Rule2026-02375
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
February 6, 2026
Effective
March 9, 2026
Issuing agencies
Personnel Management Office
Abstract
The Office of Personnel Management (OPM) is issuing a rule to increase career employee accountability. Agency supervisors report great difficulty removing employees for poor performance or misconduct. The final rule authorizes agencies to move policy-influencing positions 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 obstruct the democratic process by intentionally subverting Presidential directives. The rule requires agencies to establish internal policies protecting employees from prohibited personnel practices.
Full Text
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<title>Federal Register, Volume 91 Issue 25 (Friday, February 6, 2026)</title>
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[Federal Register Volume 91, Number 25 (Friday, February 6, 2026)]
[Rules and Regulations]
[Pages 5580-5657]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02375]
[[Page 5579]]
Vol. 91
Friday,
No. 25
February 6, 2026
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; Final Rule
Federal Register / Vol. 91 , No. 25 / Friday, February 6, 2026 /
Rules and Regulations
[[Page 5580]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432, 451, 537, 575, 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: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing a rule to
increase career employee accountability. Agency supervisors report
great difficulty removing employees for poor performance or misconduct.
The final rule authorizes agencies to move policy-influencing positions
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 obstruct the democratic process by
intentionally subverting Presidential directives. The rule requires
agencies to establish internal policies protecting employees from
prohibited personnel practices.
DATES: Effective March 9, 2026.
FOR FURTHER INFORMATION CONTACT: Noah Peters, Senior Advisor to the
Director, by email at <a href="/cdn-cgi/l/email-protection#caafa7baa6a5b3afafaba9a9a5bfa4beaba8a3a6a3beb38aa5baa7e4ada5bc"><span class="__cf_email__" data-cfemail="c5a0a8b5a9aabca0a0a4a6a6aab0abb1a4a7aca9acb1bc85aab5a8eba2aab3">[email protected]</span></a> or by phone at
(202) 606-293.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
OPM is issuing final regulations to strengthen employee
accountability and the democratic responsiveness of American
Government, while addressing longstanding performance management
challenges in the Federal workforce. The final rule amends OPM's
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 career positions of a
confidential, policy-determining, policy-making, or policy-advocating
character (policy-influencing \1\ positions), while clarifying that
Schedule C appointments are exclusively for noncareer (i.e., political)
appointments with confidential or policy responsibilities. The amended
regulations further clarify that employees filling excepted service
positions are in the excepted service, regardless of whether they
retain competitive status, and specifies increasing accountability to
the President as grounds for excepting positions from the competitive
service.
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\1\ Throughout this rulemaking OPM uses the term ``policy-
influencing'' as a shorthand descriptor of the broader statutory
language ``confidential, policy-determining, policy-making, or
policy-advocating.'' See 5 U.S.C. 7511(b)(2).
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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
moved 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 action appeals. Additionally, OPM
amends 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 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 final rule also amends 5 CFR
213.3301, 302.101, 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 Merit Systems Protection Board (MSPB)
appeals). The final rule also provides 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.
6. Amending 5 CFR part 537 to allow employees reassigned to
positions in Schedule Policy/Career to continue to receive student loan
repayment benefits under the terms of the applicable service agreement
unless eligibility is lost as described in 5 CFR 537.108.
7. Amending 5 CFR part 575 at subparts A, B, and C to allow
agencies to continue paying any outstanding recruitment, relocation, or
retention incentive under the terms of existing agreements for
positions moved into Schedule Policy/Career provided the employees are
otherwise fulfilling the terms of their service agreements. This final
rule also permits agencies to continue paying a retention incentive to
an employee who is not under a service agreement at the time when their
position is moved into Schedule Policy/Career.
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 this final rule.
II. Digest of Public Comments
In response to the proposed rule, OPM received 40,500 comments
during the 45-day public comment period from a variety of individuals
(including current and former civil servants, scientists, Nobel
laureates, and members of Congress) and organizations such as those
representing science and technology, national and local unions, and
Federal agencies. Of the 40,500 comments received, 35,551 were posted,
2 were withdrawn, and 7 were not posted because they contained threats
to the President and members of the Administration or contained
sensitive personally identifiable information from commenters. The
remaining 4,940 comments are attributed to individual commenters who
indicated on their
[[Page 5581]]
comment submission that their comment represented a specific number of
submissions. For example, one commenter stated that he and 7 other
people were part of a group of former Environmental Protection Agency
employees submitting a comment on behalf of all 8 people. In another
example, a commenter indicated that they are part of 2 organizations,
the Union League Club of Chicago and the League of Women Voters of
Chicago, and their comment represents 3,200 submissions. At the
conclusion of the public comment period, OPM reviewed and analyzed the
comments. In general, the comments ranged from ardent support of the
proposed regulation to categorical rejection of it. Approximately 5
percent of the overall comments were supportive, 1 percent neutral or
mixed, and 94 percent opposed the proposed regulation.
In the proposed rule, OPM invited comments on whether it is
appropriate to retain certain amendments to parts 302 and 752, as well
as input on the costs and benefits of this rule. OPM received a wide
variety of comments in response to the proposed rule and incorporated
them into the relevant sections that follow. OPM found the comments
helpful when explaining the purpose, scope, and impact on the Federal
workforce in drafting this final rule.
In the next section, we address the background for these regulatory
amendments and related comments. In subsequent sections, we address the
specific amendments, provide a regulatory analysis, and provide the
amended regulatory text. Note that OPM received several comments that
are not addressed below because they were beyond the scope of the
proposed regulatory changes or else were vague or incomplete.
III. Background and Related Comments
A. History of the Civil Service and Removal Restrictions
Critical to the success of any presidency is the ability to
implement an agenda endorsed by the American people free from
antidemocratic, unaccountable bureaucratic resistance. ``The
Constitution requires that a President chosen by the entire Nation
oversee the execution of the laws.'' \2\ In order to execute his
Article II duty to ensure that the laws are faithfully executed, the
vast expansion in the scope and complexity of Federal law has required
the President to delegate such authority to thousands of career civil
servants involved in policy formulation. Because in practice such
delegation involves hundreds of thousands of distinct statutory
provisions, it is extraordinarily difficult for the President--or
agency heads appointed by the President and confirmed by the Senate--to
ensure that all such delegations are being executed consistent with the
priorities of the President. It is therefore critical to create an
incentive architecture that will encourage and reward accurate
translation of such priorities.\3\
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\2\ Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S.
477, 499 (2010).
\3\ See id. at 498 (``the Framers sought to ensure that `those
who are employed in the execution of the law will be in their proper
situation, and the chain of dependence be preserved; the lowest
officers, the middle grade, and the highest, will depend, as they
ought, on the President, and the President on the community.' '')
(quoting 1 Annals of Cong., at 499 (J. Madison)).
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As explained in greater detail in the proposed rule, however, the
Federal service has matured to a point where the status quo removal
restrictions for policy-influencing positions have become harmful
overcorrections to fears of a return to the spoils system of the past.
Instead of protecting merit, these removal restrictions too often
undermine democratic accountability, entrench bureaucratic policy-
resistance, and frustrate the President's constitutional ability to
faithfully execute the law. As James Madison observed during the First
Congress, ``if any power whatsoever is in its nature Executive, it is
the power of appointing, overseeing, and controlling those who execute
the laws.'' \4\
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\4\ Id. at 492 (quoting 1 Annals of Cong. 463 (1789)).
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From the beginning of the earliest days of the American republic,
the appointment and removal of Federal officers flowed from the
authority vested in the President under Article II of the Constitution.
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 candidates 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.\5\
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\5\ Ronald N. Johnson & Gary D. Libecap, The Federal Civil
Service and the Problem of Bureaucracy: The Economics and Politics
of Institutional Change, 17 (University of Chicago Press, 1994),
<a href="https://www.nber.org/system/files/chapters/c8633/c8633.pdf">https://www.nber.org/system/files/chapters/c8633/c8633.pdf</a> (Johnson
& Libecap).
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Congress responded when it passed the Pendleton Civil Service Act
of 1883 (Pendleton Act) to begin the shift to a merit system by
requiring competitive examinations for covered positions and insulating
those jobs from purely political patronage. The Pendleton Act also
established the Civil Service Commission (CSC) to help implement and
enforce its requirements. While the Pendleton Act professionalized
hiring, early statutes and practice still left wide managerial latitude
over removals. The Pendleton Act also prohibited executive branch
officials from dismissing classified employees because they declined to
render political services, but otherwise such officials served at the
pleasure of the President. 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. 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.
The reformers who created the Pendleton Act made a conscious decision
to keep the civil service at-will. They saw little risk of patronage-
based dismissals as long as civil service hiring forbade rewarding
campaign supporters with new appointments.\6\
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\6\ See P.P. Van Riper, History of the United States Civil
Service, 101-03 (Row, Peterson & Co. 1958) (Van Riper).
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In 1912, Congress passed the Lloyd-La Follette Act of 1912.\7\
Among its provisions, the Lloyd-La Follette Act provided that employees
in the classified service (now known as the competitive service) could
only be removed ``for such cause as will promote the efficiency of
[the] service'', and must be given written notice of the reasons for
their proposed dismissal and an opportunity to respond.\8\ Among its
provisions, the Lloyd-La Follette Act further mandated that ``no
examination of witnesses nor any trial or hearing shall be required
except in the discretion of the officer making the removal.'' \9\ The
next year the CSC explained its policy governing civil service
dismissals, delimiting the ability of agencies to remove employees as
freely as possible with only the limits
[[Page 5582]]
necessary to ensure the proper exercise of this authority.\10\ The
Lloyd-La Follette Act's policy, according to the CSC, was intended to
``prevent removals upon secret charges and to stop political pressure
for removals.'' \11\ The Lloyd-La Follette Act and its predecessor
executive orders did not give classified civil service employees tenure
or the ability to appeal removals. They instead imposed procedural
requirements to ensure dismissals were not pretextual and to prevent
political or religiously motivated removals. Agencies remained the sole
judge of employee conduct and performance.
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\7\ 37 Stat. 555 (1912).
\8\ Id.
\9\ Id.
\10\ U.S. Civil Service Commission, Twenty-Ninth Annual Report,
21-22 (1913).
\11\ Id. at 22.
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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.\12\ It also provided that
veterans--including those in the excepted service--could be dismissed
only to promote the efficiency of the service, and it allowed veterans
to appeal adverse actions to the CSC.\13\ In 1948, Congress amended the
law to make the outcomes of CSC appeals binding on agencies.\14\ These
amendments gave preference-eligible veterans the ability to appeal
removals outside their agency.
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\12\ Public Law 78-359, 58 Stat. 387 (1944).
\13\ Id. at 390.
\14\ Public Law 80-741, 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.\15\ A significant precedent was
established in 1954 when the D.C. Circuit Court of Appeals decided Roth
v. Brownell.\16\ As noted in the decision, 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.'' \17\ The D.C. Circuit construed
this language to require agencies to follow Lloyd-La Follette
procedures to take employees out of the competitive service--whether
through a discharge or through moving the position into the excepted
service.\18\ 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, 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.\19\ Consequently, while the Lloyd-La Follette Act and
VPA 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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\15\ See Gerald E. Frug, ``Does the Constitution Prevent the
Discharge of Civil Service Employees,'' 124 U. Pa. L. Rev. 942, 970,
n.134, (1976) (Frug). <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>.
\16\ 215 F.2d 500 (D.C. Cir. 1954) (Roth), cert. denied, 348
U.S. 863 (1954).
\17\ Id. at 501 (quoting 37 Stat. 555 (1912), as amended, 62
Stat. 354 (1948)).
\18\ Id. at 502.
\19\ 321 F.2d 749, 751-53 (D.C. Cir. 1963).
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In the years leading up to the establishment of the current civil
service system, the Supreme Court ruled in Arnett v. Kennedy 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.\20\
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\20\ 416 U.S. 134, 163 (1974).
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Congress legislated against this backdrop when it passed the Civil
Service Reform Act of 1978 (CSRA).\21\ 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.\22\ The CSRA maintained prohibitions on
patronage and restricted agencies' ability to take adverse actions in
some respects. For example, the CSRA gave non-preference eligible
employees in the competitive service the same right to appeal long-term
suspensions and demotions that preference eligible employees
possessed.\23\ The CSRA also expanded preference-eligible employees'
ability to appeal suspensions by authorizing appeals of suspensions of
more than 14 days, rather than those exceeding 30 days.\24\
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\21\ Public Law 95-454, 92 Stat. 1111 (1978).
\22\ Id.
\23\ Compare 5 U.S.C. 7511 (1978) with 80 Stat. 528, Public Law
89-554 (1966).
\24\ Compare 5 U.S.C. 7512 with 80 Stat. 528, Public Law 89-544
(1966).
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In other ways, the CSRA made taking adverse actions easier. It
prevented Federal employees from directly challenging removals in
Federal district court. The CSRA instead channeled adverse action
appeals to the MSPB \25\ and subsequent legislation vested judicial
review in the Federal Circuit Court of Appeals.\26\ 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. Notably, the CSRA thus removed
from Federal law the language the D.C. Circuit interpreted in Roth. The
CSRA also categorically excluded excepted service employees in policy-
influencing positions from adverse action procedures.\27\
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\25\ See 5 U.S.C. 7701; Public Law 95-454, 92 Stat. 1111 (1978).
\26\ See 5 U.S.C. 7703(b)(1)(A); Public Law 97-164, 96 Stat. 25
(1982).
\27\ 5 U.S.C. 7511(b)(2).
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In an important decision after the enactment of the CSRA, the
Supreme Court held in United States v. Fausto that employees
statutorily excluded from chapter 75 could not contest removals in
Federal district court.\28\ 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.\29\ Shortly thereafter, Congress passed the Civil Service
Due Process Amendments Act of 1990 (DPAA).\30\ 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.\31\ At the same time, Congress retained the
exclusion from chapter 75 procedures for excepted service employees in
policy-influencing positions.\32\
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\28\ 484 U.S. 439, 454-55 (1988) (Fausto). Commenter 34947
asserts the proposed rule misreads Fausto as applying to
constitutional claims when it only addresses statutory claims.
However, the proposed rule did no such thing. See 90 FR 17186 &
17217 (citing to Fausto for the proposition that Federal employees
cannot contest removals in district court because the CSRA is the
exclusive remedial statutory framework for adverse action appeals
and judicial review).
\29\ Fausto, 484 U.S. at 455.
\30\ Public Law 101-376, 104 Stat. 461 (1990).
\31\ Id.
\32\ 5 U.S.C. 7511(b)(2).
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A large number of commenters argued that classifying career
positions as policy-influencing and exempt from adverse action
procedures violates the Pendleton Act, the Lloyd-La Follette Act and/or
the CSRA. These arguments misunderstand the law.
[[Page 5583]]
The Pendleton Act did not provide tenure protection for Federal
employees. The proponents of the Act were primarily concerned with
establishing merit as the basis for civil service appointments. The
most significant aspect of the Pendleton Act was to provide for
examinations (i.e., tests) for Federal employment. The idea was that
people who did very well on these tests would likely make the most
competent employees.
Tenure protection for Federal employees, especially for non-
veterans, is a relatively recent phenomenon that had no place under the
Pendleton Act. As discussed above, the Lloyd-La Follette Act did not
require external review of adverse actions, and it expressly provided
that trial-like proceedings were not required to effectuate dismissals.
It was not until 1944 that the VPA provided any type of third-party
review of adverse actions, and only for veterans. Although the
Congressional record on this provision is sparse, it appears to have
been motivated by concerns that agencies would formally honor veteran
preference in hiring only to pretextually dismiss veterans after the
fact.\33\ It was not until the 1970s that full third-party review by
the CSC was afforded to non-veteran employees facing adverse actions.
Until then employees without veteran preference had no right to appeal
their removal outside their agency. A number of commenters have
mischaracterized the Pendleton Act as standing for something it never
addressed--due process. The Pendleton Act, as innovative as it was, was
concerned only with merit-based hiring, i.e., examining potential
candidates for Federal employment on the basis of objective
examinations instead of patronage appointments. Attempts to
characterize the Pendleton Act as encompassing notions of procedural
rights introduced only in the late 20th century thus are historically
inaccurate. Instead, the current system with multiple avenues of appeal
for employees seeking to challenge adverse actions involving
substandard or lackluster performance as well as overt misconduct only
arose in the 1970s.
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\33\ See Frug, 124 U. Pa. L. Rev. at 959-60; see also S. Rep.
No. 78-907, at 2 (1944). ``The committee recognizes the necessity of
assuring that those who have left civil employment to serve in the
armed forces during this war shall not, upon their return, be
penalized by displacement or loss of opportunity due to the presence
of wartime emergency employees.''
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Furthermore, nothing in this final rule interferes with merit as a
basis for appointment into the competitive service nor as a basis for
appointment into Schedule Policy/Career. Appointments to Schedule
Policy/Career positions that were previously in the competitive service
will continue to be made using merit-based competitive hiring
procedures. In addition, the CSRA, which subsequently replaced some
provisions of the Pendleton Act, includes specific language exempting
from the procedural protections associated with the competitive civil
service those positions that are of a policy-influencing character.\34\
This rule will principally affect removal procedures for employees in
policy-influencing positions whose performance or conduct is judged to
be deficient. The vast majority of those appointed under Schedule
Policy/Career will thus experience no change in their employment
characteristics or conditions and retain protections against prohibited
personnel practices including retaliation against whistleblowing
(PPPs).
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\34\ 5 U.S.C. 7511(b)(2).
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Many commenters also asserted that Schedule Policy/Career dismissal
procedures violate the Lloyd-La Follette Act, requiring certain
procedural notice before removal of an employee can be effected.
Although the Lloyd-La Follette Act was superseded by the CSRA, the CSRA
contains procedural requirements applying to adverse actions and
generally provides for appeals of adverse actions, including
dismissals, to the MSPB. In a similar fashion, the DPAA extended the
rights of non-preference eligibles to receive pre-termination notice
and also to appeal adverse decisions to the MSPB. As highlighted in the
preamble to the proposed rule, both the CSRA and the DPAA authorize OPM
and the President to exempt employees in policy-influencing positions
from access to chapter 75 adverse action procedures and appeals. Thus,
this rule maintains harmony with both the CSRA and the DPAA, as it
utilizes a longstanding express statutory exemption.
B. Executive Orders 13957, 14003, 14171, and the Prior OPM Rulemaking
President Donald Trump issued Executive Order (E.O.) 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, as applicable,
have determined are policy-influencing.\35\ Prior administrations had
applied this exemption only to political appointments, principally
positions in Schedule C of the excepted service.\36\ E.O. 13957 created
a new Schedule F (following the pre-existing schedules A through E) for
career employees in policy-influencing positions.\37\
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\35\ 5 U.S.C. 7511(b)(2).
\36\ 5 CFR 6.2 (2024).
\37\ E.O. 13957, 85 FR 67631, 67633 (Oct. 26, 2020).
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Schedule F applied to policy-influencing positions ``not normally
subject to change as a result of a Presidential transition.'' \38\ E.O.
13957 established a process for agencies to review their workforce,
identify such policy-influencing career positions, and ask OPM to move
them into Schedule F.\39\ 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.\40\ 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, consequently,
MSPB appeal rights.
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\38\ Id.
\39\ Id.
\40\ Id. at 67633-67634.
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At the same time, Schedule F positions remained career jobs filled
based on merit, not political connections. Any position filled with the
involvement of the White House Office of Presidential Personnel could
not be placed into Schedule F.\41\ E.O. 13957 also prohibited hiring or
firing Schedule F employees based on their political affiliation or for
other discriminatory reasons or retaliation against whistleblowers. It
further required agencies to establish internal procedures to ensure
compliance with this non-discrimination directive.\42\ E.O. 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.
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\41\ Id. at 67632.
\42\ Id. at 67634.
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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. E.O. 13957 explained that poor performance in
policy-influencing positions is especially problematic, as it can
affect the performance of the entire agency.\43\ E.O. 13957 also
explained that competitive hiring procedures do not provide enough
flexibility to select applicants with the necessary intangible
qualities for these important positions,
[[Page 5584]]
such as sound judgment, acumen, or impartiality.\44\
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\43\ Id. at 67631-32.
\44\ Id.
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Schedule F also came in the context of widespread reports of career
staff resistance to Trump Administration policies.\45\ 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.\46\
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\45\ See, e.g., Juliet Eilperin et al., 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>.
\46\ U.S. Gov't Accountability Off., GAO-22-105504, Civil
Service: Agency Responses and Perspectives on Former Executive Order
to Create a New Schedule F Category for Federal Positions, at 10
(Sept. 2022) (2022 GAO Report), <a href="https://www.gao.gov/assets/gao-22-105504.pdf">https://www.gao.gov/assets/gao-22-105504.pdf</a>.
---------------------------------------------------------------------------
Shortly after taking office, President Biden issued E.O. 14003
revoking E.O. 13957 and abolishing Schedule F.\47\ E.O. 14003 described
Schedule F as ``undermin[ing] the foundations of the civil service and
its merit system principles, which were essential to the [Pendleton
Act's] repudiation of the spoils system,'' and asserted that the repeal
of E.O. 13957, among other executive orders, was necessary to ``rebuild
the career Federal workforce.'' \48\
---------------------------------------------------------------------------
\47\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021).
\48\ Id. at 7231-32.
---------------------------------------------------------------------------
E.O. 14003's reasoning ignored the fact that Schedule F gave
employees stronger removal protections than the Pendleton Act did. 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 forbids taking any personnel
actions prohibited by 5 U.S.C. 2302(b),\49\ which includes actions
based on protected characteristics (such as race, sex, or religion),
political affiliation, or retaliation against whistleblowers.\50\
Section 6 further directs agencies to incorporate these prohibitions
into their internal policies.\51\ E.O. 14003 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.\52\
---------------------------------------------------------------------------
\49\ E.O. 13957, 85 FR at 67634.
\50\ See 5 U.S.C. 2302(b).
\51\ Supra n. 49.
\52\ U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees.
Inspiring Change 11 (2020), <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>.
---------------------------------------------------------------------------
Commenter 11329 noted that the FEVS showed that employee job
satisfaction was higher with their direct supervisor than senior
leadership.\53\ However, this does not rebut the fact that the FEVS
demonstrated that overall job satisfaction reached 72 percent in 2020,
the highest level FEVS ever recorded. Based on their survey responses,
Federal employees did not feel their workforces needed rebuilding.\54\
---------------------------------------------------------------------------
\53\ See id. at 10-11.
\54\ In addition, the notion that the career civil service
needed to be ``rebuilt'' because of E.O. 13957 was clear hyperbole,
as no positions were ever moved into Schedule F. See 2022 GAO Report
at 10.
---------------------------------------------------------------------------
During the Biden Administration, OPM proposed, and in April 2024
finalized, new regulations related to E.O. 14003.\55\ The April 2024
final regulations had three principal components. First, OPM used
Presidential authority delegated under 5 U.S.C. 3301 and 3302 and E.O.
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.
---------------------------------------------------------------------------
\55\ Upholding Civil Service Protections and Merit System
Principles, 89 FR 24982 (April 9, 2024) (Upholding Civil Service
Protections).
---------------------------------------------------------------------------
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
to 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 the
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
moved 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.\56\ The final rule candidly acknowledged disagreement with E.O.
13957 but explained that ``OPM does not and cannot prevent a President
from creating excepted service schedules or from moving employees.''
\57\
---------------------------------------------------------------------------
\56\ 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.
\57\ See Upholding Civil Service Protections, 89 FR at 25009.
---------------------------------------------------------------------------
During the 2024 election cycle President Trump announced plans to
reissue E.O. 13957 if re-elected.\58\ Donald Trump won the 2024
Presidential election and promptly fulfilled this commitment, issuing
E.O. 14171 on January 20, 2025.\59\ The new order reinstated E.O.
13957, while amending it in several ways.\60\ The order redesignates
``Schedule F'' as ``Schedule Policy/Career.'' \61\ 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 E.O. emphasizes that patronage
remains prohibited by defining Schedule Policy/Career to only cover
``career positions.'' \62\ The E.O. also expressly describes what is
and is not required of Schedule Policy/Career employees: ``Schedule
Policy/Career [employees] are not required to personally or politically
support the current President or the policies of the current
administration. However, Schedule Policy/Career employees 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.'' \63\
---------------------------------------------------------------------------
\58\ See, e.g., Donald J. Trump, President Trump's Plan to
Dismantle the Deep State and Return Power to the American People
(Mar. 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>.
\59\ See E.O. 14171, 90 FR 8625 (Jan. 31, 2025).
\60\ See id. at 8625-26.
\61\ Id. at 8625.
\62\ See id. at 8625-26.
\63\ Id. at 8626.
---------------------------------------------------------------------------
E.O. 14171 also requires OPM to apply Civil Service Rule 6.3(a) to
Schedule Policy/Career positions.\64\ This rule authorizes OPM to
prescribe
[[Page 5585]]
by regulation conditions under which excepted positions may be filled
in the same manner as competitive service positions are filled and
conditions under which persons so appointed may acquire competitive
status in accordance with the Civil Service Rules and Regulations.\65\
E.O. 14171 thus requires OPM to establish merit-based hiring procedures
for Schedule Policy/Career positions.
---------------------------------------------------------------------------
\64\ See id. at 8625.
\65\ 5 CFR 6.3(a).
---------------------------------------------------------------------------
E.O. 14171 also overrode significant parts of the April 2024 final
rule. That rule used delegated Presidential authority under 5 U.S.C.
3301 and 3302 to amend parts 210 and 302 of the Civil Service
Regulations. President Trump used his executive authority to directly
render those amendments inoperative. E.O. 14171 now requires that OPM
rescind the amendments made by the April 2024 final rule.\66\ E.O.
14171 further 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.'' \67\ 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 \68\ and its procedural
requirements for moving employees into such policy-influencing
positions \69\ are no longer in effect.
---------------------------------------------------------------------------
\66\ See E.O. 14171, 90 FR at 8626.
\67\ Id.
\68\ See Upholding Civil Service Protections, 89 FR at 25045.
\69\ See id. at 25046-47.
---------------------------------------------------------------------------
In a structural difference with the original E.O. 13957, the
President--not OPM--will now move positions into Schedule Policy/
Career. Pursuant to E.O. 14171, agencies will assess their workforces
and petition OPM to recommend that the President move specific
positions into Schedule Policy/Career.\70\ OPM will review these
petitions and make the recommendations it deems appropriate.\71\
However, the President will make the final decision about which
positions go into Schedule Policy/Career.\72\ That decision will be
effectuated by a new executive order issued under Presidential--not
OPM--authority.
---------------------------------------------------------------------------
\70\ See E.O. 13957, 85 FR at 67633-34; E.O. 14171, 90 FR at
8625-26.
\71\ See id.
\72\ See id.
---------------------------------------------------------------------------
E.O. 14171 provided additional guideposts for agencies when
assessing which positions may belong in Schedule Policy/Career. These
guideposts include considering both immediate and higher-level
supervisors of employees in Schedule Policy/Career for inclusion in
Schedule Policy/Career.\73\ 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. E.O. 14171
further requires agencies to consider positions with duties that the
OPM Director indicates may be appropriate for inclusion in Schedule
Policy/Career.\74\ OPM later issued guidance about types of positions
agencies should consider in their Schedule Policy/Career reviews.\75\
---------------------------------------------------------------------------
\73\ See id.
\74\ See id.
\75\ U.S. Off. of Pers. Mgmt., Guidance on Implementing
President Trump's Executive Order titled, ``Restoring Accountability
To Policy-Influencing Positions Within the Federal Workforce, (Jan.
27, 2025), <a href="https://www.opm.gov/chcoc/latest-memos/guidance-on-implementing-president-trump-s-executive-order-titled-restoring-accountability-to-policy-influencing-positions-within-the-federal-workforce.pdf">https://www.opm.gov/chcoc/latest-memos/guidance-on-implementing-president-trump-s-executive-order-titled-restoring-accountability-to-policy-influencing-positions-within-the-federal-workforce.pdf</a> (January 2025 Memorandum).
---------------------------------------------------------------------------
President Trump also explained why he issued this order. E.O. 14171
cited MSPB research showing only 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.\76\ The order explained that: ``[a]ccountability 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.'' \77\ As discussed below, however, there have been
recent, numerous, and well-documented cases of career Federal employees
resisting and undermining the policies and directives of their
executive leadership.
---------------------------------------------------------------------------
\76\ See E.O. 14171, 90 FR at 8625; see also Merit Sys. Prot.
Bd., Remedying Unacceptable Employee Performance in the Federal
Civil Service at 15 (June 18, 2019) (Remedying Unacceptable Employee
Performance), <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>.
\77\ E.O. 14171, 90 FR at 8625.
---------------------------------------------------------------------------
C. Reasons for New Rulemaking
1. Change in Administration Policy and Operative Legal Standards
Through this rulemaking, OPM is now finalizing 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 positions will generally be
filled using merit-based competitive hiring procedures, with exceptions
only for those positions currently filled using excepted hiring
procedures. Individuals appointed or reassigned to Schedule Policy/
Career positions will be excepted from chapter 43 and 75 procedures for
performance-based and adverse actions. They will be exempt from
statutory PPP coverage under 5 U.S.C. 2302(b) as policy-influencing
positions are not covered positions under 5 U.S.C. 2032(a). However,
E.O. 13957 is explicit that agencies must establish and enforce
internal policies barring PPPs including whistleblower reprisal.
Consequently, Schedule Policy/Career employees will remain career
employees, while subject to elevated levels of accountability for their
performance and conduct. For the reasons explained in greater detail in
the proposed rule, OPM is proceeding with these changes to ensure
accountability of the Federal career workforce charged by the President
to deliver on the bold policy agenda endorsed by the American voters,
as well as to bring the civil service regulations into conformity with
operative legal requirements.
2. Needed To Address Factors Inadequately Considered in Prior
Rulemaking
OPM also now realizes 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
this final rule.
i. Adverse Action Procedures Make Addressing Poor Performance,
Misconduct, and Corruption Challenging
Chapter 75 requires that most agencies follow specific procedures
to take adverse actions against employees for misconduct or poor
performance. Chapter 43 sets out procedures for actions based on
unacceptable performance (i.e., performance-based actions). However,
decades of experience have demonstrated that the procedures described
in chapters 43 and 75 are inadequate to allow agencies to hold
employees accountable for poor performance, misconduct, or corruption.
The substantial evidence documented in the proposed rule and this
final rule demonstrate the extent to which existing authorities leave
agencies unable to effectively address poor performance, misconduct,
and corruption. Moreover, the April 2024 final rule imposed additional
procedural hurdles that would delay or prevent agencies from
effectively addressing these issues.
[[Page 5586]]
The proposed rule cited a wide range of data demonstrating the need
for these reforms. Nevertheless, several commenters have argued against
OPM's reliance upon this data. Commenters such as 1443, 2869, 14463,
16846, 26624, 27012, 28185, 28202, 28619, 32647, 34522, 35520, and
others, claim that the proposed rule's citation to research published
by the MSPB in 2016 and 2019 do not support the establishment of
Schedule Policy/Career. Commenter 14463 asserts that the MSPB research
is not based on objective facts nor suggests that political resistance
is a problem. Commenters 19698, 30984, 35478, and 35520 criticize the
research as not relevant to the class of employees who will be
reassigned or hired into Schedule Policy/Career.
OPM notes, however, that these Commenters do not dispute the MSPB's
findings that establish that supervisors believe they lack the ability
to effectively address poor performance and misconduct, or that few
employees believe their agencies address poor performers effectively.
Although the research does not discuss establishing Schedule Policy/
Career to address these issues amongst senior career professionals,
conversely the research does not recommend against doing so.
Additionally, FEVS data published after this research and cited in the
proposed and final rules indicate that these problems of employee
accountability continue. In fact, Commenters 8029's and 14463's
highlighting of other factors further supports this final rule as the
removal of statutory adverse action procedures lessens the reliance on
human resources processes and reduces leadership adversity to
litigation, both driven by performance-based and adverse action
procedures. OPM relies on the MSPB research to support the proposition
that agencies continue to face substantive problems with poor
performance and misconduct. This final rule establishes reforms
consistent with the problems identified in MSPB's research and FEVS
data that shows agencies face a lingering problem with addressing poor
performance and misconduct.
Commenter 30426 claims that OPM failed to demonstrate that FEVS
data shows that only a minority of employees believe that agencies
appropriately deal with poor performers. This claim is puzzling. OPM
cited to FEVS data in the proposed rulemaking showing a historical
range of between 25 and 42 percent of Federal employees believe steps
are taken to deal with a poor performer in their work unit who cannot
or will not improve.\78\ This is supported by the historical FEVS data
available to the public on OPM's website.\79\ OPM explained that
employees are able to directly observe whether their agencies remove
poorly performing employees or if they stay in their work unit and
continue to underperform. This is a logical basis to reject the
conclusion that employees do not know what steps their agencies are
taking to address poor performance. They may not see intermediate
steps, but they see the end result.
---------------------------------------------------------------------------
\78\ 90 FR 17182, 17189 (Apr. 23, 2025). We note, as Commenter
27647 pointed out, that the reference for the FEVS data was missing
from the proposed rule. To remedy this, we provide the citation
here, which was also provided in a subsequent footnote in the
proposed rule. See U.S. Off. of Pers. Mgmt., 2020 FEVS at 24,
<a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwidemanagement-report/2020/2020-governmentwidemanagement-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwidemanagement-report/2020/2020-governmentwidemanagement-report.pdf</a>.
\79\ See, e.g., U.S. Off. of Pers. Mgmt., FEVS Results:
Employees Influencing Change at 29 (2015), <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report</a>; U.S. Off. of Pers. Mgmt., FEVS: Empowering
Employees. Inspiring Change at 24 (2020), <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., FEVS: Empowering
Employees. Inspiring Change at 15 (2021), <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf</a>.
---------------------------------------------------------------------------
Commenters 29987 and 30426 also argue that OPM's data does not show
whether poor performance is actually widespread, or if it merely
represents a large number of employees reporting the same few
individuals. Commenter 30426 also criticizes the fact that OPM cites
some sources dating to the mid-2000s and mid-2010s. Commenters 0085,
3728, 6205, 7795, 14463, 29987, 35520, and others, take issue with
OPM's reliance upon existing data, describing it, variously, as
``incomplete,'' lacking ``context,'' as not actually documenting
widespread lack of accountability or poor performance, or as a
``gotcha'' designed to stifle opposition to the proposed rule.
Commenters 0210, 3326, 2764, 16846, 18811, 27647, 29923, 30317, 31210,
34881, and 35446 assert--without evidence--that the instances cited in
the proposed rule do not substantiate widespread claims of poor
performance. The proposed rule provided numerous examples, case
studies, surveys, and academic articles discussing poor performance in
the Federal Government.\80\ OPM notes that the FEVS ask employees about
what happens to poor performers ``in [their] work unit'' \81\--
generally smaller groupings of employees--which makes it unlikely the
widespread negative responses represent just a few individuals across
the entire agency. At a minimum, employees in a significant number of
work units are reporting the presence of at least one poor performer.
Furthermore, these commenters fail to provide evidence that poor
performance is not widespread or that the number of poor performers is
limited to a few individuals. OPM also takes note of Commenter 29987's
concession that, in the experience of the former EPA officials who
volunteer for Commenter's organization, performance-based actions are
not easily proven or quickly effectuated, and are not infrequently
challenged successfully.\82\ OPM takes this admission against interest
as evidence that even many Federal officials who oppose this rule
recognize that performance-based actions are difficult to undertake.
---------------------------------------------------------------------------
\80\ 90 FR at 17189-91.
\81\ See, e.g., U.S. Off. of Pers. Mgmt., FEVS Results:
Employees Influencing Change at 29 (2015), <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report</a>; U.S. Off. of Pers. Mgmt., FEVS: Empowering
Employees. Inspiring Change at 24 (2020), <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., FEVS: Empowering
Employees. Inspiring Change at 15 (2021), <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf</a>.
\82\ Comment 29987 at 11, 18 (``In the decades of experience of
EPN volunteers, many of whom were managers at EPA, disciplinary
actions for misconduct, unlike performance-based disciplinary
actions, are easily proven, quickly effectuated, and seldom
challenged successfully.'') (emphasis added).
---------------------------------------------------------------------------
Additionally, many agencies during the comment period reported to
OPM that adverse action procedures make it very difficult for them to
remove poor performers, and this is a significant problem.\83\ OPM
credits these comments. Agencies know what is occurring in their
workforces and are often best positioned to evaluate challenges
impacting them. The Department of Health and Human Services (HHS), for
example, reported that it terminated 5, 4, and 7 career tenured
employees for poor performance out of an employee population of 90,000
in fiscal years 2022, 2023, and 2024, respectively.\84\ This happened
despite the 2024 FEVS survey showing less than a quarter of HHS
employees believe there are no
[[Page 5587]]
poor performers in their work unit, while 30 percent reported poor
performers exist in their unit, and typically remain on the job and
continue to underperform, rather than being removed.\85\ This is
strong, contemporaneous evidence that the Government has a serious
performance management problem. It is not credible to anyone--including
HHS employees--that just one in 10,000 HHS employees is a poor
performer. Nonetheless, HHS performance-based dismissals still number
in the single digits.
---------------------------------------------------------------------------
\83\ See, e.g., Comments 29917 and 31998 (HHS), 35535
(Department of Labor), and 35549 (Department of Veterans Affairs).
\84\ Comments 29917, 31998.
\85\ U.S. Off. of Pers. Mgmt., 2024 Office of Personnel
Management FEVS: Report by Agency (2024), at Tables Q16_2 & Q16_5,
<a href="https://www.opm.gov/fevs/reports/data-reports/data-reports/report-by-agency/2024/2024-agency-report-excel.xlsx">https://www.opm.gov/fevs/reports/data-reports/data-reports/report-by-agency/2024/2024-agency-report-excel.xlsx</a>.
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Finally, Commenters 27467, 30055, and 30426's criticism of OPM
citing data from 2003 and 2014 is without merit. Specifically, the
proposed rule noted that the National Commission on Public Service
concluded that: ``[f]ederal employees themselves are unhappy with the
conditions they face. . . . They resent the protections provided to
those poor performers among them who impede their own work and drag
down the reputation of all government workers.'' \86\ Employee
accountability procedures have not fundamentally changed in the
interim--employees operate under the same adverse action procedures as
one and two decades ago. This data, together with the FEVS data,
supports the conclusion that accountability of the workforce is a
longstanding problem, as stated in the proposed rulemaking.
---------------------------------------------------------------------------
\86\ 90 FR at 17189 (quoting The Nat'l Comm'n on Pub. Serv.,
Urgent Business for America: Revitalizing the Federal Government for
the 21st Century at 12 (Jan. 2003), <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>).
---------------------------------------------------------------------------
Commenters 14463, 27647, and 30426 also object to OPM citing news
reports and academic research discussing surveys of Federal employees
and managers without providing the actual data used by the news sources
or researchers supporting their publications. In the proposed rule, OPM
cited to a news article appearing in Government Executive from the mid-
2010s, discussing a poll the outlet's research arm had commissioned.
OPM also cited and linked to an academic survey of Senior Executive
Service (SES) members conducted by researchers affiliated with
Vanderbilt and Princeton Universities, that provided the precise survey
questions, sample size, and margin of error data. Notwithstanding these
Commenters' arguments, OPM is not required to obtain the raw microdata
underlying academic studies or publicly reported polls to take note of
them in a rulemaking. Commenter 27647 complained of inability to access
the source cited in footnote 103 despite it being readily available
through online retailers such as Amazon.
Commenters 8029, 14463, 19791, 28481, 30426, and 35478 argue that
none of the sources OPM cites provide logical support for the changes
under the proposed rule. Commenter 8029 takes issue with OPM's
interpretation of the research, suggesting that there are other
problems such as lack of management support and poor human resources
staffing that contribute to the problems of poor performance and
misconduct. Commenter 14463 points out that a Department of Homeland
Security (DHS) report from June 17, 2019, points to DHS' failure to
properly resource, design, and oversee the Department's disciplinary
program. Commenters 19698, 30984, 35478, and 35520 criticize the
research as not relevant to the class of employees who will be
reassigned or hired into Schedule Policy/Career.
Instead, these Commenters argue that better processes, more
flexible personnel systems, more leadership support, and more training
for managers on how to use the existing performance management system
would better address poor performance and misconduct. Similarly,
referring to the documented instances of sexual harassment at the
Federal Deposit Insurance Corporation (FDIC), Commenters 29374 and
32793 argue that it would be more effective to change the culture of
the organization using existing accountability tools, rather than
promulgating a new rule to implement Schedule Policy/Career.
Despite the commenters' beliefs, evidence showing the Federal
performance management system is dysfunctional and prevents agencies
from effectively addressing poor performance is legion. Federal
employees have, for decades, responded to Federal surveys that their
agencies do not effectively address poor performers. During the
proposed rule's comment period, OPM received comments from Federal
employees complaining that agencies rarely address poor performance.
For example, OPM received comments from Federal employees and others
complaining about other Federal employees ``retiring in place'' and
continuing to draw a paycheck despite doing little work, noting that
agencies do not remove these employees and that this inaction is
demoralizing to employees who want to do well.\87\ This phenomenon is
supported by OPM's FEVS survey data, which reflects that many
supervisors report they do not believe they could remove poor
performers. Agencies, too, told OPM that performance management is a
serious problem and provided data to support their concerns.
---------------------------------------------------------------------------
\87\ See, e.g., Comments 1734 and 5335.
---------------------------------------------------------------------------
Numerous reports spanning many decades \88\ have recommended other
options like ``better training managers on how to use performance
management systems,'' but all such initiatives have had little impact--
predictably so, given the burden and complexity of the current chapter
75 and 43 removal procedures, which often involve multiple layers of
appeals.\89\ Commenter 30165 states that the cited cases are
``primarily of issues other than policy execution or of serious
misconduct,'' and ``not of employees failing to execute agency
priorities.'' The cited problems,
[[Page 5588]]
however, have been longstanding and consistent. OPM believes Schedule
Policy/Career would be more effective in addressing these performance
management challenges in policy-influencing positions than doubling
down on prior practices that have not succeeded. Further, agencies have
told OPM they believe the rulemaking would be beneficial and help them
manage affected employees more effectively, including holding them
accountable for poor performance. OPM credits agency experience and
expertise, as well as the fact that this reform addresses a major
driver of the difficulty in removing poor performers.
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\88\ Remedying Unacceptable Employee Performance, <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>.; MSPB, Addressing Misconduct in the Federal Civil
Service: Management Perspectives (Dec. 2016), <a href="https://mspbpublic.azurewebsites.net/studies/researchbriefs/Addressing_Misconduct_in_the_Federal_Civil_Service_Management_Perspectives_1363799.pdf">https://mspbpublic.azurewebsites.net/studies/researchbriefs/Addressing_Misconduct_in_the_Federal_Civil_Service_Management_Perspectives_1363799.pdf</a>; MSPB, Addressing Poor Performers and the Law
(Sept. 2009), <a href="https://mspbpublic.azurewebsites.net/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf">https://mspbpublic.azurewebsites.net/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf</a>; MSPB, Removing
Poor Performers in the Federal Service (Sept. 1995), <a href="https://mspbpublic.azurewebsites.net/studies/studies/Removing_Poor_Performers_in_the_Federal_Service_Issue_Paper_September_1995_253662.pdf">https://mspbpublic.azurewebsites.net/studies/studies/Removing_Poor_Performers_in_the_Federal_Service_Issue_Paper_September_1995_253662.pdf</a>; MSPB, The Changing Federal Workplace: Employee
Perspectives (1996), <a href="https://mspbpublic.azurewebsites.net/studies/studies/The_Changing_Federal_Workplace_Employee_Perspectives_253655.pdf">https://mspbpublic.azurewebsites.net/studies/studies/The_Changing_Federal_Workplace_Employee_Perspectives_253655.pdf</a>;
MSPB, The Federal Workforce for the 21st Century: Results of the
Merit Principles Survey at ix (Sept. 2003), <a href="https://mspbpublic.azurewebsites.net/studies/studies/The_Federal_Workforce_for_the_21st_Century_Results_of_the_Merit_Principles_Survey_2000_253631.pdf">https://mspbpublic.azurewebsites.net/studies/studies/The_Federal_Workforce_for_the_21st_Century_Results_of_the_Merit_Principles_Survey_2000_253631.pdf</a> (``While 45 percent of respondents said
their supervisor retains employees based on their job performance,
just 35 percent claimed that their supervisor deals effectively with
misconduct on the job, and just 22 percent said their supervisor
deals effectively with poor performers.''); MSPB, The Other Side of
the Coin: Removals for Incompetence in the Federal Service (Feb.
1982), <a href="https://mspbpublic.azurewebsites.net/studies/studies/The_Other_Side_of_the_Merit_Coin_Removals_for_Incompetence_in_the_Federal_Service_254732.pdf">https://mspbpublic.azurewebsites.net/studies/studies/The_Other_Side_of_the_Merit_Coin_Removals_for_Incompetence_in_the_Federal_Service_254732.pdf</a>.
\89\ OPM acknowledges the need for training supervisors and is
simultaneously introducing a new government-wide training program
for supervisors on performance management. OPM, ``Performance
Management for Federal Employees,'' June 17, 2025, <a href="https://www.opm.gov/chcoc/transmittals/2025/Performance%20Management%20for%20Federal%20Employees%207-17-2025.pdf">https://www.opm.gov/chcoc/transmittals/2025/Performance%20Management%20for%20Federal%20Employees%207-17-2025.pdf</a>. However, it understands based on long experience that
enhanced training is unlikely to be enough to meaningfully change an
entrenched culture, especially as this culture arose in large part
due to the cumbersome nature of adverse action procedures required
to remove employees.
---------------------------------------------------------------------------
Commenters 2222, 27432, and 30426 also take issue with the examples
cited in the proposed rule to support OPM's argument that the adverse
action process is protracted with an uncertain outcome. OPM presented a
handful of cases as an illustration of the impediments MSPB cases
impose. Commenter 30426 asserts that average case processing time in FY
2024 was 130 days. This is only for initial decisions before an
administrative judge and does not include time to adjudicate a petition
for review (i.e., appeal) to the full MSPB. Full MSPB review adds much
more time, especially if the MSPB loses its quorum as it often has. An
employee's subsequent appeal to the Federal Circuit takes even more
time. Citing one stage of the MSPB appeal process for the proposition
that the process is ``hardly protracted'' is misleading. OPM rightly
takes note of the effect of the MSPB's loss of quorum on the appeals
timetable. Relatedly, Commenters 17360, 24390, 30426, and 32556 point
out that President Trump left MSPB without a quorum during the entirety
of his first term. President Trump nominated numerous individuals to
the MSPB, but the Senate did not act on those nominations. During his
second Administration, the President nominated and the Senate confirmed
James Woodruff to serve as a Member, creating a period of approximately
eight months in which the MSPB operated without a quorum. Neither the
President nor OPM can control the pace at which the Senate considers
MSPB nominees, even if they leave the agency without a quorum. However,
OPM must be cognizant of the fact that the pace at which the Senate
considers nominees affects the resolution of MSPB appeals, creating
real effects on agency operations.
Commenter 30426 argues that the best available evidence suggests
poor performance is not widespread in the Federal workforce, citing
FEVS data that ``well over 80% of employees believe employees in their
work unit ``meet the needs of our customers,'' ``contribute
positively'' to agencies' performance, and ``produce high-quality
work.'' Commenter 34522 criticizes OPM's citation to research and FEVS
data because the data only demonstrates a perception problem. Commenter
22688 describes low performers in the workplace as ``just a fact of
life,'' common in all large entities. Despite the commenters'
interpretation, the actual FEVS data paints a more worrisome picture:
<bullet> 83.4 percent of employees believe employees in their work
unit ``always'' or ``most of the time'' ``produce high-quality work.''
13.4 percent believe they do so ``sometimes'', while 3.2 percent
believe they do so ``rarely'' or ``never.'' \90\
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\90\ U.S. Off. of Pers. Mgmt., ``Federal Employee Viewpoint
Survey: 2024 Governmentwide All Levels-All Index-All Items
Reports,'' at Q22, <a href="https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-all-levels-all-index-all-items-reports/2024/2024-governmentwide-all-levels-all-index-all-items-report.xlsx">https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-all-levels-all-index-all-items-reports/2024/2024-governmentwide-all-levels-all-index-all-items-report.xlsx</a>.
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<bullet> 87.7 percent of employees believe employees in their work
unit ``always'' or ``most of the time'' ``meet the needs of our
customers.'' 10.3 percent believe they do so ``sometimes'', while 2
percent believe they do so ``rarely'' or ``never.'' \91\
---------------------------------------------------------------------------
\91\ Id. at Q20.
---------------------------------------------------------------------------
<bullet> 85.9 percent of employees believe employees in their work
unit ``always'' or ``most of the time'' ``contribute positively to
their agency's performance.'' 11.2 percent believe they do so
``sometimes'', while 3 percent believe they do so ``rarely'' or
``never.'' \92\
---------------------------------------------------------------------------
\92\ Id. at Q21.
---------------------------------------------------------------------------
The fact that more than one-in-ten Federal employees answers
``sometimes'' to these questions is concerning. Agencies should not
``sometimes'' meet the needs of the American people. The fact that 2-3
percent answered ``rarely'' or ``never'' is even more concerning. OPM
interprets the FEVS data as showing that most Federal employees believe
their colleagues do high-quality work, but a meaningful number do not,
and the Federal workforce has substantial performance management
challenges that are not being effectively addressed. This rulemaking is
not predicated on the notion that most Federal employees are poor
performers. Rather, there is a cognizable amount of poor performance
which, when it occurs, impairs agency performance. There is no
inconsistency between saying most Federal employees do good work and
that a minority do not, and that the minority's underperformance needs
to be addressed. This is particularly true for key policy-influencing
positions that can affect the performance of an entire agency or even
presidential administration.
Commenters 26624 and 28202 take issue with the assertion that poor
performers remain in policy-influencing positions and criticize the
lack of supporting evidence to justify the wholesale changes proposed
by OPM. The Commenters point to OPM's citation of just two instances
involving the Chief of the U.S. Park Police and, separately, the
Executive Director of the National Council on Disability, as
specifically inadequate. Respectfully these Commenters misunderstand
this portion of the proposed rule and the reasons for citing to these
two examples. OPM argued that the Government suffers from a long-
standing problem of holding subordinates accountable for misconduct and
poor performance. OPM then cited two examples of senior career
officials with serious misconduct and performance issues who remained
in their positions despite agency efforts to remove them from their
positions. OPM cited these two examples to support our argument that
failing to address misconduct and poor performance directly undermines
the Merit System Principles. OPM later cited to the misconduct and
corruption at other agencies such as the FDIC where a fear of
litigation contributed to the tolerance of rampant sexual misconduct
committed by senior officials. These examples together with the 2016
Merit Principles Survey cited in the proposed rule sufficiently detail
the problem of agencies' inability to address misconduct and poor
performance and how this failure undermines the Merit System
Principles.
Commenter 30426 also raises concerns with OPM's statistical
analysis of the number of employees terminated. Specifically, Commenter
30426 questions why OPM's analysis excluded all employees fired after
less than two years of service and asserts that the exclusion of this
data is arbitrary and capricious and OPM's analysis was thus
insufficient. On the contrary, OPM's analysis was straightforwardly
focused on the firing rates of employees covered by subchapter II of
chapter 75 to evaluate whether that process makes removals more
difficult. Probationary employees and employees on trial periods do not
have access to adverse action appeals, so dismissal rates among such
employees do not necessarily reflect the effect of chapter 75
[[Page 5589]]
procedures.\93\ OPM focused on permanent (i.e., excluding term and
political appointees) employees with more than 2 years of tenure
because these are the employees that subchapter II covers.\94\
Evaluating the effect of subchapter II by examining agency experiences
with employees who are covered by it is hardly arbitrary or capricious.
---------------------------------------------------------------------------
\93\ Competitive service employees and preference-eligible
employees in the excepted service complete their probationary and
trial periods, respectively, after one year of continuous service,
while non-preference eligible employees generally take two years of
continuous service to complete their trial period. Thus, the
appropriate comparison is employees with more than two years of
tenure, as they have almost universally completed their probationary
and trial periods and are covered by subchapter II. See 5 U.S.C.
7511(a)(1).
\94\ We note, as Commenter 27647 pointed out, that the citation
for the number of covered employees was missing in the proposed
rule. This data is from the same source as the 2024 Rule, 89 FR
25039. See Off. of Pers. Mgmt., FedScope, Separations Trend FY 2020-
FY 2024, <a href="https://www.fedscope.opm.gov/">https://www.fedscope.opm.gov/</a>.
---------------------------------------------------------------------------
Commenter 14463 asserts that OPM ``ignores the fact that existing
procedures have resulted in the firings of tens of thousands of poor
performing career employees.'' In support of this assertion, the
Commenter cites to a 2015 MSPB report, ``Adverse Actions: The Rules and
the Reality.'' \95\ According to the Commenter, the fact that only 10%
of deciding and proposing officials felt employees had too many rights
in the context of adverse actions, means that employees have the
appropriate amount of rights. OPM disagrees, and in fact, believes the
cited source further supports the need for Schedule Policy/Career. The
question presented was whether deciding and proposing officials agreed
with the statement: ``Federal employees have too many rights.'' 42% of
the respondents answered ``neutral,'' while 35% answered ``agree or
strongly agree.'' \96\ The fact that only 23% of deciding and proposing
officials disagree with the statement that employees have too many
rights demonstrates the need of reform to the Federal performance
management system.
---------------------------------------------------------------------------
\95\ U.S. Merit Sys. Prot. Bd., Adverse Actions: The Rules and
the Reality, (Aug. 2015), <a href="https://www.mspb.gov/studies/researchbriefs/Adverse_Actions_The_Rules_and_the_Reality_1205509.pdf">https://www.mspb.gov/studies/researchbriefs/Adverse_Actions_The_Rules_and_the_Reality_1205509.pdf</a>.
\96\ Id. at 6.
---------------------------------------------------------------------------
Several commenters, including Commenters 2241, 7611, 13583, 20991,
30426, and 31096, argued that the proposed rulemaking failed to cite
evidence supporting its conclusion of widespread corruption in the
career civil service. Commenter 30426, for example, critiques the
proposed rulemaking's citation to corruption at the FDIC because the
administration is closing offices that were meant to provide the
training the report recommended to prevent future abuses. Commenter
30426 ignored the serious and well documented example of corruption in
the civil service. The proposed rule cited examples such as the FDIC
where an independent investigation documented widespread and
longstanding abuses, including widespread sexual misconduct involving
senior executives pressing junior female employees for sexual favors,
at times providing career assistance in return.\97\ The report cited in
the rulemaking specifically identified adverse action procedures as
creating litigation risk that made the agency extremely reluctant to
take action, even when leadership was aware of misconduct.\98\ Because
removals created such litigation risk, the agency would move the
offending employees around rather than dismiss them.\99\
---------------------------------------------------------------------------
\97\ See 90 FR at 17190 (citing 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> (FDIC Report)).
\98\ See id.
\99\ See FDIC Report at 134, A-15, A-33, and A-37.
---------------------------------------------------------------------------
Corruption is not limited to the FDIC. Since publication of the
proposed rule, a Small Business Administration (SBA) loan officer
pleaded guilty to making false statements to SBA in connection with
loan applications for more than $550,000.\100\ The employee in question
abused her position by approving several fraudulent COVID-19 pandemic
loans she and her relatives submitted but that SBA initially
declined.\101\ At the Department of the Army, the former deputy
director of the U.S. Army Signal Network Enterprise Center used his
position to steer business toward a specific, corrupt vendor.\102\ The
former official accessed contract bid and proposal information used by
a vendor to assist in winning a contract for upgrading the Army's
communications infrastructure at Fort Gordon.\103\ The existence of
such a scheme uncovered within the U.S. Army demonstrates the ease and
feasibility of such misconduct occurring at other agencies throughout
the Federal Government.\104\ The creation of Schedule Policy/Career
offers a comprehensive solution to the government-wide problems created
by the lengthy and litigious nature of the current removal procedures,
at least with respect to policy-influencing positions.
---------------------------------------------------------------------------
\100\ News Release, U.S. Small Bus. Admin., Former Federal
Employee and Two Other Women Plead Guilty in Pandemic Fraud Cases
(Aug. 12, 2025) <a href="https://www.sba.gov/article/2025/08/12/former-federal-employee-two-other-women-plead-guilty-pandemic-fraud-cases">https://www.sba.gov/article/2025/08/12/former-federal-employee-two-other-women-plead-guilty-pandemic-fraud-cases</a>.
\101\ Id.
\102\ Press Release, U.S. Dep't of Justice, Former deputy
director of Signal Network Enterprise Center at Fort Gordon
sentenced to federal prison (July 21, 2020), <a href="https://www.justice.gov/usao-sdga/pr/former-deputy-director-signal-network-enterprise-center-fort-gordon-sentenced-federal">https://www.justice.gov/usao-sdga/pr/former-deputy-director-signal-network-enterprise-center-fort-gordon-sentenced-federal</a>.
\103\ Id.
\104\ Id.
---------------------------------------------------------------------------
OPM recognizes that chapter 75 provides a pathway for agencies to
address misconduct, including removing employees from the Federal
service in circumstances such as those at the FDIC and the Army. In
many cases, Federal agencies have been successful in doing so. However,
these processes alone have proven insufficient. They foster a sense of
futility and powerlessness at agencies which understandably seek to
avoid spending their limited time and resources on litigation to remove
employees who perform poorly or engage in misconduct. This sense of
futility and powerlessness is evidenced, as noted above and in the
proposed rule, in the lack of faith in the ability of agencies to hold
employees accountable for poor performance and the relatively small
number of adverse actions taken by agencies across Government. OPM
finds it highly disturbing that only a minority of agency supervisors
are confident they could remove subordinates for serious misconduct.
This survey data shows that incidents like those at the FDIC illustrate
systemic problems across the Government. What is needed to address this
corruption and restore integrity to the Federal service is to break
this cycle of poor performance and misbehavior that undermines the
faith that the American people place in Government. It is, therefore,
perfectly reasonable that the President reform how the executive branch
manages career officials who are most responsible for the success of
his policy agenda.
Commenters 0563, 12281, and 14010 argue that the cited instances of
agencies' hesitancy to take appropriate action when faced with evidence
of poor performance or misconduct are insufficient to justify a rule
allowing for prompt agency action. These commenters miss a critical
point. Any misconduct in the Federal service is a blot on its
integrity. The FDIC report concerning sexual harassment found that the
agency had ``generally taken a risk-averse approach to the imposition
of discipline.'' It found that ``the FDIC, like other federal agencies,
risks having complaints and lawsuits'' when taking adverse action
against employees. Because removals created such litigation
[[Page 5590]]
risk, the agency would move employees around rather than dismissing
them.\105\ Commenter 35478 takes issue with the proposed rule's
citation to specific pages in the FDIC report for not supporting the
proposition that adverse actions and appeals were a major reason for
the lack of accountability, pointing out that the auditors identified
10 ``root cause[s]'' of the misconduct. However, OPM did not contend
adverse action procedures were the sole reason for the problems at the
FDIC and still finds sufficient evidence in the FDIC report to support
its position. The FDIC report identified risk aversion to the
disciplinary process perpetuating a lack of accountability in the
agency as one of the root causes of its culture of corruption.\106\ The
report specifically quoted a senior supervisor as noting ``we are so
risk averse we can't do anything, scared that the employees will sue
us, and the ramifications are what you are seeing.'' \107\ The factual
record clearly demonstrates that current regulations, exacerbated by
the April 2024 final rule, place unwarranted burdens upon agencies,
which often prevents them from taking timely adverse action when faced
with poor performance, misconduct, or corruption.\108\
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\105\ Some agencies reported during the comment period that
their experience in dealing with poor performers or misconduct is to
simply reassign employees to other positions rather than taking
performance-based or adverse actions out of fear of litigation or
protracted statutory procedures. Commenters 2985 (Department of
Transportation), 29882 (Department of Education), and 29909 (Office
of Special Counsel). OPM credits their accounts of how subchapter II
affects agency decision-making.
\106\ See FDIC Report at 154-55.
\107\ Id. at 155.
\108\ Commenter 35478 argues the fact the audit did not
recommend changes to disciplinary procedures indicates they were not
a major factor contributing to the FDIC's problems. Commenter's
objection misses that FDIC has no authority to change those
disciplinary procedures, which are set forth in statute, so such
recommendations would be futile. OPM finds it unsurprising that an
audit commissioned by the FDIC would not recommend changes the FDIC
could not effectuate.
---------------------------------------------------------------------------
It is no surprise, then, that the President made the same
determination. E.O. 13957, as amended, explained that ``[a]gencies need
the flexibility to expeditiously remove poorly performing employees
from [Schedule Policy/Career] positions without facing extensive delays
or litigation.'' \109\ It cited evidence that less than a quarter of
Federal employees believed their agencies appropriately addressed poor
performance, and less than half believe they could remove employees who
committed serious misconduct.\110\ President Trump ultimately found
that the conditions of good administration still exist today warranting
immediate action through executive action. As such, OPM concludes that
even if the evidence discussed in this final rule were not
independently persuasive and sufficient to support this final rule--and
to be clear, OPM believes that it is--it would nonetheless credit the
President's judgment within his core Article II authority to address
the problems of poor performance, misconduct, and corruption in the
civil service.
---------------------------------------------------------------------------
\109\ 85 FR 67631, 67632.
\110\ Id. at 67631.
---------------------------------------------------------------------------
ii. Proposed Regulations Are Necessary To Strengthen Democracy and
Promote a Nonpartisan Civil Service
Commenters 1544, 9407, and 23384, and others characterize this rule
as undermining democracy in favor of an authoritarian form of
Government. Commenter 23384, specifically, suggests that the
``independence of bureaucracy'' is necessary to prevent
authoritarianism. On the contrary, this rule ensures that Federal
employees in policy-influencing positions are able to be appropriately
disciplined for failing to faithfully implement the elected President's
agenda. The U.S. Constitution provides ``[t]he executive Power shall be
vested in a President of the United States of America.'' \111\ As such,
the President is also the only official in the executive branch whose
position is vested with executive power who is democratically
accountable to the American people. Employees exercising executive
power are doing so in place of--and, crucially, on behalf of--the
President of the United States. Employees themselves are only properly
vested with executive policy-influencing authority in so far as they
exercise it faithfully and in accordance with the Constitution,
existing law, and the President's policy agenda. The ``independence of
the bureaucracy,'' to impose policy, or to scuttle, slow-walk, or
otherwise undermine the President's policy agenda would bring about the
very thing with which these commenters are concerned: the erosion of
democracy. An unelected bureaucracy operating autonomously and at
variance with the policy priorities of the elected President undermines
democratic values.
---------------------------------------------------------------------------
\111\ U.S. Const. art. II, Sec. 1, cl. 1.
---------------------------------------------------------------------------
OPM notes that, because of the enormous scope and intricacy of many
Federal statutes, Federal policymaking work frequently requires high
levels of specialization. Further, Federal agencies are bureaucratic,
characterized by division of labor, hierarchy of authority, and career
orientation. Because career employees often play the principal and
sometimes exclusive role in determining who is promoted through the
hierarchy and on what schedule, career advancement in Federal service
often has little do with effective execution of the President's
priorities. This is particularly true over longer periods of time,
where the professional relationships between agency personnel outlast
individual Presidential administrations and the procedural rules of the
agency and informal norms coalesce to form an agency culture or shared
bureaucratic interests.
In some instances, the priorities of the President may conflict
with an agency's culture or bureaucratic interests. This can occur, for
example, when agency personnel have acclimated to executing their
statutory mission in a manner that conflicts with the procedural or
substantive values of the President. As the late William Niskanen (a
longtime Government official) noted in his classic study, Bureaucracy
and Representative Government (Chicago: Aldine, Atherton, 1971), the
``budget-maximizing bureaucrat'' will typically seek to maximize the
total budget of their bureau, regardless of the public interest, in
order to maximize the bureau's power and prestige. Given the incentives
of a career bureaucracy, where the interests of an agency are at
variance with the priorities of the President, a rational civil servant
will often prioritize the institutional interests of the agency ahead
of implementing the priorities of the democratically elected President.
Where career employees involved in policymaking prioritize ``loyalty to
their building'' over faithful execution of the President's priorities
and the public interest, democratic accountability is undermined.
Commenters 1994, 7378, 34746, and others argue that this rule would
undermine the nonpartisan nature of the civil service by making it
easier to fire employees in policy-influencing positions for political
reasons, including failing to adhere to political loyalty tests.
Commenters' supposition that this rule requires, or provides for,
the dismissal of employees for political reasons is wholly incorrect.
OPM proposed and adopts in this final rule a prohibition against
personal or political loyalty tests as a condition of employment in
Schedule Policy/Career. 5 CFR 213.3601(e). E.O. 13957 also requires
agencies to establish and enforce internal policies protecting
employees from PPPs including prohibiting discrimination based on
political affiliation and political coercion. Further, this rule
provides that in instances in which an employee in a policy-influencing
position engages in
[[Page 5591]]
misconduct, performs poorly, or obstructs the democratic process by
intentionally subverting Presidential policy directives, such employees
may be quickly removed from the service.
OPM also views this rule as strengthening the nonpartisan nature of
the civil service by ensuring employees in policy-influencing positions
do not inject personal politics into their professional
responsibilities related to implementing the President's agenda.
Bureaucratic Resistance Is Evident
Commenters, including 0210, 3326, 3764, 16846, 18811, 27647, 29923,
30317, 31210, 32573, 34881, 35446, and 35478, assert that the proposed
rule failed to provide evidence of widespread policy resistance.
Despite these criticisms, considerable evidence supports the
proposition that employees routinely inject their personal, partisan
beliefs into their professional duties. Recent news reports detailed
how career Federal employees resisted the changes pursued by the
President during his current administration. One report detailed
Federal employees engaged in ``malicious compliance'' with the
President's directives.\112\ In a much more brazen act of defiance, a
report detailed how staff of the U.S. African Development Foundation
refused to allow employees of the Department of Government Efficiency
to enter its building as part of the President's promise to eliminate
unnecessary bureaucratic spending.\113\ Relatedly, Commenter 23567 also
witnessed acts of resistance by describing career employees leak,
``slow walk,'' or deliberately perform poorly to resist changes to
policies. In fact, in coordinating this final rule during the
interagency comment period, a copy of the draft rule was leaked to the
news media the same day that OPM briefed Federal agencies on the
rule.\114\ And most recently, OPM's proposed rule to modify its
performance management regulations leaked within 24 hours after sharing
the rule with federal agencies for interagency comments.\115\ This was
a clear breach of trust placed in the Federal workforce.
---------------------------------------------------------------------------
\112\ Juliana Kaplan and Ayelet Sheffey, ``Random acts of
protest: How federal workers are quietly pushing back on DOGE,''
Business Insider, Mar. 8, 2025, available at: <a href="https://www.businessinsider.com/federal-workers-resist-trump-musk-doge-dei-emails-pronouns-2025-3">https://www.businessinsider.com/federal-workers-resist-trump-musk-doge-dei-emails-pronouns-2025-3</a>.
\113\ Robert Tait and Lauren Gambino, `` `Little agency that
could' cheered for act of resistance against Trump and Musk,'' The
Guardian, Mar. 6, 2025, available at: <a href="https://www.theguardian.com/us-news/2025/mar/06/federal-workers-block-musks-doge-africa-development-agency">https://www.theguardian.com/us-news/2025/mar/06/federal-workers-block-musks-doge-africa-development-agency</a>.
\114\ Eric Katz and Erich Wagner, ``Final Schedule F regulations
to describe civil service protections as `unconstitutional
overcorrections,' '' Government Executive, Nov. 18, 2025, available
at: <a href="https://www.govexec.com/workforce/2025/11/final-schedule-f-regulations-describe-civil-service-protections-unconstitutional-overcorrections/409616/">https://www.govexec.com/workforce/2025/11/final-schedule-f-regulations-describe-civil-service-protections-unconstitutional-overcorrections/409616/</a>; Courtney Rozen and Sarah N. Lynch, ``US
federal workers would lose whistleblower safeguards under Trump
rule,'' Reuters, Nov. 18, 2025, available at: <a href="https://www.reuters.com/legal/government/us-federal-employees-would-lose-whistleblower-safeguards-under-trump-rule-2025-11-18/">https://www.reuters.com/legal/government/us-federal-employees-would-lose-whistleblower-safeguards-under-trump-rule-2025-11-18/</a>.
\115\ Eric Katz, ``Trump to limit top ratings for all feds and
consolidate scoring in forthcoming rule,'' Government Executive,
Dec. 17, 2025, available at: <a href="https://www.govexec.com/management/2025/12/trump-limit-top-ratings-all-feds-and-consolidate-scoring-forthcoming-rule/410246/">https://www.govexec.com/management/2025/12/trump-limit-top-ratings-all-feds-and-consolidate-scoring-forthcoming-rule/410246/</a>.
---------------------------------------------------------------------------
Another example comes from Commenter 34007 who obtained documents
through a Freedom of Information Act request that uncovered career
employee resistance expressed to the General Counsel of the National
Labor Relation Board under the first Trump administration. In one of
these emails, a former longtime NLRB employee bragged about ``the brave
resistance'' of career NLRB employees to the presidentially appointed
General Counsel's priorities.\116\
---------------------------------------------------------------------------
\116\ Comment 34007, at 4.
---------------------------------------------------------------------------
There are also widespread reports of Federal employees ``pushing
back,'' engaging in ``malicious compliance,'' or being ``subtle'' about
opposing administration policymaking.\117\ Researchers documented that
Environmental Protection Agency (EPA) career staff moved policy in the
opposite direction from the Reagan Administration's goals, concluding
that ``the influence of elected institutions is limited when an agency
has substantial bureaucratic resources and a zeal for their use.''
\118\ Commenter 32573 claims that the proposed rule mischaracterized
the findings of researchers, noting that the EPA did not have a Senate-
confirmed administrator when EPA career staff moved policy in the
opposite direction, and that the Reagan administration drastically
changed its policy later during the President's terms. However, we note
that the EPA had an acting administrator during the time in question
and EPA staff were surely informed of the Reagan administration's
policy.\119\ The researcher found that even after the Senate
confirmation of an Administrator ``[t]he proclivity of EPA regulators
to regulate seems to have been a factor negating the administration's
ability to keep clean air enforcements to a minimum.'' \120\ Further,
it is immaterial whether the Reagan administration changed its policy
later in the president's terms. This does not rebut the proposition for
which the research was cited in the proposed rule. Commenter 8209 also
criticizes the proposed rule's citation to a source that reported
policy resistance during President Trump's first term.\121\ OPM notes
that Commenter 8209 does not allege that the claims are fabricated or
false but instead argues it should not be used to justify a change
because of an alleged bias. OPM believes that this source--one of
several--demonstrates that the first Trump administration faced policy
resistance.
---------------------------------------------------------------------------
\117\ Kaplan & Sheffey, supra note 112.
\118\ B. Dan Wood, Principals, Bureaucrats, and Responsiveness
in Clean Air Enforcements, 82 Am. Pol. Sci. Rev. 213, 213 (1988).
\119\ See Env't Prot. Agency, Chronology of EPA Administrators
(last updated Jan. 31, 2025), <a href="https://www.epa.gov/history/chronology-epa-administrators">https://www.epa.gov/history/chronology-epa-administrators</a>.
\120\ B. Dan Wood, Principals, Bureaucrats, and Responsiveness
in Clean Air Enforcements, at 228.
\121\ See Comment 8209 (citing to Mark Moyar, Masters of
Corruption: How the Federal Bureaucracy Sabotaged the Trump
Presidency 83-84 (2024)).
---------------------------------------------------------------------------
Commenters 30055 and 34522 also allege that the proposed rule
mischaracterizes one of the cited sources on page 17191. However,
Commenter 30055 failed to recognize that the proposed rule cited two
different articles from the same author. While part of the second
article discusses reciprocal hierarchy, much of the article discusses
several instances of civil servant disobedience during the President's
first administration. Further, the other article cited discusses
disobedience in the context of the President's administration. Based on
the content from both articles, we disagree with both commenters that
the proposed rule mischaracterized those sources. Similarly, Commenter
34522 also claims the proposed rule fails to discuss all the relevant
conclusions of another two sources.\122\ We disagree. While the first
source discusses other behavioral patterns and disclaims the empirical
accuracy of its studies, the Commenter does not dispute that it
discusses the claims made by the proposed rule. Lastly, Commenter 34522
does not dispute that the second source also discusses the claims made
by the proposed rule. While we recognize that the second source comes
to additional conclusions OPM does not share, we do not agree that
OPM's statements regarding the source are inaccurate.
---------------------------------------------------------------------------
\122\ Comment 34522, n. 15 at p.9.
---------------------------------------------------------------------------
The proposed rule cited several examples of career employees
stating plans to resist policies they disliked. The Washington Post
reported on 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
[[Page 5592]]
under Biden.'' \123\ An undercover journalist documented an employee in
the White House Office of Pandemic Preparedness and Response Policy
explaining that career employees ``slow-walk'' initiatives they dislike
or ``pretend to work really hard on something when they're not.'' \124\
Others, like an Equal Employment Opportunity Commission (EEOC)
employee, opt not to hide their opposition, but broadcast resistance
plans. Soon after President Trump took office a second time, an EEOC
administrative judge \125\ addressed an email to then-acting EEOC
Chairwoman Andrea Lucas and sent it to all EEOC employees. The
administrative judge stated, in relevant part: ``I will not participate
in attempts to target private citizens and colleagues through the
recent illegal executive orders.'' \126\ This employee openly professed
her intention to refuse Presidential directives based purely on her
personal views.\127\ Commenters 13308, 34947, 34522, 35446, and 35478
claim that this is a mischaracterization of the employee`s actions. In
this regard, they claim that the employee viewed the ``presidential
directives were illegal and unconstitutional.'' OPM disagrees and
believes the characterization is correct. The email was a general and
broad statement--broadcast to the entire agency--that this employee
would not follow the administration's policy directives. The email did
not mention any conflicting legal precedent or discuss the policy
directives in the context of any pending agency action. Line Federal
employees are not statutorily authorized to unilaterally decide the
constitutionality of agency policies for themselves. That authority
rests with other officials, such as the Attorney General.\128\ Further,
none of the commenters provide any authority demonstrating that the
policy directives were illegal. Therefore, the argument is faulty. OPM
notes that nothing in this rule precludes an employee from discussing
concerns about a presidential or agency policy with a supervisor or
management.
---------------------------------------------------------------------------
\123\ Emily Davies, et al., 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>.
\124\ `The Deep State Is Real:' White House Advisor Reveals How
Bureaucracy Protects ``Its Own Interests,'' Predicts Bureaucracy
Will `Crush' RFK Jr. as HHS Secretary; ``If I Was Given an Order . .
. I Would Either Try to Block It or Resign'', O'Keefe Media Gp.
(Jan. 23, 2025), <a href="https://okeefemediagroup.com/the-deep-state-is-real-white-house-advisor-reveals-how-bureaucracy-protects-its-own-interests-predicts-bureaucracy-will-crush-rfk-jr-as-hhs-sec/">https://okeefemediagroup.com/the-deep-state-is-real-white-house-advisor-reveals-how-bureaucracy-protects-its-own-interests-predicts-bureaucracy-will-crush-rfk-jr-as-hhs-sec/</a>.
Several commenters, including Commenter 4772 and 35478, assert that
the tweet and the proposed rule mischaracterize the actual video
footage attached to the tweet by claiming that the individual, if
given an order he disagreed with, ``would either try to block it or
resign.'' But regardless whether this particular employee would
engage in policy resistance, there are plenty of other examples and
additional information provided in the proposed rule that
demonstrates widespread policy resistance.
\125\ Commenter 34947 questioned this example of an EEOC
administrative judge, asserting an ``administrative law judge [is] a
category of employee who . . . would notably not be subject to
Schedule Policy/Career.'' Commenter is correct that administrative
law judges are Schedule E; however, this example is an
administrative judge, who is not Schedule E and would potentially be
eligible for Schedule Policy/Career. See 5 CFR 6.2.
\126\ Abby Vesoulis (abbyvesoulis.bsky), Bluesky (Feb. 3, 2025,
10:12 a.m.), <a href="https://bsky.app/profile/abbyvesoulis.bsky.social/post/3lhbtdoudfs25">https://bsky.app/profile/abbyvesoulis.bsky.social/post/3lhbtdoudfs25</a>. OPM contacted the EEOC and obtained verification both
that the email was accurate and that it was sent by an
administrative judge.
\127\ See id.
\128\ See, e.g., 28 U.S.C. 530D.
---------------------------------------------------------------------------
During the previous Trump administration, multiple Federal Labor
Relations Authority (FLRA) decisions publicly chastised a career
regional director for ``willful noncompliance'' with an earlier
Authority order.\129\ This raises the obvious question--are chapter 75
procedures sufficient deterrent to ensure such employees are putting
their partisanship aside and faithfully implementing the President's
agenda?
---------------------------------------------------------------------------
\129\ See U.S. Dep't of Justice, Exec. Off. for Immigration
Rev., 72 FLRA 622, 626-28 (Jan. 21, 2022); U.S. Dep't of Justice,
Exec. Off. for Immigration Rev., 72 FLRA 733 (Apr. 12, 2022).
---------------------------------------------------------------------------
Finally, agencies also commented on the rule and indicated that
they had experienced policy resistance, it impeded their operations,
and they believed the proposed rule would be helpful in addressing such
misconduct. The Department of Education, for example, commented that
during the First Trump Administration, career employees would not
constructively assist in drafting important regulations, such as the
department's Title IX regulations.\130\ As a result, those regulations
had to be primarily drafted by political appointees.\131\ OPM credits
these comments; agencies are better positioned than external parties to
observe whether policy resistance occurs.
---------------------------------------------------------------------------
\130\ Comment 29882, at 4.
\131\ The proposed rule cited a report that the Education
Department's Title IX rule was primarily drafted by political
appointees during the President's first term because key career
employees would not constructively assist with drafting it. See 90
FR 17193. Some commenters questioned the accuracy of this report.
See, e.g., Comment 35478 at 72. OPM credits the Education
Department's statement as resolving this factual dispute and
demonstrating the accuracy of the initial report.
---------------------------------------------------------------------------
Commenter 29987 asserts that academic research \132\ refutes OPM's
assertion of widespread policy resistance. Specifically, the Commenter
asserts ``career civil servants generally do follow the president's
agenda.'' OPM agrees with this sentiment as expressed in the proposed
rule. However, this does not refute the point that some career
employees intentionally subvert policy directives with which they
disagree. In fact, the source cited by Commenter 29987 provides
additional evidence of such behavior, describing instances of career
employees leaking information to the press because they did not like
the administration's policy directives.\133\ Commenters 32573, 35478,
and 35520 argue the proposed rule ignored evidence that detailed
Federal workers' commitment to carrying out lawful administration
policies. Again, OPM does not disagree that the majority of Federal
employees faithfully perform their job duties. However, this does not
refute the evidence of widespread policy resistance detailed in the
proposed and this final rule. It can be both true that most Federal
employees fulfill their job duties faithfully, and that a significant
minority do not.
---------------------------------------------------------------------------
\132\ Marissa Martino Golden, What Motivates Bureaucrats?:
Politics and Administration During the Reagan Years, Columbia
University Press (2000).
\133\ Id. at pp. 134-135; see also id. at p.13 (``career civil
service is neither entirely responsive nor entirely resistant, but
rather bureaucratic behavior under the conditions of the
administrative presidency is a mixture of both. . . .'').
---------------------------------------------------------------------------
In a similar fashion, Commenter 35478 also argues that a Bloomberg
News article published in 2017 and cited in the proposed rule does not
detail policy resistance but instead details ``career employees
following legal requirements, implementing policy at agencies that did
not have political appointees in place, or providing candid advice.''
We disagree with the Commenter's assessment. The Bloomberg News article
provides numerous instances of policy resistance.\134\ Even if this
article did not support this proposition, the other sources cited in
the proposed rule demonstrate widespread policy resistance.\135\
---------------------------------------------------------------------------
\134\ 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/washingtonbureaucrats-are-chipping-away-at-trump-s-agenda">https://www.bloomberg.com/politics/features/2017-12-18/washingtonbureaucrats-are-chipping-away-at-trump-s-agenda</a> (State Department staff preserved programs to boost
the economies of developing countries--at odds with Trump's campaign
pledges--by relabeling them); id. (NOAA employees continuing to
issue reports that are at odds with Trump administration's
policies); id. (Pentagon staff delaying the reversal of an Obama-era
directive by conducting a review of the policies).
\135\ See 90 FR 17192-93.
---------------------------------------------------------------------------
Commenters 29987, 35446, and 35478 argue that the majority of the
examples
[[Page 5593]]
describe future actions that Federal employees may or may not take, not
actual past conduct. It is true that some of the examples are
statements from Federal employees on what they would do in a specific
future situation. However, to completely disregard such statements
simply because they are in the context of a future situation is
nonsensical. It is a universal norm to rely on and take proactive
measures based on an individual's statement as to what they will do or
what they think will happen. Further, as the Commenters concede, there
are other examples of past policy resistance documented in the proposed
rule.
Commenter 35478 also argues OPM mischaracterized the role or status
of the two individuals in two of the cited examples in the proposed
rule. In this regard, the proposed rule cited ``a long-time federal
employee's guide to `useful tools' to `subtly subvert . . . orders'
without outright revolting.'' \136\ The Commenter insists that this is
a mischaracterization because the individual retired from the Federal
Government. OPM disagrees. While the individual did retire, he did so
after ``42 years of federal service.'' \137\ As such, referring to this
individual as a ``a long-time federal employee'' can hardly be said to
be a mischaracterization. The Commenter similarly asserts OPM
mischaracterized an example of policy resistance because the article
stated the individual was a ``federal employee in the Department of
Justice's grants division,'' \138\ while the proposed rule stated the
individual was a ``career Department of Justice employee with
grantmaking responsibilities.'' \139\ Again, this is not a
mischaracterization--but instead an example of paraphrasing a source,
which is common practice. Commenter objects that it is not clear from
the article whether this employee had policy-influencing
responsibilities. However, regardless of whether this career employee
personally had such responsibilities, the employee was well positioned
to observe how policy-influencing career employees in the grants
division reacted to policies they did not support. Whether the employee
personally slow-walked such policies, or merely observed more senior
colleagues doing so, is immaterial to this rulemaking.
---------------------------------------------------------------------------
\136\ 90 FR 17192.
\137\ 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-dontlike-trumps-program-but-theyre-not-revolting">https://www.washingtonpost.com/news/powerpost/wp/2017/02/01/many-feds-dontlike-trumps-program-but-theyre-not-revolting</a>.
\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-backagainst-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.htm">https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-backagainst-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.htm</a>.
\139\ 90 FR 17192.
---------------------------------------------------------------------------
Commenters 19791, 28481, and 32803 critique the proposed rule for
citing ``sources that reflect fringe right-wing opinion and conspiracy
theories.'' Without identifying the specific sources they are
criticizing, the Commenters allege these examples should not be relied
on to justify Schedule Policy/Career. OPM disagrees with the Commenters
that the sources used are somehow discredited or refuted simply because
they believe the sources are associated with one side of the political
spectrum. Even assuming such sources are illegitimate, for sake of
argument, the remaining sources and evidence still substantiate the
claim of widespread policy resistance.
Commenter 30426 contends OPM has not cited a single instance in
which the administration confronted an actual instance of policy
resistance and was unable to use existing chapter 43 or 75 mechanisms
to take action. Commenter contends this ``failure is fatal'' as OPM has
not explained ``why the proposed solution is a necessary or appropriate
response'' to the problem. To the contrary, the evidence OPM has cited
shows exactly this.\140\ It shows policy resistance widely occurs,
which demonstrates existing tools have proven insufficient to address
the problem. Several agencies have told OPM that it occurs and they
believe the rulemaking would ameliorate the problem. Support from
affected agencies is strong evidence OPM has proposed an appropriate
response.
---------------------------------------------------------------------------
\140\ OPM further notes that the Tales from the Swamp report,
which, OPM credits (although it is far from the sole or primary
basis for this rulemaking), provides examples of policy resistance
stymieing policy initiatives in the first Trump Administration. For
example, Education Department officials reported career staff
unwillingness to meaningfully assist with drafting regulations
reduced the Department's ability to write rules and prevented the
Department from issuing rules that leadership considered good
policy. Commenter did not dispute the accuracy of this account.
Given that the Education Department has since verified, on the
record, that political appointees had to draft priority regulations
in the first Trump Administration, OPM considers this example highly
credible. See James Sherk, Tales from the Swamp: How Federal
Bureaucrats Resisted President Trump, Am. First Pol'y Inst. (Jan. 8,
2025) (Tales from the Swamp), at 18-19, <a href="https://www.americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf">https://www.americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf</a>.
---------------------------------------------------------------------------
Adding further currency to this issue, a recent article appearing
in Politico highlighted the deep level of resistance to Trump
Administration policies that is currently playing out among career
civil servants.\141\ The article, openly quoting many anonymous Federal
employees, states: ``At the end of the day, career staffers still
believe that politicians come and go and it's them who will persevere''
\142\ Another news outlet reported that Federal employees freely stated
their intentions to resist the policies of the current Trump
Administration on Reddit and to news reporters.\143\
---------------------------------------------------------------------------
\141\ Erin Schumaker, The `deep state' is proving to Trump it's
a worthy foe, Politico (Sept. 14, 2025), <a href="https://www.politico.com/news/2025/09/14/trump-federal-workers-deep-state-civil-service-00558940">https://www.politico.com/news/2025/09/14/trump-federal-workers-deep-state-civil-service-00558940</a> (``[M]ore than 1,000 civil servants, some current, some
former, published an open letter demanding [Trump appointee's]
resignation.'')
\142\ Id.
\143\ Allan Smith, `` 'They've radicalized me': Federal workers
fight back as Trump dismantles their work,'' NBC News (March 2,
2025), <a href="https://www.nbcnews.com/politics/doge/federal-workers-fight-back-trump-dismantles-work-radicalized-rcna192040">https://www.nbcnews.com/politics/doge/federal-workers-fight-back-trump-dismantles-work-radicalized-rcna192040</a> (detailing social
media posts encouraging resistance).
---------------------------------------------------------------------------
Rather than hiding their contempt for the results of a democratic
election, these employees are resisting, in some cases overtly--in many
more instances covertly--the policies and direction of their own
leadership. To argue that this does not constitute widespread
resistance to a duly elected government is untenable. Schedule Policy/
Career attempts to partially address this issue for a relatively small
subset of employees; those who are in the most sensitive policy-
influencing positions. These positions are those that have the greatest
impact on ensuring that the President's policies and directions are
properly implemented.
Further, the President has concluded that policy resistance is a
significant problem and that Schedule Policy/Career is needed to
address it. The President is the official constitutionally and
statutorily vested with responsibility for the executive branch. Even
if OPM was not convinced that policy-resistance is a serious enough
problem to warrant creating Schedule Policy/Career--and the evidence
discussed above independently persuades OPM that it is--OPM would
credit the President's judgment in this regard.
Accordingly, OPM 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. But Americans have little
recourse when career employees advance their personal agendas or
undermine elected officials' policies. They are electorally
unaccountable. America was founded
[[Page 5594]]
on the principle of government by consent of the governed. Career
employees who resist elected officials' policy choices undermine the
foundations of American democracy.
iii. The Policy-Influencing Terms Are Not a Term of Art
Several commenters, including Commenters 0648, 23789, 26673, 30426,
and 32573, argue that the use of the terms confidential, policy-
determining, policy-making, and policy-advocating in 5 U.S.C.
2302(a)(2)(B)(i) and 5 U.S.C. 7511(b)(2) is a term of art that applies
only to political appointees and, therefore, cannot be applied to
career Federal employees to remove adverse action procedures. As
explained below, OPM disagrees with this analysis of the statutory
language.
Irrelevant to the Rulemaking
First, this objection misses the point OPM made in the proposed
rule that whether the policy-influencing terms are a term of art that
means ``political appointees'' or a description of particular duties is
legally irrelevant.\144\ Even assuming arguendo that the words
confidential, policy-determining, policy-making, and policy-advocating
are a term of art for political appointees, that construction makes no
legal or practical difference. All that would mean is that E.O.s 13957
and 14151, and this rulemaking, are converting a class of positions and
the employees occupying them into technically political appointments.
Although this final rule is not converting career positions into
political positions, nothing in Title 5 prevents the President from
doing so and thereby changing an incumbent's status.
---------------------------------------------------------------------------
\144\ 90 FR at 17197.
---------------------------------------------------------------------------
Rather, the text of 5 U.S.C. 2302(a)(2)(B) implies an inflection
point at which the nature of the position changes when an appropriate
authority determines it is policy-influencing. The provision states
that positions covered by PPP requirements do not include positions of
a policy-influencing nature, provided that the PPP occurred prior to
the designation of the position as policy-influencing. This implies
that positions may be declared policy-influencing both prior to and
subsequent to a personnel action occurring, as well as during the
tenure of a single incumbent. The Senate's decision in 1994 to adopt a
substitute amendment explicitly inserting this language into a House-
passed bill would be pointless if positions could only be declared
policy-influencing prior to appointment. If that were the case, the
Senate's re-write of what became codified at 5 U.S.C. 2302(a)(2)(B)
would necessarily mean it was adding mere surplusage to the statute.
Congress did not amend 5 U.S.C. 2302(a)(2)(B) to add empty
surplusage.\145\ In 1994, therefore, Congress recognized the
President's authority to declare encumbered positions policy-
influencing and thereby alter their legal status. If the President were
to exercise that authority, an agency could thereafter take a
previously proscribed PPP against an incumbent holder of the position,
such as transferring him or her based on his or her political
affiliation. Congress has thus recognized that the President can
convert encumbered career positions to political appointments.\146\
---------------------------------------------------------------------------
\145\ See United States v. Menasche, 348 U.S. 528, 538-39
(1955), (citing Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S.
147, 152 (1883) (``It is our duty `to give effect, if possible, to
every clause and word of a statute[.]' '')).
\146\ In the April 2024 final rule OPM argued that 5 U.S.C.
2302(a)(2)(B) had implications only for employee relief from PPPs
and not chapter 75 actions. See 89 FR at 25025. Nonetheless, OPM
recognizes that this statutory amendment presupposes that the
President can convert career positions, and the incumbents in them,
into political appointees by exempting them from prohibitions on
discrimination based upon political affiliation. See 5 U.S.C.
2302(a)(2)(B) (excluding from coverage any position ``excepted from
the competitive service because of its confidential, policy-
determining, policy-making, or policy-advocating character; or
excluded from the coverage of this section by the President based on
a determination by the President that it is necessary and warranted
by conditions of good administration'').
---------------------------------------------------------------------------
At most, under these Commenters' reading of the policy-influencing
terms, an executive order transferring career positions into Schedule
Policy/Career would convert them into technically political
appointments. However, as OPM explained in the April 2025 proposed
rule, under that construction E.O. 13957, as amended, simply uses the
President's constitutional and executive discretion to direct his
subordinates to treat such nominally political positions as career
positions, and to label and treat them as such, including by requiring
agencies to establish protections against PPPs for Schedule Policy/
Career employees. This is a perfectly lawful and common practice. It is
well established that the President may treat technically political
appointments as career positions. Consider that most offices in the
executive branch subject to the Constitution's Appointments Clause are,
constitutionally speaking, political appointments.
Apart from the Senate's constitutional role in the confirmation
process for Presidentially Appointed, Senate Confirmed (PAS)
appointments, Congress holds extremely limited authority to
substantively control the appointment of Officers of the United States.
That prerogative is reserved for the executive branch. The Supreme
Court has clarified as much, stating ``[l]egislative power, as
distinguished from executive power, is the authority to make laws, but
not to enforce them or appoint the agents charged with the duty of such
enforcement.'' \147\. While the Senate may decline to confirm a nominee
to a PAS position, Congress may not, for example, prohibit the
President by law from nominating individuals based on political
considerations. Similarly, the Supreme Court has well-clarified the
President's extremely broad constitutional discretion to dismiss PAS
officers extends to politically motivated dismissals.\148\ Nor can
Congress restrict the President from removing, for political reasons,
inferior officers who, acting alone, wield significant administrative
or policymaking authority.\149\
---------------------------------------------------------------------------
\147\ Buckley v. Valeo, 424 U.S. 1, 139 (1976) (quoting Springer
v. Philippine Islands, 277 U.S. 189, 202 (1928)).
\148\ Myers v. United States, 272 U.S. 52, 176 (1926) (``[I]t
therefore follows that the Tenure of Office Act of 1867, in so far
as it attempted to prevent the President from removing executive
officers who had been appointed by him by and with the advice and
consent of the Senate, was invalid, and that subsequent legislation
of the same effect was equally so.'').
\149\ See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S.
197, 238 (2020) (Seila Law).
---------------------------------------------------------------------------
The President and Congress nonetheless have the discretion to treat
Federal offices that are, as a constitutional matter, political
appointments as career positions, label them as such, and often have
done both. For example, ambassadors are constitutionally obligated to
be PAS appointments.\150\ But there is widespread practice of treating
some ambassadorships as career positions, appointing career foreign
service officers to serve.
---------------------------------------------------------------------------
\150\ See U.S. Const. Art. II, Sec. II, Cl. II.
---------------------------------------------------------------------------
Similarly, under 22 U.S.C. 3942(a)(1) most Foreign Service
positions are PAS appointments. Constitutionally, Congress may not
require particular screening procedures before the President submits
nominations for PAS offices to the Senate. The President has plenary
authority to nominate whomever he deems best. Nor can Congress require
the President to delegate authority to dismiss PAS officeholders to a
nonpartisan appeals board. Purely executive PAS officials serve at the
pleasure of the President.\151\
[[Page 5595]]
However, Congress has passed laws, to which Presidents have voluntarily
adhered, extensively regulating selection of nominees to, and
dismissals from, PAS Foreign Service positions, even going so far as to
label some as ``career members'' of the Foreign Service.\152\ The
executive branch has routinely treated technically political PAS
Foreign Service positions as career appointments because successive
Presidents have found that doing so helps them carry out their
constitutional responsibilities. This, however, is an act of
Presidential discretion, not legal obligation. Congress may not enforce
these restrictions except through the Senate's advice and consent role
in the confirmation process. Technically, PAS Foreign Service positions
remain political appointments,\153\ though both Congress and the
President have found it advantageous to treat and describe them as
career positions.
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\151\ See, e.g., Humphrey's Executor v. United States, 295 U.S.
602, 631-32 (1935) (Humphrey's Executor) (``the Myers decision,
affirming the power of the President alone to make the removal, is
confined to purely executive officers'' (citing Myers, 272 U.S.
52)). The Supreme Court has recognized an exception to the rule that
PAS officials serve at the pleasure of the President, holding that
it does not apply to officials who lead multimember agencies that do
not wield substantial executive power. See id.; Seila Law, 591 U.S.
at 198. The continuing validity of this exception is in question as
the Supreme Court recently granted certiorari for the purpose of
reconsidering Humphrey's Executor. See Trump v. Slaughter, No.
25A264, No. 25-332, 2025 WL 2692050 (U.S. Sept. 22, 2025).
Regardless, the Humphrey's Executor exception is inapplicable to PAS
foreign service members.
\152\ See 22 U.S.C. 3942(a)(1); see also 22 U.S.C. 3946 (``[T]he
Secretary shall decide whether to recommend to the President that
the candidate be given a career appointment under section 3942 of
this title.''); 22 U.S.C. 4137(b)(4) (giving the Foreign Service
Grievance Board the authority to reinstate a removed foreign service
officer).
\153\ See 22 U.S.C. 3942(a)(1) (``The President may, by and with
the advice and consent of the Senate, appoint an individual . . . as
a career member of the Senior Foreign Service, or as a Foreign
Service officer.'').
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If the President wishes to appoint and dismiss officials in
technically political positions without regard to political affiliation
or personal political views, he is free to do so (and to direct his
subordinates to do so). The fact that the President can legally appoint
and vacate positions on a political basis does not mean that he must do
so. The President can also label formally political positions as career
positions to make it clear how he wants his subordinates to treat them.
Such practices are not uncommon.
Consequently, even if the policy-influencing terms were a term of
art that described political appointments, the President could still
designate these positions as Schedule Policy/Career to make it clear
subordinate officials are to fill and vacate them without regard for
political affiliation. This is no more legally problematic than
Congress and the executive branch designating PAS officers as ``career
members'' of the Foreign Service \154\ notwithstanding the President's
plenary constitutional authority to nominate candidates for and dismiss
incumbents from such positions. As a result, whether the policy-
influencing terms technically designate political appointments is
administratively and practically irrelevant.
---------------------------------------------------------------------------
\154\ See id.
---------------------------------------------------------------------------
Even if the commenters are correct that the policy-influencing
terms are a term of art referring exclusively to political
appointments, the commenters have not explained how this makes any
difference to the rule's legality or the administration's ability to
execute it. Specifically, if the policy-influencing terms are
descriptors of positions with a nexus to confidential duties or policy,
then, under the E.O.s and Notice of Proposed Rulemaking, positions
moved into Schedule Policy/Career remain career positions. If the
policy-influencing terms are a term of art meant to refer to political
appointees, then, under the E.O.s and the proposed rule, positions
moved into Schedule Policy/Career are converted into technically
political positions that by Presidential directive will be filled and
vacated without regard to political affiliation. These positions will
be labeled and treated as career positions, similar to career members
of the Foreign Service whose PAS positions are technically
constitutionally political but are, in practice, treated as career
positions. In sum, the distinction between the two interpretations of
the policy-influencing terms is substantively meaningless.
Textual Analysis
Several commenters took the position that ``confidential, policy-
determining, policy-making, or policy-advocating'' is a term of art
which refers solely to political appointees. As discussed above,
accepting this view has no legal or practical effect on the rule's
validity. Moreover, as OPM explained in the proposed rule, the best
interpretation of the CSRA is that each of the policy-influencing terms
bear their constituent meanings. That is Congress used the terms
``confidential,'' ``policy-making,'' ``policy-determining,'' and
``policy-advocating'' to describe the types of positions that are
eligible for the 5 U.S.C. 2302(a)(2)(B) and 7511(b)(2) exceptions.
Multiple canons of statutory construction point to this conclusion.
First, meaningful variation in statutory language is presumed to entail
a change in meaning. Congress used specific language in the CSRA to
explicitly distinguish between career and political appointees in the
SES, namely ``career'' and ``noncareer'' appointments.\155\ In
subchapter V of chapter 75 Congress expressly gave all ``career'' SES
officials adverse action procedures while excluding noncareer
officials.\156\ Congress separately used quite different language--
namely the policy-influencing terms--to describe exceptions from
adverse action appeals for non-SES employees in subchapter II.\157\
Canons of statutory construction indicate this shift in language
implies a shift in meaning: the policy-influencing terms are not
synonyms for ``noncareer.'' OPM is mindful of the Supreme Court's
directive that ``when the legislature uses certain language in one part
of the statute and different language in another, the court assumes
different meanings were intended.'' \158\
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\155\ See 5 U.S.C. 3132 and 3134.
\156\ See 5 U.S.C. 7541(1) (defining ``employee'' as ``a career
appointee in the Senior Executive Service''); U.S.C. 3132(a)(4)
(defining ``career appointee'' as ``an individual in a Senior
Executive Service position whose appointment was based on approval
by the Office of Personnel Management of the executive
qualifications of such individual'').
\157\ The fact that the CSRA uses terms whose ordinary meanings
describe officials who can and cannot expect to stay in Government
across presidential administrations, namely ``career'' and
``noncareer'', further suggests Congress saw no need to use a term
of art to distinguish political appointees from career officials.
This reinforces the conclusion that the policy-influencing terms
bear their ordinary, constituent meanings.
\158\ See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004)
(quoting 2A N. Singer, Statutes and Statutory Construction Sec.
46:06, p. 194 (6th rev. ed. 2000)).
---------------------------------------------------------------------------
Second, under the presumption of consistent usage 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.'' \159\
This matters because Congress used the policy-influencing terms
elsewhere in the CSRA in a manner that is inconsistent with their being
a term of art for political appointees. In 5 U.S.C. 3132(a)(2)--also
part of the CSRA--Congress defined 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[ ]
[[Page 5596]]
important policy-making, policy-determining, or other executive
functions.'' \160\ 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.\161\ Consequently, at least nine-tenths of SES
positions--which are definitionally ``policy-making'' or ``policy-
determining'' executives--must be held by career officials.
---------------------------------------------------------------------------
\159\ Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995)
(quoting Dep't of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332,
342 (1994) (internal quotation marks omitted)).
\160\ 5 U.S.C. 3132(a)(2) (emphasis added).
\161\ See 5 U.S.C. 3134(b) (``The total number of noncareer
appointees in all agencies may not exceed 10 percent of the total
number of Senior Executive Service positions in all agencies.'').
---------------------------------------------------------------------------
Congress's decision to use ``policy-making'' and ``policy-
determining'' to define a class of employees which must be at least 90%
career employees is incompatible with those terms being merely
subcomponents of a single term of art which can refer only to political
appointees. Moreover, the presumption of consistent usage most strongly
applies to terms appearing in the same enactment, as these did.\162\
Congress's use of the terms ``policy-making'' and ``policy-
determining'' to describe career positions in one part of the CSRA
strongly suggests these terms are not mere synonyms for the different
term used to describe political appointees elsewhere in the statute.
---------------------------------------------------------------------------
\162\ See United States v. Castleman, 572 U.S. 157, 174 (2014)
(Concurring Opinion of Justice Scalia) (``[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 ``is most commonly
applied to terms appearing in the same enactment.''); IBP, Inc. v.
Alvarez, 546 U.S. 21, 34 (2005) (``[T]he normal rule of statutory
interpretation [is] that identical words used in different parts of
the same statute are generally presumed to have the same
meaning.''). See also Azar v. Allina Health Servs., 587 U.S. 566,
574 (2019) (``This Court does not lightly assume that Congress
silently attaches different meanings to the same term in the same or
related statutes.'').
---------------------------------------------------------------------------
Looking at the CSRA as a whole makes construing the policy-
influencing terms as a specialized term of art describing only
political appointees untenable. Congress knew how to categorically
grant all career employees adverse action procedures in chapter 75 but
used quite different language when drafting subchapter II of that
chapter. Congress also used the policy-influencing terms employed in
subchapter II to separately describe primarily career positions. The
better reading of 5 U.S.C. 7511(b)(2) is that the terms in the
expression ``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 an
orthogonal 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. These factors indicate the policy-
influencing exclusion from subchapter II should not be read as a term
of art that applies only to political appointees.
Commenters raised various objections to this conclusion and argued
the policy-influencing terms should be read as a singular term of art
whose meaning is divorced from its constituent terms. They assert that
these terms mean only and exclusively ``political appointee.'' OPM
disagrees with these comments, for the reasons set forth below.
Otherwise Exercises
Commenter 29987 suggests that 5 U.S.C. 3132(a)(2) should be read to
define SES employees to include officials above the GS-15 level who
exercise policy-making, policy-determining, or executive functions, but
that this does not imply that officials who perform the other duties
set forth in that subsection have policy-making or policy-determining
functions. In Commenter's view, the use of ``policy-making'' and
``policy-determining'' in section 3132(a)(2) supplies additional
criteria for defining SES positions but does not imply the other
enumerated criteria are policy-determining or policy-making functions.
OPM respectfully disagrees. Commenter's construction would make
sense if 5 U.S.C. 3132(a)(2)(E) did not describe SES positions as
``otherwise exercise[ing] important policy-making, policy-determining,
or other executive functions'' (emphasis added). In English, the use of
the term ``otherwise'' in this manner indicates that the functions that
precede the ``otherwise'' are of the same type as those that follow it.
Congressional use of ``otherwise'' implies the criteria such as
``[being] held responsible for the success of one or more specific
programs or projects'' or ``monitor[ing] progress towards
organizational goals and periodically evaluat[ing] and mak[ing]
appropriate adjustments to such goals'' are important policy-
determining, policy-making, or executive functions.
Contrary to Commenter's suggestion, OPM also believes the functions
expressly enumerated in section 3132(a)(2) cannot be characterized as
only ``executive'' functions with no connection to policy. That
construction would render the use of the terms ``otherwise'' ``policy-
making'' and ``policy-determining'' in section 3132(a)(2)(E) mere
surplusage. If none of the expressly enumerated functions are policy-
making or policy-determining, it would make no sense to describe an
employee as ``otherwise'' exercising such policy functions. Further,
OPM believes it is natural to consider responsibilities such as making
adjustments to organizational goals as involving policy-making and not
purely executive functions.
Location of 7511(b)(2) Does Not Limit Policy-Influencing Terms to
Political Appointees
Commenter 30426 argues that 5 U.S.C. 7511(b)(2) was originally one
of only two exclusions in section 7511(b), both of which only addressed
political appointee positions. In its current form, paragraph (b)(2) is
sandwiched between two other political appointee exclusions, one for
PAS positions, and one for PA positions. This simply shows that
Congress intended the exception to apply to political appointees, as it
surely does.
OPM does not dispute that 5 U.S.C. 7511(b)(2) was added largely for
the purpose of allowing exceptions for political appointees from
adverse action appeals. However, OPM asserts that the exception can
cover both political appointees and some policy-influencing career
employees. The addition of a third exception presupposes congressional
intent that the other two were insufficient to cover the universe of
appointees to whom Congress intended to apply the exception. Commenter
30426 does not explain how this placement is an argument for
construction of 5 U.S.C. 7511(b)(2) to exclusively cover political
appointees, rather than it covering political appointees as well as a
broader potential application subject to discretion to exercise that
application.
Congressional Purpose Does Not Override Statutory Text
Commenter 30426 similarly argues that in the CSRA itself, Congress
declared that one of its purposes is to ensure that Federal employees
``receive appropriate protections through increasing the authority of
the MSPB in
[[Page 5597]]
processing hearings and appeals affecting [f]ederal employees.''
OPM concurs in the view that the CSRA was intended to provide MSPB
coverage, which it will continue to provide to the vast majority of
employees under this reading. That purpose can and does coexist with
the statutory exceptions from MSPB coverage, including those for
policy-influencing positions. As the Supreme Court has clarified,
``[i]ndeed, it is quite mistaken to assume . . . that `whatever' might
appear to `further[ ] the statute's primary objective must be the law.'
'' \163\ Commenter's other arguments that CSRA adverse action
exemptions should be read narrowly in light of other sections,
including 2302(a)(2)(B)(i) have the same answer: OPM is reading the
restrictions narrowly, just not as narrowly as the Commenter suggests.
Further, 5 U.S.C. 2302(a)(2)(B)(ii) permits the President to except
``any position''--not just policy-influencing positions--from PPP
prohibitions if he determines it necessary and consistent with
principles of good administration. If giving the President broad
discretion to except any position he deems necessary from PPP
prohibitions is consistent with the broader purpose of the CSRA, and 5
U.S.C. 2302, then reading 7511(b)(2) to authorize the President to
except just policy-influencing career positions is also consistent with
the CSRA's purpose.
---------------------------------------------------------------------------
\163\ Henson v. Santander Consumer USA Inc., 582 U.S. 79, 89
(2017) (citing Rodriguez v. United States, 480 U.S. 522, 526
(1987)).
---------------------------------------------------------------------------
OPM's Interpretation Is Consistent With the CSRA and Other Title 5
Authorities
Commenters 16670, 23789, 30426, and others argued that construing
the policy-influencing terms to bear their ordinary, constituent
meaning would be ``incoherent'' because it would give members of the
SES, who wield more authority over policy, stronger removal protections
than subordinate employees in the General Schedule covered by
subchapter II with less authority over policy. They criticize OPM for
failing to explain why Congress would make an ``illogical'' choice to
create a ``giant'' exception from adverse action procedures for lower-
ranking employees but not the more powerful senior executives who
supervise them.
As OPM explained in the proposed rule, this objection misses
statutory SES management flexibilities. Agency heads can reassign SES
members at-will \164\ and have broad discretion to demote them from the
SES for poor performance without external appeals.\165\ The President
and OPM can also take agencies out of the SES and create alternative
senior executive management systems.\166\ Section 7511(b)(2) of 5
U.S.C. would then allow the President to exclude employees in those
alternative systems from chapter 75.\167\ Congress could have easily
seen the need for greater authority to remove policy-influencing
employees below the SES precisely because agencies do not have the same
degree of management flexibility. Congress could have also drafted
section 7511(b)(2) more expansively in part to ensure the President
could make senior executives entirely at-will if he takes their
agencies out of the SES.\168\ The commenters also failed to consider
that the President proactively exercised his executive authority to
extend protections from PPPs to Schedule Policy/Career positions by
requiring agencies to establish and enforce internal policies
protecting these career employees from, for example, whistleblower
reprisal.
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\164\ See 5 U.S.C. 3395.
\165\ See 5 U.S.C. 4312(d) and 4314(b)(3).
\166\ 5 U.S.C. 3132(c).
\167\ 5 U.S.C. 7511(b)(2) (excluding from chapter 75 any
position that ``has been determined to be of a confidential, policy-
determining, policy-making, or policy-advocating character by (A)
the President for a position that the President has excepted from
the competitive service; (B) the Office of Personnel Management for
a position that the Office has excepted from the competitive
service'').
\168\ For example, unlike SES members, competitive and excepted
service employees can appeal removals based on unacceptable
performance to the MSPB. See 5 U.S.C. 4303(e).
---------------------------------------------------------------------------
Commenter 30426 rejected this analysis as ``absurd'' because it
suggests Congress's intricate work crafting the CSRA, with the creation
of the SES the crown jewel of that work, is meant only to ``cohere'' in
agencies that are excepted from the SES. Commenter 30426 also objected
that this would imply Congress gave the President the authority to fire
a single member of the SES, but only if he excepted the entire agency
from the SES system, a conclusion the Commenter similarly described as
absurd. Commenter 30426 further argued that SES management
flexibilities are not as significant as OPM explained, reasoning that
reassignment at will and unappealable performance-based demotions of
SES members are not comparable to at-will dismissal of sub-SES
employees. The Commenter uses this observation to buttress the argument
that it would be illogical to construe the CSRA to give the President
more flexibility over junior employees than senior executives.
On the contrary, OPM believes construing 7511(b)(2) to allow the
President to make policy-influencing excepted and competitive service
employees at-will makes rational sense. Congress could reasonably have
expected that heightened SES management flexibility would generally be
sufficient to address performance issues or policy resistance, while
recognizing that in some cases they would not. In those cases, Congress
left the President backstop authority to exclude an agency or agency
subunit entirely from the SES and use 7511(b)(2) to make such senior
executives at-will employees. Congress may have expected this backstop
authority to be the exception, not the rule. But construing the CSRA to
provide such backstop authority, while expecting it would rarely need
to be used, is a coherent construction of the statute.
In addition, employees in the competitive and excepted services can
appeal performance-based demotions to the MSPB.\169\ SES members
cannot.\170\ These are considerably greater management flexibilities
than Congress has given agencies over sub-SES officials.\171\ Congress
could have rationally expected SES management flexibilities would
generally suffice and not see the need to provide for at-will SES
removals in the mine run of agencies that the President elects to keep
in the SES.\172\
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\169\ See 5 U.S.C. 4303(e), 7513(d).
\170\ See 5 U.S.C. 4312(d), 4314(b).
\171\ The Supreme Court similarly recognized these SES
management flexibilities as noteworthy in evaluating the
constitutionality of removal protections for officers exercising
executive power. Free Enterprise Fund v. Pub. Co. Acct. Oversight
Bd., 561 U.S. 477, 506-07 (2010) (noting that ``members of the
Senior Executive Service may be reassigned or reviewed by agency
heads (and entire agencies may be excluded from that Service by the
President)'' (citing 5 U.S.C. 3132(c), 3395(a), 4312(d), 4314(b)(3)
and (c)(3)). Free Enterprise Fund also cited the fact that
``[s]enior or policymaking positions in government may be excepted
from the competitive service to ensure Presidential control'' as
another factor distinguishing the rules governing the civil service
from the ``significant and unusual protections from Presidential
oversight'' enjoyed by the board members at issue in Free Enterprise
Fund. Id. at 506 (citing 5 U.S.C. 2302(a)(2)(B), 3302, 7511(b)(2)).
\172\ Indeed, any interpretation of the CSRA or any other law
that restricted the President from removing an officer with
significant ``policymaking or administrative authority'' would be
constitutionally suspect. See Seila Law, 591 U.S. at 218.
---------------------------------------------------------------------------
Moreover, OPM notes that 7511(b)(2) authority only applies to the
small subset of sub-SES employees in policy-influencing positions.
Under the CSRA the rule is that agencies have more management authority
over SES members than the vast majority of competitive and excepted
service employees. It could easily be rational, rather than illogical,
for Congress to
[[Page 5598]]
conclude the President needed heightened management authority over the
small subset of policy-influencing employees covered by 5 U.S.C.
7511(b)(2).
OPM recognizes that the 7511(b)(2) exception was enacted for the
purpose of permitting the executive branch to except political
appointees from adverse action procedures. It has consistently been
applied for that purpose. However, the text Congress used to draft this
exception makes positions eligible based on the types of duties they
perform--not the political nature of the incumbent's appointment.
Nothing in the text of 7511(b)(2) restricts its application to
employees hired on a political basis, or to employees who are expected
to be dismissed upon a change of administration. Some members of
Congress may have assumed that the exception would only apply to
political appointees, but nothing in the enacted text of subchapter II
requires that view. It is the text of statutes Congress enacts that
binds as law.\173\
---------------------------------------------------------------------------
\173\ See Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980)
(``[A] statute is not to be confined to the `particular
application[s] . . . contemplated by the legislators.' '' (quoting
Barr v. United States, 324 U.S. 83, 90 (1945))); Oncale v. Sundowner
Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (``[I]t is ultimately
the provisions of our laws rather than the principal concerns of our
legislators by which we are governed.''); see also Bostock v.
Clayton Cnty., Georgia, 590 U.S. 644, 653 (2020) (``[T]he limits of
the drafters' imagination supply no reason to ignore the law's
demands.'').
---------------------------------------------------------------------------
Relatedly, SES members generally supervise organizational units.
Thus, the authority granted in 5 U.S.C. 3132(c) to remove an agency
``unit'' will generally suffice to allow OPM and the President to
except a single individual from the SES. Contrary to Commenter 30426's
statement, it is generally unnecessary to except an entire agency from
the SES to hold accountable a single SES member.
OPM's Interpretation Is Consistent With 5 U.S.C. 2302
Commenter 30426 argues that OPM's argument that the terms ``policy-
making'' and ``policy-determining'' in 5 U.S.C. 3132(a)(2) have the
same meaning as in 5 U.S.C. 2302(a)(2)(B) and 7511(b)(2) ignores the
fact that Congress expressly included career SES in the coverage of 5
U.S.C. 2302, even though it excluded ``confidential, policy-
determining, policy-making or policy-advocating'' excepted service
positions from that section. Commenter contends that if the words used
in 5 U.S.C. 3132 had the same meaning as the distinct term of art in 5
U.S.C. 2302(a)(2)(B)(i), then the express coverage of career SES
members by 5 U.S.C. 2302 would make little sense, as all SES members
would be expressly included by section 5 U.S.C. 2302(a)(2)(B), but then
excluded under 5 U.S.C. 2302(a)(2)(B)(i).
Commenter's argument in this regard misses the fact that SES
positions--both career and noncareer--are definitionally not in the
excepted service but exist in a separate statutory category. Section
2103(a) of Title 5, U.S. Code, provides that the ``excepted service''
are those ``civil service positions which are not in the competitive
service or the Senior Executive Service.'' Section 2302(a)(2)(B)(i) of
Title 5, U.S. Code, does not apply to SES members, because it covers
``any position which is excepted from the competitive service because
of its confidential, policy-determining, policy-making or policy-
advocating character.'' In this way, SES positions are not ``excepted
from the competitive service,'' but rather exist within a separate
service.
Consequently, there is no contradiction as Commenter 30426
proposes. Section 2302(a)(2)(B) includes many positions, including
career SES, under protections from PPPs, while 5 U.S.C.
2302(a)(2)(B)(i) excludes policy-influencing positions in the excepted
service from coverage under 5 U.S.C. 2302. That exclusion for policy-
influencing excepted service positions does not apply to any SES
positions because they are not part of the excepted service, no matter
the policy-nature of their duties. OPM further notes that Schedule
Policy/Career will not apply to the SES, which operates under separate
statutory authority. Consequently, the concerns expressed by Commenters
26624 and 28202 for SES employees are also inapplicable.
E.O. 13957 and the Final Rule Do Not Expand the Meaning of the CSRA
Commenter 30426 criticizes Section 5(c) of E.O. 13957, as amended,
and OPM's January 2025 Memorandum, as atextually expanding the use of
``confidential, policy-determining, policy-making or policy-
advocating'' to include duties that are policy-related and develop or
formulate policy. Commenter 30426 points to other descriptors used in
the E.O. to describe policy-influencing positions, namely policy
``viewing,'' ``circulating,'' and ``working'', and concludes that the
E.O. expands the statutory terms under 5 U.S.C. 7511(b)(2) towards
covering those involved in the daily administration of Government.
Commenter 30426 misreads the categories in subsection 5(c) of E.O.
13957 and OPM's January 2025 Memorandum requiring agencies to focus
analysis on certain types of positions. Commenter 30426 construes these
categories as definitions of the policy-influencing terms. As explained
in this rule, they are not definitions, but rather are guideposts to
focus agency analysis and recommendations on positions that are more
likely to be policy-influencing. It is not the case that every position
that falls within these criteria will be included in Schedule Policy/
Career, nor is it the case that every position not described by these
guideposts will not be held to be policy-influencing. OPM's January
2025 Memorandum expressly advised agencies that these guideposts were
not controlling but merely factors to consider. This guidance
encompasses employees who have access to confidential, deliberative
policy information by virtue of their close working relationship with
agency leadership and management, given GS-13 and higher are the
management grades in the Federal Government. While these positions may
not, in an agency's determination, fall within the scope of the terms
policy-making or policy-determining, they may execute confidential
duties within the bounds of 5 U.S.C. 7511(b)(2). Commenter 30426
provides no argument as to why such positions should not be considered
confidential.
Commenter 30426's conclusion is similarly confusing. Commenter
30426 does not explain how authority over the policies governing the
daily administration of government are not policy-making authorities in
and of themselves. Determining the manner in which agencies carry out
their work is government policy. Agencies have substantial
discretionary authority to determine how the government carries out its
statutory responsibilities, and that authority is the authority to make
policy if not determine it. In lay terms, the ``how'' and the ``what''
of a policy are interdependent and, in fact, inextricably linked
considerations.
Commenter 30426 similarly argues that E.O. 13957, as amended,
drifts away from the statutory focus on the ``character'' of a position
towards the location of a position within an organization when, for
example, it purports to cover positions situated in an executive
secretariat. However, Executive Secretariat positions are often heavily
involved with circulating draft proposals and documents with agency
heads. Many, though not necessarily all, of them are appropriately
considered confidential.
[[Page 5599]]
All Supervisors Are Not Included in Schedule Policy/Career
Commenter 30426 and others take issue with OPM's January 2025
Memorandum that provides guideposts to agencies to implement E.O.s
13957 and 14171. Commenter 30426 argues that by including the 5 U.S.C.
3132(a)(2) terms defining SES positions in the January 2025 Memorandum,
OPM has effectively advanced a view that the CSRA authorizes exclusion
of nearly all supervisory positions in Government. Commenter 30426
points to the separate probationary period for new supervisors
authorized by Congress in 5 U.S.C. 3321(a)(2).
The CSRA defines SES positions as positions above the GS-15 level
that perform certain enumerated functions or ``otherwise exercise[ ]
important policy-determining, policy-making, or other executive
functions.'' \174\ From these enumerated functions the January 2025
Memorandum did not include ``supervising the work of employees other
than personal assistants,'' \175\ and thus does not include most line
supervisors who perform executive functions without the same degree of
responsibility for agency policy. However, it included executives whose
responsibilities include ``directing the work of an organizational
unit'', ``being held accountable for one or more specific programs or
projects'', and ``monitoring progress toward organizational goals, and
periodically evaluating and making appropriate adjustments to such
goals.'' \176\ Such duties go beyond executive supervision to
involvement in making or setting the policies of an agency. Congress
considered these to be important policy-determining and policy-making
functions. Many agency executives below the level of the SES who
perform these functions thus meet the criteria for Schedule Policy/
Career. Further, the supervisory probationary period remains relevant
because most supervisors do not exercise these higher-level functions.
Generally, only more senior executives in the rungs immediately below
the SES meet these criteria, while line supervisors do not.
---------------------------------------------------------------------------
\174\ See 5 U.S.C. 3132(a)(2).
\175\ Id.
\176\ Id.
---------------------------------------------------------------------------
While SES members will not be included in Schedule Policy/Career
because they are appointed to a service separate and distinct from the
competitive and excepted services, Schedule Policy/Career complements
the SES structure and ensures those non-SES personnel executing similar
duties are appropriately accountable to the President. Thus, Commenter
30426's complaint is with congressional judgment, not OPM's guidance on
positions to review that follows these statutory guideposts.
OPM's Interpretation Is Consistent With the Use of Policy-Influencing
Terms in Individual Agencies' Organic Statutes
Commenter 30426 also points to several other statutory provisions
within title 5 that do not define excepted service policy-influencing
positions as political appointments per se but that classify such
employees along with political appointees for certain purposes. For
example, Commenter 30426 discusses 5 U.S.C. 5753(a)(2)(C) and 5 U.S.C.
5754(a)(2) recruitment and retention bonuses. They do not apply to
Presidential appointees, noncareer SES, or a ``position which has been
excepted from the competitive service by reason of its confidential,
policy-determining, policy-making, or policy-advocating character.'' In
addition, Commenter raises the Intergovernmental Personnel Act, which
authorizes the head of a Federal agency to detail an employee to state
and local governments so long as employees commit to serving in their
original position for the same length of time. Under the
Intergovernmental Personnel Act, Congress excluded employees in a
confidential, policy-making, policy-determining, or policy-advocating
position along with noncareer SES and temporary SES personnel.\177\
Commenter argues these laws show policy-influencing positions were
treated the same as political appointees (and different from career
employees) and that this sheds light on interpreting the CSRA.
Commenter 30426 further argues, ``applying this term to career civil
servants would produce an absurd outcome: career officials who occupy
positions of a ``confidential, policy-determining, policy-making or
policy-advocating'' character would be ineligible for recruitment or
retention bonuses, whereas all other career officials could receive
them.'' \178\ This rulemaking addresses these arguments in the next
section.
---------------------------------------------------------------------------
\177\ 5 U.S.C. 3372(a)(1).
\178\ Comment 30426, at 16.
---------------------------------------------------------------------------
Commenter 30426 also argues that various Federal laws define
political appointees as individuals occupying policy-influencing
positions in the excepted service and that is relevant to interpreting
the CSRA. In support, Commenter 30426 asserts that the Supreme Court's
decision in United States v. Fausto compels OPM to interpret 5 U.S.C.
7511(b)(2) and 2302(a)(2)(B)(i) in a manner consistent with the
definitions these other statutes supply. They purportedly reflect the
consistent understanding of Congress that the term of art
``confidential, policy-determining, policy-making, or policy-
advocating'' applies only to political appointee positions. In other
words, Congress defined the concept of a political appointee in other
laws based on the understanding of the term of art.
But there is no inconsistency between these statutes and OPM's
construction of the policy-influencing terms. As discussed previously,
the textual interpretation and statutory analysis, as well as the
history of these terms' usage, which Commenter supplies and is
discussed in a later section, reinforces the conclusion that the
meaning of these terms at the time of the CSRA and the DPAA was clear
and the terms bear their ordinary meaning: positions involved in
determining, making, or advocating for policy, or confidential
positions. At the same time, as a matter of Presidential discretion,
the executive branch limited the application of the 7511(b)(2)
exception to political appointments, principally Schedule C
positions.\179\ Subsequently, Congress passed a handful of provisions
scattered across the U.S. Code that define policy-influencing positions
as political appointments for certain narrow applications. This
occurred because, until 2020, the policy-influencing exception had only
been applied to political appointments. So at the time these laws were
enacted, the terms only described political appointments. At the same
time, Congress expressly limited the application of these definitions
to whichever inferior subdivision of Title 5 was at issue, using
limiting language like ``for purposes of this section'' or ``this
subsection.'' At no point did Congress provide a global definition
across Title 5 for the meaning of those terms or interpret those terms
for purposes of 7511(b)(2). Rather, Congress legislated against the
backdrop of contemporary executive branch practice. Construing those
terms now to implicitly provide a global definition of the policy-
influencing terms for Title 5 as a term of art would construe these
laws to implicitly and retroactively modify the scope of 7511(b)(2)--
ignoring Congress's direct statutory command that these are to be
narrow
[[Page 5600]]
and local definitions that do not control across all of Title 5.\180\
---------------------------------------------------------------------------
\179\ Notably, Presidential discretion has resulted in many, but
not all, policy-influencing positions being placed into the excepted
service. Some have been so-designated by agency heads. See Stanley
v. Gonzales, 476 F.3d 653, 658-59 (9th Cir. 2007) (evaluating the
Attorney General's redesignation of a position as ``confidential or
policy-making'').
\180\ Further, there is nothing problematic with treating some
career positions as political appointments for narrowly defined
purposes, like performance review procedures or details to state or
local government.
---------------------------------------------------------------------------
Additionally, each of the four instances Commenter 30426 cites of
policy-influencing positions being defined as political appointees are
compatible with E.O.s 13957 and 14171, as well as this rulemaking.
First, 7 U.S.C. 6992(e)--passed by Congress and signed into law in
2018--prohibits any ``political appointee'' from being employed in the
U.S. Department of Agriculture National Appeals Division, defining the
term political appointee, ``in this subsection'' to mean, inter alia,
``a position which has been excepted from the competitive service by
reason of its confidential, policy-determining, policy-making, or
policy-advocating character.'' This provision prohibits the President
from using 7511(b)(2) to remove adverse action appeals from employees
within the Appeals Division. It does not purport to define any
employees holding policy-influencing positions outside the Appeals
Division as political appointees. By its own terms, it has no bearing
on that question.
Second, 5 U.S.C. Chapter 98 provides the National Aeronautics and
Space Administration (NASA) with a variety of compensation
flexibilities, such as recruitment and retention bonuses, and leave
accrual enhancements. Section 9803(c)(2) of Title 5, U.S. Code--enacted
in 2004--prohibits exercising these flexibilities with respect to
political appointees, defining that term, ``For purposes of this
subsection,'' to mean, inter alia, ``a position which has been excepted
from the competitive service by reason of its confidential, policy-
determining, policy-making, or policy-advocating character.'' This
means that NASA could not use these pay flexibilities for either
Schedule C, Schedule G, or Schedule Policy/Career, or any other
position covered under 5 U.S.C. 7511(b)(2). Congress passed this
prohibition because at the time of its enactment, only political
appointees were covered by that exception. However, the inability to
use certain pay flexibilities available would not prevent NASA from
filling or vacating section 7511(b)(2) positions on a nonpartisan
basis, nor would doing so create any conflicts with E.O.s 13957 and
14171. Rather, this section cabins off the application of compensation
flexibilities within NASA. Nothing else.
Third, 6 U.S.C. 349(d)--enacted in 2016--authorizes the Secretary
of DHS to appoint a Deputy Under Secretary to support the Under
Secretary for Strategy, Policy, and Plans, but in exercising that
discretion, requires the Secretary to appoint a career employee to the
position, defining a career employee as a non-political appointee and
defining a ``political appointee'' ``for purposes of [this] paragraph''
as ``any employee who occupies a position which has been excepted from
the competitive service by reason of its confidential, policy-
determining, policy-making, or policy-advocating character.'' \181\
This prohibition simply prevents the President from applying the
section 7511(b)(2) prohibition to a single position at the DHS. It does
not, and on its own terms does not attempt to, limit the application of
section 7511(b)(2) elsewhere within DHS. In addition, it does not
purport to apply a generally applicable definition of career employee
or political appointee. Under 6 U.S.C. 349(d)(3) a noncareer SES member
can be considered a ``career employee'' and not a ``political
appointee'' because SES positions are not ``excepted from the
competitive service'' and thus are outside the definition of political
appointees. Looking to this subsection to interpret the scope of
political appointments or delineate political from career positions in
the Federal workforce would be highly problematic. This is no doubt one
reason Congress expressly said not to do so.
---------------------------------------------------------------------------
\181\ 6 U.S.C. 349(d)(3).
---------------------------------------------------------------------------
Fourth, 38 U.S.C. 725, enacted in 2017, requires the Secretary of
Veterans Affairs (VA Secretary) to give specific performance
evaluations to each ``political appointee'' in the VA that covers
certain congressionally mandated metrics, such as engaging and
motivating employees, and recruiting and retaining well-qualified
individuals in the VA. ``In this section the term `political appointee'
means an employee of the Department who holds . . . a position which
has been excepted from the competitive service by reason of its
confidential, policy-determining, policy-making, or policy-advocating
character.'' \182\ This language requires the VA Secretary to evaluate
employees with important policy responsibilities based on categories of
interest to Congress. This section also does not purport to generally
define political appointees, as it excludes PAS positions and
Presidentially Appointed (PA) positions, of which VA has both. PAS and
PA positions are obviously political appointments, but not in scope for
the purposes Congress intended section 725 to cover, so they are not
covered by the definition (though the VA Secretary has limited
authority to review the performance of Presidential appointees).
Section 725 of title 38, U.S. Code, should therefore not be read to
define the 7511(b)(2) exception as limited to political appointees any
more than it should be read to declare PAS and PA appointees not to be
political appointees. It simply does not speak to that question, a view
Congress expressly endorsed by cabining off the scope of the definition
exclusively to 38 U.S.C. 725.
---------------------------------------------------------------------------
\182\ 38 U.S.C. 725(c).
---------------------------------------------------------------------------
Additionally, Congress elsewhere defined ``political appointee''
more narrowly to only encompass Schedule C appointees. For example, 49
U.S.C. 106(f)(5)(C) provides that political appointee, for the purpose
of operations of the Federal Aviation Administration, is to mean any
individual who is ``employed in a position in the executive branch of
the Government in a confidential or policy-determining character under
schedule C of subpart C of part 213 of title 5 of the Code of Federal
Regulations.'' A note to 5 U.S.C. 3101 (Pub. L. 114-136, sec. 4, 130
Stat. 305, March 18, 2016) defines political appointees for purposes of
reports on officials burrowing into career positions as, in relevant
part, ``a position in the executive branch of the Government of a
confidential or policy-determining character under schedule C of
subpart C of part 213 of title 5, Code of Federal Regulations.'' So, it
is not the case, as Commenter 30426 suggests, that Congress
consistently uses the policy-influencing terms as a unified term of art
to define political appointees. Rather, in some sections, Congress
specifically described Schedule C positions and not the broader policy-
influencing phrase. These are local definitions and should be treated
as such.
Historical Context Supports OPM's Interpretation
Commenters 23789, 30055, 30426, and others presented arguments that
historical context shows the policy-influencing phrase ``positions of a
confidential, policy-determining, policy-making, or policy-advocating
character'' is a singular term of art. They pointed to legislative
history, MSPB decisions, amicus briefs, and statements of legislators,
among other sources, to conclude that Congress used the policy-
influencing terms to describe political appointments. Commenters
conclude that it is a fallacy to focus on the meaning of the distinct
component terms of this term of art, and that its
[[Page 5601]]
meaning can only be understood by looking at the phrase as a whole.
There is no doubt that Congress meant the policy-influencing terms
to encompass political positions. What is at issue is whether Congress
used the terms as a singular term of art that definitionally describes
only political appointments, or used the terms in their ordinary sense
and employed language that can, at the President's discretion, also
cover some career positions. Reviewing this history, OPM concludes that
phrase ``positions of a confidential, policy-determining, policy-
making, or policy-advocating character'' is not a singular term of art,
but the components in this phrase bear their ordinary meaning. That
meaning certainly encompasses, but is not limited to, politically
appointed positions.
OPM notes that the phrase ``confidential, policy-determining,
policy-making, or policy-advocating'' was not used as a term of art, or
even as a singular phrase, before the CSRA's enactment in any source
OPM or commenters have identified. This strongly implies Congress did
not use this phrase as a term of art. The history that commenters point
to instead used 7511(b)(2)'s constituent terms as separate descriptors.
For example, the Brownlow Report spoke of ``policy-determining posts.''
\183\ The Senate debate over the First and Second Hoover Commission
Reports used the terms ``policy-making'' and ``policy-determining''
respectively.\184\ E.O. 10440, which created Schedule C, used the
phrase ``positions of a confidential or policy-determining character.''
---------------------------------------------------------------------------
\183\ See generally President's Comm. On Admin. Mgmt., Report of
the Committee with Studies of Administrative Management in the
Federal Government, Gov't Printing Office, Wash., DC (1937).
\184\ 124 Cong. Rec. 27540 (Senate) (Aug. 24, 1978) (remarks of
Sen. Ted Stevens (R-AK)) (``The Hoover Commission believed that in a
true career service, the employee could go as far as his ability and
initiative and qualifications indicated, excepting only
decisionmaking or confidential posts. It held: [`]Top policy-making
officials must and should be appointed by the President. But all
employment activities below these levels, including some positions
now in the exempt category, should be carried on within the
framework of (the civil service system).[']''), <a href="https://www.govinfo.gov/content/pkg/GPO-CRECB-1978-pt20/pdf/GPO-CRECB-1978-pt20-7-1.pdf">https://www.govinfo.gov/content/pkg/GPO-CRECB-1978-pt20/pdf/GPO-CRECB-1978-pt20-7-1.pdf</a>.
---------------------------------------------------------------------------
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.'' Even if, arguendo, commenters' argument was correct that
the expression ``confidential or policy-determining,'' used in E.O.
10440 in describing Schedule C positions, was an accepted term of art
that referred exclusively to political appointees, the natural
implication is that Congress intended to add two other categories of
employees to the exceptions contained in 5 U.S.C. 7511(b)(2)--those
employees who did not fall into the Schedule C classification but were
``policy-making'' or ``policy-advocating.'' \185\ Under the reading
advanced by Commenters, these additions would be mere surplusage,
serving no practical purpose other than to needlessly confuse a reader
familiar with the pre-existing term of art. Congress's deliberate
decision to add additional new terms to the prior formulation suggests
each term is meant to have independent meaning. The alternative reading
would depart from ``[f]ollowing the axiom that words used in a statute
are to be given their ordinary meaning in the absence of persuasive
reasons to the contrary[.]'' \186\
---------------------------------------------------------------------------
\185\ OPM accepted similar arguments in the April 2024 rule. OPM
now rejects this conclusion, for the same reason it rejects
commenters' arguments.
\186\ See Burns v. Alcala, 420 U.S. 575, 580-81 (1975) (citing
Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465 (1968); Minor v.
Mechanics Bank of Alexandria, 26 U.S. 46, 64 (1828)).
---------------------------------------------------------------------------
Additionally, Congress's use of ``or'' rather than ``and'' in
7511(b)(2) implies that it intended (b)(2) to describe a list of
characteristics building on existing determinations made by President
Eisenhower (in creating Schedule C) and others rather than a self-
contained term of art created from whole cloth. Had Congress intended
to classify this term as a term of art, it was well able to do so.
Congress did in fact do so many times for other terms of art used
elsewhere in the CSRA, including in 5 U.S.C. 7511 itself.\187\ The
choice not to provide a unified definition in the section in which the
phrase is used, while doing so for terms of art Congress did use in the
very section in question, cuts sharply against Commenter 30426's and
others' assertion that this list of duties should be understood to be a
term of art.
---------------------------------------------------------------------------
\187\ Chapter 75 precisely defines the scope on an ``employee''
subject to its provisions. See 5 U.S.C. 7511(a)(1). The CSRA also
defines the terms ``career appointee'' and ``noncareer appointee.''
See 5 U.S.C. 3132(a)(4) and (7). The CSRA elsewhere expressly
defines many specific terms of art. See, e.g., 5 U.S.C. 3391
(including separate definitions for ``career appointee'' and
``noncareer employee''), 3591 (same), 3401(2) (defining ``part-time
career employment''), 4301(3) (defining ``unacceptable
performance''), 4311 (defining ``senior executive'' and ``career
appointee''), 4507(a) (same), 5381 (same), 4701(a)(4) and (5)
(defining ``demonstration project'' and ``research program''),
5351(2) (defining ``student-employee''), 7103(a)(10), (11), and (13)
(defining, e.g., ``supervisor,'' ``management official,'' and
``confidential employee''), 7501 (defining ``employee'' and
``suspension''), and 7541 (same).
---------------------------------------------------------------------------
Not only did Congress elect not to define the policy-influencing
terms as a term of art in section 7511 along with the other terms it
defined in that section, it used portions of these terms elsewhere in
other contexts. As discussed previously in this final rule, Congress
established the SES which defined the duties of SES members to include
policy-making and policy-determining functions but left out
confidential or policy-advocating functions. This makes sense as career
SES do not necessarily perform confidential duties, nor are they
necessarily expected to advocate for administration policy. In section
3132(a), which was part of the CSRA, Congress treated the policy-
influencing terms as separate descriptors, applying only those terms
that described the duties of career senior executives and omitting
those which did not.
This understanding is most consistent with OPM's near
contemporaneous interpretation of the CSRA when it issued implementing
regulations. Specifically, in 1981, OPM updated its regulations
governing Schedule C appointments and did not extend them to cover
``policy-making'' or ``policy-advocating positions.'' \188\ However,
OPM did clarify what positions ``confidential or policy determining''
described. In 1981, OPM modified 5 CFR 213.3301 to provide that the
Schedule C exception for ``[p]ositions of a confidential or policy-
determining character'' applied to ``positions in grades GS-15 and
below which are policy-determining or which involve a close and
confidential working relationship with the head of an agency or other
key appointed officials.'' \189\ OPM contemporaneously treated the
words ``confidential'' and ``policy determining'' as functional
descriptions of the types of duties that make positions eligible for
placement in Schedule C. It treated them as having separate meanings--
not a singular phrase synonymous with a ``political appointee.'' This
usage of these terms as having a functional and separate meaning from
one another lasted from 1981 to 2024.\190\ Thus, OPM credits this
[[Page 5602]]
historical evidence from both Congress and its prior interpretation
historically treating the terms ``confidential,'' ``policy-
determining,'' ``policy-making,'' and ``policy-advocating'' as
individual words bearing individual constituent meanings used to
describe position duties, not as a singular term of art. Accordingly,
7511(b)(2) can only be understood by examining the meaning of its
constituent words, individually, and not as a cohesive term, especially
as several of these constituent words are used elsewhere in the same
statute to define primarily career appointments.
---------------------------------------------------------------------------
\188\ OPM has not expanded the scope of Schedule C positions in
its regulations because Civil Service Rule 6.2 does not place
positions of a policy-making or policy-advocating character in
Schedule C. E.O. 14317 recently amended Rule 6.2 to place such
positions in Schedule G of the excepted service. See E.O. 14317,
Creating Schedule G in the Excepted Service, 90 FR 34753, 34754
(July 17, 2025).
\189\ 46 FR 20146, 20148 (Apr. 3, 1981).
\190\ Treatment of the terms as having separate meanings extends
to other roughly contemporaneous sources outside the CSRA. See,
e.g., Branti v. Finkel, 445 U.S. 507, 519-20 (1980) (in discussing
whether county public defenders can be treated as purely political
appointees, found that the ``confidential'' information they
possessed, concerning individual defendants represented, was not the
sort of confidential information which necessitated that result).
---------------------------------------------------------------------------
The historical record relied upon by Commenter 30426 shows several
parties asserting that ``policy-determining'' and ``policy-forming''
positions should not be subject to civil service removal procedures.
President Truman issued E.O. 9830 in 1947 in which he moved ``Positions
excepted from the competitive service . . . [b]ecause of their
confidential or policy-determining character'' into Schedules A and B,
and provided further that the agencies may request that the CSC except
additional positions from the competitive service on an ongoing basis,
requiring the Commission to furnish an annual report ``of the positions
which it has excepted from the competitive service under this section
during such year.'' \191\ President Eisenhower thereafter issued E.O.
10440 in 1953, in which he authorized the Commission to except
positions that ``are of a confidential or policy-determining
character'' from the competitive service, and moved positions of a
confidential or policy-determining character into schedule C.\192\
---------------------------------------------------------------------------
\191\ E.O. 9830, 12 FR 1259, 1263 (Feb. 25, 1947).
\192\ E.O. 10440, 18 CFR 1823, 1823 (Apr. 2, 1953).
---------------------------------------------------------------------------
Throughout this history, the terms were not used as a synonym for
or ``term of art'' that was shorthand for ``political appointee.''
Rather, they were used to describe the types of duties that made a
position inappropriate for coverage under civil service protections and
eligible to be converted into political appointments. The terms
described the types of duties that would appertain to positions that
could, or should, be made political appointments. They did not mean
political appointments themselves.
This view is supported by contemporaneous evidence, such as
President Eisenhower's press conference and press statement
accompanying E.O. 10440, which discusses positions ``that do not belong
in the Civil Service System.'' \193\ In a press release, the White
House described those positions as ones where they ``shape the policies
of the Government'' as well as those where these is ``a close personal
and confidential relationship between the incumbent of the position and
the head of the agency.'' \194\ Further, in answering questions
regarding his E.O., President Eisenhower himself asserted the necessity
of not putting policy into the hands of people who are not subject to
removal by the electorate.\195\ Shortly thereafter, Schedule C was
created for positions of a confidential or policy-determining
character. E.O. 10440 treated the terms ``confidential'' and ``policy-
determining'' as independent, specific terms the words of which have
specific meanings which set forth which positions were eligible for
Schedule C, not a ``term of art'' synonymous with ``political
appointee.''
---------------------------------------------------------------------------
\193\ Pres. Dwight D. Eisenhower, President's News Conference
(Mar. 19, 1953), <a href="https://www.presidency.ucsb.edu/documents/the-presidents-news-conference-459">https://www.presidency.ucsb.edu/documents/the-presidents-news-conference-459</a>.
\194\ Id.
\195\ Id.
---------------------------------------------------------------------------
As Commenter 30426 notes, over time it became the case that
employees appointed to Schedule C positions were often performing
policy-making or policy-advocating work as well. Commenter quotes a
number of lawmakers and officials describing Schedule C appointees,
including CSC Chairman Robert Hampton who said, while testifying in
1972 to the House Co
[…truncated; see source link]Indexed from Federal Register on February 6, 2026.
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