing poor performers.\102\ Federal
[[Page 17190]]
workforce consultants similarly report it is prohibitively difficult to
remove employees.\103\
---------------------------------------------------------------------------
\101\ U.S. Merit Sys. Prot. Bd., ``Remedying Unacceptable
Employee Performance in the Federal Civil Service,'' supra, note 87,
at 6, 15.
\102\ Katz, ``Firing Line,'' supra note 99.
\103\ See Fred Mills, ``Civil Disservice: Federal Employment
Culture and the Challenge of Genuine Reform,'' (2010), pp. 30-31.
---------------------------------------------------------------------------
This is a longstanding problem. An MSPB analysis under the Clinton
Administration concluded that ``supervisors are usually advised [ ]
that it is extremely hard to remove [poorly performing] employees and
probably not worth the effort to try.'' That study reported that less
than a quarter of Federal supervisors who managed a poor performer
proposed demoting or removing them.\104\
---------------------------------------------------------------------------
\104\ U.S. Merit Sys. Prot. Bd, ``Removing Poor Performers in
the Federal Service,'' (Sept. 1995), pp. 5, 7, <a href="https://web.archive.org/web/20121007070936/https:/www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253662&version=253949&application=ACROBAT">https://web.archive.org/web/20121007070936/https:/www.mspb.gov/netsearch/viewdocs.aspx?docnumber=253662&version=253949&application=ACROBAT</a>.
---------------------------------------------------------------------------
Considerable evidence shows that Federal supervisors often find
taking warranted adverse actions too difficult and uncertain to be
worth the effort. When they do take action, their efforts are not
infrequently subject to a protracted administrative process with an
uncertain outcome. For example, the MSPB ordered reinstatement of the
Chief of the U.S. Park Police, with back pay and interest, despite her
repeated, proven misconduct, including serious violations of non-
disclosure rules; repeatedly failing to carry out supervisory
instructions; circumventing her chain of command; repeatedly violating
agency rules; and condoning violations of agency rules by a
subordinate.\105\ Despite voting to reinstate this employee, an MSPB
member called the Chief's behavior ``extraordinary'' and intolerable
for someone in an agency leadership position with policy-determining
and policy-advocating duties.\106\
---------------------------------------------------------------------------
\105\ Chambers v. Dep't of Interior, 116 M.S.P.R. 17, 62 (2011)
(Member Rose concurring).
\106\ Id. at 63 (Member Rose concurring).
---------------------------------------------------------------------------
In another case, the MSPB ordered reinstatement, with back pay and
benefits, of the Executive Director of the National Council of
Disability despite the fact that the agency head stated, in a sworn
affidavit, that the Executive Director occupied a policy-determining,
policy-making, and policy-advocating character and the agency had lost
confidence in her.\107\
---------------------------------------------------------------------------
\107\ Briggs v. Nat'l Council on Disability, 68 M.S.P.R. 296
(1995), 60 M.S.P.R. 331 (1994).
---------------------------------------------------------------------------
Failure to address misconduct and poor performance directly
undermines Federal Merit Systems Principles.\108\ Allowing poor
performers to remain, without improvement, directly undermines agency
performance--especially in policy-influencing positions that affect the
performance of the whole agency. Letting misconduct slide can also
create a culture of unaccountability and corruption that hurts Federal
employees.
---------------------------------------------------------------------------
\108\ See 5 U.S.C. 2301(b)(4), 2301(b)(6).
---------------------------------------------------------------------------
A high-profile example of this phenomenon came to light in a recent
FDIC audit. Following public complaints, independent auditors examined
the FDIC workplace in depth.\109\ They found widespread abusive and
corrupt behavior, such as male supervisors pressuring female
subordinates for sexual favors in exchange for career assistance.\110\
Over 500 current and former FDIC employees reported experiencing
misconduct, a disturbingly high proportion of the agency's
approximately 6,000 employees.\111\
---------------------------------------------------------------------------
\109\ See Joon H. Kim, Jennifer K. Park, and Abena Mainoo,
``Report for the Special Review Committee of the Board of Directors
of the Federal Deposit Insurance Corporation,'' April 2024, <a href="https://www.fdic.gov/sites/default/files/2024-05/cleary-report-to-fdic-src.pdf">https://www.fdic.gov/sites/default/files/2024-05/cleary-report-to-fdic-src.pdf</a>.
\110\ Id., Appendix A, pp. A-13 to A-18.
\111\ Id. at 1.
---------------------------------------------------------------------------
Even more concerningly, the investigators found the FDIC almost
never seriously disciplined employees who engaged in misconduct. The
agency's Anti-Harassment program received 92 complaints between 2015
and 2023. Only two resulted in a suspension. Two more resulted in a
reprimand. None resulted in a demotion, much less a removal from
Federal service.\112\ The investigators found that this inaction and a
lack of accountability created a culture where employees widely
believed reporting misconduct was futile and would only produce
retaliation.\113\ Investigators further concluded that adverse actions
procedures and appeals were a major reason for this lack of
accountability. FDIC employees explained that the agency would only
take adverse actions in ``air-tight,'' ``highly documented'' cases, for
fear of losing subsequent litigation.\114\ Adverse action procedures
made it difficult for FDIC to hold senior officials accountable for
misconduct or corruption, contributing to what many employees described
as a ``toxic'' work environment.\115\
---------------------------------------------------------------------------
\112\ Id. at 2-3.
\113\ Id. at 3-4.
\114\ Id. at 154-155.
\115\ Id. at 58-59, 69, 97, 109.
---------------------------------------------------------------------------
The April 2024 final rule provided a cursory and inadequate
response to these facts. OPM noted that agencies fire approximately
10,000 employees a year for performance or misconduct.\116\ OPM failed
to note that most of these dismissals occurred among either temporary
or seasonal employees, or during employees' first two years of
service--a period when most are still in their probationary or trial
periods.\117\ Agencies dismiss approximately 4,000 permanent full-time
non-seasonal employees with more than two years tenure annually--a rate
of separation for performance or misconduct of approximately one-
quarter of one-percent. OPM's response also failed to note that, as
discussed above, surveys show that agencies rarely separate poor
performers and that Federal supervisors believe they are incapable of
removing employees for poor performance or misconduct.
---------------------------------------------------------------------------
\116\ 89 FR 25040.
\117\ Chapter 43 and 75 procedures generally do not apply to
employees in their probationary or trial periods. The probationary
period is one year for employees in the competitive service. Trial
periods--the excepted service equivalent of a probationary period--
are one year for preference eligible employees and two-years for
nonpreference eligible employees.
---------------------------------------------------------------------------
The April 2024 final rule argued that FEVS responses are
uninformative about Federal performance management because line
employees generally do not know what steps their agency takes to
address another employee's underperformance.\118\ This response demeans
the ability of federal workers to directly observe whether agencies
separate or discipline colleagues who cannot or will not improve their
performance, as demanded under Merit Principle Six.\119\ It similarly
ignores the related FEVS question asking employees what usually happens
to poor performers in their work unit. The modal response is that
``they stay in place and continue to underperform''--an outcome
employees witness directly.\120\ While employees may not be aware if
supervisors are counseling colleagues or giving them an opportunity to
demonstrate acceptable performance, they do see the end results of
those processes. These surveys consistently show poor performance
frequently goes unaddressed. OPM ignored this data in drawing its
conclusions for the April 2024 final rule.
---------------------------------------------------------------------------
\118\ 89 FR 25039.
\119\ 5 U.S.C. 2301(b)(6).
\120\ See U.S. Off. of Pers. Mgmt., 2020 and 2023 Federal
Employee Viewpoint Surveys, supra note 98.
---------------------------------------------------------------------------
The April 2024 final rule also concluded that FEVS data does not
show the government has a numerical prevalence of poor performers. For
example, it explained that in a work unit of 100 employees and one poor
performer, 99 employees might report the continued existence of a poor
performer without poor performance
[[Page 17191]]
being widespread in the work unit.\121\ OPM further noted that 99
percent of employees receive ``fully successful'' or higher performance
ratings.\122\
---------------------------------------------------------------------------
\121\ 89 FR 25039.
\122\ Id.
---------------------------------------------------------------------------
OPM no longer finds this a convincing rationale for rejecting the
evidence from FEVS surveys. The hypothetical OPM provided does not
demonstrate that poor performance is rare. Other data suggests
otherwise. The National Commission on Public Service, chaired by Paul
Volcker, reported that Federal employees believe approximately one-in-
four of their colleagues are poor performers.\123\ Any employee who
fails to achieve a ``fully successful'' rating can by law be denied a
salary step increase, creating a major incentive to challenge lower
ratings. And employees have many opportunities to contest or appeal
their official performance ratings, so it is far from clear that
ratings of record can be taken at face value.\124\ Supervisors may
sadly but rationally rate poor performers as ``fully successful'' to
avoid the time and expense involved in litigating an accurate lower
rating.
---------------------------------------------------------------------------
\123\ Report of the National Commission on the Public Service
(January 2003), p. 10, <a href="https://www.brookings.edu/wp-content/uploads/2016/06/01governance.pdf">https://www.brookings.edu/wp-content/uploads/2016/06/01governance.pdf</a>.
\124\ For example, if they are in a bargaining unit they could
file a grievance over their performance rating. See, e.g., U.S.
Department of Vet. Affairs, 72 FLRA 677 (arbitrator overturning
employee's ``unsatisfactory'' performance rating and directing
agency to award a rating of ``excellent'' and pay a $1,000
performance bonus).
---------------------------------------------------------------------------
Moreover, Congress has asked the executive branch to remove
employees who cannot or will not improve inadequate performance--
regardless of their prevalence.\125\ Supervisors and line employees
alike report adherence to this Merit Principle is the exception, not
the norm. Poor performance is particularly problematic in policy-
influencing positions because it can affect the performance of the
entire enterprise. Consequently, OPM believes the executive branch must
have the capacity to effectively address poor performance in policy-
influencing positions. OPM now recognizes that the weight of evidence
shows that chapter 43 and 75 procedures make effectively addressing
poor performance, misconduct, and corruption difficult.
---------------------------------------------------------------------------
\125\ 5 U.S.C. 2301(b)(6).
---------------------------------------------------------------------------
Additionally, the President is the official constitutionally
charged with taking care that the law is faithfully executed and
statutorily charged with determining when conditions of good
administration necessitate new excepted service schedules.\126\ It is
constitutionally and statutorily up to the President to determine when
performance and conduct challenges in the Federal service warrant
creating a new excepted service schedule to facilitate greater
accountability. The President has made that call pursuant to his direct
constitutional and statutory authority, and that judgment should be
controlling. Moreover, OPM is independently convinced that Federal
employee conduct and performance challenges necessitate Schedule
Policy/Career.
---------------------------------------------------------------------------
\126\ See 5 U.S.C. 3302(1).
---------------------------------------------------------------------------
OPM accordingly now concludes that chapter 43 and 75 procedures
significantly impair agencies' ability to hold Federal employees
accountable for poor performance or misconduct, and the proposed
regulations implementing Schedule Policy/Career are necessary to ensure
high standards of performance and accountability in important policy-
influencing positions.
OPM previously argued that even if chapter 43 and 75 procedures
made addressing poor performance or misconduct difficult, the
appropriate solution would be to try to convince Congress of that
proposition and work for corresponding legislative changes to title
5.\127\ However, as discussed below, OPM has now concluded that E.O.
14171 is well within the President's constitutional and statutory
authority. The President does not need new Congressional authorization
to use existing legal authorities.
---------------------------------------------------------------------------
\127\ 89 FR 25036.
---------------------------------------------------------------------------
ii. Proposed Regulations Are Necessary To Strengthen Democracy and
Promote a Nonpartisan Civil Service
During the rulemaking process for the April 2024 rule OPM received
extensive comments documenting that some career Federal employees
engage in ``policy resistance.'' \128\ These commenters explained that
the adverse actions procedures and appeals that make it challenging to
remove employees for poor performance or misconduct create bureaucratic
autonomy that enable career employees to advance their own personal or
partisan policy preferences instead of those of the elected President
and appointed agency heads. OPM broadly dismissed these concerns. Upon
further review, OPM has concluded policy resistance is a serious
concern--indeed, a serious threat to democratic self-government. OPM
now believes these proposed regulations implementing Schedule Policy/
Career are necessary to reduce bureaucratic autonomy and strengthen the
Government's democratic accountability to the American people.
---------------------------------------------------------------------------
\128\ See, e.g., Comments 3156 and 4097.
---------------------------------------------------------------------------
In the prior rulemaking OPM received many comments from career
Federal employees stating that they and their colleagues fulfilled
their duties impartially, even when they disagreed with the underlying
policies. Executive Order 14171 recognized that many Federal employees
do this, and that their performance is a credit to the civil service.
OPM also agrees that there are many truly nonpartisan career employees
who faithfully carry out their duties irrespective of their personal
preferences.\129\ Unfortunately, considerable evidence shows that a
significant number of career employees instead inject their personal
politics into their official duties. Evidence of this comes from many
sources.
---------------------------------------------------------------------------
\129\ OPM leadership has the pleasure of working with many such
employees.
---------------------------------------------------------------------------
Academic researchers have long studied the ``principal-agent''
problem in the Federal bureaucracy. The foundational framework for many
public administration scholars and political scientists is that career
employees (the agents) do not impartially implement the will of
Congress or the President (the principals) but have diverging policy
preferences and agendas of their own that they actively seek to
advance--at times over and against the will of their principals.\130\
Many studies draw on this framework.\131\
---------------------------------------------------------------------------
\130\ Accountability and Principal Agent Models, Oxford Handbook
of Public Accountability 2014, available at https://
www.ocf.berkeley.edu/~gailmard/acct-pa.pdf.
\131\ See, e.g., Ronald N. Johnson & Gary D. Libecap, ``The
Federal Civil Service System and the Problem of Bureaucracy,''
University of Chicago Press, pp. 156-171 (1994), <a href="https://www.nber.org/system/files/chapters/c8638/c8638.pdf">https://www.nber.org/system/files/chapters/c8638/c8638.pdf</a>; Daniel Walters,
``Litigation-Fostered Bureaucratic Autonomy: Administrative Law
Against Political Control,'' J. of Law & Pol., 28, No. 2, pp. 129-
184 (2013); Daniel P. Carpenter, ``The Forging of Bureaucratic
Autonomy: Reputations, Networks, and Policy Innovation in Executive
Agencies,'' Princeton Univ. Press (2002).
---------------------------------------------------------------------------
For example, researchers documented that Environmental Protection
Agency (EPA) career staff moved policy in the opposite direction than
what principals sought in the Reagan Administration. President Ronald
Reagan won a landslide victory on a platform of deregulation, and Anne
Gorsuch--his EPA administrator--sought to reduce EPA enforcement
stringency. EPA career staff not only rebuffed these directives, but
they also actually increased enforcement stringency during this period.
The author concluded that ``the influence of elected institutions is
limited when an agency has substantial
[[Page 17192]]
bureaucratic resources and a zeal for their use.'' \132\
---------------------------------------------------------------------------
\132\ B. Dan Wood, ``Principals, Bureaucrats, and Responsiveness
in Clean Air Enforcements,'' Am. Pol. Sci. Rev., 82, No. 1, pp. 213-
234 (1988).
---------------------------------------------------------------------------
Other research documents that career Federal employees often do not
offer ``neutral competence'' but what the researchers term
``politicized competence''--developing competency in agency operations,
but using that competency to advance their personal political
preferences.\133\ Recent research also documents how ``misaligned''
career employees perform less effectively under appointees they
politically disagree with.\134\ Still other academics have documented
the ``levers of resistance'' like leaking or slow-walking operations
that career staff employ to frustrate policies they personally oppose,
and that these tactics were used to oppose Trump Administration
policies.\135\
---------------------------------------------------------------------------
\133\ Sean Gailmard & John W. Patty, ``Slackers and Zealots:
Civil Service, Policy Discretion, and Bureaucratic Expertise,'' Am.
J. of Pol. Sci., 51, No. 4 (2007), https://www.ocf.berkeley.edu/
~gailmard/ajps.gail-pat.pdf.
\134\ J[ouml]rg L. Spenkuch, Edoardo Teso, and Guo Xu.
``Ideology and Performance in Public Organizations,'' Econometrica,
91, no. 4, pp. 1171-1203 (2023), <a href="https://doi.org/10.3982/ecta20355">https://doi.org/10.3982/ecta20355</a>.
\135\ See, e.g., Jennifer Nou, ``Bureaucratic Resistance from
Below,'' Yale J. on Reg., (Nov. 16, 2016), <a href="https://www.yalejreg.com/nc/bureaucratic-resistance-from-below-by-jennifer-nou/">https://www.yalejreg.com/nc/bureaucratic-resistance-from-below-by-jennifer-nou/</a> and ``Civil
Servant Disobedience,'' Univ. of Chicago Law Sch., Public Law and
Legal Theory Working Papers (2019), <a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory">https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory</a>.
---------------------------------------------------------------------------
From the other perspective, many academics conclude that
bureaucratic autonomy is beneficial. Some argue it creates a beneficial
``internal separation of powers'' within the executive branch.\136\
Others argue that bureaucratic autonomy moderates policy swings between
administrations.\137\ But whether academics see it as malignant or
benign, they widely conclude that many career Federal employees--
especially those with policy responsibilities--inject their personal
politics and preferences into the performance of their official duties.
---------------------------------------------------------------------------
\136\ See, e.g., Neal Katyal, ``Internal separation of powers:
Checking today's most dangerous branch from within,'' Yale L.J.,
115, No. 9, pp. 2314-2349 (2006), <a href="https://americafirstpolicy.com/assets/uploads/files/AFPI_Comment_on_OPM_RIN_3206%E2%80%93AO56-Anti-Schedule_F_NPRM-FINAL.pdf">https://americafirstpolicy.com/assets/uploads/files/AFPI_Comment_on_OPM_RIN_3206%E2%80%93AO56-Anti-Schedule_F_NPRM-FINAL.pdf</a>.
\137\ See, e.g., Brian Feinstein & Abby Wood, ``Divided
Agencies,'' S. Cal. L. Rev., 95, No. 4, pp. 731-784 (2022), <a href="https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf">https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf</a>.
---------------------------------------------------------------------------
News reports have also documented widespread career employee policy
resistance. Within the first month of the first Trump presidency the
Washington Post ran an article entitled ``Resistance from within:
Federal workers push back against Trump.'' The article documented
career employee efforts to undermine the President's agenda. For
example, a career Department of Justice employee with grantmaking
responsibilities described plans to slow-walk operations if the new
administration attempted to shift grantmaking priorities. This employee
explained that ``[y]ou're going to see the bureaucrats using time to
their advantage.'' \138\ The New York Times similarly reported that EPA
career scientists were strategizing how to slow-walk President Trump's
policies without getting fired.\139\ In February 2017 a Washington Post
columnist published a long-time federal employee's guide to ``useful
tools'' to ``subtly subvert stupid orders'' without outright revolting.
The employee advised federal employees to adopt tactics like ``[o]nly
provide minimal information requested'', ``[f]ail to find
information'', ``[m]iss deadlines while `doing your best' (after all,
we were all overworked). That might get you a poor review next time,
maybe, but it won't get you canned'' and ``[k]eep two sets of data
(requires some care!)''.\140\
---------------------------------------------------------------------------
\138\ Juliet Eilperin, Lisa Rein, & Marc Fisher, ``Resistance
from within: Federal workers push back against Trump,'' Wash. Post
(Jan. 31, 2017), <a href="https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html">https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html</a>.
\139\ Michael Shear & Eric Lichtblau, `` `A Sense of Dread' for
Civil Servants Shaken by Trump Transition,'' New York Times (Feb.
11, 2017), <a href="https://www.nytimes.com/2017/02/11/us/politics/a-sense-of-dread-for-civil-servants-shaken-by-trump-transition.html">https://www.nytimes.com/2017/02/11/us/politics/a-sense-of-dread-for-civil-servants-shaken-by-trump-transition.html</a>.
\140\ Joe Davidson, ``Many feds don't like Trump's program, but
they're not revolting,'' Wash. Post (Feb. 1., 2017), <a href="https://www.washingtonpost.com/news/powerpost/wp/2017/02/01/many-feds-dont-like-trumps-program-but-theyre-not-revolting">https://www.washingtonpost.com/news/powerpost/wp/2017/02/01/many-feds-dont-like-trumps-program-but-theyre-not-revolting</a>.
---------------------------------------------------------------------------
In December 2017 Bloomberg News explained that ``Washington
bureaucrats are quietly working to undermine Trump's agenda'' and
documented how ``career staff have found ways to obstruct, slow down or
simply ignore their new leader, the president.'' \141\ Many political
appointees who worked in the first Trump Administration have also
reported experiencing strong policy resistance.\142\
---------------------------------------------------------------------------
\141\ Christopher Flavelle & Benjamin Bain, ``Washington
Bureaucrats are Quietly Working to Undermine Trump's Agenda,''
Bloomberg News, (Dec. 18, 2017), <a href="https://www.bloomberg.com/politics/features/2017-12-18/washington-bureaucrats-are-chipping-away-at-trump-s-agenda">https://www.bloomberg.com/politics/features/2017-12-18/washington-bureaucrats-are-chipping-away-at-trump-s-agenda</a>.
\142\ See, e.g., Mark Moyer, ``Masters of Corruption: How the
Federal Bureaucracy Sabotaged the Trump Presidency,'' Encounter
Books (2024); see also James Sherk, ``Tales from the Swamp: How
Federal Bureaucrats Resisted President Trump,'' Am. First Pol.
Inst., (Jan. 8, 2025), <a href="https://americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf">https://americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf</a>.
---------------------------------------------------------------------------
Reports now indicate that some career employees intend to undermine
the policy agenda of the second Trump Administration. Some Federal
employees have openly acknowledged these plans. The Washington Post
recently covered an EPA career employee explaining that ``she and her
co-workers are focused on how to make sure the new administration does
not walk back environmental regulations achieved under Biden.'' \143\
An undercover journalist documented an employee in the White House
Office of Pandemic Preparedness and Response Policy explaining that if
he was given an order he opposed he ``would either try to block it or
resign'' and explaining that career employees ``slow-walk'' initiatives
they dislike or ``pretend to work really hard on something when they're
not.'' \144\
---------------------------------------------------------------------------
\143\ Emily Davies, Lisa Rein, Emma Uber, and Aaron Wiener,
``Federal workers prepare for cuts, forced relocations in Trump's
second term,'' Wash. Post (Nov 7, 2024), <a href="https://www.washingtonpost.com/dc-md-va/2024/11/07/trump-dc-federal-workforce-cuts/">https://www.washingtonpost.com/dc-md-va/2024/11/07/trump-dc-federal-workforce-cuts/</a>.
\144\ O'Keefe Media Group, ``the Deep State is Real,'' Jan. 23,
2025, <a href="https://x.com/JamesOKeefeIII/status/1882431381097119797">https://x.com/JamesOKeefeIII/status/1882431381097119797</a>.
---------------------------------------------------------------------------
An Equal Employment Opportunity Commission (EEOC) employee
broadcast her resistance plans to the entire agency. Soon after taking
office a second time, President Trump signed executive orders directing
the EEOC to prioritize investigations into employers that engage in
unlawful DEIA discrimination and to rescind guidance that required
employers to give male employees who self-identify as female access to
women's bathrooms and other sex-segregated facilities.\145\ The
President also designated Andrea Lucas as the new EEOC chairwoman. An
EEOC administrative judge subsequently addressed an email to Chairwoman
Lucas and sent it to all EEOC employees. The administrative judge
stated that ``You are not fit to be our chair much less hold a license
to practice law. I will not participate in attempts to target private
citizens and colleagues through the recent illegal executive orders. I
swore an oath to the Constitution of the United States, and the
Commission serves the people of the United States. If you want to
continue following the illegal and unethical orders of our president
and the unelected leader of `D***' that's on you . . . If upon
reflection, you feel like now would be a good time to take a vacation
and resign from your position, please `reply all' to this email and put
`I'd Like to Occupy Mars!' in the subject
[[Page 17193]]
line. We will take this as notification that you are resigning your
position as acting chair.'' \146\ This employee openly professed her
intention to refuse presidential directives based purely on her
personal views.
---------------------------------------------------------------------------
\145\ See executive orders 14168 and 14173.
\146\ This email was reported in multiple sources online. OPM
contacted the EEOC and obtained verification both that the email was
accurate and that it was sent by an administrative judge.
---------------------------------------------------------------------------
OPM is also aware of recent cases of senior career employees not
just professing plans to insert their personal politics into their
official duties, but actually doing so. Multiple FLRA decisions
chastised a career regional director for ``willful noncompliance'' with
an earlier Authority order.\147\ The regional director refused for 18
months to decertify a bargaining unit the FLRA determined was
statutorily excluded from collective bargaining. Trump Administration
officials also reported that career employees in the Education
Department would not constructively assist in drafting important
regulations, such as the department's Title IX regulations. As a
result, those regulations had to be primarily drafted by political
appointees.\148\
---------------------------------------------------------------------------
\147\ See U.S. Department of Justice, Executive Office for
Immigration Review and National Association of Immigration Judges,
72 FLRA 622 (2022); U.S. Department of Justice, Executive Office for
Immigration Review and National Association of Immigration Judges,
72 FLRA 733 (2022).
\148\ Sherk, supra note 142.
---------------------------------------------------------------------------
Trump Administration officials also reported that career attorneys
in the Educational Opportunities Section (EOS) of the DOJ Civil Rights
Division (CRT) would not assist in litigation charging Yale University
with racially discriminating against Asian and Caucasian
applicants.\149\ EOS is the CRT subcomponent dedicated to combatting
educational discrimination and would normally litigate such
discrimination cases. However, winning that lawsuit had significant
policy implications. A victory would have effectively prohibited racial
preferences in higher education, as the Supreme Court's decision in
Students for Fair Admissions v. Harvard subsequently did.\150\ The
appointees reported that EOS recalcitrance required DOJ leadership to
assign attorneys from other CRT and DOJ components to work on the case.
It is a publicly verifiable fact--and OPM has so verified--that none of
the DOJ attorneys listed on the complaint against Yale or who
represented the Government in the subsequent legal proceedings were EOS
career attorneys. OPM has received no indication that these examples
are incorrect.\151\
---------------------------------------------------------------------------
\149\ Id.
\150\ 600 U.S. 181 (2023).
\151\ Two of these examples appear in Tales from the Swamp,
supra note 142. An earlier version of that report provided examples
of career staff resistance to Trump Administration policies and was
submitted into the record during the 2024 rulemaking. See Comment
4097. Comment 2822 critiqued some of the examples provided in Tales
from the Swamp, and in the April 2024 final rule OPM accepted those
criticisms. See 89 FR 24996. Even accepting that critique at face
value, however, Comment 2822 did not contest the accuracy of these
examples. Moreover, upon further review OPM has concluded that many
of Comment 2822's criticisms of Tales from the Swamp are misplaced.
For example, the report documented that a career General Service
Administration employee leaked a draft Trump executive order
promoting classical and traditional architectural styles in Federal
construction (President Trump recently reissued a similar
directive). The report provided this as an example of a career
employee leaking a draft policy in order to create controversy and
pressure political appointees to drop the initiative. Comment 2822
did not contest that this happened. The comment instead argued that
promoting classical architecture is bad policy and appropriately
controversial. The wisdom or folly of a particular policy is beside
the point--the question is whether career employees serve as
nonpartisan and impartial experts, or whether some instead advance
their personal political views. Nothing in Comment 2822 suggests
that GSA career staff were impartial in how they approached their
duties regarding Federal building design.
---------------------------------------------------------------------------
Public polling also indicates that a plurality of senior Federal
employees would resist directives from President Trump they disliked. A
survey asked Federal employees making more than $75,000 in the
Washington DC region what they would do if President Trump gave them an
order that was legal, but they believed was bad policy. Forty-five
percent said they would follow the order. Forty-six percent said they
would do what they thought was best. Only 17 percent of senior Federal
employees who voted for Kamala Harris said they would follow President
Trump's directive.\152\ Many career Federal employees say they would
insert their politics into their official duties.
---------------------------------------------------------------------------
\152\ ``Federal Managers Are Evenly Divided As To Whether They
Would Follow A Legal Order From President Trump,'' Napolitan News
Service (Jan. 21, 2025), <a href="https://napolitannews.org/posts/federal-managers-are-evenly-divided-as-to-whether-they-would-follow-a-legal-order-from-president-trump">https://napolitannews.org/posts/federal-managers-are-evenly-divided-as-to-whether-they-would-follow-a-legal-order-from-president-trump</a>.
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These points were raised in the prior rulemaking. Upon further
analysis OPM has concluded it gave a cursory and inadequate response to
these concerns. The April 2024 final rule ignored the news reports
documenting career employee resistance.\153\ The rule gave no response
to the argument these reports showed putatively impartial career
employees acting as political partisans. The rule also largely
sidestepped the vast academic literature analyzing the principal-agent
problem in the Federal government. For example, the final rule ignored
the analysis showing that EPA career employees moved policy in the
opposite direction than what principals sought under the Reagan
Administration, or the studies concluding that bureaucratic resistance
exists and is a positive force.\154\
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\153\ See, e.g., Comment 4097.
\154\ These studies were cited by commenters. See Comment 4097.
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OPM instead responded to a handful of studies commenters cited,
arguing that they presented a nuanced and measured picture that did not
support claims of widespread bureaucratic resistance.\155\ For example,
OPM observed that Nou (2019) did not empirically verify whether policy
resistance increased under Trump, and found that some degree of
resistance is inevitable. OPM reasoned this study did not show it is
universally understood career employees advance their own agendas.\156\
OPM now recognizes this analysis was too shallow. It is difficult to
empirically document the scope of policy resistance because it
primarily occurs behind closed doors. But Nou (2019) broadly catalogued
academic literature discussing bureaucratic resistance as a widespread
phenomenon, while providing specific examples of what she termed
``civil service disobedience.'' \157\ It is one part of the academic
literature documenting the principal-agent problem in public service.
Moreover, the public polling described above suggests policy resistance
is widespread. And while OPM contested the interpretation of a handful
of studies, it did not respond to the larger point that the principal-
agent model is the basic framework many academics use to examine
bureaucratic operations.
---------------------------------------------------------------------------
\155\ See 89 FR 25001.
\156\ See Jennifer Nou, ``Civil Servant Disobedience,'' Univ. of
Chicago Law Sch., Public Law and Legal Theory Working Papers (2019),
<a href="https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory">https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory</a>.
\157\ Id.
---------------------------------------------------------------------------
OPM also accepted criticism of some of the reports of the
bureaucratic partisanship provided by commenters who supported the
rule.\158\ Some of those individual critiques are debatable and OPM is
no longer convinced of their validity.\159\ Regardless, these
commenters took issue with only a few cases of policy resistance. They
did not contest the veracity of many other examples, such as the DOJ
CRT employees' unwillingness to participate in litigation challenging
racial preferences in higher education.
---------------------------------------------------------------------------
\158\ See 89 FR 24996, 25002, citing Comment 2822.
\159\ See note 151, supra.
---------------------------------------------------------------------------
The April 2024 final rule did not grapple with the broader weight
of
[[Page 17194]]
evidence showing some career employees insert partisanship into the
performance of their official duties. Based on further review, and the
evidence discussed above, OPM now concludes that this is a widespread
phenomenon, albeit one that many federal employees do not engage in.
Researchers widely report such behavior occurs, with well documented
case studies. Many Trump Administration officials reported it occurred,
career employees told reporters they were doing it, and they advised
their colleagues about how to do it openly through the press. As
mentioned above, an EEOC administrative judge even broadcast her
intention to resist presidential directives to the entire agency.
Beyond these case studies, polling shows a plurality of senior Federal
employees would subvert directives they personally opposed. There is
overwhelming evidence that a significant number of career employees
bring their personal politics into their official duties.
OPM now also believes that career employee partisanship and policy
resistance is a serious problem because it undermines democracy. If the
American people do not like the policies elected officials advance,
they can vote for new leadership. This often happens; partisan control
of the White House or a chamber of Congress switched in nine of the
past ten general elections. But Americans have little recourse when
career employees advance their personal agendas or undermine elected
officials' policies. They are electorally unaccountable. America was
founded on the principle of government by consent of the governed.
Career employees who resist elected officials' policy choices attack
the foundations of American democracy.
OPM recognizes the value in having many perspectives present in an
agency, and in career civil servants who disagree or see problems with
a policy presenting their objections. Diverse perspectives frequently
improve decision making. But, when a career employee goes from voicing
disagreement to resisting policy decisions, they undermine democracy
and the Constitution.
OPM also recognizes that a meaningful number of career employees
insert their personal politics into their official duties, and that
such behavior undermines American democracy. OPM has concluded that
these challenges make Schedule Policy/Career necessary to increase
policy-influencing officials' accountability to the President and
effectively discipline employees who engage in such behavior.
Even if this evidence were not enough to persuade OPM--and it is--
the President has determined bureaucratic partisanship undermines his
ability to execute the law and Schedule Policy/Career is necessary to
combat this behavior. Executive Order 14171 explained Schedule Policy/
Career is necessary because ``there have been numerous and well-
documented cases of career Federal employees resisting and undermining
the policies and directives of their executive leadership.'' \160\ The
President is the official constitutionally charged with taking care the
law is faithfully executed, and statutorily authorized to determine
when exceptions to the competitive service default are necessary.
Congress tasked OPM with helping the President carry out these
responsibilities, not with supplanting his judgment.\161\ So even if
OPM had not independently concluded career employee partisanship is a
pressing concern--and it has--OPM would defer to the presidential
determination that it was.
---------------------------------------------------------------------------
\160\ E.O. 14171, sec. 1.
\161\ See 5 U.S.C. 1103(a).
---------------------------------------------------------------------------
iii. The Policy-Influencing Terms Are Not a Term of Art
The CSRA authorizes the President or OPM to exclude employees in
excepted service positions of a ``confidential, policy-determining,
policy-making, or policy-advocating character'' from chapter 75
procedural requirements and MSPB appeals. The April 2024 final rule
amended 5 CFR 210.102 to define the phrases ``confidential, policy-
determining, policy-making, or policy-advocating'' and ``confidential
or policy-determining'' to refer exclusively to noncareer political
appointments. OPM cited what it asserted was longstanding usage and
legislative history to conclude that these phrases are terms of art
with that specific meaning.\162\ Under this interpretation, the 5
U.S.C. 7511(b)(2) exceptions can be applied only to political
appointees (e.g., Schedule C positions) and have no application to
career employees.
---------------------------------------------------------------------------
\162\ See 89 FR 25020 et seq.
---------------------------------------------------------------------------
Upon further review, OPM has determined that its prior conclusion
was erroneous and, while the ``policy-influencing'' terms do encompass
political appointments, they are not exclusively limited to them.
Rather, these terms have the natural, plain English meaning of
describing positions involved in determining, making, or advocating for
government policy, or positions of a confidential nature. Such
positions include, but are not restricted to, political appointments.
Textual Analysis
The problem with OPM's prior construction is that the CSRA's text
refutes it. In 5 U.S.C. 3132(a)(2)--also part of the CSRA--Congress
defined Senior Executive Service (SES) positions as those graded above
GS-15 that direct the work of an organizational unit, are held
accountable for the success of one or more specific programs or
projects, monitor progress toward organizational goals and periodically
evaluates and makes adjustments to such goals, or ``otherwise exercise[
] important policy-making, policy-determining, or other executive
functions.'' In 5 U.S.C. 3134(b) Congress prohibited more than 10
percent of SES positions from being filled by noncareer (e.g.,
political) appointees. Consequently, at least nine-tenths of SES
positions--which are definitionally policy-making or policy-
determining--must be held by career officials.
This usage is incompatible with the terms ``policy-determining'' or
``policy-making'' being terms of art that refer only to political
appointments. Congress expressly used these terms to describe and
define thousands of career positions in 5 U.S.C. 3132. That usage sheds
light on the terms' meaning in 5 U.S.C. 7511(b)(2). As the Supreme
Court has often explained, the ``normal rule of statutory construction
[is] that identical words used in different parts of the same act are
intended to have the same meaning.'' \163\ Moreover, the presumption of
consistent usage most commonly applies to terms appearing in the same
enactment, as these did.\164\ Congress's use of the terms ``policy-
making'' and ``policy-determining'' to describe career positions in one
part of the CSRA shows these terms can describe career positions in
another section of the law.
---------------------------------------------------------------------------
\163\ Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995) (citing
Dep't of Revenue of Oregon v. ACF Indus., Inc., 510 U.S. 332, 342
(1994).
\164\ See United States v. Castleman, 134 S. Ct. 1405, 1417
(2014) (``[T]he presumption of consistent usage [is] the rule of
thumb that a term generally means the same thing each time it is
used [and] most commonly applie[s] to terms appearing in the same
enactment.'') (Scalia, J., concurring).
---------------------------------------------------------------------------
Further, the CSRA uses different terms to expressly differentiate
political and civil service positions: ``noncareer'' and ``career''
appointments, respectively.\165\ OPM is mindful of the Supreme Court's
directive that ``when the legislature uses certain language in one part
of the statute and different
[[Page 17195]]
language in another, the court assumes different meanings were
intended.'' \166\
---------------------------------------------------------------------------
\165\ See 5 U.S.C. 3132, 3134.
\166\ See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n. 9
(2004); Grand Trunk W. R.R. Co. v. U.S. Dep't of Labor, 875 F.3d
821, 825 (2017) (concluding statutory context overcomes presumption
of ``so-called Russello structural canon''--that `` `[w]here
Congress includes particular language in one section of a statute
but omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion' '' (alteration in original)
(quoting Russello v. United States, 464 U.S. 16, 23 (1983))).
---------------------------------------------------------------------------
Congress used the terms ``career'' and ``noncareer'' to
specifically distinguish career civil service positions from political
appointments. The CSRA separately used the terms ``policy-making'' and
``policy-determining'' to describe General Schedule positions that
could be exempted from adverse action procedures, and also used these
terms to describe all SES positions. It is a ``cardinal doctrine'' that
this shift in language implies a shift in meaning; ``policy-
determining'' and ``policy-making'' are not synonymous with
``noncareer.''
Congress also knew how to extend adverse action procedures to all
career employees. Subchapter V of chapter 75 gives adverse action
procedures to any SES ``career appointee'' who passes their
probationary period.\167\ But Congress worded subchapter II--which
covers the competitive and excepted services--differently: ``[t]his
subchapter does not apply to an employee . . . whose position has been
determined to be of a confidential, policy-determining, policy-making
or policy-advocating character . . . .'' \168\ It is another basic
canon of statutory construction that if ``Congress includes particular
language in one section of a statute but omits it in another section of
the same Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.'' \169\ Congress
knew how to categorically give all career employees adverse action
procedures in chapter 75--but used quite different language in
subchapter II. This change in structure and language suggests a change
in meaning: the policy-influencing exclusion from subchapter II is not
limited to political appointees.
---------------------------------------------------------------------------
\167\ 5 U.S.C. 7541(1).
\168\ 5 U.S.C. 7511(b).
\169\ INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987).
---------------------------------------------------------------------------
Accepting OPM's prior reading of the policy-influencing phrases
would mean believing the terms ``policy-determining'' and ``policy-
making'' were well known terms of art that referred exclusively to
political appointees, and Congress used them in that way in 5 U.S.C.
7511(b)(2), but that Congress used these terms to convey a different
meaning when defining SES positions in section 3132. That
interpretation would also mean that Congress introduced an entirely
different term into title 5--``noncareer''--to describe political
appointments instead of using the well-established term of art used
elsewhere in the CSRA. And that interpretation would also require one
to conclude that the differences in language in subchapters II and V--
with the latter explicitly giving all career SES members adverse action
procedures and the former using very different terminology to define
adverse action coverage--convey no substantive difference in meaning.
OPM concludes that such an interpretation makes little sense and
does not reflect proper statutory interpretation. The best reading of 5
U.S.C. 7511(b)(2) is that the terms ``confidential, policy-determining,
policy-making, or policy-advocating'' have their ordinary, plain
English meaning and describe positions involved in determining, making,
or advocating for policy, or confidential positions. Such positions
include but are not limited to political appointments. This
construction gives the same meaning to the terms ``policy-making'' and
``policy-determining'' throughout the CSRA while recognizing that the
terms ``career'' and ``noncareer'' have a different meaning, referring
to civil service and political appointments respectively. This
interpretation also recognizes that Congress specifically gave adverse
action procedures to career SES members and denied them to noncareer
SES appointees, while using very different language in the section of
chapter 75 governing the competitive and excepted services.
OPM previously gave two reasons for rejecting these textualist
arguments. First, OPM argued that this construction would give career
SES members greater protection from removal than lower-ranking
subordinates. OPM concluded ``it does not follow'' that, if Congress
intended to allow at-will removals of employees with policy
responsibilities, Congress would give the executive branch greater
authority to remove employees with fewer such responsibilities and less
ability to remove those with greater responsibilities.\170\ However,
this reasoning ignored statutory SES management flexibilities. Agency
heads can reassign SES members at-will or unilaterally demote them from
the SES for poor performance.\171\ The President and OPM can also take
agencies out of the SES and create alternative senior executive
management systems.\172\ Section 7511(b)(2) of 5 U.S.C. would then
allow the President to exclude employees in those alternative systems
from chapter 75. Congress could have easily seen the need for a greater
authority to remove employees below the SES precisely because agencies
do not have the same degree of management flexibility with them, or
drafted section 7511(b)(2) more expansively to ensure the President
could make senior executives at-will if he takes their agencies out of
the SES.\173\
---------------------------------------------------------------------------
\170\ 89 FR 25025.
\171\ See 5 U.S.C. 3395, 4312(d), 4314(b)(3).
\172\ 5 U.S.C. 3132(c).
\173\ For example, unlike SES members, competitive and excepted
service employees can appeal removals based on unacceptable
performance to the Merit Systems Protection Board. See 5 U.S.C.
4303(e).
---------------------------------------------------------------------------
Second, OPM previously argued that the phrase ``positions of a
confidential, policy-determining, policy-making, or policy-advocating
character'' in section 7511(b)(2) is a term of art with clear history
and consistent usage, while Congress wrote on a clean slate when it
created the SES and used different structure and language in section
3132.\174\ OPM now recognizes this construction is untenable. OPM's
prior argument requires the phrase ``positions of a confidential,
policy-determining, policy-making, or policy-advocating character'' to
in fact be an established term of art with a meaning independent of its
constituent terms. However, this is not the case. This phrase was first
introduced in the CSRA; it existed in no legal source prior to 1978.
Consequently, there is no history of Congress or the executive branch
using the phrase ``positions of a confidential, policy-determining,
policy-making, or policy-advocating character'' as a term of art
divorced from the meaning of its constituent components.
---------------------------------------------------------------------------
\174\ 89 FR 25024.
---------------------------------------------------------------------------
The history that OPM and commenters pointed to instead used
7511(b)(2)'s constituent terms as separate descriptors. For example,
the Brownlow Report spoke of ``policy-determining posts.'' \175\ The
First and Second Hoover Commissions used the terms ``policy-making''
and ``policy-determining'' respectively.\176\ Executive Order 10440,
which created Schedule C, used the phrase ``positions of a confidential
or policy-determining character.''
---------------------------------------------------------------------------
\175\ See ``Report of the President's Committee, Administrative
Management in the Government of the United States,'' p. 3 (Jan.
1937).
\176\ 89 FR 25021, 25022.
---------------------------------------------------------------------------
[[Page 17196]]
The CSRA, by contrast, did not use any of these pre-existing terms
or phrases. It instead used a broader and more expansive formulation,
``confidential, policy-determining, policy-making, or policy-
advocating.''
If OPM's prior reading were correct, and the phrase ``confidential
or policy-determining'' used in Executive Order 10440 was a term of art
that referred exclusively to political appointees, there would be no
reason to add the terms ``policy-making'' or ``policy-advocating'' to
it. Under that reading those additions would be mere surplusage.
Congress's deliberate decision to add additional new terms to the prior
formulation suggests each term is meant to have independent meaning.
If anything was arguably a term of art it was the terms ``policy-
determining'' or ``policy-making''--not the CSRA's expansive new phrase
``positions of a confidential, policy-determining, policy-making,
policy-advocating character''.\177\ But 5 U.S.C. 3132 used those terms
to describe thousands of career SES positions. The CSRA did not treat
them as terms of art for political appointees. And if Congress did not
use the pre-existing terms ``policy-making'' and ``policy-determining''
as terms of art for political appointees, it makes little sense to
construe section 7511(b)(2)'s completely new and longer formulation as
a term of art either.
---------------------------------------------------------------------------
\177\ See OPM's discussion of the use of these terms by the
Brownlow Committee and Hoover Commission, 89 FR 25021-25022.
---------------------------------------------------------------------------
The fact that Congress was writing on a clean slate in creating the
SES makes little difference. Congress often uses terms of art when
writing new statutes, precisely so that courts and the public need not
guess at their meaning. If the terms policy-making and policy-
advocating were terms of art that exclusively described political
appointments, they would carry that meaning into 5 U.S.C. 3132. The
fact that Congress instead described career SES positions as exercising
policy-making and policy-determining functions shows Congress did not
use those terms in that manner.
Policymaking Roles Are Not Limited to Political Appointees
Construing the terms policy-determining and policy-making to refer
exclusively to a small number of political appointments is also
theoretically and practically unsound. Policy-making authority is not
cabined to few political leaders. Early public administration scholars
believed otherwise, drawing a theoretical division between policy-
determining political positions and line administrative employees. In
the 1880s future President Woodrow Wilson argued giving career
bureaucrats power over technical details of policy implementation was
unproblematic because those details were separate from policy
making.\178\ However, it soon became apparent to many public
administration scholars, including Wilson, that the lines between
policy and administration did not have such clear boundaries.\179\ By
the early 1900s city managers--who were not elected or short-term
political appointees--clearly understood that they had important policy
discretion.\180\
---------------------------------------------------------------------------
\178\ Woodrow Wilson, ``The Study of Administration,'' Political
Science Quarterly 2:2 (1887), 197-222, available at <a href="https://www.jstor.org/stable/2139277">https://www.jstor.org/stable/2139277</a>.
\179\ Calabresi & Yoo, supra note 28, at 254-255.
\180\ Kimberly L. Nelson and James H. Svara, ``The Role of Local
Government Managers in Theory and Practice: A Centennial
Perspective,'' Public Administration Review 75:1 (2014), 49-61,
available at <a href="https://www.jstor.org/stable/24758024">https://www.jstor.org/stable/24758024</a>.
---------------------------------------------------------------------------
Many scholars now recognize that it is not feasible to draw a
bright line between politics and administration. As one prominent
scholar explains: ``Administrators help to shape policy, and they give
it specific content and meaning in the process of implementation.''
\181\ Administration necessarily entails a degree of policy-making.
Contemporary practice recognizes this reality; career officials
routinely perform policy functions vested by law in agency heads.
Indeed, over the past four decades most Federal officials who exercise
delegated agency-head authority have been career employees.\182\
---------------------------------------------------------------------------
\181\ James H. Svara, ``The Myth of the Dichotomy:
Complementarity of Politics and Administration in the Past and
Future of Public Administration,'' Public Administration Review 61:2
(2001), 176-183, available at <a href="https://www.jstor.org/stable/977451">https://www.jstor.org/stable/977451</a>.
\182\ Brian D. Feinstein and Jennifer Nou, ``Submerged
Independent Agencies,'' University of Pennsylvania Law Review 171:4
(April 2023), 945-1022. See p. 973.
---------------------------------------------------------------------------
The histories of Schedules A and C bear out the fact that policy-
making is not cleanly divisible from administration. As OPM noted in
the April 2024 final rule, the Roosevelt Administration's Brownlow
Committee originally proposed that policy-determining exceptions from
the civil service should be ``relatively few in number,'' consisting
mainly of ``the heads of executive departments, undersecretaries 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.'' \183\
---------------------------------------------------------------------------
\183\ 89 FR 25021.
---------------------------------------------------------------------------
However, when President Franklin Roosevelt placed ``policy-
determining'' positions in Schedule A, and President Dwight Eisenhower
subsequently put them in Schedule C, they swept much more broadly to
lower levels of the bureaucracy. Saying that only policy-determining
positions went into Schedule C did not provide clear guidelines. The
Second Hoover Commission noted ``[t]he term `policy-determining' has
continued to be employed without much refinement . . . This criterion
is all right as far as it goes, but it is so great an
oversimplification that it does not give adequate guidance.'' \184\ The
Commission explained that when ``the departments began to apply [the
Schedule C criteria] in 1938, some decided that only the secretary and
assistant secretaries determined policy. Others avowed that minor
officials at the subbureau level were policy determiners. In
departmental recommendations in 1953 and 1954 regarding schedule C,
there has been an even greater diversity . . . No decision was made as
to where the lines between the political high command and the permanent
civil service of the Government should be drawn.'' \185\
---------------------------------------------------------------------------
\184\ Citing Task Force on Pers. and Civil Serv., Report on
Personnel and Civil service, p. 6 (1955), <a href="https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC">https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC</a>.
\185\ Id. at 6-7, 35.
---------------------------------------------------------------------------
The history of the executive branch demonstrates that ``policy-
determining'' positions are not restricted to senior positions like
assistant secretaries but encompass positions far lower in the
bureaucracy as well. While the Second Hoover Commission recommended
narrowing eligibility for Schedule C, this recommendation was never
acted upon. Congress then used the broad and indefinite terms ``policy-
determining'' and ``policy-making'' in the CSRA.
Many career Federal employees exercise a degree of policy-
determining authority or substantively participate in policy-making.
The CSRA and the subsequent Civil Service Due Process Amendments Act
gave the President and OPM discretion to determine what positions
should be excepted from adverse action appeals on account of their
policy responsibilities. It is theoretically and practically untenable
to interpret the terms ``policy-making'' and ``policy-determining'' to
describe only a small number of purely political positions.
[[Page 17197]]
Reconsidering OPM's Prior Justifications
Upon further review, OPM has determined that the additional reasons
it previously gave for interpreting the phrase ``positions of a
confidential, policy-determining, policy-making, or policy-advocating
character'' as a term of art do not withstand scrutiny.
OPM cited to legislative history, such as the conference report for
the Civil Service Due Process Amendments Act.\186\ But legislative
history is not the law. Statements of individual members of Congress
reflect their views alone. Committee reports are typically written by
committee staffers, not voted on by the whole Congress, and may not
reflect the sentiments of members of Congress who passed the law or
negotiated key provisions. The Supreme Court has accordingly made it
clear that legislative history has limited value in interpreting
statutory text. Courts ``do not resort to legislative history to cloud
a statutory text that is clear.'' \187\
---------------------------------------------------------------------------
\186\ 89 FR 25022-25023.
\187\ Ratzlaf v. United States, 510 U.S. 135, 147-148 (1994).
---------------------------------------------------------------------------
OPM also explained that it was construing the policy-influencing
terms to refer exclusively to political appointees to honor
Congressional intent.\188\ However, Congressional intent is determined
by text of the law Congress passes. Post-enactment statements or amicus
briefs filed by members of Congress do not determine Congressional
intent. They show the desires of individual legislators, not Congress
acting in its institutional capacity to enact legislation.
---------------------------------------------------------------------------
\188\ 89 FR 25012, 25026-25027.
---------------------------------------------------------------------------
Congressional intent must be gleaned from the text because members
of Congress could have different reasons for passing the same language.
It is possible that some members of Congress did not anticipate that
the policy-influencing terms could be applied to career positions and
intended them to apply to only political appointments. The April 2024
final rule embraced that interpretation. But it could also be the case
that other members of Congress recognized that the terms could apply to
career positions and wanted to retain that flexibility if necessary.
Other members of Congress might have preferred to limit the exception
to political appointees but recognized, as discussed in section
III(C)(4) below, that giving policymaking career employees strong
tenure protections would create serious constitutional issues. Those
members may have preferred language that encompassed career positions
to avoid a potential constitutional conflict. The members of Congress
who voted for the CSRA and the subsequent Due Process Amendments Act
likely separately held all three positions. OPM previously failed to
appreciate that Congressional intent must be discerned from the text of
the laws passed. That text shows Congress used the terms ``policy-
making'' and ``policy-determining'' to describe both career positions
and political appointments.
Further, the legislative history to which OPM previously referred
consisted of a general description of Schedule A, Schedule B and
Schedule C that was intended to provide an explanation of why Schedule
C employees were not being granted MSPB appeal rights: because they
``have little expectation of continuing employment beyond the
administration during which they were appointed.'' \189\ It did not
attempt to define what the term ``confidential or policy-determining
character'' meant, nor did it purport to define the term to include
only political appointees. Instead, it merely used the term in passing.
---------------------------------------------------------------------------
\189\ H.R. Rep. 101-328, 5, 1990 U.S.C.C.A.N. 695, 699.
---------------------------------------------------------------------------
OPM and a commenter also noted that a number of statutes enacted
after the CSRA expressly describe policy-influencing positions as
``political appointments.'' \190\ However, the CSRA expressly described
thousands of senior career positions as having ``important policy-
making, policy-determining, and other executive functions.'' \191\
These other statutes do not purport to define political appointments
for all of title 5, or for CSRA purposes. Instead, they universally
state that their definitions apply only for purposes of that particular
law or section of the U.S. Code. Construing these limited definitions
to govern the interpretation of the CSRA would ignore these statutory
directives.\192\
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\190\ See 5 U.S.C. 9803(c), 6 U.S.C. 349(d)(3), 7 U.S.C.
6992(e)(2), 38 U.S.C. 725.
\191\ 5 U.S.C. 3132(a)(2).
\192\ 89 FR 25021.
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These limited statutory definitions likely reflect the fact that
until Executive Order 13957 successive administrations had only used
the policy-influencing exceptions for political appointments. These new
laws were passed against that backdrop. Congress likely assumed only
political appointees would fill policy-influencing positions for
purposes of those laws because, at the time they were passed, those
were the only officials who did. But those laws did not contain any
provisions cabining the President's discretion to apply section
7511(b)(2) more broadly in the future, nor did they contain any
provisions modifying the definition of ``policy-making'' or ``policy-
determining'' for CSRA purposes. OPM accordingly now believes that this
post-enactment history should not be interpreted to restrict the
President's authority to exempt positions under section 7511(b)(2).
OPM also argued that defining policy-influencing positions as
political appointments was necessary for consistency with MSPB
interpretations because Congress used the same policy-influencing terms
in 5 U.S.C. 2302(a)(2)(B)(i) to define positions covered by Prohibited
Personnel Practices (PPP).\193\ The MSPB has occasionally applied these
terms in that context. However, the CSRA gave primary responsibility
for determining which positions are policy-influencing to the President
and OPM.\194\ The MSPB must apply their determinations. Congress did
not give MSPB authority to cabin presidential or OPM discretion over
which positions are policy-influencing.
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\193\ Under the CSRA, policy-influencing positions are excluded
from the scope of 5 U.S.C. 2302(b), which specifies the PPPs, and
from Office of Special Counsel and MSPB enforcement of the same.
Section 6(a) of E.O. 13957 requires agencies to establish and
enforce internal policies prohibiting PPPs.
\194\ The CSRA also gave agency heads responsibility for
determining if positions statutorily placed in the excepted service
are policy-influencing.
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For these reasons OPM has concluded that the policy-influencing
terms are not a term of art that refer only to political appointees in
Schedule C, and that they can encompass career positions with
confidential or policy responsibilities as well. OPM therefore proposes
to rescind its prior restrictive definition.
The President Can Treat Political Appointments as Career Positions
Regardless
While OPM believes the policy-influencing terms have their plain
English meaning and are not a term of art, OPM further notes that, even
if those terms were a term of art, that would not make a practical
difference. Assuming arguendo that the policy-influencing terms should
be construed as a term of art for political appointees, that would
simply mean that all positions the President determines are policy-
influencing are technically political positions. Even this construction
would not, however, prevent the President from exempting any career
positions with substantive policy-influencing responsibilities from
chapter 75 procedures pursuant to 5 U.S.C. 3302, regardless of the
number of
[[Page 17198]]
positions so affected.\195\ It would simply mean such positions would
be formally designated political positions.
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\195\ Civil Service Rule 1.3(d) provides that if tenured
competitive service employees' positions are listed in excepted
service schedules A, B, or C, the employees encumbering such
positions will remain in the competitive service as long as they
remain in those positions. This rule implemented the Lloyd-
LaFollette Act provisions that required this result. As discussed in
greater detail below, however, the CSRA of 1978 repealed those
applicable statutory provisions. Civil Service Rule 1.3(d) now rests
on its foundation in the Civil Service Act of January 16, 1883,
which includes the President's authority to prescribe rules
governing the competitive service and to exempt positions from it.
See 22 Stat. 403, 406 at ch. 27 (codified as amended in 5 U.S.C.
2102, 3302, et al.); 5 CFR 213.101-104. OPM believes that
hypothetically, a President who wished to do so could waive the
application of Rule 1.3(d) and directly move tenured competitive
service employees from such positions into Schedule C excepted
service positions. In such event, under 5 U.S.C. 7511(b)(2), such
employees would become excluded from adverse action appeals.
---------------------------------------------------------------------------
As discussed in greater detail below, OPM now believes that title 5
does not require an adverse action appeals process for career employees
in the excepted service whose positions are determined to be policy-
influencing. Under E.O. 13957, as amended, and the proposed rule, a
presidential determination that a position is policy-influencing
terminates chapter 75's applicability to such position regardless of
whether it is subsequently designated as political (e.g., Schedule C)
or remains career (Schedule Policy/Career). All that removing the April
2024 final rule's restrictive definition of the policy-influencing
terms does is allow the relevant positions to remain formally
designated as career positions instead of political appointments.
Further, under the Constitution, the President has discretion to
use his Article II executive power to require his subordinates to treat
technically political positions as though they were career positions.
The Constitution vests the executive power in the President alone.\196\
If the President believes as a constitutional matter that disregarding
political affiliation best helps him carry out his constitutional
duties, he can order his subordinates to do so. At most, the CSRA
authorizes the President to consider political or policy views in
policy-influencing positions, e.g., for existing Schedule C positions--
but it does not require it.
---------------------------------------------------------------------------
\196\ Seila Law v. Consumer Finance Protection Bureau, 140 S.
Ct. 2183, 2191 (2020).
---------------------------------------------------------------------------
Presidents have often treated formally political appointments as
career positions. Ambassadors, for example, are one of the few offices
expressly provided for in the Appointments Clause. The Constitution
requires they be appointed by the President with Senate consent; no law
could make them career positions. Nonetheless there is a longstanding
practice of appointing career members of the Foreign Service as
ambassadors, especially to less prominent postings. Prior to the 2025
Presidential transition most U.S. ambassadors or nominees for vacant
posts were career Foreign Service officers. Congress could not and did
not require this. Presidents of both parties have instead chosen to
fill these posts apolitically because it helps advance their foreign
policy agendas. Similarly, nothing in title 5 prevents the President
from treating nominally political appointments as career positions.
President Trump has decided to put policy-influencing career
positions into Schedule Policy/Career. OPM now believes the best
reading of the statute is that the policy-influencing terms encompass
both career and political positions. But if that reading of the statute
is incorrect the President can still determine that positions with
substantive policy responsibilities are policy-influencing, exempting
incumbents in those positions from chapter 75, while directing his
subordinates to continue to treat those incumbents like career
employees.
Additional Considerations
Executive Order 14171 used presidential authority to prohibit
agencies from giving effect to the April 2024 final rule's restrictive
definition of policy-influencing positions.\197\ This directive is
binding on OPM and all agencies. Congress tasked OPM with executing,
enforcing, and administering the civil service rules and regulations of
the President.\198\ OPM will not maintain regulations that conflict
with presidential directives and cannot be given legal force or effect.
Even if OPM did not find the factors discussed above independently
persuasive--and it does--OPM would nonetheless propose removing the
April 2024 final rule's restrictive definition of the policy-
influencing terms to comport with Executive Order 14171's invalidation
of 5 CFR 210.102(b)(3) and 210.102(b)(4).\199\ In addition, OPM would
independently propose changing the April 2024 final rule to advance the
policies described in this proposed rule.
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\197\ See 5 U.S.C. 3301, 3302.
\198\ See 5 U.S.C. 1103(a)(5).
\199\ OPM would independently propose changing the final rule to
advance the policies described in this proposed rule, even if
Executive Order 14171 had not been issued and modified the Civil
Service Rules.
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3. OPM Has No Authority To Extend Chapter 75 Procedures to Policy-
Influencing Positions
Further review has convinced OPM that the April 2024 final rule's
amendments to subpart D of 5 CFR part 752, which extended adverse
action procedures and appeals to incumbent employees whose positions
were declared policy-influencing or who were involuntarily transferred
into policy-influencing positions, exceeded OPM's statutory authority.
Accordingly, OPM now believes it is necessary to rescind these
amendments.
Chapter 75's statutory text determines its scope. Section
7511(b)(2)(A) of 5 U.S.C. provides that subchapter II (covering adverse
actions in the competitive and excepted services) does not apply to an
employee whose position has been determined to be policy-influencing by
the President for a position the President has excepted from the
competitive service. Under this statutory directive, employees whose
positions the President has excepted from the competitive service based
on their policy-influencing character are categorically exempt from
chapter 75 procedures and subsequent MSPB appeals. The language is
clear and unambiguous.
The April 2024 final rule nonetheless purported to extend chapter
75 procedures and MSPB appeals to employees in policy-influencing
excepted service positions if their positions were so designated after
they were initially hired or if they were involuntarily transferred
into that position. OPM now recognizes that it had no authority to
extend subchapter II's coverage like this. Section 7511(b)(2)
categorically excludes policy-influencing excepted service positions,
irrespective of whether incumbents filling those positions were
previously covered by chapter 75. While the final rule repeatedly
described Federal employees' as possessing ``accrued rights'' to
adverse action procedures and appeals, it did not point to any
statutory provisions conveying such personal rights.\200\ Such language
appears nowhere in the text of subchapter II. Rather, section
7511(b)(2)'s exclusions are tied to the nature of a position,
irrespective of who occupies it. Some section 7511 exclusions are tied
to an employee's personal history and status, such the 7511(b)(4)
exclusion of reemployed annuitants and the 7511(a)(1) exclusion of
probationary employees. However, Congress included
[[Page 17199]]
no such criteria for the 7511(b)(2) exclusion.
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\200\ See, e.g., 89 FR 24982, 25009, 25018.
---------------------------------------------------------------------------
Section 7514 of 5 U.S.C. allows OPM to issue regulations carrying
the out purposes of subchapter II. Such authority does not include
extending its coverage to positions Congress has specifically excluded.
OPM justified the amendments to subpart D by appealing to the D.C.
Circuit's decision in Roth v. Brownell (1954), a case interpreting the
Lloyd-La Follette Act.\201\ As discussed above, the Lloyd-La Follette
Act provided that ``[n]o person in the classified civil service of the
United States shall be removed or suspended without pay therefrom
except for such cause as will promote the efficiency of such service
and for reasons given in writing.'' The D.C. Circuit concluded that
this language meant employees remained covered by Lloyd-La Follette
procedures if they were involuntarily moved into the excepted service.
OPM subsequently issued regulations in the 1960s codifying this
precedent and providing that employees whose positions were
involuntarily moved into the excepted service personally remained in
the competitive service.\202\ The April 2024 final rule discussed this
precedent at length.\203\
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\201\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954).
\202\ These regulations were codified at 5 CFR 212.401 and were
not substantively modified until the April 2024 final rule.
\203\ 89 FR 25010.
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However, OPM's analysis of Roth and its implementing regulations
ignored the fact that the Lloyd-La Follette Act is not in effect and
has not been for nearly half a century. The CSRA superseded the Lloyd-
LaFollette Act, repealing and replacing subchapter I of chapter 75
(where the relevant Lloyd-La Follette requirements had been codified).
The legal basis for holding that employees moved into the excepted
service remain personally in the competitive service no longer exists.
Modern adverse action procedures for most Federal employees are now
found in subchapter II of chapter 75. They are derived from language
contained in the Veterans Preference Act, not the Lloyd-La Follette
Act. Subchapter II requires adverse action procedures for ``a
removal,'' ``a suspension for more than 14 days,'' ``a reduction in
grade,'' ``a reduction in pay'', and ``a furlough of 30 days or less.''
\204\ While the Lloyd-La Follette Act applied to removals from the
classified (i.e., competitive) service, the CSRA only requires adverse
action procedures for ``a removal.'' The change in language indicates a
change in meaning.
---------------------------------------------------------------------------
\204\ See 5 U.S.C. 7512.
---------------------------------------------------------------------------
Further inquiry into the history of the CSRA's statutory language
demonstrates that ``a removal'' means a ``discharge'' and does not
cover reclassifications or transfers into the excepted service. The VPA
gave procedural protections and CSC appeals to any preference eligible
veteran--including those in the excepted service--who was ``discharged,
suspended for more than thirty days, furloughed without pay, reduced in
rank or compensation, or debarred for future appointment.'' \205\ The
VPA did not discuss removals from the competitive service as such,
likely because its provisions applied to veterans in both the excepted
and competitive services. Subsequent 1948 legislation gave backpay to
employees returned to duty under either Lloyd-La Follette or VPA
procedures.\206\ That legislation maintained the distinction between
the Lloyd-La Follette Act's scope (being removed or suspended from the
classified civil service) and the VPA's.
---------------------------------------------------------------------------
\205\ 58 Stat. 387 (1944).
\206\ 62 Stat. 355 (1948).
---------------------------------------------------------------------------
Congress then recodified title 5 in the 1960s. That legislation
codified VPA adverse action procedures in subchapter II of chapter 75
and applied to ``a removal.'' \207\ The historical and revision notes
explain that this language was supplied on the authority of the VPA and
that ``the word `removal' is coextensive with and substituted for
`discharge.' '' The CSRA used this statutory language as the basis for
its adverse action procedures, also codified in subchapter II. While it
modified subchapter II's scope in some respects, the CSRA used
identical language to cover ``a removal''--previously defined to mean
``a discharge.'' \208\ Congress did not carry over the Lloyd-La
Follette Act's application to any movement out of the competitive
service as such.
---------------------------------------------------------------------------
\207\ Public Law 89-554, 80 Stat. 378 (1966).
\208\ See 5 U.S.C. 7512(1).
---------------------------------------------------------------------------
Ordinary English and this statutory history indicate that the term
``removal'' in the CSRA means a discharge from the Federal service and
does not encompass moves into the excepted service. Transfers into the
excepted service are not adverse actions covered by subchapter II.
Unlike the Lloyd-La Follette Act, nothing in the CSRA gives employees
an accrued personal right to adverse action procedures or appeals
before they can be moved into the excepted service.
The April 2024 final rule ignored these facts. The rule instead
pointed to a 1988 OPM transition memo advising agencies that civil
service employees involuntarily moved into Schedule C positions
retained adverse action procedures.\209\ That sub-regulatory guidance
cited Roth for this proposition without further analysis. OPM did not
then consider how the CSRA's revisions to chapter 75 may have affected
the underlying legal framework. Upon further consideration, OPM now
recognizes that the CSRA eliminated the statutory basis for extending
chapter 75 procedures to cover employees reclassified or transferred
into Schedule C or Policy/Career.
---------------------------------------------------------------------------
\209\ 89 FR 25011.
---------------------------------------------------------------------------
In the notice of proposed rulemaking OPM pointed to 5 U.S.C.
7511(c) as another source of authority for extending chapter 75
procedures to cover employees reclassified into a policy-influencing
excepted service schedule.\210\ That section allows OPM to ``provide
for the application of this subchapter to any position or group of
positions excepted from the competitive service by regulation of the
Office which is not otherwise covered by this subchapter.'' OPM now
recognizes this language does not authorize its subpart D regulations.
Policy-influencing positions are ``otherwise covered'' by subchapter
II--and expressly excluded. Further, section 7511(c) only applies to
positions that OPM excepts from the competitive service; it does not
apply to exceptions made by the President. Executive Order 14171
provides for the President to place positions in Schedule Policy/
Career. Section 7511(c) has no application to such positions.
---------------------------------------------------------------------------
\210\ 88 FR 63876.
---------------------------------------------------------------------------
The April 2024 final rule also cited several cases in which the
MSPB held a determination that a position is policy-influencing does
not except that position from adverse action procedures unless it
occurs before the employee is appointed.\211\ These cases either
directly
[[Page 17200]]
cited the MSPB's decision in Briggs v. National Council on Disability
\212\ for this proposition, or cited cases that in turn cited Briggs.
Analysis of Briggs shows these MSPB decisions do not support this
holding. Briggs dealt with a case where the National Council on
Disability dismissed its executive director, Ethel Briggs, from her
position that was excepted from the competitive service by an agency-
specific statute. The Council argued in response that MSPB appeals were
unavailable because this position was policy-influencing. Upon appeal
the MSPB found that there was no evidence the executive director
position had ever been declared policy-influencing, and at the bare
minimum the employee was never informed of this fact. The Board stated,
without further analysis, that ``fairness and due process
considerations require that any determination as to the character of
the position at issue here have been made in such a manner as to put
the appellant on notice of the nature of the position she was
considering accepting.'' \213\ The MSPB concluded that a jurisdictional
hearing was necessary to determine if her position had ever been
designated policy-influencing. The MSPB subsequently ordered Briggs
reinstated because the Council had not designated her positions as
policy-influencing. The Federal Circuit affirmed without considering
the question of when a position must be declared policy-
influencing.\214\
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\211\ See 89 FR 25011, citing Thompson v. Dep't of Justice, 61
M.S.P.R. 364 (Mar. 30, 1994) (No. DE-1221-92-0182-W-1), 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.'').
\212\ See Briggs v. Nat'l Council on Disability, No. DC-
0432930150-I-1 (M.S.P.B. Jan. 7, 1994), aff'd King v. Briggs, 83
F.3d 1384, 1389 (Fed. Cir. 1996). See also Lal v. M.S.P.B., 821 F.3d
1376 (Fed. Cir. 2016); Todd v. M.S.P.B., 55 F.3d 1574 (Fed. Cir.
1995). Cf., e.g., Bennett v. M.S.P.B., 635 F.3d 1215 (Fed. Cir.
2011); Jackson v. M.S.P.B., 251 F.3d 169 (Fed. Cir. 2000).
\213\ Id.
\214\ King v. Briggs, 83 F.3d 1384, 1389 (Fed. Cir. 1996).
---------------------------------------------------------------------------
OPM believes Briggs's analysis of the 7511(b)(2) exception was
mistaken. The Briggs decision did not analyze the relevant provisions
of title 5. The MSPB simply asserted that the timing of the declaration
(if it was made) was relevant with no further statutory or legal
analysis. This was an unreasoned conclusion, which a handful of
subsequent MSPB cases have followed without further analysis. Such a
bare record does not establish the existence of accrued personal rights
to adverse action procedures for employees moved into policy-
influencing positions--especially in the absence of any statutory
provision for such rights.
OPM now recognizes that 5 U.S.C. 7511(b)(2) ties exceptions from
adverse action procedures to the nature and status of an employees'
position alone. Their personal status or history may be relevant for
other chapter 75 exceptions, such as those for probationary employees
or reemployed annuitants. But it is irrelevant to the policy-
influencing exception. OPM has consequently concluded that it lacked
authority to issue the subpart D regulations extending chapter 75 to
cover employees reclassified or moved into policy-influencing
positions. OPM is accordingly now proposing to rescind these changes to
subpart D.
4. Reinforce Career Status
OPM is also proposing these rules to make it clear that Schedule
Policy/Career positions remain career positions. OPM is aware of
widespread concerns that the prior Schedule F would be a means of
converting career positions to political positions. The proposed
regulations reflect Executive Order 14171's directive that employees in
Policy/Career positions remain career employees who are neither
expected nor required to personally support the President or his
policies. However, they must nonetheless implement the President's
agenda faithfully and to the best of their ability. OPM believes
formally incorporating this distinction into the civil service
regulations would help combat misinformation about the nature and
purpose of Executive Order 14171.
D. OPM's Authority To Regulate
The OPM Director has direct statutory authority to execute,
administer, and enforce the civil service rules and regulations, as
well as most laws governing the civil service.\215\ The Director also
has authorities Presidents have conferred on OPM pursuant to the
President's statutory authority.\216\
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\215\ See 5 U.S.C. 1103(a)(5)(A).
\216\ See Presidential rules codified at 5 CFR parts 1 through
10.
---------------------------------------------------------------------------
Congress also gave OPM broad regulatory authority over Federal
employment throughout title 5.\217\ Many 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. 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. OPM has other regulatory
authority, for example, under 5 CFR parts 5 and 10, to oversee the
Federal personnel system and agency compliance with merit system
principles and supporting laws, rules, regulations, Executive orders,
and OPM standards.
---------------------------------------------------------------------------
\217\ See, e.g., 5 U.S.C. 1103, 1302, 3308, 3317, 3318, 3320;
Chapters 43, 53, 55, 75.
---------------------------------------------------------------------------
OPM's authorities coexist with the President's direct authority
over the civil service. Title 5 provides for the President to prescribe
rules governing the competitive service and regulations governing
admissions into the civil service.\218\ OPM's regulations must comport
with these presidential rules and regulations. Further, in cases where
OPM issues regulations using delegated presidential authority, the
President may use that authority to directly override OPM's
regulations.
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\218\ See 5 U.S.C. 3301, 3302.
---------------------------------------------------------------------------
II. Proposed Amendments
OPM accordingly proposes amending its regulations in 5 CFR chapter
I, subchapter B, as summarized below to strengthen employee
accountability and improve the management of the Federal workforce.
A. Incorporating Schedule Policy/Career Into the Civil Service
Regulations
OPM proposes to amend its 5 CFR part 213 regulations (the Excepted
Service) to incorporate Schedule Policy/Career into OPM's civil service
regulations. These changes are not legally necessary to implement
Executive Order 13957, as amended, or Schedule Policy/Career; the
order's provisions are self-executing and supersede OPM regulations
issued under delegated presidential authority. However, it promotes
clarity and reduces confusion for OPM regulations to reflect the
applicable legal framework governing the civil service. Moreover, OPM
independently would make these changes for the policy reasons described
in this proposed rule. Subpart A of part 213 generally defines and
provides for the parameters governing the excepted service, while
subpart C sets forth specific excepted service schedules. OPM proposes
the following changes to 5 CFR part 213:
Part 213--Excepted Service, Subpart A
Section 213.101 Definitions
Section 213.101 defines terms relating to the excepted service. OPM
proposes amending these definitions to add two new definitions of
``career positions'' and ``noncareer position'' for purposes of part
213. These definitions clarify the distinction between noncareer
Schedule C positions and career Schedule Policy/Career positions.
OPM proposes to define a noncareer position as a position that
carries no expectation of continued employment beyond the presidential
administration and whose occupant is, as a matter of
[[Page 17201]]
practice, expected to resign upon a presidential transition. This newly
defined term would encompass all positions whose appointments involve
preclearance by the White House Office of Presidential Personnel. The
definition of noncareer position is drawn from section 2 of Executive
Order 13957, as amended, with additional gloss to describe the role of
the White House Office of Presidential Personnel in political
appointments.
OPM further proposes to define a career position as any position
that is not noncareer. OPM notes this definition of career position
would include temporary positions and term appointments, although these
positions do not have tenure or typically lead to an extended career in
government. OPM proposes this language to distinguish such positions--
which are filled without respect to political loyalty--from noncareer
political appointments for purposes of part 213. These definitions
would not apply throughout the civil service regulations but would be
used only for purposes of clarifying which positions are appropriately
classified in Schedule C and which belong in Schedule Policy/Career.
OPM is also proposing to amend the Sec. 213.101(a) definition of
excepted service by clarifying that an employee encumbering an excepted
service position is in the excepted service, irrespective of whether
they possess competitive status under Sec. 212.401(b). This is
consistent with the statutory definition of excepted service, which
provides that the excepted service consists of those civil service
positions that are not in the competitive service or SES without any
reference to an incumbent's personal history or status.\219\ Title 5
also defines the competitive service by describing the nature of the
positions, without respect to the incumbent's personal status.\220\
Nothing in the text of title 5 makes a position's location in either
the competitive or excepted services contingent on the personal
identity or history of the individual encumbering it. The proposed
addition to paragraph (a) reflects and clarifies this statutory
framework. While the D.C. Circuit held that Lloyd-La Follette
procedures were necessary to remove individuals from the competitive
service, as previously discussed the CSRA removed that requirement.
---------------------------------------------------------------------------
\219\ See 5 U.S.C. 2103.
\220\ See 5 U.S.C. 2102.
---------------------------------------------------------------------------
As will be further discussed in II(C)(3) below, however, OPM
recognizes that individuals moved involuntarily from the competitive
service to the excepted service may retain competitive status--
eligibility for appointment to competitive service positions--even if
they themselves are in the excepted service.
Section 213.102 Identification of Positions in Schedule A, B, C, D, or
Policy/Career
OPM proposes to amend Sec. 213.102 to state that the President may
place positions in Schedule Policy/Career. While Civil Service Rule 6.2
now authorizes OPM to place positions in Schedule Policy/Career,
Executive Order 13957, as amended, directs OPM to make recommendations
to the President about what positions should go into that schedule
rather than approve agency petitions itself. The proposed amendments
reflect the fact that President Trump has reserved to himself the final
decision about which positions will go in Schedule Policy/Career.
Section 213.103 Publication of Excepted Appointing Authorities
OPM proposes to amend Sec. 213.103 to include references to
Schedule Policy/Career where applicable throughout.
Section 213.104 Special Provisions for Temporary, Time-Limited, or
Intermittent or Seasonal Appointments
OPM proposes to amend Sec. 213.104 to include references to
Schedule Policy/Career where applicable throughout, as well as
references to existing excepted service Schedules A, B, C, and D
throughout. As with Sec. 213.102, OPM does not propose to add
references to Schedule E administrative law judges, retaining that for
a future rulemaking.
Part 213--Excepted Service, Subpart C
Section 213.3301 Positions of a Confidential or Policy-Determining
Character
Section 213.3301 sets forth the criteria for Schedule C
appointments. OPM proposes to amend the heading to align with the text
of Civil Service Rule 6.2, as amended by Executive Order 13957. This
would describe Schedule C positions as those of a confidential or
policy-determining character normally subject to change as a result of
a presidential transition, rather than just positions of a confidential
or policy determining character.
OPM also proposes to modify the body of Sec. 213.3301 to expressly
define Schedule C positions as noncareer positions. Under these
amendments agencies could ``make appointments under this section to
noncareer positions that are of a confidential or policy-determining
character'' (emphasis supplied). The definition of noncareer would
follow that which OPM proposes adding to Sec. 213.101. These
amendments would make it clear that Schedule C applies only to
political appointees and has no application to career positions.
OPM also proposes to eliminate the reference in this section to the
Sec. 210.102 definition of ``confidential or policy-determining.''
Executive Order 14171 rendered this definition inoperative and, as
discussed below, OPM is proposing to remove it from the civil service
regulations.\221\ Retaining an obsolete regulatory definition would
create confusion about the applicable standards.
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\221\ See section I(C)(1).
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Section 213.3501 Career Positions of a Confidential, Policy-
Determining, Policy-Making, or Policy-Advocating Character
OPM is proposing to add a new Sec. 213.3501 to subpart C for
appointments to Schedule Policy/Career of the excepted service.
Schedule Policy/Career would cover ``career positions of a
confidential, policy-determining, policy-making, or policy-advocating
character that are not in the Senior Executive Service.'' Since Sec.
213.101 defines ``career position'' to exclude noncareer appointments,
political appointees could not go in Schedule Policy/Career. This
language, as well as the schedule's name, makes it clear that Schedule
Policy/Career is not to be used for patronage purposes and applies only
to career employees hired based on merit.
OPM is proposing to reinforce Schedule Policy/Career's status as
covering the career civil service by incorporating into these
regulations E.O. 14171's directives that career employees (1) are not
required to pledge personal loyalty to the President or his policies,
and (2) must diligently implement and advance, to the best of their
ability, the policies of the President and the administration, and that
failure to do so is grounds for dismissal. This language clarifies what
is required of Schedule Policy/Career employees: they do not need to
personally support the President's policies, but they must execute them
faithfully and to the best of their ability.
OPM is also proposing that individuals appointed to Schedule
Policy/Career positions are not subject to trial periods, the excepted
service equivalent of probationary periods. Since Schedule Policy/
Career positions will be excepted from chapter 43 and 75 procedures
throughout their service,
[[Page 17202]]
there is no need to require or administer a separate trial period in
which they will serve at-will.
B. Meaning of the Phrase ``Positions of Confidential, Policy-
Determining, Policy-Making, or Policy-Advocating Character''
For the reasons set forth in section I(C)(2)(iii), OPM has
concluded that the best interpretation of the CSRA is that the phrases
``confidential, policy-determining, policy-making, and policy-
advocating'' and ``confidential or policy-determining'' are not terms
of art that refer to political appointments in Schedule C. Rather, they
have their plain English meaning--confidential positions or those that
determine, make, or advocate for policy. 5 U.S.C. 3132(a)(2) further
indicates that policy-determining and policy-making responsibilities
include functions of SES members such as directing the work of an
organizational unit, being held accountable for the success of specific
programs or projects, or monitoring progress towards, evaluating, and
adjusting organizational goals. The policy-influencing term thus
potentially apply to both career and noncareer positions with policy
roles. The April 2024 final rule made several regulatory changes
intended to clarify that these policy-influencing terms encompass only
political appointments in Schedule C. Having reconsidered this
conclusion, OPM now proposes to reverse the changes made by the April
2024 final rule.
OPM proposes to amend 5 CFR part 210 (Basic Concepts and
Definitions (General)), to remove the definitions for the terms
``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining'' added by the
April 2024 final rule. That rule amended subpart A of part 210 to
define these phrases to refer exclusively to political appointments.
Under those amendments any career employees moved into policy-
influencing positions are definitionally converted into political
appointees. Removing these definitions will clarify that both political
and career positions can be policy-influencing, and that the
President's decision to strengthen accountability in policy-influencing
positions does not simultaneously impose a personal loyalty test.
OPM is proposing these amendments for several reasons. As discussed
above, OPM now believes the best reading of the CSRA is that the
policy-influencing terms encompass career positions. Moreover, even if
OPM's prior interpretation was correct, the President has inherent
constitutional authority to treat political appointments as career
positions. He can always make appointments based on performance instead
of political loyalty. President Trump has decided that keeping Schedule
Policy/Career appointments career positions improves the administration
of the executive branch. Maintaining OPM's regulatory definition would
only create confusion about how the President wants these positions
treated. They are policy-influencing positions that could be made
Schedule C political appointments, but where the President wants hiring
and firing to instead occur based on performance. This is within the
President's constitutional prerogative, and OPM believes its
regulations should facilitate rather than undermine the President's
management decisions. OPM accordingly proposes to remove conflicting
regulatory definitions that classify Policy/Career positions as
political appointments.
Further, Executive Order 14171 overrode these part 210 definitions
and rendered them inoperative. OPM's prior part 210 amendments were
issued using delegated presidential authority, not OPM's own statutory
authority.\222\ President Trump used this presidential authority to
directly supersede OPM's amendments. OPM cannot enforce regulations
issued using delegated presidential authority in defiance of a
conflicting presidential directive. Agencies are similarly prohibited
from giving the policy-influencing definitions in 5 CFR 210.102(b)(3)
and 210.102(b)(4) any force or effect. So even if OPM were not
independently convinced as a matter of law and policy that the part 210
amendments should be removed--and it is--OPM would be compelled to do
so to bring its regulations into conformity with the President's
directive.
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\222\ See 5 U.S.C. 3301, 3302, and E.O. 10577. The April 2024
final rule also left unchanged the part 210 authority citation to 5
U.S.C. 1302, but none of the changes made that rule or proposed by
this NPRM adjust veterans preference.
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The April 2024 final rule made ``conforming changes'' to 5 CFR
213.3301, 432.102, 451.302, 752.201, and 752.401 to ``standardize the
phrasing used to describe this type of position.'' \223\ OPM is
proposing further changes to many of these sections, as discussed in
greater detail above and below. In these cases, OPM does not believe it
would be appropriate to return to the language that preceded the April
2024 final rule.
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\223\ 88 FR 63872.
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However, OPM proposes to rescind the changes made to 5 CFR 451.302
and return to the prior language of ``confidential or policy-making''
rather than ``confidential or policy-determining'' under the April 2024
final rule. This reflects OPM's belief that ``policy-determining'' and
``policy-making'' are not synonyms for political appointees but refer
to individuals involved in determining or making agency policy,
respectively.
The April 2024 final rule added the term ``policy-determining'' to
the list of characteristics which authorize excepted service positions'
exclusion from part 302 procedures. With the provisions added to
302.102(d) providing that the positions in Schedule Policy/Career will
be filled using the provisions that would have otherwise applied (e.g.,
part 315 for competitive service positions and part 302 for excepted
service positions), OPM is proposing to remove this language, which
captured all policy-influencing positions including those in the new
Schedule Policy/Career, as a wholesale exemption from part 302 is not
appropriate.
C. Adverse Action Procedures and Appeals.
OPM's April 2024 final rule allowed employees whose positions were
moved or who were involuntarily transferred into a policy-influencing
excepted service position to nonetheless remain covered by chapter 75
adverse action procedures and MSPB appeals. As explained above in
section I(C)(3), OPM has concluded it did not have statutory authority
to extend chapter 75 to cover employees in such positions. OPM now
proposes to rescind the changes made in the prior rulemaking and
clarify that chapter 75 does not apply to employees in Schedule C and
Schedule Policy/Career positions. OPM is also proposing to amend its
part 432 regulations to exclude Schedule Policy/Career positions from
chapter 43 performance-based removal procedures.
OPM proposes these changes for several reasons. First, as discussed
in section I(C)(3) above, OPM has concluded that the April 2024 final
rule's part 752 changes exceed OPM's statutory authority. Section
7511(b)(2) of 5 U.S.C. excludes employees in policy-influencing
excepted service positions from chapter 75. Nothing in (b)(2)
authorizes such employees to retain an accrued personal right to
adverse action procedures. The (b)(2) exclusion is tied solely to the
nature of the position, not the personal status of the employee. OPM
has no authority to extend chapter 75 to cover employees in positions
Congress expressly excluded. OPM therefore proposes these amendments to
[[Page 17203]]
align the subpart D regulations with its legal authority.
Second, even if the April 2024 amendments were not unlawful, OPM
would still propose these changes as a matter of policy. They are
necessary to hold employees in sensitive policy-influencing positions
accountable and to combat corruption. As discussed in section I(C)(2)
above, adverse action procedures make effectively addressing poor
performance, misconduct, or corruption very challenging. Federal
employees' modal response to what happens to poor performers in their
work unit is that they remain and continue to underperform. Surveys
show Federal supervisors widely lack confidence in their ability to
remove employees for poor performance or even serious misconduct. This
has led to situations like that at the FDIC, where agencies have not
taken necessary adverse actions against corrupt employees. This
undermines the morale of the majority of Federal employees who work
diligently.
Decades of experience with the CSRA have shown that chapter 43 and
75 procedures are difficult to use and often deter agencies from taking
necessary personnel actions. This directly undermines Merit Principle
Four, that employees should maintain high standards of integrity,
conduct, and concern for public interest. It also undermines Merit
Principle Six, that employees should be separated who cannot or will
not improve their performance to meet required standards.\224\ These
failures are especially problematic in policy-influencing positions,
which help shape the whole agency's activities. Enabling the President
to except policy-influencing positions from chapter 43 and 75
procedures will enable him to expeditiously remove insubordinate,
corrupt or underperforming employees.
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\224\ See 5 U.S.C. 2301(b).
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Third, and relatedly, OPM is proposing these amendments to
strengthen democracy and nonpartisanship in the civil service. Under
the CSRA Federal employees ``enjoy a de facto form of life tenure, akin
to that of Article III judges'' and some ``take full-throated advantage
of it.'' \225\ Section I(C)(2)(ii) discusses how adverse action
procedures enable career employees to inject partisanship into their
official duties, and how some career employees do so.
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\225\ Feds for Medical Freedom v. Biden, 63 F. 4th 366, 391 (5th
Cir. 2023) (Ho, J. concurring).
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Partisan career employees undermine the government's democratic
accountability to the American people. They can make it very difficult
for agencies to implement policies they personally oppose--no matter
what the voters chose. Exempting policy-influencing employees from
adverse action procedures is necessary to give the President and his
appointees the tools to ensure career employees actually perform their
duties in a nonpartisan manner. Under OPM's proposed regulations
agencies will be able to quickly separate Schedule Policy/Career
employees who inject ideology or partisanship into their official
duties instead of carrying out the elected President's policies. The
proposed changes will help ensure the civil service is nonpartisan in
fact as well as name.
The April 2024 final rule stated that concerns with poor
performance, misconduct, or partisan career employees could be
addressed through existing mechanisms, such as chapter 75 procedures or
escalating problems to agency leadership.\226\ Upon further review OPM
has concluded, for the reasons set forth in sections I(C)(2), that
these measures have proven insufficient, and the proposed regulations
are therefore necessary.
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\226\ 89 FR 24991.
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Fourth, OPM is proposing these regulations to support the new
President's management policies. Americans re-elected President Trump,
who has determined it is necessary to except policy-influencing career
employees from adverse action procedures. Indeed, he considered it so
important he signed Executive Order 14171 within hours of being sworn
in for his second term. Even if OPM were not independently persuaded
that these regulations were necessary (and it is), OPM would defer to
the President's judgement and propose these regulations to support the
President's management policies. The President is the official
constitutionally vested with the executive power and entrusted with the
duty to take care the law be faithfully executed. OPM regulations
should support the President's civil service policies.
Accordingly, OPM proposes the following changes to 5 CFR parts 432
and 752:
Part 432--Performance Based Reductions in Grade and Removal Actions
The CSRA allows OPM to regulatorily exclude excepted service
positions from chapter 43 performance-based removal procedures.\227\
OPM's 5 CFR part 432 regulations have long excluded Schedule C
positions as such from these requirements. The April 2024 final rule
amended 5 CFR 432.102(f)(10) to (1) formally exclude excepted service
employees whose positions have been determined to be policy-influencing
as defined by Sec. 210.102; (2) state that if OPM put such positions
in the excepted service they are Schedule C appointments; and (3)
eliminate the exception if the incumbent was involuntarily moved to an
excepted service position after accruing tenure.
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\227\ 5 U.S.C. 4301(2)(G).
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OPM is proposing to amend Sec. 432.102(f)(10) to remove the
reference to the Sec. 210.102 definition, remove the language
indicating policy-influencing positions excepted by OPM are necessarily
Schedule C positions, and remove the proviso regarding incumbents
involuntarily transferred.
These changes will bring the part 432 regulations into conformity
with the changes OPM proposes making to parts 210, 213, and 752. As
discussed above, OPM is proposing to remove the Sec. 210.102
definition. Retaining regulatory references to a non-existent
definition would make little sense. The civil service rules currently
provide for Schedule Policy/Career, and OPM is proposing to amend part
213 to reflect this, so it would be misleading to state that Schedule C
positions are the only policy-influencing positions in the excepted
service. Removing the exception for involuntary transfers also follows
OPM's proposed amendments to part 752 and ensures employees in Schedule
Policy/Career are treated consistently in chapters 43 and 75. The
proposed regulations clarify that agencies do not have to employ
chapter 43 procedures to remove employees in Schedule Policy/Career for
poor performance.
Part 752--Adverse Actions, Subpart B
OPM proposes to keep the changes the April 2024 final rule made to
CFR 752.201--namely to modify language in 5 CFR 752.201(b)(1) to
conform with the statutory language in 5 U.S.C. 7501. This proposed
change to 5 CFR 752.201(b)(1) conforms the regulatory language to the
decisions of the Federal Circuit in Van Wersch v. Department of Health
& Human Services, 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v.
Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002). OPM's
proposed revision to Sec. 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 has the
procedural rights provided under 5 U.S.C. 7503 if the individual has
completed one year of
[[Page 17204]]
current continuous employment in the same or similar position under
other than a temporary appointment limited to one year or less. OPM
believes aligning this regulatory language with the underlying
statutory authority will reduce confusion and promote adherence to case
law. OPM notes that retaining this language would have no impact
regarding employees moved into Schedule Policy/Career and, thus, would
not impede the purposes of or otherwise affect the implementation of
Executive Order 13957, as amended. OPM invites comments as to whether
it is appropriate to retain this amendment to part 752.
Part 752--Adverse Actions, Subpart D
Subpart D of part 752 implements subchapter II of chapter 75.
Subpart D applies to a removal, suspension for more than 14 days,
reduction in grade or pay, or furlough for 30 days or less. Section
7511(b)(2) of 5 U.S.C. excludes from subchapter II, and thus subpart D,
excepted service employees in policy-influencing positions. OPM is
proposing to revoke the changes the April 2024 final rule made to
subpart D. OPM is also proposing to clarify that employees reclassified
or transferred into policy-influencing positions are excluded from
subpart D. These changes are expected to increase policy-influencing
employees' accountability for their performance and conduct. This will
combat insubordination, corruption and underperformance while
strengthening nonpartisanship in the civil service.
Section 752.401 Coverage
Section 752.401 governs the scope of subpart D. Paragraph (c) lists
the positions subpart D covers and paragraph (d) lists positions it
excludes. In paragraph (c), the April 2024 final rule added employees
who are moved involuntarily into the excepted service and employees who
are moved involuntarily into a different schedule of the excepted
service and still occupies either that position or another position to
which the employee was moved involuntarily. These changes were intended
to extend the subpart to cover employees who were reclassified or
involuntarily transferred into a policy-influencing excepted position.
OPM is proposing to remove these phrases throughout paragraph (c). This
will clarify that employees do not remain covered by subpart D or
chapter 75 procedures if they or their positions are moved into
Schedules C or Policy/Career.
Paragraph (c)(7) extends subpart D to cover a competitive service
employee who had competitive status at the time the employee's position
was first listed involuntarily in the excepted service and who still
occupies either that position or another position to which the employee
was moved involuntarily. OPM proposes to modify this to apply to an
employee who was in the competitive service at the time the position
was first listed under only Schedule A or Schedule B of the excepted
service and who is still in that position. This proposed change
reflects the fact that, as explained above in section I(C)(3),
employees whose positions are reclassified into a policy-influencing
schedule do not retain chapter 75 adverse action procedures or MSPB
appeals. However, employees moved into non-policymaking positions
(i.e., Schedules A or B) are generally covered by these provisions.
The April 2024 final rule amended the Sec. 752.401(d)(2) exclusion
for policy-influencing employees to only cover positions that satisfy
the Sec. 210.102 definition of policy-influencing, namely political
appointments. The rule also inserted language throughout paragraph
(d)(2) providing that it does not cover positions if ``the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (c) of this section.'' OPM proposes to remove
both the reference to Sec. 210.102 and this language covering
involuntary moves. Paragraph (d)(2) would instead state that employees
in Schedules C or Policy/Career are exempted from subpart D's scope.
Additionally, OPM proposes to revise 5 CFR 752.401(c)(2)(ii)
pertaining to 10 U.S.C. 1599e, which provided for a 2-year probationary
period in the Department of Defense. This language has become obsolete
as section 1599e was repealed, effective December 31, 2022, by Public
Law 117-81, Section 1106(a)(1).
Section 752.405 Appeal and Grievance Rights.
Section 752.405 covers MSPB appeals of actions taken under subpart
D. OPM is proposing to amend Sec. 752.405(a) to add at the end
``Employees listed under Sec. 752.401(d) of this subpart may not
appeal to the Merit Systems Protection Board under this section,
irrespective of whether they or their positions were previously covered
by this subpart
[…truncated; see source link]Indexed from Federal Register on April 23, 2025.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.