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Proposed Rule2026-02576

Reduction in Force Appeals

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Published

February 10, 2026

Issuing agencies

Personnel Management Office

Abstract

The Office of Personnel Management (OPM) is issuing a proposed rule to revise its regulations governing appeals of reduction-in-force (RIF) actions. OPM proposes to transfer appeal rights for employees who have been furloughed more than 30 days, separated, or demoted by a RIF action from the Merit Systems Protection Board (MSPB) to OPM. OPM expects this change will promote greater efficiency and reduce costs to agencies in effectuating RIF actions, which may be necessary in a variety of circumstances, such as to eliminate duplicative or unnecessary functions or align agency workforces with new technology, changing mission needs, or budgetary constraints.

Full Text

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<title>Federal Register, Volume 91 Issue 27 (Tuesday, February 10, 2026)</title>
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[Federal Register Volume 91, Number 27 (Tuesday, February 10, 2026)]
[Proposed Rules]
[Pages 5861-5877]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-02576]

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Proposed Rules
Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 91, No. 27 / Tuesday, February 10, 2026 /
Proposed Rules

[[Page 5861]]

OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

RIN 3206-AO99

Reduction in Force Appeals

AGENCY: Office of Personnel Management.

ACTION: Proposed rule.

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SUMMARY: The Office of Personnel Management (OPM) is issuing a proposed
rule to revise its regulations governing appeals of reduction-in-force
(RIF) actions. OPM proposes to transfer appeal rights for employees who
have been furloughed more than 30 days, separated, or demoted by a RIF
action from the Merit Systems Protection Board (MSPB) to OPM. OPM
expects this change will promote greater efficiency and reduce costs to
agencies in effectuating RIF actions, which may be necessary in a
variety of circumstances, such as to eliminate duplicative or
unnecessary functions or align agency workforces with new technology,
changing mission needs, or budgetary constraints.

DATES: Comments must be received on or before March 12, 2026.

ADDRESSES: You may submit comments by using the Federal eRulemaking
Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the instructions for
submitting comments.
All submissions must include the agency name and docket number or
RIN for this Federal Register document. Please arrange and identify
your comments about the regulatory text by subpart and section number.
If your comments relate to the supplementary information, please
reference the heading and page number in the supplementary section. All
comments must be received by the end of the comment period for them to
be considered. All comments and other submissions received generally
will be posted on the internet at <a href="https://regulations.gov">https://regulations.gov</a> as they are
received, without change, including any personal information provided.
However, OPM retains discretion to redact personal or sensitive
information, including but not limited to, personal or sensitive
information pertaining to third parties.
As required by 5 U.S.C. 553(b)(4), a summary of this rule may be
found in the docket for this rulemaking at <a href="http://www.regulations.gov">www.regulations.gov</a>.

FOR FURTHER INFORMATION CONTACT: Carol Matheis by email at
<a href="/cdn-cgi/l/email-protection#04616974686b7d61616567676b716a7065666d686d707d446b74692a636b72"><span class="__cf_email__" data-cfemail="fa9f978a9695839f9f9b9999958f948e9b989396938e83ba958a97d49d958c">[email&#160;protected]</span></a> or by phone at (202) 606-2930.

SUPPLEMENTARY INFORMATION:

I. Background

The federal government's civil service system is rooted in
principles of merit, fairness, and efficiency. When agencies face
workforce restructuring, RIF procedures provide a mechanism for
realigning staff through objective criteria. These procedures are
governed by 5 U.S.C. 3501-3504 and are implemented through OPM
regulations at 5 CFR 351. These regulations provide employees subject
to a RIF action an avenue to appeal to the MSPB. Under 5 CFR 351.901,
employees furloughed for more than 30 days, separated, or demoted by a
RIF action may appeal to the MSPB.
OPM is proposing to revise its regulations governing RIFs and
related technical changes under statutory authority vested in it by
Congress in 5 U.S.C. 1103 and 3502. OPM is proposing these changes to
more accurately reflect the governing federal statute while improving
the efficiency of the RIF appeal process, which will effect more timely
outcomes with less burden on agencies utilizing RIFs. This rule
proposes to return the venue to hear RIF appeals from MSPB to OPM,
thereby honoring congressional intent and historical practice,
improving the consistency of regulatory interpretation, and
streamlining the RIF process by housing it from beginning to end at
OPM.
The current regulations are antiquated and no longer reflect the
needs of agencies operating in the twenty-first century. The current
regulatory framework has been in place for decades. During this time,
the scope of RIF appeal action proceedings has expanded beyond
administrative review of a written record. As written, the regulations
provided that ``hearings were to be held only when the MSPB
administrative judge decided there were material issues of fact in
dispute.'' \1\ This requirement was struck down on a collateral issue.
American Federation of Government Employees v. Office of Personnel
Management, 821 F.2d 761, 768 (D.C. Cir. 1987) (AFGE v. OPM). In
effect, however, AFGE v. OPM allowed MSPB to dictate its own procedures
for adjudicating RIF appeals, without any ability for OPM to modify
those procedures, with the end result being MSPB permitting sweeping
hearings related to RIF appeals. See id., at 768-769. This dynamic has
led to an unnecessarily lengthy and expensive appeals process, at
considerable expense to the government and to the detriment of the
appellant. OPM notes that no statutory right to an administrative or
judicial review pertaining to RIF actions exists in 5 U.S.C. 3502
(though certain veterans have been granted administrative and judicial
appeals rights under 5 U.S.C. 3330a, 3330b, and 38 U.S.C. chapter 43).
Nor is a RIF an adverse action under 5 U.S.C. 7512. See Schall v.
Postal Service, 73 F.3d 341, 344 (Fed. Cir. 1996). Further, there are
significant qualitative differences between an adverse action
separation and a RIF separation, such that they are not comparable.
Employees who are subject to a RIF are given priority status for
reemployment in the federal government (if separated),\2\ the right to
bump or retreat to an available position in the competitive area (if
one is available and the employee is eligible by virtue of retention
standing),\3\ and eligibility for career transition assistance and
retraining,\4\ among other differences. Employees separated for
misconduct under Chapter 75 or poor performance under Chapter 43 are
given no similar benefits.
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\1\ Reduction in Force, 51 FR 318-01 (Jan. 3, 1986).
\2\ See 5 CFR 351.803(a), 5 CFR part 330, subpart B.
\3\ See 5 CFR part 351, subpart G.
\4\ See 5 CFR 351.803(a), 5 CFR part 330, subpart B.
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In passing the Civil Service Reform Act, Congress carefully created
the MSPB review scheme and determined that there should be no RIF
appeal right to MSPB.\5\ In the nearly 50 years since its original
enactment, Congress has not amended the statute to provide for such

[[Page 5862]]

a right, nor has it provided for an appeal process for RIFs that
includes judicial review. Congress's choice not to create statutory
appeal rights in 5 U.S.C. Part III, Subpart B for employees or other
parties to challenge RIF actions demonstrates Congress's intention to
allow the contours of any RIF appeal rights to be determined by OPM
regulation.\6\ Thus, MSPB's authority to hear RIF appeals is provided
for in OPM regulation (5 CFR 351.901), not statute. The MSPB
acknowledged that it derived its authority to review agency RIF actions
through OPM regulations. See Kohfield v. Dept. of the Navy, 75 M.S.P.R.
1, 4 (1997) (citing Grubb v. Department of the Interior, 73 M.S.P.R.
296, 299 (1997)); Gaxiola v. U.S. Department of the Air Force, 6
M.S.P.R. 515, 519 (1981). Under this flexibility, OPM may regulate
matters such as whether to establish RIF appeal rights, the entity
responsible for accepting RIF appeals, and the procedures under which
an employee may appeal a RIF action.
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\5\ See 5 U.S.C. 7512.
\6\ See generally 5 U.S.C. 3501-3504.
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OPM believes in the importance of RIF appeal rights for employees
who have been furloughed more than 30 days, separated, or demoted by a
RIF action. Such procedures have existed in OPM's regulations (and
those of its predecessor agency, the Civil Service Commission [the
Commission]) since the mid-twentieth century, albeit in various
formulations. OPM's proposal also intends to return the focus of RIF
appeals to the administrative record, with discretion provided to the
presiding official to investigate or audit the RIF action. OPM believes
this is a more efficient and streamlined process than is provided for
under the current regulations. The current rules were initially
intended ``to give RIF a stronger merit basis'' by, for example,
linking individual performance with an employee's retention factor.\7\
While OPM agrees that individual performance should be a factor in an
employee's retention standing in a RIF action, OPM does not believe
that this consideration justifies housing RIF appeals at the MSPB.
Indeed, individual employee performance, as reflected in an employee's
rating of record, would continue to be a retention factor if RIF
appeals were to be transferred to OPM, and OPM would continue to ensure
that these performance-based retention factors are appropriately
applied and respected in RIF actions. Further, OPM has taken numerous
steps in the past several months to ensure that employee performance is
measured rigorously and fairly across the federal government, and to
ensure that agencies are empowered to address poor performance.\8\
However, the procedural burdens and inefficiencies associated with MSPB
appeals outweigh any symbolic tie to performance or merit basis created
by requiring that such appeals be adjudicated by the MSPB.\9\
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\7\ Id. at p. 3.
\8\ OPM Memorandum, ``Performance Management for Federal
Employees,'' June 17, 2025, available at: <a href="https://www.opm.gov/policy-data-oversight/latest-memos/performance-management-for-federal-employees/">https://www.opm.gov/policy-data-oversight/latest-memos/performance-management-for-federal-employees/</a>. This Memorandum, for example, outlines the
Administration's policies of ending inflation of employee
performance ratings, directing agencies to maximize the use of
probationary and trial periods, and encouraging the use of both
performance-based and adverse action procedures under Chapters 43
and 75.
\9\ Congress has tasked OPM with ensuring merit system
principles are respected and adhered to in matters of federal
employment. 5 U.S.C. 1104(b)(2).
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From the inception of the current regulations, ``the burden and
cost of defending appeals'' before the MSPB have been subject to agency
criticism.\10\ The criticisms continued throughout the 1990s. The
Government Accountability Office (GAO) critiqued the process for MSPB
appeals as ``inefficient, expensive, and time consuming'' while OPM
suggested ``improving the [f]ederal [g]overnment's appeals process can
substantially contribute to a more effective and efficient [f]ederal
[g]overnment.'' \11\ OPM endorses these criticisms, particularly
regarding an employee's regulatory right to a hearing in any case in
which the appellant requests one, as well as the potential benefits to
the Federal government. Due in part to the perceived burdens of RIF
appeals, including the requirement of a hearing in any case where the
appellant requests one, agencies historically have not used the
authority Congress provided to agencies to execute RIFs as widely as
would be expected given the size of the federal government and fast-
evolving agency missions and priorities, especially when compared to
the private sector.\12\
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\10\ U.S. Merit Sys. Prot. Bd., ``Reduction in Force: The
Evolving Ground Rules'' (Sept. 28, 1987), pp. 5, 7, <a href="https://www.mspb.gov/studies/studies/Reduction_in_Force_The_Evolving_Ground_Rules_253680.pdf">https://www.mspb.gov/studies/studies/Reduction_in_Force_The_Evolving_Ground_Rules_253680.pdf</a>.
\11\ Streamlining Federal Appeals Procedures: Hearings Before
the Subcomm. on Civil Service of the House Comm. on Government
Reform and Oversight, 104th Cong., 1st Sess. (Nov. 29, 1995).
\12\ Just 2,029 employees have been subject to a RIF from 2014
to 2024, constituting an exceedingly small fraction of the federal
workforce. (Source: OPM FedScope Data, Aug. 5, 2025). Meanwhile, the
Bureau of Labor Statistics reports roughly that an average of over
1.7 million private sector employees have been subject to a ``layoff
or discharge'' each month over the same 10-year span. (Source: BLS
Job Openings and Layoff Turnover Survey, Aug. 28, 2025).
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a. History of RIF Appeals and the CSRA Statutory Scheme

Congress has long recognized the President is inherently empowered,
as part of effective management of the Executive Branch, to quickly
grow and shrink the federal workforce in response to the needs of the
moment. This power became more relevant when the federal government
dramatically increased its employee headcount over the first half of
the 20th century as Congress enacted new programs and created new
agencies, coupled with the significant 1940s wartime increase at the
Department of Veterans Affairs.\13\
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\13\ Rockoff, Hugh, ``By Way of Analogy: The Expansion of the
Federal Government in the 1930s,'' (Jan. 1998), <a href="https://www.nber.org/system/files/chapters/c6891/c6891.pdf">https://www.nber.org/system/files/chapters/c6891/c6891.pdf</a>.
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As this rapid expansion was ongoing, presidents also recognized
their inherent authority to regulate the manner by which RIFs may take
place, including but not limited to by executive order, absent explicit
reference to RIFs in the Pendleton Civil Service Act of 1883.\14\ For
example, ``the first uniform RIF regulations were issued in 1925 by the
Personnel Classification Board,'' which was subsumed by the
Commission.\15\ Those regulations were bolstered again in 1929, when
President Calvin Coolidge issued Executive Order 5068, prescribing how
veterans were to be treated ``when reductions are being made in the
force.'' \16\ President Coolidge's presupposition of his authority was
affirmed by President Roosevelt, who similarly invoked presidential
authority to institute the regulatory procedures by which RIFs may be
executed, notwithstanding the lack of an explicit statutory grant.\17\
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\14\ Exec. Order No. 7915, ``Amendment of Civil Service Rules,''
(June 24, 1938), <a href="https://www.presidency.ucsb.edu/documents/executive-order-7915-amendment-civil-service-rules">https://www.presidency.ucsb.edu/documents/executive-order-7915-amendment-civil-service-rules</a>.
\15\ U.S. Merit Sys. Prot. Bd., ``Reduction-in-Force in the
Federal Government, 1981: What Happened and Opportunities for
Improvement,'' (June 1983), <a href="https://babel.hathitrust.org/cgi/pt?id=uc1.31210024942615&seq=31">https://babel.hathitrust.org/cgi/pt?id=uc1.31210024942615&seq=31</a>.
\16\ Exec. Order No. 5068, ``Amendment of Civil Service Rule
VI,'' (Mar. 2, 1929), <a href="https://www.presidency.ucsb.edu/documents/executive-order-5068-amendment-civil-service-rule-vi">https://www.presidency.ucsb.edu/documents/executive-order-5068-amendment-civil-service-rule-vi</a>.
\17\ Exec. Order No. 6175, ``Separation Ratings of Departmental
Employees,'' (June 16, 1933), <a href="https://www.presidency.ucsb.edu/documents/executive-order-6175-separation-ratings-departmental-employees">https://www.presidency.ucsb.edu/documents/executive-order-6175-separation-ratings-departmental-employees</a>.
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Recognizing such a dramatic and temporary increase in the workforce
would necessitate empowering the President with plenary, clear, and
broad authority to swiftly and agilely conduct RIFs, Congress first
contemplated the modern configuration of a RIF in legislation as part
of the Veterans

[[Page 5863]]

Preference Act of 1944.\18\ In that Act, Congress directed employees to
be ``released in accordance with Civil Service Commission
regulations.'' \19\ Specifically, these regulations were to be
promulgated with a small number of infringements on the President's
plenary authority to effectuate a RIF. Namely Congress directed the
President, when conducting a RIF, to give ``due effect to tenure of
employment, military preference, length of service, and efficacy
ratings,'' which was in turn subject to several provisos, among which
was a directive that ``employees whose efficiency ratings are `good' or
better shall be retained in preference to all other competing employees
and that preference employees whose efficiency ratings are below `good'
shall be retained in preference to competing nonpreference [sic.]
employees who have equal or lower efficiency ratings.'' \20\ Congress,
therefore, in codifying the President's authority to execute a RIF,
granted him a wide berth to manage his workforce, articulating no
limiting principles in statute regarding how, and whether, RIFs were
appropriate, including procedures by which an employee may appeal those
decisions. Rather, Congress merely noted in its legislative history
that its ``purpose'' in imposing those limiting principles ``was to
grant honorably discharged veterans `preference in employment where
Federal funds are disbursed' and to codify a governmental policy of
extending `certain benefits to those who have risked their lives in the
armed services during wartime.' '' H. Rept. 1289 on H.R. 4115, 78th
Cong. 2d sess. (1944).\21\ This configuration--establishing limiting
principles for RIF processes rather than directives--has always been
Congress's approach to the RIF system, dating to Congress establishing
the first retention system in 1876, which prioritized veterans of the
Civil War above others when RIFs occur.\22\
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\18\ U.S. Merit Sys. Prot. Bd., supra note 15.
\19\ 5 U.S.C. 861 (Jun. 27, 1944), ch. 287, sec. 12, 58 Stat.
390.
\20\ 5 U.S.C. 861 (Jun. 27, 1944), ch. 287, sec. 12, 58 Stat.
390.
\21\ U.S. Senate Committee on Post Office and Civil Service,
``Reduction-in-Force System in the Federal Government,'' (July 4,
1952), p. 61, <a href="https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005567177&seq=67&q1=rule">https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005567177&seq=67&q1=rule</a>.
\22\ U.S. Merit Sys. Prot. Bd., supra note 15, at p.17.
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The Commission issued implementing regulations for the Veterans'
Preference Act that became effective on September 1, 1949.\23\ The
regulations provided that: ``(a) Any employee notified of proposed
action by reduction in force who believes that the regulations in this
part have not been correctly applied may appeal to the appropriate
office of the Civil Service Commission, stating reasons for believing
the proposed action to be improper, within ten days from the date he
received notice of the proposed action, or within ten days after a
decision by the agency on his answer to any notice giving him an
opportunity to answer.'' \24\ Notably, the Commission itself directed
impacted employees to file their appeal to an office under the purview
of the Commissioners, not the Commission itself. Only after an office
of the Commission rendered a decision was an employee permitted to
appeal directly to the Commissioners.
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\23\ U.S. Senate Committee on Post Office and Civil Service,
supra note 21, at p. 68.
\24\ Id. at 89.
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This regulatory framework remained largely in effect until 1963,
when the Commission reorganized and revised the regulations governing
appeals of RIF determinations. 28 FR 10021 (Sept. 14, 1963). At this
juncture, the Commission once again did not opt to delegate its
authority to review RIF appeals to any other entity. Rather, the
Commission's revised regulations provided ``[a]n employee who has
received a notice of specific action and who believes this part has not
been correctly applied may appeal to the Commission.'' Id. at 10065.
Central to this regulatory framework was the understanding that
there was no right of judicial review of Commission decisions.
``Employees sought to appeal the decisions of [the Commission] through
the various forms of action traditionally used for so-called
nonstatutory review of agency action, including suits for mandamus . .
. injunction . . . and declaratory judgment.'' United States v. Fausto,
484 U.S. 439, 444 (1988). But ``so long as there was substantial
compliance with applicable procedures and statutes, the administrative
determination was not reviewable.'' Hargett v. Summerfield, 243 F.2d
29, 32 (D.C. Cir. 1957). It was long understood that RIFs ``are matters
peculiarly within the province of those who are in charge of and
superintending the departments, and, until Congress by some special and
direct legislation makes provision to the contrary, we are clear that
they must be settled by those administrative officers.'' Keim v. United
States, 177 U.S. 290, 296 (1900).
In 1978, Congress enacted the Civil Service Reform Act of 1978
(CSRA). ``This legislation comprehensively overhauled the civil service
system.'' Lindahl v. Office of Personnel Management, 470 U.S. 768, 773
(1985). The CSRA remains in sum and substance the governing legislative
framework today. In passing the CSRA, Congress created ``an integrated
scheme of administrative and judicial review, designed to balance the
legitimate interests of the various categories of federal employees
with the needs of sound and efficient administration.'' Grosdidier v.
Broad. Bd. of Govs., 560 F.3d 495, 497 (D.C. Cir. 2009) (Grosdidier).
It is both ``comprehensive and exclusive.'' Id. It is ``comprehensive''
in that ``[i]t ``regulates virtually every aspect of federal employment
and prescribes in great detail the protections and remedies applicable
to adverse personnel actions, including the availability of
administrative and judicial review.'' Nyunt v. Broad. Bd. of Gov., 589
F.3d 445, 448 (D.C. Cir. 2009) (internal quotations omitted). It is
``exclusive,'' meanwhile, in that ``[i]t constitutes the remedial
regime for federal employment and personnel complaints.'' Id. Simply
put, ``what you get under the CSRA is what you get.'' Fornaro v. James,
416 F.3d 63, 67 (D.C. Cir. 2005).
Indeed, the CSRA's review scheme is exclusive even when ``the CSRA
provides no relief,'' and in fact, ``precludes other avenues of
relief.'' Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir. 2004). In
other words, ``the CSRA is the exclusive avenue for suit even if the
plaintiff cannot prevail in a claim under the CSRA.'' Grosdidier, 560
F.3d at 497. ``Congress designed the CSRA's remedial scheme with care,
`intentionally providing--and intentionally not providing--particular
forums and procedures for particular kinds of claims.' '' Id. (quoting
Filebark v. Dep't of Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009)).
The comprehensive statutory review scheme created by the CSRA means
that ``federal employees may not use the Administrative Procedure Act
[APA] to challenge agency employment actions.'' Filebark, 555 F.3d at
1010.
The CSRA prescribes in precise detail the types of actions
regarding which there is eventual judicial review--and it does not
provide for such review of RIFs.\25\ Under the CSRA, ``[t]he reviewable
agency actions are removal, suspension for more than 14 days, reduction
in grade or pay, or furlough for 30 days or less,'' including when
there may be constitutional claims at issue and, even then, only
through the proper channels. Elgin v. Dep't of Treasury, 5 U.S. 1, 5-6
(2012). Courts

[[Page 5864]]

have repeatedly dismissed a litany of other actions brought outside the
proper CSRA channels (such as under the APA) by individuals regarding
their employment under the comprehensive statutory scheme provided for
in the CSRA. See, e.g., United States v. Fausto, 484 U.S. 439 (1988)
(``the absence of provision for . . . employees to obtain judicial
review is not an uninformative consequence of the limited scope of the
statute, but rather manifestation of a considered congressional
judgment. . . This conclusion emerges not only from the statutory
language, but also from what we have elsewhere found to be an indicator
of nonreviewability, the structure of the statutory scheme''); Bush v.
Lucas, 462 U.S. 367, 368 (1983) (holding ``that it would be
inappropriate . . . to supplement [the CSRA] regulatory scheme with a
new judicial remedy''); Zummer v. Sallet, 37 F.4th 996 (5th Cir. 2022)
(holding the CSRA prohibits district courts from hearing claims seeking
to reverse suspensions and terminations); Krafsur v. Davenport, 736
F.3d 1032, 1034 (6th Cir. 2013) (``The [CSRA] spells out in painstaking
detail the path an employee must follow if he wants to challenge a
prohibited personnel practice''); Dotson v. Griesa, 398 F.3d 156, 163
(2nd Cir. 2005) (``the CSRA creates an integrated scheme of
administrative and judicial review for adverse employment actions . . .
That scheme . . . affords no administrative or judicial review to
judicial branch employees'') (internal quotation marks omitted); Pathak
v. Dep't of Veterans Aff., 274 F.3d 28 (1st Cir. 2001) (holding the
CSRA stripped the district court of subject matter jurisdiction to
consider a suspension of less than 14 days); Ryon v. O'Neill, 894 F.2d
199, 204 (6th Cir. 1990) (``In short, the text of the CSRA, the
structure of the review it establishes, and the legislative history of
the Act, all lead ineludibly to the conclusion that Congress intended
review of agency reassignment decisions to be confined to the specific
procedures set out in the text of the CSRA''); Yokum v. U.S. Postal
Serv., 877 F.2d 276 (4th Cir. 1989) (holding the CSRA ``precludes
judicial review of administrative personnel decisions adverse to the
interests of nonpreference eligible postal workers'') (internal
quotations omitted). This is because ``CSRA nowhere grants any
employee, whether in the excepted or competitive service, the right to
bring an action in federal district court.'' Galvin v. F.D.I.C., 48
F.3d 531 (5th Cir. 1995) (holding plaintiff's claim was properly
dismissed by the federal district court because his ``claims arise out
of his employment relationship with the United States, and CSRA
provides the exclusive mode of redress.'').
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\25\ Congress did subsequently provide for career members of the
Senior Executive Service (SES) to file RIF appeals to the MSPB but
chose not to provide similar appeal rights from RIFs for other
members of the civil service. 5 U.S.C. 3595(c).
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What is given by the comprehensive statutory scheme in the way of
RIF procedures are codified at 5 U.S.C. 3501-3504, which Congress
directs OPM to implement by regulation. While those statutes
technically predate the CSRA's enactment in 1978, it has long been
recognized that the statutes and regulations regarding reductions-in-
force in the federal government are part of the ``comprehensive
employment scheme'' created by the CSRA, Filebark v. U.S. Dep't of
Transp., 555 F.3d 1009, 1010 (D.C. Cir. 2009), which ``regulates
virtually every aspect of federal employment.'' Nyunt v. Chairman,
Broad. Bd. of Governors, 589 F.3d 445, 448 (D.C. Cir. 2009); see also
Nat'l Treasury Emps. Union v. Vought, 149 F.4th 762, 774-75 (D.C. Cir.
2025) (applying CSRA claims-channeling in lawsuit challenging, inter
alia, reductions-in-force); Nat'l Treasury Emps. Union v. Trump, 770 F.
Supp. 3d 1, 11 (D.D.C. 2025) (same); Gober v. Collins, No. CV 25-714
(RC), 2025 WL 1360434, at *6 (D.D.C. May 8, 2025) (same). The CSRA
applies to preclude judicial review even where it provides no specific
avenue for relief. See Filebark v. U.S. Dep't of Transp, 542 F. Supp.
2d 1, 8 (D.D.C. 2008) (``Where Congress wanted to guarantee certain
remedies, it explicitly did so.''); aff'd sub nom. Filebark v. U.S.
Dep't of Transp., 555 F.3d 1009 (D.C. Cir. 2009). While RIF separations
can result in job loss or reassignment, they are specifically excluded
as adverse actions under chapter 75 of Title 5, U.S.C., which governs
removals and discipline for misconduct and, in some cases, performance
deficiencies. As a result, an employee impacted by a RIF may be so
affected through no fault of his or her own because ``when reductions
of force are justified, they must be made.'' \26\
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\26\ President Calvin Coolidge, ``Address at the Twelfth Regular
Business Meeting of the Business Organization of the Government,
Washington, DC,'' (Jan. 29, 1927), <a href="https://www.presidency.ucsb.edu/documents/address-the-twelfth-regular-meeting-the-business-organization-the-government-washington-dc">https://www.presidency.ucsb.edu/documents/address-the-twelfth-regular-meeting-the-business-organization-the-government-washington-dc</a>.
---------------------------------------------------------------------------

As outlined above, employees whose positions are subject to a RIF,
however, have been afforded the right to appeal under 5 U.S.C. Chapter
77 only since 1983. Pursuant to Section 205 of CSRA, which amended 5
U.S.C. 7701(a), MSPB is granted jurisdiction over certain personnel
actions ``appealable to the Board under any law, rule, or regulation.''
This jurisdictional grant permits, but does not require, MSPB to review
appeals of actions conducted pursuant to 5 U.S.C. 3501-3504, which as
explained below was granted to MSPB by regulatory action of OPM. While
5 U.S.C. 7512(b) excludes RIF actions from MSPB review under 5 U.S.C.
Chapter 75 and its implementing regulations, it does not preclude MSPB
review of RIF actions entirely. Authority under Chapter 75 applies
exclusively to adverse actions. 5 U.S.C. 7512. ``A RIF is an
administrative procedure by which agencies eliminate jobs and account
for employees who occupied abolished positions. It is not an adverse
action against a particular employee, but it is directed solely at a
position within an agency.'' Huber v. Merit Systems Protection Bd., 793
F.2d 284, 286 (Fed. Cir. 1986). ``Unlike adverse actions, RIFs are not
aimed at removing particular individuals; rather they are directed
solely at positions.'' Grier v. Dep't of Health and Human Services, 750
F.2d 944, 945 (Fed. Cir. 1984). MSPB concurs, noting the Board's
authority ``is not plenary,'' but rather ``the scope of the Board's
jurisdiction to review an agency's RIF actions [are] under OPM's
regulations at 5 CFR part 351,'' which do not implement Chapter 75.
Adams v. Dep't of Defense, 96 M.S.P.R. 325, 329 (2004). Further, OPM
specifically delegated the authority--explicitly pursuant to 5 U.S.C.
1302 and 3502--to review a RIF appeal to MSPB in 1983. 48 FR 49462
(Oct. 25, 1983). Therefore, MSPB's jurisdiction over RIF appeals is
regulatory in nature, not statutory. It is subordinated to and
contingent upon OPM's decision, or not, to delegate its authority to
hear RIF appeals. MSPB's jurisdiction over RIF appeals thus developed
by custom, rather than statutory command, which MSPB itself
acknowledges. See Kohfield v. Dept. Of the Navy, 75 M.S.P.R. 1, 4
(1997) (``Neither [the CSRA] nor any other statutory provision provides
for a right of [MSPB] appeal for a RIF action.'').
Absent explicit statutory directive, it cannot be presupposed
Congress's intention was for MSPB to be the proper venue to hear RIF
appeals for non-SES employees.\27\ Moreover, when interpreting statutes
such as CSRA which comprehensively overhaul a regulatory framework,
special consideration must be given to the explicit wording of the
statute--above and beyond typical adherence to the letter of the law--
because ``Congress . . . does not alter the fundamental details of a
regulatory scheme in vague terms or ancillary provisions--it does

[[Page 5865]]

not, one might say, hide elephants in mouseholes.'' Whitman v. American
Trucking Associations, Inc., 531 U.S. 457, 468 (2001). Were Congress
interested in reversing the long-established precedent of near-plenary
executive authority to execute a RIF action, it could have legislated
matters in the CSRA such as RIF appeal rights, the entity responsible
for accepting those appeals, the procedures by which an employee or
employees may appeal a RIF action, as well as whether those appeal
determinations were subject to judicial review. This is especially true
given ``[c]riticism of this `system' of administrative and judicial
review [of agencies' personnel actions prior to CSRA] was widespread.''
United States v. Fausto, 484 U.S. 439, 445 (1988). However, Congress in
legislating CSRA remained both implicitly and explicitly silent on RIF
appeals in the face of widespread criticism. See 5 U.S.C. 3501-3504.
Interpreting Congress's desire to house RIF appeals at OPM instead of
MSPB is best understood by reading the text of the CSRA itself. When
interpreting legislative direction, in all contexts, including but not
limited to the CSRA, the statute itself is the first and best source to
which to refer when determining the best reading of a statute. As a
general matter, ``Congress wrote the statute it wrote,'' and ``[t]hat
congressional election settles'' questions of interpretation. See CSX
Transp., Inc. v. Alabama Dept. of Revenue, 562 U.S. 277, 296 (2011). In
this light, the best reading of the statute's absence of an explicit
directive is that Congress intended for the President, through OPM, to
retain maximum flexibility to determine the procedures under which a
RIF is to be carried out, including which entity is best positioned to
serve as the venue for RIF appeals.
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\27\ The fact that Congress did subsequently provide for RIF
appeals to the MSPB for members of the SES (whose RIF procedures are
different from those of other title 5 employees, see 5 CFR part 359)
underscores that Congress made no similar determination regarding
non-SES employees.
---------------------------------------------------------------------------

b. The Current, Cumbersome RIF Appeal Procedures Hurt the Federal
Government

Since before the promulgation of the modern RIF procedures in the
1980s, agencies have expressed concerns the procedures would render
agencies unable to utilize RIFs effectively. In evaluating agency
response to designating MSPB as the venue for RIF appeals, the MSPB
found agencies were concerned with the increased administrative burden
imposed upon them, as well as the significant weight the process placed
on individual employees' performance plans and appraisals.\28\
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\28\ U.S. Merit Sys. Prot. Bd., supra note 10.
---------------------------------------------------------------------------

These concerns ultimately became more than theoretical. In 1995,
OPM, the Government Accountability Office (GAO), the National Academy
of Public Administration (NAPA), MSPB personnel, as well as the former
MSPB Chairman, were called to testify in front of the Subcommittee on
the Civil Service of the Committee on Government Reform and Oversight
of the House of Representatives regarding federal employee appellate
procedures, including to MSPB. At the time, MSPB was experiencing a
dramatic increase in RIF appeals, seeing a 252% increase from Fiscal
Year (FY) 1994 to FY 1995.\29\ All witnesses criticized MSPB policies
to varying degrees--even the then-current and former MSPB personnel--
for unnecessarily increasing inefficiencies and undermining
effectiveness. OPM noted that many MSPB appeals ``concern
straightforward provisions of law with which an appellant disagrees,''
but that ``under current rules a person also has a right to a hearing
at MSPB, and we believe there may be room for streamlining in this
particular area.'' \30\ OPM also noted its ``central role in
intervening in appeals to ensure that its regulations are properly
interpreted and that the meaning and intent of the civil service laws
enacted by Congress are adhered to,'' a ``special role'' reserved for
OPM.\31\ GAO raised more pointed concerns, suggesting a number of
considerations ``detract[ing] from the fair and efficient operation of
the federal government,'' including that ``because of the complexity of
the system [of appeals] and the variety of redress mechanisms it
affords federal employees, it is inefficient, expensive, and time
consuming.'' \32\ GAO also noted the system ``is vulnerable to
employees who would take undue advantage of these protections [by
drawing out] protracted processes and requirements.'' \33\ GAO's chosen
remedy was for the federal government to mirror remedies available ``in
the private sector and elsewhere,'' suggesting they ``may be worth
further study.'' \34\ NAPA provided testimony detailing work it had
previously conducted on employee appeals the conclusions of which
included the following issues in need of resolution: ``jurisdictional
overlap,'' ``timely, fair, and final decisions,'' inconsistent
remedies, and a ``focus on non-substantive issues.'' \35\ The Chairman
of the MSPB testified that upon review, MSPB was undermining its own
effectiveness as a venue for appeals because ``we have found that the
existing policies are sound but are being poorly implemented or are not
being implemented at all.'' \36\ He continued by noting MSPB is ``like
a court. We receive whatever complaints are going to be generated and
come to us. But we, I believe, as a government, can be most efficient
and a better utilizer of resources . . . Hopefully, [complaints] never
come to us.'' \37\ The former Chairman of the MSPB expressed confusion
as to the excessive complication in the process, stating ``I think it
would be one thing to require a public law scheme as complicated as
this if you are dealing with areas that really require this kind of
complication. In fact, the only field of law that comes to mind . . .
in terms of parallel [levels of complication] would be the Tax Code and
tax law.'' \38\ Ultimately, as the former MSPB Chairman noted, ``it is
clear, and I believe it is clear both to those who work within the
system and would be patently clear to those who just view it from the
outside, [MSPB procedures are] far too complicated and real obtuse for
real people in real workplaces to have to deal with.'' \39\
---------------------------------------------------------------------------

\29\ Subcomm. on Civil Service of the House Comm. on Government
Reform and Oversight, supra note 11.
\30\ Id.
\31\ Id.
\32\ Id.
\33\ Id.
\34\ Id.
\35\ Id.
\36\ Id.
\37\ Id.
\38\ Id.
\39\ Id.
---------------------------------------------------------------------------

No authority has substantively addressed these concerns, predicted
in 1987 and affirmed in 1995, resulting in limitations on agencies'
practical ability to exercise RIF authority. Across the vast majority
of government from FY 2005 through FY 2024, only 10,614 employees have
been subject to a RIF.\40\ More recently, under President Trump,
agencies prepared RIF and reorganization plans pursuant to Executive
Order 14210, Implementing the President's ``Department of Government
Efficiency'' Workforce Optimization Initiative (Feb. 11, 2025)
(directing agencies, inter alia, to ``promptly undertake preparations
to initiate large-scale reductions in force (RIFs), consistent with
applicable law''). In addition, RIFs were undertaken pursuant to
Executive Order 14242, Improving Education Outcomes by Empowering
Parents, States, and Communities (March 25, 2025) (directing the
Secretary of Education to ``to the maximum extent appropriate and
permitted by law, take all necessary steps to facilitate the closure of
the Department of Education''); Executive Order 14217, Commencing the

[[Page 5866]]

Reduction of the Federal Bureaucracy (February 25, 2025) (directing
that several government entities ``be eliminated to the maximum extent
consistent with applicable law''); and Executive Order 14238,
Continuing the Reduction of the Federal Bureaucracy (March 14, 2025)
(same, except as to a different set of government entities). Although
in 2025 the Trump Administration oversaw the largest peacetime
reduction in the size of the Federal workforce ever, some 317,000
employees, the overwhelming majority of these departures (over 92.5%)
were due to voluntary programs like the Deferred Resignation Program,
Voluntary Early Retirement Authority, Voluntary Separation Incentive
Payments, and other voluntary resignations. Only a very small
percentage of departures resulted from RIFs.
---------------------------------------------------------------------------

\40\ OPM FedScope data, Aug. 5, 2025.
---------------------------------------------------------------------------

While at least some of the historical causes of these relatively
low numbers of employees subject to a RIF have been lack of political
will and the success of RIF avoidance measures, the relatively low
numbers across time support a widespread perception that, due to the
time-consuming RIF appeal process, RIF procedures are too burdensome
and arduous to be effective. For example, one author (an experienced
former Federal employee and consultant for Federal agencies) called the
current OPM RIF regulations ``the ultimate bureaucratic poison pill:
take it, and you die. Meaning, the RIF rules and regulations are so
complex and cumbersome, the process so time-consuming and demoralizing,
and the outcome so haphazard and invariably negative, that it's the
absolute last option any sane organization would want to consider.''
\41\
---------------------------------------------------------------------------

\41\ Fred Mills, Civil Disservice: Federal Employment Culture
and the Challenge of Genuine Reform, at p.42 (iUniverse 2010).
---------------------------------------------------------------------------

The current dual-track structure, whereby OPM promulgates and
interprets RIF regulations while MSPB adjudicates appeals, creates
considerable detrimental impact for both employees and agencies and
renders the RIF procedures inefficient. In addition, the MSPB lacks
institutional expertise regarding RIFs compared to OPM. For example,
MSPB requires an inflexible, formal, quasi-judicial process that
requires a hearing at the appellant's request, adding minimal benefits
while exacerbating the already-extensive adjudicative timeline, despite
authority to streamline the process to the benefit of appellant and
agency. See 5 U.S.C. 7701(b). Specifically, RIF appeals filed before
MSPB typically require a hearing and searching discovery. See 5 U.S.C.
7701(a); 5 CFR 1201.71-1201.75. The decision to provide for such
process, and in so doing depriving employees and agencies of the
ability to adjudicate RIF appeals efficiently, is increasingly
untenable in light of MSPB's extensive delays. MSPB has recognized the
problem its recurring backlog of cases presents, as well as the cause:
lack of quorum because the Senate has not confirmed a sufficient number
of Board members. In recent years, MSPB has at various times lacked
quorum for extended periods, including for five years between 2017 and
2022.\42\ The risk of an additional backlog is also significant in
light of the significantly increased number of cases received in
calendar year 2025.\43\
---------------------------------------------------------------------------

\42\ U.S. Merit Sys. Prot. Bd., ``Frequently Asked Questions
about the Lack of Quorum Period and Restoration of the Full Board''
(Apr. 9, 2025), <a href="https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_4-9-25.pdf">https://www.mspb.gov/FAQs_Absence_of_Board_Quorum_4-9-25.pdf</a>.
\43\ U.S. Merit Sys. Prot. Bd., ``Weekly Number of Cases
Received in the Regional and Field Offices Fiscal Year 2025'' (Sept.
29, 2025), <a href="https://www.mspb.gov/Recent%20ROFO%20Case%20Receipts.pdf">https://www.mspb.gov/Recent%20ROFO%20Case%20Receipts.pdf</a>.
---------------------------------------------------------------------------

Agencies similarly stand to benefit from a less burdensome process
that addresses the historical concerns OPM now embraces. Further, the
current rules are undermining Congress's broad authorization for RIFs
by limiting agencies' ability to fully exercise the authority it
provided. As stated above, Congress did not design the CSRA to require,
nor did it intend for it to require, agencies to litigate matters
touching on their decisions to conduct RIFs before the MSPB in a quasi-
judicial hearing format. Ultimately, the status quo appeal process is
no longer conducive to serve the needs of twenty-first century
governance. Both agencies and employees would be far better served by a
single, streamlined process spanning the full lifecycle of the RIF
process and leveraging OPM's expertise throughout, rather than the
fragmented process this rule proposes to replace. This will promote
consistency, efficiency, and regularity of decision-making regarding
RIF appeals.
As such, OPM believes it would be prudent and provide much needed
clarity for employees and agencies alike to be able to leverage OPM's
expertise with RIF actions, as well as its ability to efficiently
adjudicate them, especially when contrasted with MSPB's lack thereof on
both counts. ``The administrative process will be best vindicated by
clarity in its exercise.'' Phelps Dodge Corp. v. Nat'l Labor Relations
Board, 313 U.S. 177, 197 (1941). As noted elsewhere in this proposal,
OPM has considerable historical expertise with the RIF process. The
CSRA tasked OPM with managing the RIF process. See 5 U.S.C. 3501-3504.
OPM also promulgated the regulations governing the RIF process. See 5
CFR part 351.\44\ It also issues handbooks with guidance to provide
assistance to agencies ``that are considering and/or undergoing some
type of reshaping (e.g., . . . reduction in force).'' \45\ According to
the Administrative Conference of the United States (ACUS), ``a
situation in which agencies share closely related responsibilities for
different aspects of a larger regulatory, programmatic, or management
enterprise .-.-. produce[s] redundancy, inefficiency, and gaps, but
they also create underappreciated challenges.'' \46\ GAO concurs with
ACUS in the obvious: eliminating fragmentation ``improv[es] the
efficiency and effectiveness'' of operations.\47\ Streamlining
responsibilities will ``improv[e] the efficiency, effectiveness, and
accountability'' regarding ``potential dysfunctions created by the
shared regulatory space.'' \48\ Improving processes in this way can
also ``reduce costs for both the government and regulated entities,''
including employees filing RIF appeals.\49\
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\44\ OPM plans to propose changes to the regulations governing
the administration of a reduction in force in a separate rulemaking.
See RIN 3206-AO86. That rulemaking will affect different subparts of
part 351.
\45\ Workforce Reshaping Operations Handbook: A Guide for Agency
Management and Human Resources Offices, OPM, March 2017, <a href="https://www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force-rif/workforce_reshaping.pdf">https://www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force-rif/workforce_reshaping.pdf</a>.
\46\ Administrative Conference of the United States, ``Improving
Coordination of Related Agency Responsibilities,'' (June 15, 2012),
<a href="https://www.acus.gov/document/improving-coordination-related-agency-responsibilities">https://www.acus.gov/document/improving-coordination-related-agency-responsibilities</a>.
\47\ Government Accountability Office, ``Opportunities to Reduce
Fragmentation, Overlap, and Duplication and Achieve an Additional
One Hundred Billion Dollars or More in Future Financial Benefits,''
GAO-25-107604, (May 13, 2025). <a href="https://www.gao.gov/assets/gao-25-107604.pdf">https://www.gao.gov/assets/gao-25-107604.pdf</a>.
\48\ Administrative Conference of the United States, supra note
46.
\49\ Id.
---------------------------------------------------------------------------

As a practical matter, OPM believes reducing that fragmentation by
tasking MSAC with adjudication of RIF appeals will provide much needed
clarity and efficiency. MSAC is not only equipped, but best positioned,
to handle this task. MSAC is an external-facing organization within OPM
with longstanding oversight and adjudicative functions. As a general
matter, ``MSAC is responsible for ensuring that [f]ederal agency human
resources programs are effective and

[[Page 5867]]

efficient and comply with merit system principles and related civil
service regulations,'' \50\ which includes oversight of agency RIF
actions. Specifically, MSAC also has ``a long history of adjudicating
federal employee classification appeals, as well as Fair Labor
Standards Act (FLSA), compensation and leave, and declination of
reasonable offer claims'' \51\ MSAC ``offer[s] federal employees an
independent review of agency personnel decisions. OPM's decision in
these cases is the final administrative decision.'' \52\ As part of
those functions, MSAC provides employees with administrative procedural
rights to challenge agency determinations without having to seek
redress in federal court. Further, the appeals process set forth in
this proposed rule is exceedingly similar to OPM's classification
appeals and FLSA claims process at 5 CFR part 511 subpart F, and 5 CFR
part 551 subpart G, respectively. Thus, OPM will adjudicate RIF appeals
in much the same manner as it does these claims, allowing it to
leverage its procedural institutional knowledge. Additionally, distinct
from MSPB, it has the infrastructure in place to adjudicate RIF appeals
effectively without being subject to restrictions arising from the lack
of a quorum.
---------------------------------------------------------------------------

\50\ U.S. Off. of Personnel Management Off. of the Inspector
General, ``Final Evaluation Report: Evaluation of the Merit System
Accountability and Compliance Office,'' Rept. No. 2021-OEI-011 (Dec.
12, 2022), available at <a href="https://www.oversight.gov/sites/default/files/documents/reports/2022-12/Final-Report-2021-OEI-001.pdf">https://www.oversight.gov/sites/default/files/documents/reports/2022-12/Final-Report-2021-OEI-001.pdf</a>.
\51\ See U.S. Off. of Personnel Management, Adjudications,
<a href="https://www.opm.gov/compliance/adjudications/">https://www.opm.gov/compliance/adjudications/</a>.
\52\ Id.
---------------------------------------------------------------------------

Housing RIF appeals within MSAC (OPM's oversight and adjudicative
body) would additionally separate the RIF adjudicative function within
OPM from OPM's RIF policymaking function, which is housed in its
Workforce Policy & Innovation (WPI) office.\53\ OPM would continue to
maintain appropriate administrative separation between its policy arm
(WPI) and adjudication arm (MSAC).
---------------------------------------------------------------------------

\53\ See U.S. Off. of Personnel Management, FY 2026
Congressional Budget Justification and Annual Performance Plan at p.
26, available at <a href="https://www.opm.gov/about-us/fy-2026-congressional-budget-justification/fy-2026-congressional-budget-justification.pdf">https://www.opm.gov/about-us/fy-2026-congressional-budget-justification/fy-2026-congressional-budget-justification.pdf</a>.
---------------------------------------------------------------------------

Meanwhile, MSPB has been considerably backlogged due to a
protracted period without a quorum that leaves employees and agencies
in limbo. Between January 7, 2017, and March 3, 2022, and between April
10 and October 27, 2025, MSPB lacked a quorum, which prevented it from
reviewing cases and resulted in a considerable backlog.\54\ In light of
the Senate's failure to confirm nominees to the MSPB in a timely way, a
process over which the executive branch lacks any meaningful control,
prudent governance requires the executive to minimize disruption in
personnel operations caused by loss of a quorum at MSPB. MSPB too has
mitigated, as far as practicable, the effects of a future lack of
quorum on delays. 89 FR 72957 (Sept. 9, 2024). However, this lack of
faith in its own ability to timely adjudicate appeals provides
additional evidence of the prudence of relocating RIF appeals to MSAC.
While employees may lack some procedural mechanisms if appeals are
transferred to MSAC as contemplated by this rule, OPM believes
streamlining the process will not have a consequential impact upon the
substantive outcomes of the appeals, while improving the efficiency and
consistency of the process.
---------------------------------------------------------------------------

\54\ U.S. Merit Sys. Prot. Bd., Frequently Asked Questions About
the Lack of Quorum Period and Restoration of the Full Board (Nov.
14, 2025), available at <a href="https://www.mspb.gov/FAQs%20Absence%20of%20Board%20Quorum%2011-14-25.pdf">https://www.mspb.gov/FAQs%20Absence%20of%20Board%20Quorum%2011-14-25.pdf</a>.
---------------------------------------------------------------------------

As noted above, under the CSRA, Congress intended the President, by
and through agencies, to be able to invoke RIF action authorities
absent additional congressional action. It also directed OPM to
continue to regulate and manage the RIF action lifecycle, as the
Commission and the Personnel Classification Board before it had done;
Congress entrusted OPM to continue doing so as part of the CSRA. See 5
U.S.C. 1302 and 3502. Outsourcing the appeal process to MSPB subjects
the viability of the process (from notice through to appeal) to the
machinations of MSPB, which cannot be relied upon to have a functioning
quorum at all times. Nowhere has Congress directed OPM to involve MSPB
in the RIF process, much less subordinate an agency's ability to engage
in and conclude a RIF action to MSPB involvement. See Public Law 95-
454, 92 Stat. 1111, as amended.
In furtherance of addressing these concerns, OPM proposes to
establish limited grounds for employees subject to a RIF action to
appeal their designation. Under these proposed regulations, such
employees will be able to challenge their designation based on an
agency's improper execution of a RIF action resulting in their being
subject to a RIF. Employees wishing to pursue collateral claims under
statutes administered by other entities, like bringing a claim of
discrimination to the EEOC, would continue to have those avenues of
appeal, but would not be allowed to raise those claims with OPM. These
limited grounds of appeal reflect the historical principles and
precedents that the President has plenary power to determine if a RIF
is necessary and proper, subject to the provisos informing retention
preferences directed by Congress. These limited grounds of appeal will
ensure agencies adhere to the Merit System Principles and allow OPM to
correct agency actions taken contrary to these principles, consistent
with OPM's direct statutory and presidentially delegated authority. See
5 U.S.C. 1103(a)(7) and (c)(2)(f), 1104(b)(2); see also 5 CFR 5.3,
10.2-10.3.

II. Proposed Amendments

OPM is proposing to amend its regulations at subpart I of part 351,
governing appeals of and corrective action with respect to RIFs.
Section 351.901 currently provides: ``An employee who has been
furloughed for more than 30 days, separated, or demoted by a reduction
in force action may appeal to the Merit Systems Protection Board.'' OPM
is proposing to revise Sec. 351.901 to specify that an employee who
has been furloughed for more than 30 days, separated, or demoted as a
result of a RIF may appeal exclusively to OPM. The proposed revision
also places the burden of proving, by a preponderance of the evidence,
the timeliness and proper venue for the appeal on the employee. The
rule would provide that the employee, also by preponderance of the
evidence, has the burden of proving that the RIF action subject to
appeal was conducted inconsistent with either statute or OPM
regulations such that the employee would not have suffered the same or
another RIF action if properly conducted. Further, to avoid duplication
and ensure that RIF appeals may be decided expeditiously, and
consistent with Congress's intent that the administrative remedies
under the CSRA be exclusive, OPM clarifies that the OPM appeal process
would be the sole and exclusive means, including through filing of a
grievance, to challenge a RIF action, though matters otherwise within
the jurisdiction of the EEOC, Federal Labor Relations Authority (FLRA),
an Inspector General, the MSPB, the Department of Labor Veterans'
Employment and Training Service, or the Office of Special Counsel (OSC)
may proceed through those administrative channels. Finally, OPM is
foreclosing judicial review of decisions it issues stemming from an
appeal under this part.

[[Page 5868]]

OPM understands the phrase ``sole and exclusive means of
appealing'' in proposed Sec. 351.901 to create an outer bound outside
which an agency will be precluded from providing for or otherwise
authorizing any process not contemplated, in whole or in part, by this
rule. Thus, as provided in the rule, these procedures ``supersede any
conflicting appeal procedures found in agency policies or collective
bargaining agreements.'' This language is intended to preclude appeals
filed pursuant to internal agency policies or collective bargaining
agreements, whether filed by individual employees or by unions on
behalf of their members. The Federal-Service Labor Management Relations
Statute (the FSLMRS, enacted as part of the CSRA) provides that ``the
duty to bargain in good faith shall, to the extent not inconsistent
with any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if the
rule or regulation is not a Government-wide rule or regulation.'' 5
U.S.C. 7117(a)(1). This would be such a government-wide rule. It is
proposed to apply to any agency executing a RIF action. To that end, it
would firmly and completely limit the flexibility of agencies to
provide processes not contemplated by this rule, including grievance
arbitration. See U.S. Dep't of Treasury, I.R.S. v. FLRA, 996 F.2d 1246,
1250 (D.C. Cir. 1993) (5 U.S.C. 7117(a)(1) ``permits the government to
pull a subject out of the bargaining process by issuing a government-
wide rule that creates a regime inconsistent with bargaining,''
including where a regulation ``sets out an exclusive method of
resolving any claims'').
In this rulemaking, OPM is foreclosing grievance arbitration
regarding RIFs because it is to the benefit of agencies and employees
alike. Agencies benefit from avoiding a protracted process that adds
time and expense to conducting a RIF action and undercuts the agency
head's ability to manage his or her workforce. In addition, in
precluding grievance over RIF appeals, OPM is allowing each employee
affected by a RIF to appeal to OPM as part of a streamlined and fair
process. Further, both agencies and employees benefit both from
finality of process and from availing themselves of competent
adjudicators of the dispute in question.
While, for the reasons discussed above, agencies stand to benefit
from the procedure OPM is proposing in this rule relative to the status
quo, agencies also will directly benefit from precluding grievance
arbitration. First, grievance arbitration under the FSLMRS is an
unnecessarily protracted process, leaving uncertainty lingering over
agencies for significant periods of time. Even after a hearing is held,
the losing party can appeal to the FLRA, which reports the average age
of its arbitration cases in FY2024 to be 307 days.\55\ This is an
untenable length of time to require an agency head to wait to finalize
a RIF--and for an employee to wait to obtain a resolution to a RIF-
related grievance. Indeed, commentators have observed that ``the FLRA
process seems all too frequently to have become the Russian Roulette of
federal sector arbitration. At the time a case is heard, when an award
is rendered, or even years later, one or both of the parties often has
its finger on the trigger ready to discharge every chamber in order to
delay and frustrate the dispute resolution process or to strike down an
award.'' \56\
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\55\ U.S. Fed. Lab. Rels. Auth., ``Performance & Accountability
Report Fiscal Year 2024,'' (2024) available at <a href="https://www.flra.gov/system/files/webfm/FLRA%20Agency-wide/Public%20Affairs/PAR/FLRA%20FY2024%20PAR.pdf">https://www.flra.gov/system/files/webfm/FLRA%20Agency-wide/Public%20Affairs/PAR/FLRA%20FY2024%20PAR.pdf</a>.
\56\ Dr. Mollie H. Bowers, ``Challenges to Arbitrability in
Federal Sector Grievance Cases,'' 5 Hofstra U. Lab. & Emp. L.J. 169,
175 (1988).
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Second, concerns exist that grievance arbitrators lack subject
matter expertise necessary to properly adjudicate federal sector labor-
management arbitration. ``Federal sector labor management practitioners
have long expressed concerns about arbitrator quality and competence.''
\57\ Neither agencies nor employees should be left with any doubt
whatsoever that the grievance arbitrator understands the law he or she
is applying. However, too often, that doubt not only persists, but is
warranted. Between February 2019 and July 2023, nearly half (40.2
percent) of appeals of arbitrator decisions--which may only be appealed
on exceedingly narrow grounds, like incorrect facts or an arbitrator
exceeding his or her authority--were either overturned or remanded to
the arbitrator for further consideration.\58\ ``By far the most common
basis for overturning arbitral awards over this period was that the
arbitrator's ruling was, in whole or in part, contrary to law, rule or
regulation. Almost two-thirds of the overturned awards were voided on
that basis. The next most common ground--accounting for almost one-
quarter of overturned awards--was that the award did not draw its
essence from the parties' CBA.'' \59\ In 2018, the Federal Mediation
and Conciliation Service's Director of Arbitration identified a
``serious concern'' noted by ``parties on both sides at federal
agencies,'' namely ``that they are receiving panels where one or more
arbitrator appears to lack any meaningful experience in federal sector
labor-management issues.'' \60\ It should not be too much to ask (and
OPM's proposal ensures) that no party to a RIF appeal would have to
``deal with Arbors [arbitrators] who are assigned ad hoc and may be
relatively clueless re the fed sector.'' \61\
---------------------------------------------------------------------------

\57\ James Sherk & Jacob Sagert, ``Grievance Arbitrators Lack
Federal Sector Experience,'' (June 24, 2024), <a href="https://www.americafirstpolicy.com/issues/grievance-arbitrators-lack-federal-sector-experience">https://www.americafirstpolicy.com/issues/grievance-arbitrators-lack-federal-sector-experience</a>.
\58\ James Sherk, ``Federal Union Arbitrators Frequently
Misapply the Law,'' (Aug. 2, 2023), <a href="https://www.americafirstpolicy.com/issues/expert-insight-federal-union-arbitrators-frequently-misapply-the-law">https://www.americafirstpolicy.com/issues/expert-insight-federal-union-arbitrators-frequently-misapply-the-law</a>.
\59\ Id.
\60\ Sherk & Sagert, supra note 57.
\61\ Id.
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Third, there are serious concerns that grievance arbitration in the
federal sector is itself unconstitutional. Federal-sector arbitrators
exercise substantial power, and their decisions are only subject to
review by the FLRA under an extraordinarily deferential standard.\62\
At the same time, these arbitrators are private citizens who are not
accountable to or appointed by the President or any principal officer.
Although no court has directly weighed in on these issues, this
framework is in considerable tension with private nondelegation
doctrine caselaw on the scope of constitutionally permissible
delegations of authority to private parties.\63\ It is not clear that
private citizens can issue orders binding the executive branch with
minimal review by Federal officers. Transferring adjudication of RIFs
from grievance arbitrators to OPM would vitiate these constitutional
concerns.
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\62\ See Nat'l Weather Serv. Emps. Org. v. FLRA, 966 F.3d 875,
881 (D.C. Cir. 2020) (as ``long as the arbitrator is even arguably
construing or applying the contract and acting within the scope of
his authority, the Authority may not reverse the arbitrator's award
even if it is convinced he committed serious error'').
\63\ See, e.g., Alpine Securities Corp. v. Financial Industry
Regulatory Authority, 121 F.4th 1314, 1325 (D.C. Cir. 2024) (``For a
delegation of governmental authority to a private entity to be
constitutional, the private entity must act only as an aid to an
accountable government agency that retains the ultimate authority to
approve, disapprove, or modify the private entity's actions and
decisions'') (cleaned up). See also Federal Communications
Commission v. Consumers' Research, 145 S. Ct. 2428, 2508 (2025)
(delegations of authority to private parties are permissible only
``[a]s long as an agency [ ] retains decision-making power'').
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In place of the protracted, fragmented process of grievance
arbitration regarding RIFs, including unaccountable grievance
arbitrators who often lack appropriate federal-sector experience, OPM
proposes a streamlined, one-stop process, overseen by a principal
officer (the OPM Director) directly accountable to the President. OPM
expects that

[[Page 5869]]

similar efficiencies can be gained by allowing for the RIF appeal
process in this part to supersede any overlapping agency appeal
processes, whether or not they were negotiated as part of the
collective bargaining process.
This proposed section leaves the full array of CSRA statutory
remedies for ancillary issues available to an employee subject to a
RIF. For example, this proposal allows for an employee who believes he
or she has been unfairly targeted for political purposes to file a
complaint to that effect with the OSC. As noted above, the CSRA
provides for these pathways in statute, and this proposal does nothing
to restrict or redirect these claims.
Proposed Sec. 351.902 describes the procedures and timeline an
employee must adhere to when submitting an appeal.\64\ It provides that
all appeals must be filed using an e-filing system and that, unless the
party demonstrates good cause and seeks approval from OPM, OPM will not
accept documents via postal mail or electronic mail. Either the
employee or the employee's authorized representative may file the
appeal. OPM anticipates that it would have an e-filing system in place
prior to the effective date of a final rule. It also implements a
timetable an employee must abide by to ensure the appeal will not be
deemed untimely and dismissed (subject to the employee demonstrating
good cause for an untimely appeal, as determined by OPM, in which case
the timetable may be waived). The timetable requires the employee to
submit a RIF appeal to OPM prior to 11:59 p.m. Eastern Time on the 30th
calendar day after the effective date of the action. However, if the
30th day falls on a Saturday, Sunday, or Federal holiday, the filing
period would be extended to include the first weekday after that date.
It also proposes to provide e-filing procedures necessary to file
appeals.
---------------------------------------------------------------------------

\64\ This proposed rule contemplates retaining the rights
currently codified at 5 CFR 351.902 elsewhere in the subpart.
---------------------------------------------------------------------------

Proposed Sec. 351.903 describes the content of a RIF appeal, the
employing agency's response to that appeal, and an employee's reply if
warranted, grants the employee or the employee's representative, by
request, the ability to inspect OPM's appellate records, and requires
the appellant and agency to serve all information submitted to OPM on
one another, at the same time as such documents are submitted to OPM.
Proposed Sec. 351.904 describes who an employee may select to be
his or her representative and the circumstances under which the agency
may disallow the representative to represent the employee. This section
proposes to permit the employee to select any person with whom the
employee has a written agreement for the representative to act as such
related to the specific appeal being filed. If the employee is
incapacitated, this section proposes to permit the designated
individual exercising the durable power of attorney on the employee's
behalf or, in the alternative, the employee's surrogate decisionmaker,
to act as a stand-in for the employee. However, this section proposes
an agency be authorized to, at the agency's discretion, reject any
representative who is an employee of the agency when his or her actions
as such would present a conflict of interest, the representative cannot
be released from official duties because he or she is serving a
priority need of the Government, or the representative is an employee
whose release would result in unreasonable costs to the Government.
This section also proposes that, if the representative is an agency
employee, he or she may not perform representational functions while in
a duty status and is not able to claim agency reimbursement for any
expenses incurred while performing representational functions.
Proposed Sec. 351.905 describes the procedures by which
adjudication of appeals is to take place, including how to address
conflicts of interest, appeals by OPM employees, investigative
authorities, a requirement for OPM to notify interested parties of the
decision, and relevant remedies, if any. The section proposes for OPM
personnel to adjudicate appeals by employees of other agencies,
provided such personnel have not served in a position impacted by a RIF
action or served as a representative for an employee subject to a RIF
action in the two years prior to the date on which the appeal was
filed. The section further proposes to permit OPM to appoint an
administrative law judge (ALJ) to preside over the appeal. It does not
require OPM to appoint an ALJ for non-OPM employees. In contrast, to
insulate OPM employees' appeals from agency involvement, this section
proposes to assign an ALJ to adjudicate such appeals and restricts OPM
from disturbing the ALJ's initial decision except if there has been a
harmful procedural irregularity in the proceedings before the ALJ or if
the ALJ makes a clear error of law. Under this construction the OPM
Director would be proactively exercising restraint in permitting
decisions pertaining to OPM employees to lie undisturbed, not
delegating his authority to the ALJ. In essence, the OPM Director is
regulatorily tying his own hands but can nevertheless choose to
regulatorily untie them. This leaves the ALJ as a properly supervised
inferior officer, not a principal officer. See United States v.
Arthrex, Inc., 594 U.S. 1, 6 (2021) (holding that the Appointments
Clause provides that inferior officers may exercise executive power
provided they are directed and supervised by a principal officer.).
For ``harmful procedural irregularity,'' the appealing party must
prove the irregularity in the application of procedures was likely to
have caused the ALJ to reach a conclusion different from the one it
would have reached in the absence or cure of the irregularity. The
section also proposes to empower OPM to investigate or audit the RIF
action to ascertain facts, which will be based on the developed written
record or, in the sole discretion of OPM, a hearing if it deems such a
hearing necessary and efficient. OPM defines ``necessary and
efficient'' to mean circumstances in which the written record is
insufficiently developed to make a determination regarding one or more
facts material to the outcome of the appeal, or where there is a
disputed issue of witness credibility that is material to the outcome
of the appeal. In cases in which an audit or investigation is
conducted, the section proposes to require OPM to inform the parties
and provide each with a reasonable opportunity to supplement their
positions with additional arguments or information. This section would
further require OPM to notify the parties in writing of its decision on
the appeal. This section proposes to provide remedies to the employee
in an instance in which he or she is the prevailing party. In such
cases, the section proposes that OPM will issue an order directing
correction of the personnel action and providing the employee with any
back pay, as well as reasonable attorney's fees and interest consistent
with subpart H of part 550 of title 5 of the Code of Federal
Regulations. Employees are further proposed to be precluded from
compensatory damages or other relief not authorized under 5 U.S.C.
5596(b). Finally, the section proposes that, if the agency requests a
reconsideration of an initial decision, or OPM reopens the case, the
ordered relief must be adhered to until OPM issues a second order, in
which case the parties must adhere to the second order.
Proposed Sec. 351.906 describes the authority of OPM to prevent
harassing communications by the parties via a cease-and-desist
directive, and the penalties for failing to follow a directive from
OPM. Specifically, the proposed

[[Page 5870]]

language would authorize OPM to direct any party to cease-and-desist
communications, or communications which could reasonably be foreseen to
lead to harassment, with or about any individual. This authority is
proposed to be exercised sua sponte or at the request of a party. The
section further proposes to impose several penalties upon a party
failing to comply with such a directive, including drawing all
inferences against the noncompliant party, prohibiting the noncompliant
party from introducing evidence, or eliminating consideration of any
filings or submissions of the noncompliant party.
MSPB procedures, while providing for protective orders, are
inadequate to protect federal employees from threats and harassment.
While MSPB permits a party to petition the board for a protective
order, it cannot, sua sponte, bind a party to a protective order
without a motion. Instead, MSPB relies primarily on mutual consent of
the parties, which allows for significant abuse by bad actors. The
failure to preemptively issue an order provides ample opportunity to
those who would channel unwarranted attention, harassing messages, and
threats to federal employees, who neither sought nor deserve public
attention, merely for fulfilling their responsibilities. This failure
should be corrected to protect rank and file federal employees seeking
to serve the public interest. However, unfortunately, to date, MSPB has
proven itself unwilling to take necessary steps to protect federal
employees, who deserve to be fully protected from undue scrutiny. As
such, OPM believes it would be prudent and provide much needed
protection for federal employees to adjudicate these appeals by issuing
cease-and-desist directives, with strict consequences for failure to
comply.
Proposed Sec. 351.907 describes the authority and basis for OPM to
reconsider its decision. The section proposes to authorize OPM in its
sole discretion for only delineated grounds, and only upon request of a
party to the dispute to reopen and reconsider an initial decision
issued under proposed Sec. 351.905. This authority is proposed to be
time-limited to within 30 calendar days from issuance of the initial
decision. This section proposes to require any request for
reconsideration of an initial decision to be filed using the same e-
filing system employees or their representatives are to use to file
their initial appeals. The section proposes to delineate the grounds
for reconsideration to be: (1) an erroneous finding of fact material to
the outcome of the decision; (2) an erroneous interpretation of statute
or regulation, or application of the facts of the case to such law; (3)
new and material evidence (which is proposed to constitute new
information contained in documents, not just new documents, which was
unavailable despite due diligence) or legal argument has become
available that, despite the petitioner's due diligence, was not
available when the record closed; or (4) OPM finds good cause to
reconsider an appeal. The section further proposes that, in an instance
in which there is an allegation of erroneous interpretation of statute
or regulation, or application of case facts to the law, the petitioner
must further explain how the error affected the case outcome. The
section further proposes that, in any case that OPM reopens for review,
OPM is authorized to issue a decision, require the parties to submit
argument and evidence, or take any other action necessary for final
disposition. The section proposes to empower OPM to affirm, reverse,
modify, or vacate the initial decision in whole or in part, as well as
issue a reconsidered decision, and where appropriate, order a date for
compliance. It also precludes any further right of administrative
appeal.
In proposed Sec. 351.908, OPM reserves the Director's right, at
his or her discretion and sua sponte, to reopen and reconsider any
decision OPM has issued provided the decision has not yet become final.
OPM views this process as necessary to ensure that the Director is able
to sufficiently supervise adjudicators and avoid any serious
constitutional concerns from having subordinate officials wield
executive authority. Under Article II, the Constitution vests the
executive power in the President who must rely upon subordinates to
exercise his authority. Adjudicators assigned to adjudicate appeals
under this proposed rule exert significant authority that must be
properly supervised to avoid a constitutional problem. Seila Law v.
Consumer Finance Protection Bureau, 140 S. Ct. 2183 (2020). OPM
believes the Director should have the final decision-making authority
for OPM to avoid legal challenges to the constitutionality of this
regulation.\65\
---------------------------------------------------------------------------

\65\ See Lucia v. Sec. & Exch. Comm'n, 585 U.S. 237 (2018)
(holding administrative law judges to whom the SEC could delegate
responsibility to preside over enforcement proceedings are Officers
of the United States) and Freytag v. Comm'r, 501 U.S. 868 (1991).
---------------------------------------------------------------------------

Proposed Sec. 351.909 describes the process by which OPM's initial
decision becomes its final decision. The section proposes that initial
decisions become final when neither party requests reconsideration
within 30 calendar days and the Director does not reopen a matter. It
further proposes to convert a reconsidered decision into a final
decision 30 calendar days following its issuance if the Director does
not intercede but, in such cases, backdates the date on which the final
decision becomes effective to the date on which the reconsidered
decision is issued. In instances in which the Director does intercede,
this section proposes to define a final decision as effective as of the
date on which the Director issues his or her decision.\66\ Further, the
section proposes to limit further rights to appeal following a final
OPM decision, including judicial review. Finally, the section mandates
OPM maintain a public website containing some final decisions
adjudicated on the merits, and that any concerned party be permitted to
access, upon request, any decision, whether on the public website or
not.
---------------------------------------------------------------------------

\66\ This regulation is modeled after those of the Commission,
published in 1949. U.S. Senate Committee on Post Office and Civil
Service, supra note 23, at p. 68.
---------------------------------------------------------------------------

As stated above, OPM is proposing to limit judicial review of
decisions issued under this subpart to adhere to the CSRA's specific
and well-defined statutory scheme for judicial review and prevent
unnecessarily protracted litigation regarding RIFs. OPM recognizes the
status quo that RIF appeals are appealable to the MSPB and then, in
turn, to the Federal Circuit. 5 U.S.C. 7701, 7703(b). However, this
pathway currently exists because of an OPM regulation, not because the
CSRA itself specifically requires it. The detailed discussion above
regarding the structure of the CSRA supports both the legal and
prudential bases for limiting judicial review in accordance with the
comprehensive statutory scheme. OPM believes that there is little added
value from the review that an Article III court could provide relative
to OPM's adjudicatory venue.
OPM's appeal process provides robust assurance for an employee that
all laws and rules applicable to RIFs are followed and that employees
will not be adversely impacted by errors. OPM will have all tools
necessary to make an employee whole who is subject to an unlawful or
improperly executed RIF. OPM is proposing conforming changes to Sec.
351.802(a)(6) pertaining to the content of RIF notices to employees.
The current subsection describes a right to appeal to MSPB. Proposed
Sec. 351.802(a)(6) will replace references to the MSPB with OPM,
except for employees with a statutory right of

[[Page 5871]]

appeal to MSPB under 38 U.S.C. chapter 43. OPM is making this change to
conform with changes to appeal rights as proposed in Sec. 351.901.
Proposed Sec. 351.807(e) removes the reference to the MSPB to
conform with changes to appeal rights as proposed in Sec. 351.901.

III. Regulatory Analysis

A. Statement of Need

The proposed rule seeks to modernize the current RIF appeals
process. The current process has become cumbersome and less efficient
than it needs to be. The proposed changes are needed to streamline this
process to improve both the efficiency and consistency of this process.
OPM believes this change can be achieved by leveraging its accumulated
knowledge and expertise through its unique role as developer,
administrator, and end-user of RIF provisions.\67\ This perspective and
insight are essential to streamlining the appeals process and the
Government's ability to achieve consistent outcomes in the RIF appeals
process.
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\67\ OPM emphasizes the independence of its adjudicative
function from its policymaking function. It further notes that both
the independent policymaking function and adjudicative function are
under the supervision of the Director of OPM. As head of the agency,
he is uniquely positioned to understand the intent and substance of
the RIF process rules, which he can leverage to ensure they are
properly effectuated. MSPB personnel lack such a perspective.
---------------------------------------------------------------------------

B. Regulatory Alternatives

An alternative to this rulemaking is to revoke the ability for a
federal employee to appeal a RIF action entirely. Congress provided
discretion to OPM pursuant to 5 U.S.C. 3502(d)(2)(E) when directing it
to provide a notice which includes ``a description of any appeal or
other rights which may [emphasis added] be available.'' However, were
OPM to choose this alternative, employees subject to RIFs would not be
able to seek relief for a RIF conducted not in accordance with
applicable statutes and regulations. Employees have enjoyed the ability
to appeal a RIF action to the Executive Branch for nearly a century,
and OPM believes it is unwise to reverse this long-standing precedent.
Another alternative is to delegate the authority to review RIF
appeals to each agency itself. This solution is similarly imprudent
given the conflicts of interest that may arise, which are addressed
elsewhere in this rule. Further, the same shortcomings that exist by
placing the RIF appeal process at MSPB, including contravening the best
reading of the authorizing statute, efficiency losses from lack of
expertise, among others, would not just remain, but would be
exacerbated.
A third alternative is to propose a rule that would re-house the
RIF appeal rights at OPM while mirroring the appeal rights and
procedures currently in place at MSPB. However, MSPB procedures add
needless, quasi-judicial complexity to a process fundamentally designed
to ensure federal agencies are properly evaluating whether an agency's
reorganization adhered to congressional directive and agency internal
policy. Appellants to MSPB receive a full hearing when the matter is
within MSPB's jurisdiction. See 5 U.S.C. 7701(a). This includes a full
discovery process causing needless delay and transactional cost
increases resulting from protracted adjudication and potential
litigation. The MSPB procedures, even housed at OPM, are also
unnecessary given the limited grounds for appeal. As the central
personnel agency for the federal government tasked with regularly
monitoring and enforcing the civil service rules and regulations, OPM
can leverage its considerable expertise to adjudicate RIF appeals
efficiently in accordance with Merit System Principles without having
to rely on the costly, burdensome, and time-consuming processes MSPB
employs for its adjudications.
A further alternative would be to seek to change the procedures
applicable to MSPB RIF appeals to more closely align with the proposed
process in this rule. However, that avenue is closed to OPM. Under AFGE
v. OPM., OPM cannot issue any ``regulation that purports to instruct
the MSPB how to conduct personnel appeals.'' 821 F.2d 761, 768 (D.C.
Cir. 1987). Instead, ``if OPM chooses to use the MSPB for dispute
resolutions, it must take that statutory device as it finds it.'' Id.
at 769.

C. Impact

OPM expects the impact of these rules will be a more streamlined
and consistent RIF appeals process. The proposed RIF appeals process is
similar to the classification appeals process currently administered by
OPM whereby determinations are made on information provided by an
agency and appellant in writing, except in circumstances in which OPM
determines it necessary to conduct an investigation or audit. OPM can
leverage its experience with classification appeals, and its expertise
in developing and administering RIF rules over the decades, into an
economy of scale with respect to RIF appeals. OPM has a unique
perspective with respect to RIF actions; OPM has a decades-long history
of developing and administering RIF rules which includes providing
hands-on technical policy advice and assistance to agencies as well as
operational RIF support on a reimbursable basis. And, as an employing
agency, OPM has applied these rules to its own workforce in several
RIFs over the years. OPM has the advantage of being both the
practitioner and the policy expert and believes it is in the best
position to adjudicate appeals for federal agencies. OPM believes
transferring the appeals function from MSPB to OPM and confining OPM
reviews of agency actions to the written record promotes
standardization and consistency in outcomes--both of which promote the
efficiency of government operations, including by leading to fewer
challenges and reconsiderations.

D. Costs

This proposed rule, once finalized and in effect, would affect how
a federal employee may pursue an appeal asserting an improperly
executed RIF resulting in his or her termination. This proposal grants
authority of these appeals to OPM. The proposed rule also removes
authority from MSPB to adjudicate complaints asserting erroneous
findings of fact, erroneous interpretation of statute or regulation to
the facts of the case, the existence of new material or legal arguments
not available when the record closed, or other good cause to consider
an appeal.
The return of adjudicative responsibility to OPM will likely result
in net cost savings to the government. The proposed rule streamlines
the adjudicative process by replacing discovery with an as-needed
investigation or audit conducted by OPM. The parties will no longer
have the right or ability to conduct discovery, an often contextually
needless process given the formulaic nature of a RIF that can result in
protracted costs (including time spent on document production,
depositions, and written discovery, each of which involve extensive
costs in time and resources for the government) creating extensive and
costly delays in the adjudicative process.\68\ It also eliminates an
employee's right to a hearing in favor of decisions based on the
written record unless OPM determines that a hearing is both necessary
and will result in an efficient

[[Page 5872]]

adjudication. The rule also locates the adjudicative function at OPM,
resulting in a significant cost savings based on a reduction in
personnel salaries as detailed below.\69\
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\68\ OPM recognizes MSPB regulations provide for time
constraints on discovery. 5 CFR 1201.73. However, these regulations
also provide for an unlimited extension at the direction of the
judge, which can extend the discovery timeline far beyond the
regulatory timeline.
\69\ OPM used the most recently available data in the FedScope
employment database, updated May 2024, to estimate grade levels of
MSPB personnel assigned to adjudicate appeals covered by this
proposed rule. The data is available at <a href="https://fedscope.opm.gov/">https://fedscope.opm.gov/</a>.
---------------------------------------------------------------------------

OPM estimates that this rulemaking will require individuals
employed by more than 80 federal agencies, including MSPB and EEOC, to
modify their regulations, policies, and procedures to implement this
rulemaking and train human resources (HR) practitioners, hiring
managers, attorneys, and administrative judges. For the purposes of
this proposal, OPM assumes the average salary rate of federal employees
performing this work will be the rate in 2025 for GS-14, step 5, from
the Washington, DC, locality pay table ($161,486 annual locality rate
and $77.38 hourly locality rate). We assume that the total dollar value
of labor, which includes wages, benefits, and overhead, is equal to 200
percent of the wage rate, resulting in an assumed labor cost of $154.76
per hour.
To comply with the regulatory changes, affected agencies would need
to review the final rule and update their regulations, policies, and
procedures. OPM estimates that, in the first year following publication
of the final rule, doing so will require an average of 100 hours of
work by employees with an average hourly cost of $154.76. This work
would result in estimated costs in that first year of implementation of
about $15,476 per agency, and about $1.2 million governmentwide.
Recurring Costs and Savings
OPM estimates that, in general and on an annual basis,
approximately 292 employees will file appeals pursuant to a RIF. This
figure is derived from averaging all RIF appeals (8,770) from 1995 to
the present.\70\ While OPM acknowledges the significant number of RIF
appeals filed in recent months,\71\ OPM views this as anomalous and not
indicative of a broader trend.
---------------------------------------------------------------------------

\70\ OPM has opted to include all RIF appeals from 1995 to the
present, inclusive of the comparatively increased number occurring
during the Clinton Administration relative to the George W. Bush,
Obama, and first Trump administrations. OPM has chosen to include
this information in its analysis in the interest of transparency in
light of this being the oldest data available in its FedScope
database. OPM is, however, excluding the anomalously large number of
RIFs from 2025. OPM believes including the Clinton RIFs while
excluding the 2025 RIFs is the best path forward because while OPM
is not aware of any decision to initiate future large-scale RIFs,
excluding the potentiality that such an occurrence may happen would
potentially render this estimate inaccurately low. By including the
Clinton Administration data, however, OPM seeks to protect against a
potential under-estimate of the necessary overall cost to the
government of RIF appeals on an annualized basis. Similarly,
excluding the 2025 RIFs protects against an over-estimate of the
overall cost.
\71\ U.S. Merit Sys. Prot. Bd., ``Annual Performance Plan for FY
2025-2026'' (May 30, 2025), <a href="https://www.mspb.gov/about/annual_reports/MSPB_APP_for_FY_2025_2026.pdf">https://www.mspb.gov/about/annual_reports/MSPB_APP_for_FY_2025_2026.pdf</a>.
---------------------------------------------------------------------------

This analysis compares the cost of an adjudication at MPSB relative
to OPM. OPM believes MSPB employs administrative judges at the GS-14
and GS-15 grade levels to adjudicate appeals. OPM further assumes that
each RIF appeal requires one administrative judge paid at the rate in
2025 for GS-14, step 5, from the Washington, DC, locality pay table
($161,486 annual locality rate and $77.38 hourly locality rate) and one
paralegal at the GS-11, step 5, from the Washington, DC locality pay
table ($95,878 annual locality rate and $45.94 hourly locality rate).
OPM assumes that the total dollar value of labor, including wages,
benefits, and overhead, is equal to 200 percent of the wage rate,
resulting in an assumed labor cost of $154.76, $91.88, and $216.30 per
hour for these respective positions. OPM estimates each initial appeal
currently takes MSPB personnel 40 and four hours for an administrative
judge and paralegal to adjudicate an initial appeal, respectively.
Based on these assumptions, OPM estimates the cost to MSPB of
adjudicating an initial appeal to be $6,557.92 per case, or $1.9
million per year for 292 appeals.
OPM anticipates handling initial procedural RIF appeals will
require one paralegal at the rate in 2025 of GS-11, step 5, from the
Washington, DC locality pay table ($95,878 annual locality rate and
$45.94 hourly locality rate) and one staff assistant at the rate in
2025 of GS-7, Step 5, from the Washington, DC locality pay table
($64,788 annual rate and $31.04 hourly locality rate) and one staff
assistant at the rate in 2025 of GS-7, step 5, from the Washington, DC
locality pay table ($64,788 annual locality rate and $31.04 hourly
locality rate) to handle procedural dismissals, including but not
limited to failure to file timely or for lack of jurisdiction. Assuming
a 200% value of labor, including wages, benefits, and overhead, the
assumed hourly labor cost for these positions are $91.88 and $62.30
respectively. OPM further anticipates that, predicated on historical
precedents for volume of RIF appeals and the necessary resources used
for similarly situated appellate procedures, both the paralegal and the
staff assistant will have additional responsibilities as part of their
duties. OPM estimates each initial appeal will require 20 hours for the
paralegal and 4 hours from the staff assistant to adjudicate initial
appeals. This results in a per-appeal cost of about $2,085, and an
annual cost of approximately $135,025 for 219 appeals.
OPM anticipates that adjudicators will handle 73 initial appeals
that are timely and germane. OPM further anticipates handling initial
non-procedural RIF appeals will require an adjudicator at the rate in
2025 of GS-13, step 5, from the Washington, DC locality pay table
($136,486 annual locality rate and $65.48 hourly locality rate) and one
paralegal at the rate in 2025 of GS-11, Step 5, from the Washington, DC
locality pay table ($64,788 annual rate and $31.15 hourly locality
rate). Assuming a 200% value of labor, including wages, benefits, and
overhead, the assumed hourly labor cost for these positions are $130.96
and $91.88 respectively. OPM estimates that each appeal will require 20
hours from the adjudicator and one hour from the paralegal, resulting
in a roughly $2,700 per case cost, or nearly $200,000 for 73 appeals.
With respect to petitions for reconsideration, OPM estimates that
MSPB would hear 155 requests (53 percent) for reconsideration of an
initial appeal. This is based on data from the MSPB's three most recent
annual reports for which there is data, which indicate that employees
petitioned for review of initial MSPB decisions in 53 percent of RIF
decisions.\72\ With respect to the cost to adjudicate petitions for
review from initial appeals, we estimate that each petition requires 4
hours each for the Chairman and two Members of the MSPB respectively,
paid at a rate of Executive Schedule Level IV of $195,200 ($93.53
hourly rate); and 16 hours for one attorney paid at the GS-15, step 5,
from the Washington, DC, locality pay table ($189,950 annual locality
rate and $91.02 hourly locality rate). We assume that the total dollar
value of labor, which includes wages, benefits, and overhead, is equal
to 200 percent of the wage rate, resulting in an assumed labor cost of
$187.06, $187.06, and $182.04 for these respective positions, or about
$683,413 per year for 155 petitions for review.
---------------------------------------------------------------------------

\72\ MSPB's Annual Reports for FY 2020 through FY 2024 can be
found on MSPB's website at <a href="https://www.mspb.gov/about/annualreport_archive.htm">https://www.mspb.gov/about/annualreport_archive.htm</a>.
---------------------------------------------------------------------------

Given the expertise present in MSAC and the limited grounds under
which OPM proposes to be able to grant a request to reopen and
reconsider an initial appeal, OPM anticipates 5 percent of the 292
employees who make an initial appeal, or 15 employees, will

[[Page 5873]]

request to reopen and reconsider an initial appeal. OPM anticipates
that each reconsideration will require one adjudicator at the rate in
2025 of GS-14, step 5, from the Washington, DC locality pay table
($161,486 annual locality rate and $77.38 hourly locality rate) and one
paralegal at the rate in 2025 for GS-11, step 5, from the Washington,
DC locality pay table ($95,878 annual locality rate and $45.94 hourly
locality rate) to manage these appeals. Assuming a 200% value of labor,
including wages, benefits, and overhead, the assumed labor cost for
these positions are $154.76 and $91.88 per hour, respectively. OPM
estimates that each adjudication of a request to reopen and reconsider
an initial appeal requires 16 hours and one hour of the adjudicator's
and paralegal's time, respectively. This results in a per-case cost of
roughly $2,568 or about $38,520.60 per year for 15 requests to reopen
and reconsider initial appeals.
There is also a cost-benefit to agencies of litigating appeals and
reconsiderations at OPM rather than MSPB. Under the status quo, OPM
estimates that agencies' litigation is handled by an agency attorney at
the rate in 2025 of GS-14, step 5, from the Washington, DC locality pay
table ($161,486 annual locality rate and $77.38 hourly locality rate),
one paralegal at the rate in 2025 of GS-11, step 5, from the
Washington, DC locality pay table ($95,878 annual locality rate and
$45.94 hourly locality rate), one supervisory attorney at the rate in
2025 of GS-15, step 5, from the Washington, DC locality pay table
($189,950 annual locality rate and $91.02 hourly locality rate).
Assuming a 200% value of labor, including wages, benefits, and
overhead, the assumed hourly rate for these positions are $154.76,
$91.88, and $182.04 respectively. OPM estimates that each appeal will
require 80 hours from the agency attorney, four hours from the
paralegal, and 8 hours from the supervisory attorney, resulting in a
per-case cost of $14,204.64, or $4,147,754.88 cost to agencies to
litigate initial appeals. OPM further estimates that an agency attorney
compensated at the same GS-14, step 5, Washington, DC locality pay
table will handle petitions for reconsideration, with each petition
requiring 24 hours of the attorney's time, or $3,714.24 per case. In
total, OPM estimates the cost of the petition for reconsideration to be
$575,707.20, for a total cost to agencies of litigating at MSPB to be
$4,723,462.08.
OPM estimates the cost to agencies of litigation at OPM relative to
MSPB would dramatically decrease. OPM estimates that agencies'
litigation would be handled by an agency attorney at the rate in 2025
of GS-14, step 5, from the Washington, DC locality pay table ($161,486
annual locality rate and $77.38 hourly locality rate), one paralegal at
the rate in 2025 of GS-11, step 5, from the Washington, DC locality pay
table ($95,878 annual locality rate and $45.94 hourly locality rate),
one supervisory attorney at the rate in 2025 of GS-15, step 5, from the
Washington, DC locality pay table ($189,950 annual locality rate and
$91.02 hourly locality rate). Assuming a 200% value of labor, including
wages, benefits, and overhead, the assumed hourly rate for these
positions are $154.76, $91.88, and $182.04 respectively. As noted
above, OPM estimates that the efficiencies gained by this rule will
result in 128 appeals reaching the litigation stage in which agencies
would have to devote more than a negligible amount of resources. As a
result, OPM estimates that the cost to litigate initial appeals at OPM
to be $1,025,822.72. OPM further estimates that an agency attorney
compensated at the same GS-14, step 5, Washington, DC locality pay
table will handle petitions for reconsideration, with each petition
requiring 24 hours of the attorney's time, or $3,714.24 per case. For
the reasons stated above, OPM estimates only 15 complaints will need to
be reopened and reconsidered. Therefore, in total, OPM estimates the
cost of the petition for reconsideration to be $575,707.20, for a total
cost to agencies of litigating at OPM to be $1,081,536.32, or
$3,641,925.76 less costly per year.
OPM notes that federal employees subject to a RIF action may file
an Equal Employment Opportunity (EEO) complaint. OPM believes that
terminations on EEO grounds are, as a general matter, rare, and that
employees would have substantial added difficulty claiming a RIF action
to be pretextual due to the purpose of, and nature by which, a RIF is
conducted. Further, OPM notes that in Fiscal Year 2021 (FY21), the most
recent year for which there is publicly available data, more than half
of federal employees who engaged in counseling sessions related to
potential EEO violations ultimately resolved their concerns by
withdrawing from the complaint process.\73\ This leads OPM to the
conclusion that exceedingly few employees will file an EEO complaint
related to a RIF action. Therefore, OPM estimates 1 percent of
employees who would otherwise file a RIF appeal would instead file an
EEO complaint, resulting in 3 complaints annually. OPM estimates that
each EEO complaint will require 125 hours by attorney at the rate in
2025 of GS-14, step 5, from the Washington, DC locality pay table
($161,486 annual locality rate and $77.38 hourly locality rate) to
manage each complaint. Assuming a 200% value of labor, including wages,
benefits, and overhead, the labor cost for this position is $154.76 per
hour. Factoring in $5,000 worth of miscellaneous litigation costs
associated with each appeal, OPM estimates it will cost roughly $88,000
for EEOC to manage RIF complaints resulting from this rulemaking.
---------------------------------------------------------------------------

\73\ U.S. Equal Employment Opportunity Comm. ``Annual Report on
the Federal Workforce Part I: EEO Complaint Processing Activity
Fiscal Year 2021'' (Dec. 2024), <a href="https://www.eeoc.gov/sites/default/files/2024-11/FY%202021%20Annual%20Report%20Workforce%20Part%20I_final_508.pdf">https://www.eeoc.gov/sites/default/files/2024-11/FY%202021%20Annual%20Report%20Workforce%20Part%20I_final_508.pdf</a>.
---------------------------------------------------------------------------

In sum, OPM predicts considerable savings to the American taxpayer
resulting from returning the venue to hear appeals of RIF actions from
MSPB to OPM. OPM estimates that it will cost the taxpayer more than
$7.3 million, inclusive of agency litigation costs, to adjudicate
initial appeals and petitions for review on an annual basis absent this
rulemaking. Conversely, OPM estimates it would cost just more than $1.1
million to taxpayers for OPM to adjudicate initial appeals and requests
to reopen and reconsider an initial decision. This proposal would
result in over $6.1 million in annual savings to the government.

E. Benefits

In addition to the direct cost savings this proposed rule would
generate, OPM expects that the faster adjudication of appeals will
result in additional benefits. First, receiving a timely decision on an
appeal will provide the individual with a clear determination and
provide much-needed certainty, quickly. Agencies will similarly benefit
as the streamlined appeal procedures proposed in this rule remove the
default requirement for a hearing before a MSPB AJ. This will reduce
the costly and protracted legal discovery process between an appellant
and agency. Moreover, a timely decision on an appeal will help the
Government to limit backpay and attorney's fees should an individual be
improperly terminated as part of a RIF.
OPM also expects these rules will result in a more efficient RIF
appeals process. The proposed RIF appeals process is similar to the
classification appeals process currently used by OPM. OPM believes
transferring the appeals function from MSPB to OPM and confining OPM
reviews of agency actions to the written record, except in rare
circumstances where OPM determines additional information is

[[Page 5874]]

needed, promotes standardization and consistency in outcomes--both of
which promote the efficiency of government operations because this
proposed process should lead to fewer challenges and reconsiderations.
In addition, OPM expects greater consistency with respect to the
outcomes of employees' appeals. This expectation is due to OPM's unique
position as the agency authorized by Congress to promulgate these
rules, OPM's decades-long administration of RIF rules on a
governmentwide basis, and OPM's own experiences as an employing agency
that has applied RIF rules numerous times over the decades in its own
downsizing actions. OPM believes this inherent familiarity and history
with the RIF rules and RIF process will lead to more efficiency and
consistency in adjudicating appeals across the government for agencies
and federal employees.

F. Reliance Interests

OPM understands that the current regulations governing
administrative appeals of RIFs have been in place for many decades. It
plans to accommodate any reliance interests by providing, in the
``Effective Date'' section of the Final Rule, that the new procedures
will not be applied retroactively to appeals that were filed with the
MSPB before the effective date of the new regulation. While OPM does
not believe that any reliance interests are implicated by the new
appeals system beyond the fact that some unresolved appeals remain
pending with the MSPB, it invites comments regarding any reliance
interests that may have been engendered by the current RIF appeal
regulations.

IV. Procedural Issues and Regulatory Review

A. Regulatory Review

The Office of Information and Regulatory Affairs in the Office of
Management and Budget has designated this as a significant regulatory
action under E.O. 12866 section 3(f). Accordingly, OPM has examined the
impact of this rule as required by Executive Orders 12866 and 13563,
which direct agencies to assess all costs and benefits of available
regulatory alternatives and, if regulation is necessary, to select
regulatory approaches that maximize net benefits (including potential
economic, environmental, public, health, and safety effects,
distributive impacts, and equity). A regulatory impact analysis must be
prepared for rules that have an annual effect on the economy of $100
million or more or adversely affect in a material way the economy, a
sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local, or Tribal
governments or communities. This rulemaking does not reach that
threshold. This proposed rule is expected to be an Executive Order
14192 deregulatory action.

B. Regulatory Flexibility Act

The Director of OPM certifies that this rulemaking will not have a
significant economic impact on a substantial number of small entities
because this rule will apply only to Federal agencies and employees.

C. Federalism

This regulation will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on distribution of power and responsibilities among the
various levels of government. Therefore, in accordance with Executive
Order 13132 (Aug. 10, 1999), the Director of OPM certifies that this
rulemaking does not have sufficient federalism implications to warrant
preparation of a Federalism Assessment.

D. Civil Justice Reform

This regulation meets the applicable standard set forth in
subsection 3(a) and paragraph 3(b)(2) of Executive Order 12988 (Feb. 7,
1966).

E. Unfunded Mandates Reform Act of 1995

Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits before
issuing any rule that would impose spending costs on State, local, or
Tribal governments in the aggregate, or on the private sector, in any 1
year of $100 million in 1995 dollars, updated annually for inflation.
That threshold is currently approximately $206 million. This rulemaking
will not result in the expenditure by State, local, or Tribal
governments, in the aggregate, or by the private sector, in excess of
the threshold. Thus, no written assessment of unfunded mandates is
required.

F. Paperwork Reduction Act of 1995

This regulatory action will impose additional reporting or
recordkeeping requirements under the Paperwork Reduction Act of 1995
(44 U.S.C. Chapter 35). OPM is creating an e-filing system for use in
collecting and maintaining adjudication records for a variety of
different existing regulatory provisions. That system would also be
used to support this proposal. OPM is publishing a separate notice in
the Federal Register requesting OMB approval of a new information
collection associated with the e-filing system. OPM is also reviewing
its SORNs to determine whether to revise an existing SORN or to create
a new SORN for the e-filing system. OPM will publish any proposed
changes to its SORNs in the Federal Register.

List of Subjects in 5 CFR Part 351

Administrative practice and procedure, Government employees.

The Director of OPM, Scott Kupor, reviewed and approved this
document and has authorized the undersigned to electronically sign and
submit this document to the Office of the Federal Register for
publication.

Office of Personnel Management.
Jerson Matias,
Federal Register Liaison.

Accordingly, for the reasons stated in the preamble, OPM proposes
to amend 5 CFR part 351 as follows:

PART 351--REDUCTION IN FORCE

0
1. The authority citation for part 351 is revised to read as follows:

Authority: 5 U.S.C. 1302, 3502, 3503; E.O. 14284, 90 FR 17729; 5
CFR 2.2(c). Sec. 351.801 also issued under E.O. 12828, 58 FR 2965, 3
CFR, 1993 Comp., p. 569.

Subpart H--Notice to Employee

0
2. Amend Sec. 351.802 by revising paragraph (a)(6) to read as follows:

Sec. 351.802 Content of notice.

(a) * * *
(6) The employee's right, as applicable, to appeal to OPM. The
agency must also comply with Sec. 1201.21 of this title.
* * * * *
0
3. Amend Sec. 351.807 by revising paragraph (e) to read as follows:

Sec. 351.807 Certification of expected separation.

* * * * *
(e) An agency determination of eligibility for certification may
not be appealed.
* * * * *
0
4. Revise subpart I to read as follows:

Subpart I--Appeals

Sec.
Sec. 351.901 Right to appeal.
Sec. 351.902 Procedures for submitting appeals.
Sec. 351.903 Form and content of RIF appeal and agency response.
Sec. 351.904 Employee representatives.

[[Page 5875]]

Sec. 351.905 Adjudication of appeals.
Sec. 351.906 Sanctions and protective orders.
Sec. 351.907 Reconsideration of an initial decision.
Sec. 351.908 Review by the OPM Director.
Sec. 351.909 Final decision.

Sec. 351.901 Right to appeal.

(a) Right of appeal. An employee who has been the subject of a
reduction-in-force action may appeal an action taken under this part to
the Office of Personnel Management (OPM).
(b) Burden of Proof. The employee (i.e., appellant) bears the
burden of proof to demonstrate, by a preponderance of the evidence:
(1) The timeliness of the appeal,
(2) OPM possesses jurisdiction over the appeal, and
(3) The reduction-in-force action (i.e., more than 30-day furlough,
separation, or demotion due to a reduction in force) was conducted
inconsistent with either statute or OPM regulations such that the
employee would not have suffered the same or another reduction-in-force
action.
(c) Exclusive appeal procedure. The procedures in this part are the
sole and exclusive means of appealing any reduction-in-force action,
and shall supersede any appeal procedures found in agency policies or
collective bargaining agreements, but they do not otherwise preclude an
employee from filing a complaint, appeal, or other matter within the
jurisdiction of the Equal Employment Opportunity Commission, Federal
Labor Relations Authority, an Inspector General, Merit Systems
Protection Board, the Department of Labor Veterans' Employment and
Training Service, or the Office of Special Counsel. A party cannot
obtain judicial review of a decision under this part.

Sec. 351.902 Procedures for submitting appeals.

(a) Filing an appeal. A party, or his or her authorized
representative, seeking to file an initial appeal or reconsideration of
an initial appeal under this part must utilize the electronic filing
(e-filing) system available at [URL TBD]. Unless a party demonstrates
good cause and seeks approval from OPM, OPM will not accept any
statements, evidence, or documents via electronic mail or postal mail.
(b) Time limits. An employee may submit an appeal of a reduction in
force action within 30 calendar days from the effective date of the
action. An appeal is deemed timely when it is electronically filed by
11:59 p.m. Eastern Standard Time on the 30th calendar day after the
effective date of the action.
(1) In computing the number of days allowed for filing an appeal,
the first day counted is the day after the effective date of an Agency
action. If the date that ordinarily would be the last day for filing
falls on a Saturday, Sunday, or Federal holiday, the filing period will
include the first workday after that date.
(2) If an employee does not submit an appeal within the time set by
this section, the appeal will be dismissed as untimely filed unless the
employee demonstrates good cause for an untimely appeal.
(3) The determination of good cause will be in the sole and
exclusive discretion of OPM.
(c) E-filing procedures.
(1) All parties and their representatives to an appeal or
reconsideration must register as instructed by OPM on its e-filing
system using a unique email address.
(2) Registration as an e-filer constitutes consent to accept
electronic service of pleadings, evidence, notices, orders, and other
documents filed by other e-filers or issued by OPM. No party may
electronically file any document with OPM or access an appeal or
reconsideration of an appeal unless registered as an e-filer.
(3) All notices, orders, decisions, and other documents issued by
OPM, as well as all documents filed by parties, will be made available
for viewing and downloading at OPM's electronic filing system. Access
to documents is limited to the parties and their representatives who
are registered e-filers in the cases in which they were filed.
(4) All parties and their representatives must follow the
instructions on OPM's website for properly filing all pleadings,
evidence, and other documents. OPM may issue orders regulating the
method and form of submissions and sanctions for noncompliance,
including ordering any party or authorized individual to cease
participation as an e-filer in circumstances that constitute a misuse
of the system or a failure to comply with law, rule, regulations, or
policy governing the use of a U.S. government information system.
(5) Each e-filer must promptly update their profile in OPM's
electronic filing system and notify OPM and other parties of any change
in their best address, telephone number, or email address by filing a
pleading in each pending case with which they are associated. E-filers
are responsible for monitoring case activity regularly in OPM's
electronic filing system to ensure that they have received all case-
related documents.
(6) A party or representative may withdraw their registration as an
e-filer pursuant to the requirements posted on OPM's website.
Withdrawing registration in OPM's e-filing system means that, effective
upon OPM's processing of a proper withdrawal, pleadings, evidence,
orders, and other documents filed by a party or party's representative
and OPM will no longer be served on that person electronically and that
person will no longer have electronic access to their case records
through OPM's e-filing system. OPM may still process an appeal or
request for reconsideration after a party withdraws as an e-filer.
Withdrawal as a party or party's representative will not be considered
good cause for staying a case. As the e-file system is the only
accepted method for filing an appeal, a withdrawal of registration as
an e-filer may preclude future re-registering as an e-filer.
(7) OPM, in its sole and exclusive discretion, may exempt a party
or representative from registering as an e-filer for good cause. A
party or representative must promptly contact OPM as instructed on
OPM's website to request an exemption from the e-filing requirements in
this part. OPM will not find good cause for failing to timely file an
appeal or seek reconsideration if the party or representative fails to
contact OPM to request an exemption before any deadline to appeal or
seek reconsideration.
(8) Documents filed in OPM's e-filing system are deemed received on
the date of the electronic submission.

Sec. 351.903 Form and content of RIF appeal and agency response.

(a) Initial appeal. An employee's appeal shall be in writing and
must state the basis of the employee's appeal; and the legal name, best
address, and email address or phone number of the appellant and
appellant's representative, if any; and must include any documentation
supporting the appellant's appeal.
(b) Agency response. The agency response to an appeal must be filed
within 30 calendar days of the initial appeal; contain the name of the
appellant and of the agency whose action the appellant is appealing; a
statement identifying the agency action taken against the appellant and
stating the reasons for taking the action; all documents contained in
the agency record of the action; designation of and signature by the
authorized agency representative; and any other documents or responses
requested by OPM. The agency's 30 days to respond begins upon service
of the appeal.

[[Page 5876]]

(c) Reply. The employee may file a reply to the agency response to
an initial appeal within 15 calendar days of the agency response. The
reply may only address the factual and legal issues raised by the
agency in response to the initial appeal. The reply may not raise new
allegations of error.
(d) Inspection of OPM's appellate record. The employee, an
employee's representative, and the agency will be permitted to inspect
OPM's appellate record on request.
(e) Service of Documents. The employee, employee's representative,
and agency will serve on each other copies of any and all information
submitted to OPM with respect to an appeal. Such information must be
served on all other parties at the same time the information is
submitted to OPM and must be accompanied by a certificate of service
stating how and when service was made.
(f) Untimely Filings. Untimely filings may be accepted upon a
party's showing of good cause at the sole and exclusive discretion of
OPM.

Sec. 351.904 Employee representatives.

An employee may select a representative of his or her choice to
assist in the preparation and presentation of an appeal, provided that
the employee submits his or her designation of representative in
writing related to the specific appeal. If the selected representative
is a Federal employee, the representative may not perform such
representational functions while in a duty status (including while on
official time under 5 U.S.C. 7131), nor may the representative claim
agency reimbursement for any expenses incurred while performing such
representational function. OPM or the responsible agency may, in its
sole and exclusive discretion, disallow an employee's choice of
representative when the representative is an employee of the
responsible agency or OPM and his or her activities as a representative
would cause a conflict of interest or position; that employee cannot be
released from his or her official duties because of the priority needs
of the Government; or that employee's release would give rise to
unreasonable costs to the Government.

Sec. 351.905 Adjudication of appeals.

(a) Appeals by non-OPM employees. OPM will assign personnel to
adjudicate an appeal under this subpart by an employee of an agency
other than OPM. However, no OPM employee may be assigned to adjudicate
an appeal if the employee has a relationship with the appellant
employee or, during the preceding two years, that person was an
employee of the agency that is a party to the action to be assigned, or
the employee was subject to, an action covered under this part. When
necessary, OPM may appoint an administrative law judge to preside over
the adjudication of an appeal.
(b) Appeals by OPM employees. OPM will assign an administrative law
judge to adjudicate an appeal under this subpart by an OPM employee. To
insulate the adjudication of its own employees' appeals from agency
involvement, OPM will not disturb initial decisions in those cases
unless a party shows that there has been harmful procedural
irregularity in the proceedings before the administrative law judge or
a clear error of law. For these purposes, the term harmful procedural
irregularity means an irregularity in the application of procedures was
likely to have caused the administrative law judge to reach a
conclusion different from the one he or she would have reached in the
absence or cure of the irregularity.
(c) Ascertainment of facts. OPM may audit or investigate an
agency's reduction in force action in the course of adjudicating an
appeal if it determines, in its sole and exclusive discretion, the
interest of justice is served by such an audit or investigation. The
review of an agency action will be based solely on the developed
written record unless OPM determines that a hearing or any other
appropriate action is necessary and efficient to resolve an appeal and
directs the parties to participate in such hearing or comply with such
action. For purposes of this section, the term necessary and efficient
means circumstances in which the written record is insufficiently
developed to make a determination regarding one or more facts material
to the outcome of the appeal, or where there is a disputed issue of
witness credibility that is material to the outcome of the appeal.
Where an investigation or audit is conducted, OPM will:
(1) Inform the employee, the employee's representative, and the
agency of an investigation or audit; and
(2) Provide the employee, the employee's representative, and the
agency with the results of an investigation or audit, and a reasonable
opportunity to submit arguments or additional information to support
their positions.
(d) Failure to participate in ascertainment of facts. If a party
fails to participate in an audit or investigation pursuant to
351.905(c), OPM may, except when prohibited by law, impose any sanction
listed at 351.906(b)(1)-(3).
(e) Initial decision. OPM will notify the employee, employee's
representative, and agency in writing of its decision.
(f) Remedies. (1) If the employee is the prevailing party, OPM will
order relief including correction of the personnel action and any back
pay, interest, and reasonable attorney fees consistent with subpart H
of part 550 of this chapter. The employee as a prevailing party is not
entitled to compensatory damages or other relief not authorized under 5
U.S.C. 5596(b).
(2) If the agency timely requests reconsideration of an initial
decision or OPM reopens and reconsiders an initial decision, the agency
must continue to provide the relief ordered unless OPM issues an order
staying any such relief. No such stay may be ordered that would deprive
pay and benefits to the employee while the initial decision is pending
reconsideration.

Sec. 351.906 Sanctions and protective orders.

(a) Cease-and-desist directive. OPM may issue a directive to a
party to prevent or to cease-and-desist harassing communications (or
communications which could reasonably be foreseen to lead to
harassment) with or about any individual, or to prohibit a party from
using any information related to the appeal for any purpose whatsoever
unrelated to the adjudication of the appeal. OPM may do this sua
sponte, or at the request of a party, preemptively or at any juncture
in the appeal process. A party requesting OPM to issue a protective
order or cease-and-desist should file such request using the e-filing
procedures proscribed at Sec. 351.902(c), and must include statement
of reasons justifying the request, together with any relevant
documentary evidence.
(b) Failure to comply with an OPM directive. When a party to an
appeal fails to comply with a directive issued under paragraph (a), OPM
shall, except when prohibited by law:
(1) Draw all inferences in opposition to the noncompliant party
with regard to the appeal in question;
(2) Prohibit the noncompliant party from introducing evidence, or
additional evidence, concerning the appeal, or otherwise relying on the
record; or
(3) Eliminate from consideration any appropriate part of the
filings or other submissions of the noncompliant party.

Sec. 351.907 Reconsideration of an initial decision.

(a) Upon a request from either party to the dispute, OPM may, in
its sole and

[[Page 5877]]

exclusive discretion, reopen and reconsider an initial decision issued
under this subpart. An employee, the employee's representative, or the
agency may request reopening and reconsideration of an initial decision
within 30 calendar days from issuance of the initial decision. The
request to reopen and reconsider must be filed in the same manner as an
initial appeal.
(b) Grounds for which OPM may grant a request for reconsideration
are:
(1) The initial decision contains erroneous findings of material
fact sufficient to warrant an outcome different from that of the
initial decision;
(2) The initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the
facts of the case. The party must explain how the error affected the
outcome of the case;
(3) New and material evidence or legal argument is available that,
despite the party's due diligence, was not available when the record
closed. To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed; or
(4) OPM finds good cause to reconsider an appeal.
(c) In any case that is reopened or reviewed, OPM may:
(1) Issue a reopened and reconsidered decision (``R&R decision'')
that affirms, reverses, modifies, vacates, or otherwise decides the
case, in whole or in part;
(2) Require the parties to submit argument and evidence;
(3) Take any other action necessary for final disposition of the
case; and
(4) Issue an order with a date for compliance with the R&R
decision.
(d) There is no further right of administrative appeal from the R&R
decision.

Sec. 351.908 Review by the OPM Director.

The Director may, at his or her discretion, sua sponte, reopen and
reconsider any appeal in which OPM has issued a decision that has not
yet become final.

Sec. 351.909 Final decision.

(a) The initial decision becomes the final decision of OPM if a
party does not request OPM to reopen or reconsider the initial decision
within 30 calendar days from the date of the initial decision.
(b) A R&R decision pursuant to Sec. 351.907 becomes OPM's final
decision if the OPM Director does not reopen the decision pursuant to
Sec. 351.908 within 30 calendar days from the date on which the R&R
decision was issued.
(c) A decision by the Director pursuant to Sec. 351.908 is the
final decision of OPM and effective upon issuance.
(d) There is no further right of appeal of a final decision of OPM.
(e) OPM shall maintain a publicly accessible website containing
final decisions issued on this part that address a party's claim on the
merits. Any final decision not made publicly available shall be made
available upon request by a concerned party. For purposes of this
subsection, a concerned party means the Federal employee or former
Federal employee involved in a proceeding under this subpart, his or
her representative selected pursuant to Sec. 351.904, or a
representative of a Federal agency or office.

[FR Doc. 2026-02576 Filed 2-9-26; 8:45 am]
BILLING CODE 6325-39-P

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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.