Upholding Civil Service Protections and Merit System Principles
| Published date | 09 April 2024 |
| Record Number | 2024-06815 |
| Citation | 89 FR 24982 |
| Court | Personnel Management Office |
| Section | Rules and Regulations |
Federal Register, Volume 89 Issue 69 (Tuesday, April 9, 2024)
[Federal Register Volume 89, Number 69 (Tuesday, April 9, 2024)]
[Rules and Regulations]
[Pages 24982-25049]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-06815]
[[Page 24981]]
Vol. 89
Tuesday,
No. 69
April 9, 2024
Part IIIOffice of Personnel Management-----------------------------------------------------------------------5 CFR Parts 210, 212, 213, et al.Upholding Civil Service Protections and Merit System Principles; Final
Rule
Federal Register / Vol. 89, No. 69 / Tuesday, April 9, 2024 / Rules
and Regulations
[[Page 24982]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
[Docket ID: OPM-2023-0013]
RIN 3206-AO56
Upholding Civil Service Protections and Merit System Principles
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to reinforce and clarify longstanding civil service
protections and merit system principles, codified in law, as they
relate to the involuntary movement of Federal employees and positions
from the competitive service to the excepted service, or from one
excepted service schedule to another. In this final rule, OPM adopts
many of the provisions from the proposed rule with some modifications
and clarifications based on comments received from the public. The
final regulations will better align OPM regulations with relevant
statutory text, congressional intent, legislative history, legal
precedent, and OPM's longstanding practice.
DATES: Effective May 9, 2024.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by phone at (202) 606-2930.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
II. Digest of Public Comments
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil
Service Protections
B. Conduct and Performance Under the Civil Service Reform Act of
1978
C. The Competitive, Excepted, and Senior Executive Services
D. The Prior Schedule F
E. General Comments
F. OPM's Authority To Regulate
IV. Regulatory Amendments and Related Comments
A. Retention of Status and Civil Service Protections Upon a Move
B. Positions of a Confidential, Policy-Determining, Policy-
Making, or Policy-Advocating Character
C. Agency Procedures for Moving Employees
V. Regulatory Analysis and Related Comments
A. Statement of Need
B. Regulatory Alternatives
C. Impact
D. Costs
E. Benefits
VI. Procedural Issues and Regulatory Review
A. Severability
B. Regulatory Flexibility Act
C. Regulatory Review
D. Executive Order 13132, Federalism
E. Executive Order 12988, Civil Justice Reform
F. Unfunded Mandates Reform Act of 1995
G. Congressional Review Act
H. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
VII. Regulatory Amendments
I. Executive Summary
The Office of Personnel Management (OPM) is issuing final
regulations governing competitive service and competitive status,
employment in the excepted service, and adverse actions. The final rule
also makes conforming changes to the regulations governing performance-
based actions and awards.
This rule clarifies and reinforces longstanding civil service
protections and merit system principles, reflected in the passage of
the Pendleton Civil Service Reform Act of 1883. The Act ended the
patronage, or ``spoils,'' system for Federal employment and initiated
the competitive civil service. For the past 140 years, Congress has
enacted statutes and agencies have promulgated rules that govern the
civil service, beginning with laws that limited political influence in
employment decisions and growing over the years to establish
comprehensive laws regulating many areas of Federal employment. These
changes were designed to further good government. Subsequent statutes,
including, among others, the Lloyd-La Follette Act of 1912, the
Veterans' Preference Act of 1944, as amended, the Civil Service Reform
Act of 1978 (CSRA), and the Civil Service Due Process Amendments Act of
1990, extended and updated these civil service provisions.
Whereas the Pendleton Act eliminated the spoils system and
introduced a merit-based civil service as a key pillar of our
democratic system, the CSRA was the signature, bipartisan reform that
has most shaped the system we have today.\1\ It created an elaborate
``new framework'' \2\ of the modern civil service, protected career
Federal employees from undue partisan political influence, and extended
adverse action rights by statute to a larger cohort of employees, so
that the business of government can be carried out efficiently and
effectively, in compliance with the law, and in a manner that
encourages individuals to apply to participate in the civil service.
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\1\ See Lindahl v. OPM, 470 U.S. 768, 773 (1985) (explaining
that the CSRA ``overhauled the civil service system'').
\2\ Id. at 774; see United States v. Fausto, 484 U.S. 439, 443
(1988).
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The 2.2 million career civil servants active today are the backbone
of the Federal workforce. They are dedicated and talented professionals
who provide the continuity of expertise and experience necessary for
the Federal Government to function optimally across administrations.
These employees take an oath to uphold the Constitution and are
accountable to agency leaders and managers who, in turn, are
accountable to the President, Congress, and the American people for
their agency's performance. At the same time, these civil servants must
carry out critical tasks requiring that their expertise be applied
objectively (performing data analysis, conducting scientific research,
implementing existing laws, etc.).
Congress has dictated a well-established way in which agencies can
control their workforces. If a Federal employee refuses to implement
lawful direction from leadership, there are mechanisms for agencies to
respond through discipline, up to and including removal, as
appropriate, under chapter 75 of title 5, U.S. Code. If a Federal
employee's performance has been determined to be unacceptable, the
agency may respond under chapter 75 (on the basis that action is
necessary to promote the efficiency of the service) or pursue a
performance-based action under chapter 43 of title 5, U.S. Code, at the
agency's discretion. Under the law, however, a mere difference of
opinion with leadership does not qualify as misconduct or unacceptable
performance or otherwise implicate the efficiency of the service in a
manner that would warrant an adverse action.
Career civil servants have a level of institutional experience,
subject matter expertise, and technical knowledge that incoming
political appointees have found to be useful and may lack themselves.
Such civil servants' ability to offer their objective analyses and
educated views when carrying out their duties, without fear of reprisal
or loss of employment, contribute to the reasoned consideration of
policy options and thus the successful functioning of incoming
administrations and our democracy. These rights and abilities must
continue to be protected and preserved, as envisioned by Congress when
it enacted the CSRA, and expanded and strengthened those protections
through subsequent enactments such as the Civil Service Due Process
Amendments Act.\3\
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\3\ Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17,
1990); see also H.R. Rep. 101-328 (Nov. 3, 1989).
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[[Page 24983]]
Congress has generally charged the OPM Director with executing,
administering, and enforcing the laws governing the civil service.\4\
In chapter 75, Congress provided certain Federal employees with
specified procedural rights and provided OPM with broad authority to
prescribe regulations to carry out the chapter's purposes.\5\ Moreover,
OPM regulations govern the movement of positions from the competitive
service to the excepted service.\6\ Pursuant to its authority, OPM
issues this rule to clarify and reinforce longstanding civil service
protections and merit system principles as codified in the CSRA. OPM
amends its regulations in 5 CFR chapter I, subchapter B, as follows:
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\4\ See 5 U.S.C. 1103(a)(5)(A).
\5\ See 5 U.S.C. 7504, 7514.
\6\ See, e.g., 5 CFR part 212.
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First, the rule amends 5 CFR part 752 (Adverse Actions) to clarify
that civil servants in the competitive service or excepted service who
qualify as ``employees'' under 5 U.S.C. 7501, 7511(a)--meaning they
have fulfilled their probationary or trial period requirement or
durational requirement and are not excluded from the definition of
``employee'' by 5 U.S.C. 7511(b) \7\--will retain the rights previously
accrued upon an involuntary move \8\ from the competitive service to
the excepted service, or from one excepted service schedule to another,
or any subsequent involuntary move, unless the employee relinquishes
such rights or status by voluntarily encumbering a position that
explicitly results in a loss of, or different, rights.\9\ The rule also
conforms the regulation for non-appealable adverse actions with
statutory language in 5 U.S.C. 7501 and Federal Circuit precedent to
clarify which employees are covered. The rule amends 5 CFR part 212
(Competitive Service and Competitive Status) to further clarify a
competitive service employee's status in the event the employee and/or
their position is moved involuntarily to an excepted service schedule.
OPM also updates the regulations to reflect the repeal of 10 U.S.C.
1599e, effective December 31, 2022, and restores a one-year
probationary period for covered Department of Defense employees
appointed to permanent positions within the competitive service in the
Department of Defense on or after December 31, 2022.
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\7\ OPM notes that employees appointed pursuant to Schedule C
have no expectation of accruing such rights, considering the
longstanding interpretation of 5 U.S.C. 7511(b)(2) and E.O. 10577,
Rule VI, Schedule C, as amended. There are a small number of
additional, discrete, positions for which the appointing authority
similarly precludes the accrual of such rights, by the appointing
authority's own terms.
\8\ The final rule further discusses the differences between
voluntary and involuntary moves in Section IV(A).
\9\ As explained further infra, an individual can voluntarily
relinquish rights when moving to a position that explicitly results
in the loss of, or different, rights. An agency's failure to inform
an employee of the consequences of a voluntary transfer cannot
confer appeal rights to an employee in a position which has no
appeal rights by statute. This is distinguishable from situations
where the individual was coerced or deceived into taking the new
position with different rights. See Williams v. MSPB, 892 F.3d 1156
(Fed. Cir. 2018).
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Second, the rule amends 5 CFR part 210 (Basic Concepts and
Definitions (General)) to interpret the phrases ``confidential, policy-
determining, policy-making, or policy-advocating'' and ``confidential
or policy-determining'' \10\ in 5 CFR 210.102. These terms of art--
which would apply throughout OPM's Civil Service Regulations in 5 CFR
chapter I, subchapter B \11\--describe positions of the character
generally excepted from chapter 75's protections. OPM reinforces the
longstanding interpretation that, in creating this exception in 5
U.S.C. 7511(b)(2), Congress intended to except noncareer political
appointees \12\ from civil service protections.
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\10\ See 5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202,
752.401.
\11\ The relevant regulatory language currently varies slightly.
For instance, 5 CFR part 752 refers to positions ``of a
confidential, policy-determining, policy making, or policy-
advocating character.'' But 5 CFR part 213 describes these positions
as being ``of a confidential or policy-determining character,'' 5
CFR part 302 uses ``of a confidential, policy-determining, or
policy-advocating nature,'' and 5 CFR part 451 uses ``of a
confidential or policy-making character.'' In this final rule, OPM
adopts ``confidential, policy-determining, policy making, or policy-
advocating'' and ``confidential or policy-determining'' as two,
interchangeable alternatives to describe these positions.
\12\ The term ``career employee,'' as used here, refers to
appointees to competitive service permanent or excepted service
permanent positions. The terms ``noncareer political appointee'' and
``political appointee,'' as used here, refer to individuals
appointed by the President or his appointees pursuant to Schedule C
(or similar authorities) who serve at the pleasure of the current
President or his political appointees and who have no expectation of
continued employment beyond the presidential administration in which
the appointment occurred.
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Third, the rule amends 5 CFR part 302 to provide specific
procedures that apply when moving individuals or positions from the
competitive service to the excepted service, or from one excepted
service schedule to another, for the purposes of good administration,
to add transparency, and to provide a right of appeal to the Merit
Systems Protection Board (MSPB or Board) to the extent any such move is
involuntary and characterized as stripping individuals of any
previously accrued civil service status and protections.
On September 18, 2023, OPM issued a notice of proposed rulemaking,
which was published at 88 FR 63862. After consideration of public
comments on the proposed regulatory amendments, OPM has determined that
the issuance of these revised regulations is essential to strengthen
and protect the foundations of the civil service and its merit system
principles.\13\ These principles were critical to the Pendleton Act's
repudiation of the spoils system; essential to continued compliance
with the statutory schemes for performance management, as enacted by
Congress (and subsequently expanded) to extend procedural entitlements
to most career employees following a specified period of service; and
essential to the creation of the modern civil service on which this
country depends and under which it has thrived for 140 years.\14\ The
final rule is also critical to the Federal Government's ability to
recruit and retain the talent that agencies need to deliver on their
complex missions. Individuals considering whether to accept a career
civil service position need to know that they will be valued for their
knowledge, skills, and abilities; evaluated based on merit; and not
only protected from retribution for offering their candid opinions but
encouraged to do so. Policies that cast doubt on these fundamental
characteristics of a career civil service job restrict the pool of
applicants interested in Federal Government jobs and disadvantage
agencies in competing for top talent.
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\13\ OPM's authorities to issue regulations only extend to title
5, U.S. Code. A position may be placed in the excepted service by
presidential action, under 5 U.S.C. 3302, by OPM action, under
authority delegated by the President pursuant to 5 U.S.C. 1104, or
by Congress. These proposed regulations apply to any situation where
an agency moves positions or people from the competitive service to
the excepted service, or between excepted services, whether pursuant
to statute, Executive order, or an OPM issuance, to the extent that
these provisions are not inconsistent with applicable statutory
provisions. For example, to the extent that a position is placed in
the excepted service by an act of Congress, an OPM regulation will
not supersede a statutory provision to the contrary. However, an OPM
regulation may prescribe the procedures by which agencies would be
required to move positions unless inconsistent with that statutory
provision. Similarly, these regulatory provisions also apply where
positions previously governed by title 5 will be governed by another
title going forward, unless the statute governing the exception
provides otherwise.
\14\ E.O. 14003, sec. 2.
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OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of this final rule.
[[Page 24984]]
II. Digest of Public Comments
In response to the proposed rule, OPM received 4,097 comments
during the 60-day public comment period from a variety of individuals
(including current and former civil servants), organizations, and
Federal agencies. At the conclusion of the public comment period, OPM
reviewed and analyzed the comments. In general, the comments ranged
from enthusiastic support of the proposed regulations to categorical
rejection. Approximately 67 percent of the overall comments were
supportive of the proposed regulatory amendments.\15\ Of the
approximately 33 percent of comments that were opposed, more than 95
percent of those comments consisted of one of four form letters.\16\
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\15\ Approximately five of the 4,097 comments could be
considered neutral--neither supportive nor opposed.
\16\ The form letters are described below where relevant.
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In the proposed rule, OPM requested comments on a variety of topics
regarding the implementation and impacts of this rulemaking.\17\ OPM
received many comments in response and incorporated them in the
relevant sections that follow. Such information was useful for better
understanding the effect of these final revisions on civil service
protections, merit system principles, and the effective and efficient
business of government, in compliance with the law.
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\17\ See 88 FR 63862, 63881.
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In the next section, we address the background for these regulatory
amendments and related comments. In subsequent sections, we address the
specific amendments, provide a regulatory analysis, and list procedural
considerations. OPM concludes with the amended regulatory text.
III. Background and Related Comments
A. The Career Civil Service, Merit System Principles, and Civil Service
Protections
It is critical to our government that career Federal employees be
protected from undue partisan influence so that business can be carried
out efficiently and effectively, in compliance with the law.
President George Washington based most of his federal appointments
on merit. Subsequent presidents, though, deviated from this policy, to
varying degrees.\18\ ``By the time Andrew Jackson was elected president
in 1828,'' the patronage or `` `spoils system,' . . . was in full
force.'' Under this system, Federal employees were generally appointed,
retained, or removed based on their political affiliations and support
for the political party in power rather than their capabilities or
competence.\19\ A change in administration often triggered the
widespread removal of Federal employees to provide jobs for the
supporters of the new President, his party, and party leaders.\20\ This
spoils system often resulted in party managers ``pass[ing] over
educated, qualified candidates and distribut[ing] offices to `hacks'
and ward-heelers who had done their bidding during campaigns and would
continue to serve them in government.'' \21\ Theodore Roosevelt, who
served as a Civil Service Commissioner before becoming the Vice
President and then President of the United States, described the spoils
system as ``more fruitful of degradation in our political life than any
other that could possibly have been invented. The spoilsmonger, the man
who peddled patronage, inevitably bred the vote-buyer, the vote-seller,
and the man guilty of misfeasance in office.'' \22\ George William
Curtis, a reformer and proponent of a merit-based civil service,
described that, under the spoils system, ``[t]he country seethe[d] with
intrigue and corruption. Economy, patriotism, honesty, honor, seem[ed]
to have become words of no meaning.'' \23\ Ethical standards for
Federal employees were at a low ebb under this system. ``Not only
incompetence, but also graft, corruption, and outright theft were
common.'' \24\
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\18\ See, e.g., Nat'l Archives, Milestone Documents, ``Pendleton
Act (1883),'' https://www.archives.gov/milestone-documents/pendleton-act.
\19\ U.S. Merit Sys. Prots. Bd., ``What is Due Process in
Federal Civil Service,'' p. 4. (May 2015), https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf.
\20\ U.S. Off. of Pers. Mgmt., ``Biography of an Ideal,'' p. 83
(2003), https://dml.armywarcollege.edu/wp-content/uploads/2023/01/OPM-Biography-of-an-Ideal-History-of-Civil-Service-2003.pdf.
\21\ See Anthony J. Gaughan, ``Chester Arthur's Ghost: A
Cautionary Tale of Campaign Finance Reform,'' 71 Mercer L. Rev. 779,
at pp. 787-78 (2020), https://digitalcomons.law.mercer.edu/cgi/viewcontent.cgi?article=1313&context=jour_mlr.
\22\ U.S. Off. of Pers. Mgmt., supra note 20 at pp. 182-83.
\23\ Id. at p. 182. In 1871, Curtis was appointed by President
Ulysses S. Grant to chair the first Civil Service Commission. See
id. at p. 196.
\24\ Id. at pp. 183-84.
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To protect career Federal employees from undue partisan influence,
civil service advocates and then Congress sought to establish a Federal
nonpartisan career civil service that would be selected based on merit
rather than political affiliation.\25\ Such a workforce, though
initially limited in scope, would reinvigorate government, making it
more efficient and competent.\26\ This reform movement came to a head
in 1881 when President James Garfield was shot by a disappointed office
seeker who believed he was entitled to a Federal job based on the work
he had done for Garfield and his political party.\27\
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\25\ See Gaughan, supra note 21 at p. 787; U.S. Merit Sys.
Prots. Bd., supra note 19 at pp. 3-5.
\26\ See Gaughan, supra note 21 at p. 787.
\27\ See U.S. Merit Sys. Prots. Bd., supra note 19 at pp. 4-5;
U.S. Off. of Pers. Mgmt., supra note 20 at pp. 198-201.
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The Pendleton Act of 1883 \28\ ended this patronage system for
covered positions and created the competitive civil service. Coverage
has grown as a proportion of the Federal workforce over time to cover
nearly all career positions.\29\ The Pendleton Act required agencies to
appoint Federal employees covered by the Act based on competency and
merit.\30\ It also established the Civil Service Commission (CSC) to
help implement and enforce the government's adherence to merit-based
principles.\31\
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\28\ Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883)
(22 Stat. 403).
\29\ Nat'l Archives, supra note 18.
\30\ 22 Stat. 403-04 (stating that hiring should be based on an
``open, competitive examination'' of the employee's ``relative
capacity and fitness . . . to discharge the duties of the service
into which they seek to be appointed.'').
\31\ Id. at 403.
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Commenters generally agreed \32\ with this background,\33\
especially the point that the corruption of the spoils era and evolving
complexity of government necessitated a nonpartisan career civil
service. A professor concurred with OPM's contention that the growing
complexity of issues facing the United States in the late nineteenth
century, ``combined with the pathologies engendered by the Jacksonian
spoils system (culminating in the assassination of President Garfield)
led to the creation of a competitive civil service.'' Comment 42.\34\
Other commenters noted that the Pendleton Act was intended to eliminate
the influence of personal loyalty and partisan activity as the key
qualifications for career appointees, and replace them with ``fitness,
capacity,
[[Page 24985]]
honesty [and] fidelity.'' Comment 2816; see also Comments 2822, 3029.
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\32\ One notable dissent comes in Comment 4097, from an advocacy
nonprofit organization. Commenter opposed the rule and did not
dispute the factual bases of the Pendleton Act but argued that its
limited treatment of removal rights supports a view that modern
removal protections can now be eliminated for certain career civil
servants. OPM disagrees with this argument as explained in later
sections.
\33\ See 88 FR 63862, 63863-67 (detailing background in proposed
rule).
\34\ Comments filed in response to this rulemaking are available
at http://www.regulations.gov/comment/OPM-2023-0013-nnnn, where
``nnnn'' is the comment number. Note that the number must be four
digits, so insert preceding zeroes as appropriate.
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The contours of the civil service and merit system principles that
resulted were borne of extensive debates in which one view clearly
prevailed. A former federal official commented that ``Congress decided
to target the threats of increased incompetence and patronage in a
spoils system, and decided that the benefits of a professionalized
civil service outweighed concerns about bureaucratic inertia.'' Comment
2816. Commenter noted that ``opponents of the Pendleton Act argued [at
the time] that civil service protections were `one step in the
direction of the establishment of an aristocracy in this country, the
establishment of another privileged class.' '' Id. Commenter concluded
that ``arguments that the civil service should be responsive to, rather
than insulated from, the churn of partisan politics are echoed by
contemporary critics of civil service protections. But these arguments
against a professional civil service were soundly rejected with the
passage of the Pendleton Act and have been proven to have been
incorrect over more than a century of experience.'' Id.
A legal nonprofit organization similarly commented that the
features of the ``civil service that frustrate its critics--fealty to
Congressional programs, dedication to government institutions,
consideration of the public interest, and a mission broader than simply
serving political appointees--are core components of the system
established by an elected Congress almost 150 years ago.'' Comment
2822. Congress ``has spoken clearly about its vision for the civil
service for a century and a half, and consistently rejected a civil
service that is merely an extension of a President's will.'' Id.
Several commenters noted that the Pendleton Act was extraordinarily
successful in establishing the foundation for the modern civil service.
A former federal official explained that the Act had the qualitative
benefit of improving targeted employees' professional backgrounds.
Comment 2816. As discussed further in Section III(E), the nonpartisan
civil service ensured that the United States government would be
capable of combating problems ``unimagined when the Pendleton Act was
passed, including auto safety, climate change, and the airworthiness of
planes.'' See Comment 42.
Even with respect to the enactment of the Pendleton Act, a
subsequent President saw the need to address removals more specifically
not long afterward.\35\ In 1897, President William McKinley addressed
removals by issuing Executive Order 101, which mandated that ``[n]o
removal shall be made from any position subject to competitive
examination except for just cause and upon written charges filed with
the head of the Department, or other appointing officer, and of which
the accused shall have full notice and an opportunity to make
defense.'' \36\ Congress, far from objecting to this Order, later
essentially codified these requirements in the Lloyd-La Follette Act of
1912 \37\ to establish that covered Federal employees were to be both
hired and removed based on merit. Specifically, section 6 of the Act
provided no person in the ``classified civil service'' \38\ of the
United States can be removed ``except for such cause as will promote
the efficiency of said service'' and for reasons given in writing. The
Act also mandated providing notice to the person whose removal is
sought and ``of any charges [proffered] against him, and be furnished
with a copy thereof, and also be allowed a reasonable time for
personally answering the same in writing; and affidavits in support''
of the removal.
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\35\ The Pendleton Act does specify that ``no person in the
public service is . . . under any obligations to contribute to any
political fund, or to render any political service, and that he will
not be removed or otherwise prejudiced for refusing to do so.'' 22
Stat. at 404.
\36\ U.S. Merit Sys. Prots. Bd., supra note 19 at p. 5.
\37\ 37 Stat. 555 (1912).
\38\ The ``classified civil service'' refers to the competitive
service. See 5 U.S.C. 2102.
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Congress, over time, has codified, renewed, and expanded
protections to civil servants. A former federal official quoted Rep.
James Tilghman Lloyd, one of the Lloyd-La Follette Act's namesakes, as
saying the Act sought to ``do away with the discontent and suspicion
which now exists among the employees [of the civil service] and [ ]
restore that confidence which is necessary to get the best results from
the employees.'' Comment 2816. It would, according to Rep. Lloyd,
ensure that civil servants ``being dismissed from service would have
the benefit of a written record of charges against them, with reports
made to Congress, and the ability to have Congress subject their
dismissal to `special inquiry' if department heads `trump up charges'
to dismiss civil servants.'' \39\ Id.
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\39\ Citing 48 Cong. Rec. 2653-54 (1912).
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Thereafter, Congress enacted further requirements and reforms. In
1944, Congress passed the Veterans' Preference Act,\40\ which, among
other things, granted federally employed veterans extensive rights to
challenge adverse employment actions, including the right to file an
appeal with the CSC and provide the CSC with documentation to support
the appeal. Based on the evidence presented, the CSC would issue
findings and recommendations regarding the adverse employment action.
In short, the Veterans' Preference Act provided eligible veterans with
adverse action protections and access to an appeals process.\41\ Then,
in 1962, President John F. Kennedy issued Executive Order 10988 to
extend similar adverse action rights to a broader swath of the civil
service, specifically, employees in the competitive service.\42\
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\40\ 58 Stat. 387 (1944).
\41\ Agencies initially were not required to comply with the
CSC's recommendations in adverse action appeals, but Congress
amended the Veterans' Preference Act in 1948 to require compliance.
See 67 Stat. 581 (1948); see also U.S. Merit Sys. Prots. Bd., supra
note 19 at pp. 7-8.
\42\ E.O. No. 10988, 27 FR 551 (Jan. 19, 1962) (``The head of
each agency, in accordance with the provisions of this order and
regulations prescribed by the Civil Service Commission, shall extend
to all employees in the competitive civil service rights identical
in adverse action cases to those provided preference eligibles under
section 14 of the Veterans' Preference Act of 1944, as amended.'')
(emphasis added).
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B. Conduct and Performance Under the Civil Service Reform Act of 1978
To synthesize, expand upon, and further codify the patchwork of
processes that had developed over almost a century, and to protect a
broader group of civil servants and govern personnel actions, Congress
in 1978 passed the CSRA \43\--the most comprehensive Federal civil
service reform since the Pendleton Act.
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\43\ 92 Stat. 1111 (1978); see. Fausto, 484 U.S. at 455 (``The
CSRA established a comprehensive system for reviewing personnel
action taken against federal employees.'').
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One factor that led to the CSRA, as a whistleblower protection
nonprofit organization explained, was that ``whistleblowers at the
Senate Watergate hearings'' showed that the Nixon Administration
``tried to implement the Malek Manual, a secret blueprint to replace
the civil service merit system with a political hiring scheme'' that
would have begun ``by purging all Democrats from federal employment.''
Comment 3340.\44\ Those abuses led to passage of the CSRA ``to shield
the merit system with enforceable rights against similar future
abuses.'' Id.\45\
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\44\ Citing Dobrovir, Gebhardt and Devine, ``Blueprint for Civil
Service Reform,'' Fund for Constitutional Government (1976).
\45\ That these concerns have been ongoing can be seen in
Congress' enactment of the Presidential Transitions Improvements Act
of 2015 referenced in note 155, infra.
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[[Page 24986]]
The CSRA made significant organizational changes to civil service
management, adjudications, and oversight. It replaced the CSC, dividing
its duties among OPM \46\ and the MSPB, which initially encompassed the
Office of Special Counsel (OSC).\47\ OSC later became a separate agency
to which specific duties were assigned.\48\ OPM inherited the CSC's
policy, managerial, and administrative duties, including the obligation
to establish standards, oversee compliance, and conduct examinations as
required or requested.\49\ OPM was also obligated to, among other
things, advise the President regarding appropriate changes to the civil
service rules, administer retirement benefits, adjudicate employees'
entitlement to these benefits, and defend adjudications at the
Board.\50\ The MSPB adjudicates challenges to personnel actions taken
under the civil service laws,\51\ among other things, and OSC
investigates and prosecutes prohibited personnel practices.\52\ Other,
more specific enactments confer upon these entities the obligations or
authorities to promulgate regulations on specific topics.
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\46\ Congress envisioned that: ``OPM would be the administrative
arm of Federal personnel management, serve as Presidential policy
advisor, . . . promulgate regulations, set policy, run research and
development programs, implement rules and regulations, and would
manage a centralized, innovative Federal personnel program.'' 124
Cong. Rec. S27538 (daily ed. Aug. 24, 1978) (bill summary of the
CSRA of 1978, S. 2540).
\47\ U.S. Gov't Accountability Off., ``Civil Service Reform--
Where it Stands Today,'' at p. 2 (May 13, 1980), https://www.gao.gov/assets/fpcd-80-38.pdf. The Equal Employment Opportunity
Commission and Office of Government Ethics also handle duties
previously covered by the CSC.
\48\ See Cong. Rsch. Serv., ``Merit Systems Protection Board
(MSPB): A Legal Overview,'' p. 4 (March 25, 2019), https://crsreports.congress.gov/product/pdf/R/R45630.
\49\ See 5 U.S.C. 1103(a)(5), (a)(7).
\50\ Id.; see 5 U.S.C. 8461.
\51\ See 5 U.S.C. 1204, 7513(d).
\52\ See 5 U.S.C. 1212.
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The CSRA codified fundamental merit system principles, which had
developed since 1883.\53\ These principles are summarized here:
---------------------------------------------------------------------------
\53\ See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.
---------------------------------------------------------------------------
Merit System Principles \54\
---------------------------------------------------------------------------
\54\ See 5 U.S.C. 2301.
---------------------------------------------------------------------------
1. Recruit, select, and advance on merit after fair and open
competition.
2. Treat employees and applicants fairly and equitably.
3. Provide equal pay for equal work and reward excellent
performance.
4. Maintain high standards of integrity, conduct, and concern for
the public interest.
5. Manage employees efficiently and effectively.
6. Retain or separate employees on the basis of their performance.
7. Educate and train employees if it will result in better
organizational or individual performance.
8. Protect employees from improper political influence.
9. Protect employees against reprisal for the lawful disclosure of
illegality and other covered wrongdoing.
The CSRA also established an ``elaborate new framework'' related to
civil service protections for employees in the competitive and excepted
services. Challenges to non-appealable adverse actions, appealable
adverse actions, and ``prohibited personnel practices'' are channeled
into separate procedural tracks.\55\ The procedures an agency must
follow in taking an adverse action and whether the agency's action is
appealable to the MSPB depend on the action the agency seeks to impose.
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\55\ See Fausto, 484 U.S. at 443, 445-47; see 5 U.S.C. 1212,
1214, 2301, 2302, 7502, 7503, 7512, 7513; see also 5 U.S.C. 4303
(review of actions based on unacceptable performance).
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Suspensions of 14 days or less are not directly appealable to the
MSPB.\56\ But an employee against whom such a suspension is proposed is
entitled to certain procedural protections, including notice, an
opportunity to respond, representation by an attorney or other
representative, and a written decision.\57\
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\56\ 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
\57\ 5 U.S.C. 7503(b)(1)-(4); 5 CFR part 752, subpart B.
---------------------------------------------------------------------------
More rigorous procedures apply before agencies may pursue removals,
demotions, suspensions for more than 14 days, reductions in grade and
pay, and furloughs for 30 days or less, if the subject of the
contemplated action meets the definition of an ``employee'' under 5
U.S.C. 7511(a) by satisfying probationary or length of service
conditions.\58\ These employees, other than those who are statutorily
excepted from chapter 75's protections, receive the civil service
protections outlined in 5 U.S.C. 7513.\59\ Under section 7511(a)(1),
``employee'' refers to an individual who falls within one of three
groups: (1) an individual in the competitive service who either (a) is
not serving a probationary or trial period \60\ under an initial
appointment; or (b) has completed 1 year of current continuous service
under other than a temporary appointment limited to 1 year or less; (2)
a preference eligible \61\ in the excepted service who has completed 1
year of current continuous service in the same or similar positions in
an Executive agency, or in the United States Postal Service or Postal
Regulatory Commission; or (3) an individual in the excepted service
(other than a preference eligible) who either (a) is not serving a
probationary or trial period under an initial appointment pending
conversion to the competitive service; or (b) has completed 2 years of
current continuous service in the same or similar positions in an
Executive agency under other than a temporary appointment limited to 2
years or less.\62\
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\58\ See 5 CFR 752.401, 404, and 1201.3; see also 5 U.S.C.
7512(1)-(5), 7514; Fausto, 484 U.S. at 446-47.
\59\ 5 U.S.C. 7513(d), 7701(a).
\60\ The term ``probationary period'' generally applies to
employees in the competitive service. ``Trial period'' applies to
employees in the excepted service and some appointments in the
competitive service, such as term appointments, which have a 1-year
trial period set by OPM. A fundamental difference between the two is
the duration in which employees must serve. The probationary period
is set by law to last 1 year. When the trial period is set by
individual agencies, it can last up to 2 years. See 5 CFR 315.801
through 806; see also U.S. Merit Sys. Prots. Bd., Navigating the
Probationary Period After Van Wersch and McCormick, (Sept. 2006),
https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.
\61\ The term ``preference eligible'' refers to specified
military veterans and family members with derived preference
pursuant to statute, such as an unmarried widow, and the wife or
husband of a veteran with a service-connected disability. See 5
U.S.C. 2108(3).
\62\ 5 U.S.C. 7511(a)(1).
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In the event of a final MSPB decision adverse to the employee,
employees may seek judicial review by petitioning to the appropriate
Federal appellate or district court.\63\
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\63\ 5 U.S.C. 7513(d), 7701-7703, 7703(a)(1), (b)(2). The
appropriate federal appellate court will generally be the U.S. Court
of Appeals for the Federal Circuit but, in some instances, where
appellant asserts whistleblower retaliation, employees may appeal to
the Federal Circuit or another circuit court. Cases that include
claims under certain discrimination statutes are appealable to
Federal district courts. See 5 U.S.C. 7703(b)(2).
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Excepted from these procedural protections and rights to appeal
conferred on other employees under chapter 75 are certain civil
servants described in 5 U.S.C. 7511(b), including, among other
categories not relevant here, those officers appointed by the President
with the advice and consent of the Senate and other officers whom the
President is permitted to appoint himself or herself. Also excepted are
individuals ``whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character.'' \64\ These determinations must be made by ``(A) the
President for a position that the President has excepted from the
competitive service; (B) the Office of Personnel Management for a
position
[[Page 24987]]
that the Office has excepted from the competitive service; or (C) the
President or the head of an agency for a position excepted from the
competitive service by statute.'' \65\ As detailed further in Section
IV(B), it is evident that Congress, in using this and similar language
in various parts of title 5, U.S. Code, intended this exception to
apply to the voluntary filling of noncareer political appointments that
carry no expectation of continued employment beyond the presidential
administration during which the appointment occurred.\66\
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\64\ 5 U.S.C. 7511(b)(2)(A), (B), and (C).
\65\ 5 U.S.C. 7511(b)(2).
\66\ See infra, Sec. IV.(B); see also 5 CFR 6.2 (``Positions of
a confidential or policy-determining character shall be listed in
Schedule C''); 213.3301 Schedule C (``positions which are policy-
determining or which involve a close and confidential working
relationship with the head of an agency or other key appointed
officials''). Political appointees serve at the pleasure of the
President or other appointing official and may be asked to resign or
be dismissed at any time. They are not covered by civil service
removal procedures, have no adverse action rights, and generally
have no right to appeal terminations. See, e.g., 5 U.S.C. 7511(b)(2)
(excluding noncareer, political appointees from definition of
``employees'' eligible for adverse action protections); 5 CFR
317.605 (``An agency may terminate a noncareer or limited
appointment at any time, unless a limited appointee is covered under
5 CFR 752.601(c)(2).''); 734.104 (listing employees who are
appointed by the President, noncareer SES members, and Schedule C
employees as ``employees who serve at the pleasure of the
President.''); 752.401(d)(2) (excluding noncareer, political
appointees under Schedule C from adverse action protections).
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The unique responsibilities of politically appointed employees,
many of whom are listed under excepted service Schedule C, allow hiring
and termination to be done purely at the discretion of the President or
the President's political appointees. This is a specific exception from
the competitive service and, for that reason, each position listed in
Schedule C is revoked immediately upon the position becoming
vacant.\67\ Agencies may terminate political appointees at any time.
This also means that, absent any unique circumstance provided in law
\68\ or a request to stay by an incoming administration, these
positions are vacated following a presidential transition.
---------------------------------------------------------------------------
\67\ See 5 CFR 213.3301.
\68\ Such as 5 CFR 212.401, discussed further in Section IV.
---------------------------------------------------------------------------
Prior to the CSRA, agencies relied only on provisions codified at
chapter 75 to remove Federal employees or to change an employee to a
lower grade, even if the reason for removal was for unacceptable
performance. The CSRA created chapter 43 of title 5, U.S. Code, as an
additional process for empowering supervisors to address performance
concerns.\69\ Accordingly, in addition to using the provisions of
chapter 75, agencies can address performance concerns under chapter 43.
Under this scheme established by Congress, the decision of which
chapter to use is left to the discretion of the manager tasked with
pursuing the action.
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\69\ U.S. Merit Sys. Prots. Bd., ``Addressing Poor Performers
and the Law,'' p. 4. (Sept. 2009), https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf.
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Through various enactments currently reflected in chapters 43 and
75, Congress has created conditions under which certain employees--
i.e., those with the requisite tenure in continued employment--may earn
a property interest in that continued employment. For such employees,
Congress has mandated that removal and the other actions described in
subchapter II of chapter 75 may be taken only ``for such cause as will
promote the efficiency of the service.'' \70\ This property interest in
continued employment has been a feature of the Federal civil service
since at least 1912, when the Lloyd-La Follette Act required just cause
to remove a Federal employee. The Supreme Court in Board of Regents of
State Colleges v. Roth, recognized that restrictions on loss of
employment, such as tenure, can create a property right.\71\ In
Cleveland Board of Education v. Loudermill,\72\ the Court also held:
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\70\ See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a),
752.202(a).
\71\ 408 U.S. 564, 576-77 (1972). The Court described three
earlier decisions--Slochower v. Bd. of Educ., 350 U.S. 551 (1956),
Wieman v. Updegraff, 344 U.S. 183 (1952), and Connell v.
Higginbotham, 403 U.S. 207 (1971)--where the Court held that public
employees had due process rights. Before the Court explicitly
recognized that restrictions on the loss of employment could create
a property right, the Court protected statutorily-conferred public
employment rights under other legal theories. See, e.g., United
States v. Wickersham 210 U.S. 390, 398-399 (1906); Keim v. United
States, 177 U.S. 290, 296 (1900); see also Indiana ex rel. Anderson
v. Brand (303 U.S. 95 (1938); Hall v. Wisconsin, 103 U.S. 5 (1880)
(enforcing statutory rights to public employment benefits under
theories of contractual entitlement, even when legislatures changed
those statutory entitlements).
\72\ 470 U.S. 532 (1985).
Property cannot be defined by the procedures provided for its
deprivation any more than can life or liberty. The right to due
process is conferred, not by legislative grace, but by
constitutional guarantee. While the legislature may elect not to
confer a property interest in public employment, it may not
constitutionally authorize the deprivation of such an interest once
conferred, without appropriate procedural safeguards.\73\
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\73\ Id. at 541.
In short, once a government requires cause for removals,
constitutional due process protection will attach to that property
interest and determine the minimum procedures by which a removal may be
carried out. Any new law addressing the removal of a Federal employee
with a vested property interest in the employee's continued employment
must, at a minimum, comport with due process. This obligation drives
some of the procedures in both chapters 43 and 75, while other
procedures have been developed in accordance with Congress' assessments
of what is good policy.\74\ Regardless of the nature of the particular
action specified, agencies must follow the procedures specified by
Congress to effectuate a removal under those chapters, as a matter of
law, unless they are changed by Congress.
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\74\ The exact procedures required will turn on the factual
situation and may be different from instance to instance.
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An advocacy nonprofit organization opposed to this rule argued that
the Lloyd-La Follette Act and predecessor executive orders ``were not
understood (or applied)'' to give federal employees a property right to
their jobs before ``the Supreme Court interpreted the Act as having
that effect in Arnett v. Kennedy (1974).'' Comment 4097. Commenter's
point is incorrect, and, in any event, irrelevant. As observed in note
71 above, the Supreme Court recognized in earlier cases that due
process rights could attach to public employment. And Congress, far
from limiting or ending such rights, has enacted new statutes since
Arnett, notably the CSRA and the Civil Service Due Process Amendments
Act, conferring robust procedural rights on broader groups of Federal
employees. In any event, although Congress has, from time to time,
tinkered with the procedures required in various agency settings, it
has done nothing since Arnett purporting to remove due process rights
from incumbents who have accrued them, which suggests approval of the
Supreme Court's approach in that case.
Finally, in addition to establishing the requirements and
procedures for challenging adverse actions and performance-based
actions, the CSRA includes a mechanism for an employee in a ``covered
position'' to challenge a ``personnel action'' that constitutes a
``prohibited personnel practice'' because it has been taken for a
prohibited reason.\75\ ``Covered position'' means any position in the
competitive service, a career appointee in the Senior Executive
Service, or a position in the excepted service unless ``conditions of
good administration warrant'' a necessary
[[Page 24988]]
exception on the basis that the position is of a ``confidential,
policy-determining, policy-making, or policy-advocating character.''
\76\
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\75\ 5 U.S.C. 2302(a)(1), (a)(2), (b). Challenges to a personnel
action on the basis that it constitutes a prohibited personnel
practice may be brought by anyone in a covered position, regardless
of their entitlement to adverse action rights.
\76\ 5 U.S.C. 2302(a)(2)(B), 3302.
---------------------------------------------------------------------------
At 5 U.S.C. 2302(a)(2)(A), Congress lists personnel actions that
can form the basis of a prohibited personnel practice under 5 U.S.C.
2302(b). The CSRA, as described in the proposed rule,\77\ also codified
a comprehensive list of prohibited personnel practices.\78\
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\77\ See 88 FR 63862, 63866.
\78\ 5 U.S.C. 2302(b). OSC investigates allegations of
prohibited personnel practices brought by employees in covered
positions and may investigate in the absence of such an allegation,
to determine if a prohibited personnel practice occurred. 5 U.S.C.
1214(a)(1)(A), (a)(5). If OSC concludes that a prohibited personnel
practice has occurred and, if OSC is unable to obtain a satisfactory
correction from an agency responsible for a prohibited personnel
practice, OSC may petition the MSPB to grant corrective action. If
OSC proves its claim, the MSPB may order the corrective action it
deems appropriate. See 5 U.S.C. 1214(b)(2)(B), (C), (b)(4)(A).
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C. The Competitive, Excepted, and Senior Executive Services
The CSRA also established a new service--the Senior Executive
Service, or SES--``to ensure that the executive management of the
Government of the United States is responsive to the needs, policies,
and goals of the Nation and is otherwise of the highest quality.'' \79\
As described further below, the SES is distinct from the competitive
service and the excepted service.\80\ It consists of senior government
officials, both noncareer and career, who share a broad set of
responsibilities to help lead the work of the Federal Government.
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\79\ 5 U.S.C. 3131.
\80\ 5 U.S.C. 2101(a) (definition of civil service), 2102(a)(1)
(competitive service), 2103(a) (excepted service) 3132(a)(2) (Senior
Executive Service).
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In the competitive service, individuals must complete a competitive
hiring process before being appointed. This process may include a
written test or an equivalent evaluation of the individual's relative
level of knowledge, skills, and abilities necessary for successful
performance in the position to be filled.\81\
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\81\ See 5 U.S.C. 3304 (``An individual may be appointed in the
competitive service only if he has passed an examination or is
specifically excepted from examination under section 3302 of this
title.''); see also U.S. Off. of Pers. Mgmt., ``Competitive
Hiring,'' https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/.
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Although most government employees are in the competitive service,
about one-third are in the excepted service.\82\ The excepted service
includes all positions in the Executive Branch that are specifically
excepted from the competitive service by statute, Executive order, or
by OPM regulation.\83\ For positions excepted from the competitive
service by statute, selection must be made pursuant to the provisions
Congress enacted for those positions. Applicants for excepted service
positions under title 5, U.S. Code, like applicants for the competitive
service, are to be selected ``solely on the basis of relative ability,
knowledge, and skills, after fair and open competition which assures
that all receive equal opportunity.'' \84\ Agencies filling positions
in the excepted service ``shall select . . . from the qualified
applicants in the same manner and under the same conditions required
for the competitive service.'' \85\ This means that agencies should
generally afford veterans' preference in the same manner they would
have for the competitive service, though, in a few situations \86\
where the reason for the exception makes this essentially impossible,
OPM (or the President) has exempted the position from regulatory
requirements and imposed a less stringent standard.\87\
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\82\ See Cong. Rsch. Serv., ``Categories of Federal Civil
Service Employment; A Snapshot,'' at p. 4 (May 26, 2019), https://sgp.fas.org/crs/misc/R45635.pdf.
\83\ See 5 U.S.C. 2103; 5 CFR parts 213, 302.
\84\ 5 U.S.C. 2301(b)(1).
\85\ 5 U.S.C. 3320. Part 302 of title 5 of OPM's regulations
establishes the mechanisms by which compliance with section 3320 can
be achieved.
\86\ See infra notes 357-361.
\87\ 5 CFR 302.101(c).
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The President is authorized by statute to provide for ``necessary
exceptions of positions from the competitive service'' when warranted
by ``conditions of good administration.'' \88\ The President has
delegated to OPM--and, before that, to its predecessor, the CSC--
concurrent authority to except positions from the competitive service
when it determines that appointments thereto through competitive
examination are not practicable.\89\ The President has further
delegated authority to OPM to ``decide whether the duties of any
particular position are such that it may be filled as an excepted
position under the appropriate schedule.'' \90\
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\88\ 5 U.S.C. 3302.
\89\ E.O. 10577, sec. 6.1(a) (1954); 5 CFR 6.1(a) (1988) (``The
Commission is authorized to except positions for the competitive
service whenever it determines that appointments thereto through
competitive examination are not practicable'' and that ``[u]pon the
recommendation of the agency concerned, it may also except positions
which are of a confidential or policy-determining character.'').
\90\ E.O. 10577, sec. 6.1(b); 5 CFR 6.1(b); see 28 FR 10025
(Sept. 14, 1963) (reorganizing the civil service rules).
---------------------------------------------------------------------------
OPM has exercised its delegated authority, and implemented
exercises of presidential authority, by prescribing five schedules for
positions in the excepted service, which are currently listed in 5 CFR
part 213:
Schedule A--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants, such as attorneys, chaplains, and
short-term positions for which there is a critical hiring need.
Schedule B--Includes positions that are not of a
confidential or policy-determining character for which it is not
practicable to examine applicants. Unlike Schedule A positions,
Schedule B positions require an applicant to satisfy basic
qualification standards established by OPM for the relevant occupation
and grade level. Schedule B positions engage in a variety of
scientific, professional, and technical activities.
Schedule C--Includes positions that are policy-determining
or which involve a close and confidential working relationship with the
head of an agency or other key appointed officials. These positions
include most political appointees below the cabinet and subcabinet
levels.
Schedule D--Includes positions that are not of a
confidential or policy-determining character for which competitive
examination makes it difficult to recruit certain students or recent
graduates. Schedule D positions generally require an applicant to
satisfy basic qualification standards established by OPM for the
relevant occupation and grade level. Positions include those in the
Pathways Programs.
Schedule E--Includes positions of administrative law
judges.\91\
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\91\ 5 CFR 6.2.
---------------------------------------------------------------------------
As described supra, competitive and excepted service incumbents,
except those in Schedule C--and others excluded under 5 U.S.C.
7511(b)--become ``employees'' for purpose of civil service protections
after they satisfy the probationary or length of service requirements
in 5 U.S.C. 7511(a). Excepted service employees, except those in
Schedule C and others excluded under section 7511(b), maintain the same
notice and appeal rights for adverse actions and performance-based
actions as competitive service employees.\92\
[[Page 24989]]
However, and as noted here, excepted service employees must satisfy
different durational requirements before these rights become available.
So-called ``preference eligibles''--specified military veterans and
family members with derived preference pursuant to statute \93\--in an
executive agency, the Postal Service, or the Postal Regulatory
Commission must complete 1 year of current continuous service to avail
themselves of the relevant notice and appeal rights.\94\ Employees in
the excepted service who are not preference eligibles and (1) are not
serving a probationary or trial period under an initial appointment
pending conversion to the competitive service, or (2) have completed 2
years of current or continuous service in the same or similar position,
have the same notice and appeal rights as qualifying employees in the
competitive service.\95\
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\92\ See 5 U.S.C. 4303, 7513(d). There are, however, some
notable differences between non-removal protections afforded to
competitive service and excepted service employees, such as
assignment rights in the event of a reduction in force. See 5 CFR
351.501 and 502. Employees who are reached for release from the
competitive service during a reduction in force are entitled to an
offer of assignment if they have ``bump'' or ``retreat'' rights to
an available position in the same competitive area. ``Bumping''
means displacement of an employee in a lower tenure group or a lower
subgroup within the same tenure group. ``Retreating'' means
displacement of an employee in the same tenure group and subgroup.
Meaning, they are entitled to the positions of employees with fewer
assignment rights. Employees in excepted service positions have no
assignment rights to other positions unless their agency, at the
agency's discretion, chooses to offer these rights to positions.
Even with these differences, merit system principles are at the core
of civil service protections relating to hiring, conduct, and
performance matters as applied to both career competitive and
excepted service employees.
\93\ See 5 U.S.C. 2108(3); see also supra note 61.
\94\ See 5 U.S.C. 7511(a)(1)(B).
\95\ See 5 U.S.C. 7511(a)(1)(C).
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Likewise, any employee who is (1) a preference eligible; (2) in the
competitive service; or (3) in the excepted service and covered by
subchapter II of chapter 75, and who has been reduced in grade or
removed under chapter 43, is entitled to appeal the action to the
MSPB.\96\ However, these appeal rights do not apply to (1) the
reduction to the grade previously held of a supervisor or manager who
has not completed the probationary period under 5 U.S.C. 3321(a)(2);
(2) the reduction in grade or removal of an employee in the competitive
service who is serving a probationary or trial period under an initial
appointment or who has not completed 1 year of current continuous
employment under other than a temporary appointment limited to 1 year
or less; or (3) the reduction in grade or removal of an employee in the
excepted service who has not completed 1 year of current continuous
employment in the same or similar positions.\97\
---------------------------------------------------------------------------
\96\ See 5 U.S.C. 4303(e).
\97\ See 5 U.S.C. 4303(f).
---------------------------------------------------------------------------
Finally, the SES is a service separate from the competitive and
excepted services.\98\ The SES has a separate system for hiring
executives, managing them, and compensating them.\99\ The SES is also
governed by separate adverse action procedures, in Subchapter V of
chapter 75. As described more fully in Section IV, the adverse action
processes in 5 U.S.C. 7501-7515 and the exclusion from such rights and
coverage in 5 U.S.C. 7511(b), do not apply to the SES. The SES adverse
action procedures, unlike the rules governing the competitive and
excepted services, make no mention--let alone an exception--for
positions of ``a confidential, policy-determining, policy-making, or
policy-advocating character.'' \100\
---------------------------------------------------------------------------
\98\ See 5 U.S.C. 2102 (competitive service does not include
SES), 2103 (excepted service does not include SES),
\99\ See 5 U.S.C. 5131-5136.
\100\ See 5 U.S.C. 7541-7543.
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A member of the SES can be a career appointee, noncareer appointee,
limited term appointee or limited emergency appointee. These terms are
defined at 5 U.S.C. 3132(a).\101\ Congress established rules
restricting noncareer appointments, as well as limited term and limited
emergency appointments.\102\ The adverse action rights for SES set out
in Subchapter V, 5 U.S.C. 7541-7543, apply only to career appointees to
the SES. Removal of career employees for less than fully successful
executive performance is governed by a separate provision at 5 U.S.C.
3592. By contrast, none of these provisions affect an agency head's
ability to remove a member of the noncareer SES.
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\101\ 5 U.S.C. 3393, 3394.
\102\ 5 U.S.C. 3134.
---------------------------------------------------------------------------
D. The Prior Schedule F
On October 21, 2020, President Donald Trump issued Executive Order
13957, ``Creating Schedule F in the Excepted Service,'' which risked
altering the carefully crafted legislative balance that Congress struck
in the CSRA.\103\ That Executive Order, if fully implemented, could
have transformed the civil service by purportedly stripping adverse and
performance-based action grievance and appeal rights from large swaths
of the Federal workforce--thereby turning them into at-will employees.
It could have also sidestepped statutory requirements built into the
Federal hiring process intended to promote the objective of merit-based
hiring decisions. It would have upended the longstanding principle that
a career Federal employee's tenure should be linked to their
performance and conduct, rather than to the nature of the position that
the employee encumbers. It also could have reversed longstanding
requirements that, among other things, prevent political appointees
from ``burrowing in'' to career civil service jobs in violation of
merit system principles.
---------------------------------------------------------------------------
\103\ 85 FR 67631 (Oct. 21, 2020).
---------------------------------------------------------------------------
Before it could be implemented, however, Executive Order 13957 was
revoked, and Schedule F abolished, by President Biden through Executive
Order 14003, ``Protecting the Federal Workforce.'' \104\
---------------------------------------------------------------------------
\104\ 86 FR 7231 (Jan. 22, 2021).
---------------------------------------------------------------------------
OPM received many comments related to Schedule F from both
proponents and critics of it and Executive Order 13957. The lawfulness
and wisdom of the policy choices embodied in now-revoked Schedule F are
in most respects outside the scope of this rulemaking. Regardless of
whether Executive Order 13957 was a valid exercise of authority, it is
not directly at issue here. Nonetheless, numerous commenters addressed
the topic and OPM has determined that it would be prudent to set forth
its views in response to those comments. The various parts of the
Executive Order, Schedule F, and related comments are thus addressed
below. The validity of this rule does not depend on the legality or
wisdom of Executive Order 13957.
1. Adverse Action Rights, Performance-Based Action Rights, and Appeals
Section 5 of Executive Order 13957 directed agency heads to review
their entire workforces to identify any employees covered by chapter
75's adverse action rules (which apply broadly to employees in the
competitive and excepted services) who occupied positions of a
``confidential, policy-determining, policy-making, or policy-advocating
character.'' These included positions the agency assessed for the first
time, without guidance or precedent, to allegedly include these
characteristics. Agencies were then to petition OPM for its approval to
place them in Schedule F, a newly-created category of positions to be
excepted from the competitive service. If these positions had been
placed in Schedule F, the employees encumbering them would have,
according to the text of the Executive Order, been stripped of any
adverse action procedural rights and MSPB appeal rights under chapter
75 discussed supra. Thus, the Order attempted to subject employees to
removal, at will, by virtue of the involuntary placement of the
positions they occupied in this new schedule (and regardless of any
rights they had already
[[Page 24990]]
accrued or any reliance on those rights).\105\
---------------------------------------------------------------------------
\105\ Since performance-based actions under 5 U.S.C. 4303 are
tied, in part, to subchapter II of chapter 75, employees would
purportedly have also been stripped of performance-based action
procedural rights and MSPB appeal rights, had an agency chosen to
proceed with an action under chapter 43.
---------------------------------------------------------------------------
An express rationale of this action was to make it easier for
agencies to ``expeditiously remove poorly performing employees from
these positions without facing extensive delays or litigation.'' \106\
This new sweeping authority was purportedly necessary for the President
to have ``appropriate management oversight regarding'' the career civil
servants working in positions deemed to be of a ``confidential, policy-
determining, policy-making, or policy-advocating character,'' and to
incentivize employees in these positions to display what presidential
appointees at an agency would deem to be ``appropriate temperament,
acumen, impartiality, and sound judgment,'' in light of the importance
of these functions.\107\ Executive Order 13957 did not acknowledge
existing mechanisms to provide ``appropriate management oversight,''
such as chapter 43 and chapter 75 procedures, or the multiple
management controls that agencies have in place to escalate matters of
importance to agency administrators.\108\
---------------------------------------------------------------------------
\106\ E.O. 13957, sec. 1.
\107\ The Executive Order stated that ``[c]onditions of good
administration . . . make necessary excepting such positions from
the adverse action procedures set forth in chapter 75 of title 5,
United States Code.'' E.O. 13957, sec. 1. The ``conditions of good
administration'' language appears in 5 U.S.C. 3302. We note that
Section 3302 is placed in Subchapter I of chapter 33, a subchapter
addressing examination, certification, and appointment. It relates
only to exclusions of positions from the competitive service
requirements relating to those topics when conditions of good
administration warrant and does not purport to confer authority on
the President to except positions from the adverse action provisions
of chapter 75. Similarly, chapter 75 does not itself purport to
confer authority on the President to except positions from the scope
of chapter 75. The authority to regulate under chapter 75 is
conferred directly upon OPM unlike the authority to regulate under
section 3302, which is conferred upon the President. Compare 5
U.S.C. 7514 (``The Office of Personnel Management may prescribe
regulations to carry out the purpose of this subchapter . . .) to 5
U.S.C. 3302 (``The President may prescribe rules governing the
competitive service.''). Of course, a President could order the
Director of OPM to promulgate regulations relating to chapter 75.
Any such rule, however, would then be subject to the requirements of
the Administrative Procedure Act.
\108\ Matters of importance can be raised to agency
administrators in various ways, such as by filing a complaint with
an agency's Inspector General, raising concerns with an agency's
human resources office, and filing a grievance.
---------------------------------------------------------------------------
Executive Order 13957 instructed agency heads to review existing
positions to determine which, if any, should be placed into Schedule F.
The Order also instructed that, after agency heads conducted their
initial review, they were to move quickly and petition OPM by January
19, 2021--the day before the Inauguration--to place positions within
Schedule F. After that, agency heads had another 120 days to petition
OPM to place additional positions in Schedule F.
In contrast to past excepted service schedules designed to address
unique hiring needs upon a determination that appointments through the
competitive service was ``not practicable,'' \109\ movement into
Schedule F was designed to be broad and numerically unlimited,
potentially affecting a substantial number of jobs across all Federal
agencies. For example, according to the Government Accountability
Office, the Office of Management and Budget petitioned to place 68
percent of its workforce within Schedule F.\110\ Moreover, the
Executive Order did not make the underlying determination that
particular positions were ``of a confidential, policy-determining,
policy-making or policy-advocating character.'' \111\ In essence, the
exception was created in advance of any determination. The Executive
Order instead announced that any position that could be described in
these terms, and which was not encumbered by an appointee under
Schedule C, should be placed in a separate and new excepted service
schedule. The Executive Order then directed agencies to determine which
of their positions met that criterion and compile a list of individuals
for OPM to consider placing in Schedule F.
---------------------------------------------------------------------------
\109\ See infra notes 355-359.
\110\ Gov't Accountability Off., ``Civil Service--Agency
Responses and Perspectives on Former Executive Order to Create a New
Schedule F Category for Federal Positions,'' (Sept. 2022), https://www.gao.gov/assets/gao-22-105504.pdf.
\111\ 5 U.S.C. 7511(b)(2) (``This subchapter does not apply to
an employee . . . (2) whose position has been determined to be of a
confidential, policy-determining, policy-making or policy-advocating
character by--(A) the President for a position that the President
has excepted from the competitive service.''); see also E.O. 13957,
sec. 5 (only listing broad duties--including ``viewing'' or
``circulating'' proposed regulations and other non-public policy
proposals--that agency heads should consider when petitioning the
OPM Director to place positions in Schedule F).
---------------------------------------------------------------------------
2. Hiring
Section 3 of Executive Order 13957 provided that ``[a]ppointments
of individuals to positions of a confidential, policy-determining,
policy-making, or policy-advocating character that are not normally
subject to change as a result of a presidential transition shall be
made under Schedule F.'' \112\ The stated rationale for removing these
positions from the competitive hiring process (or from other excepted
service schedules in which some of these positions were previously
placed) was, again, because of the importance of their corresponding
duties and the need to have employees in these positions that display
``appropriate temperament, acumen, impartiality, and sound judgment.''
\113\ The stated purpose was to ``provide agency heads with additional
flexibility to assess prospective appointees without the limitations
imposed by competitive service selection procedures'' \114\ or,
presumably, for positions already in the excepted service, without the
constraints imposed by 5 CFR part 302. The Order indicated that this
change was intended to ``mitigate undue limitations on their
selection'' and relieve agencies of ``complicated and elaborate
competitive service processes or rating procedures that do not
necessarily reflect their particular needs.'' \115\ These changes were
to give agencies ``greater ability and discretion to assess critical
qualities in applicants to fill these positions, such as work ethic,
judgment, and ability to meet the particular needs of the agency.''
\116\
---------------------------------------------------------------------------
\112\ 85 FR 67631, 67632.
\113\ 85 FR 67631.
\114\ Id.
\115\ 85 FR 67631, 67632. The procedures Congress has adopted
for hiring in the competitive service were designed, in part, to
implement the stated congressional policy of veterans' preference.
See 5 U.S.C. 1302. How this congressional mandate would be realized
in these circumstances was not addressed.
\116\ 85 FR 67632.
---------------------------------------------------------------------------
The Executive Order did not address that the competitive hiring
process permits agencies to assess all competencies that are related to
successful performance of the job, including appropriate temperament,
acumen, impartiality, and sound judgment. They also permit agencies to
fulfill the congressional policy to confer a preference on eligible
veterans or their family members entitled to derived preference. The
qualifications requirements, specialized experience, interview process,
and other assessment methodologies available to hiring managers
facilitate an agency's ability to identify the best candidate. The
Order also did not address the existence of longstanding rules,
grounded in the need to establish lack of unlawful bias in proceedings
under Federal anti-discrimination statutes, that require assessment of
any such competencies.\117\ The summary
[[Page 24991]]
imposition of new competencies would be contrary to existing statutory
requirements and could potentially be discriminatory in application,
even if that were not the agency's intent. Finally, the Order recited
that the normal statutory veterans' preference requirements that would
have applied to identified positions \118\ would not apply, and that
agencies would be required to apply veterans' preference requirements
only ``as far as administratively feasible.'' \119\
---------------------------------------------------------------------------
\117\ See 5 CFR part 300. Validation generally requires that the
criteria and methods by which job applicants are evaluated have a
rational relationship to performance in the position to be filled.
\118\ See 5 U.S.C. 3320.
\119\ 85 FR 67631, 67632-33 (sec. 4(i) (Schedule F)); see also 5
CFR part 302.
---------------------------------------------------------------------------
As noted above, OPM received many comments about the prior Schedule
F and its potential impacts on adverse action rights, performance-based
action rights, appeals, and hiring.
Comments Regarding Departure of Schedule F From Precedents
Many individuals and organizations commented that Schedule F
represented an unprecedented departure from Congressional intent,
longstanding legal interpretations, and past practices. A joint comment
by a nonprofit organization and former federal official agreed that
Schedule F was ``an aberration, divorced from established legal
interpretation and historical precedent'' and ``there can be no
doubting that it would have disrupted the functions of government, even
if ultimately overturned by the courts.'' Comment 2134. The comment
continued that ``even a small movement of positions into Schedule F
would have amounted to presidential usurpation of the role of Congress,
which has firmly enshrined the merit system in law to protect Americans
and preserve democracy against authoritarian overreach.'' Id. Other
commenters argued that the process in which Schedule F was created was
deficient because it intended to significantly alter longstanding
statutory protections. Comment 1316 argued that ``[i]f the executive,
or one of its appointees, wishes to change the operation of an agency,
they must do so by lobbying for a change in the law that authorizes it
or implement[ ] changes in accordance with those laws and the
constraints of the Administrative Procedure Act.'' A comment from
Members of Congress stated that Schedule F not only would have
``jeopardize[d] the livelihoods of tens of thousands of hard-working,
career civil servants,'' but also would ``upend civil service
precedent.'' Comment 48. As explained in the proposed rule \120\ and
here, OPM agrees that Schedule F risked altering the carefully crafted
legislative balance that Congress struck in the CSRA and the history of
protections leading up to it.
---------------------------------------------------------------------------
\120\ 88 FR 63862, 63867-69.
---------------------------------------------------------------------------
To be clear though, this rulemaking takes no position on whether
Executive Order 13957 was based on legal error, nor is this rulemaking
premised on such a conclusion. Instead, as OPM explained in the
proposed rule,\121\ there were a number of existing mechanisms that
would address the policy concerns identified in the Executive Order
without establishing a new schedule, and the creation of Schedule F
risked undermining other objectives of the civil service laws.\122\ The
basis for this rulemaking, as explained herein, is to clarify and
reinforce the retention of accrued rights and status following an
involuntary move to or within the excepted service and promulgate a
definition of what it means to be a ``confidential, policy-determining,
policy-making, or policy-advocating'' position consistent with decades
of practice and how the Executive Branch, Congress, and the courts have
understood that phrase to encompass political appointees.
---------------------------------------------------------------------------
\121\ Id.
\122\ See also E.O. 14003 at 2 (providing a similar assessment).
---------------------------------------------------------------------------
A few commenters opposed to this rule argued that the President has
the authority to issue civil service reform in a manner like Schedule
F. An advocacy nonprofit organization stated that the order was
``grounded on firm legal authority'' because title 5 specifically
authorizes the President to exempt policy-influencing positions from
civil service appeals. Comment 4097. Commenter argued that ``statutory
context makes clear'' this authority extends to both political
appointees and career officials. Commenter continued that the ``fact
that prior presidents have restrained themselves in their dealings with
subordinates does not imply they lacked this authority.'' Id. Commenter
asserted that the ``Supreme Court has already concluded that
`policymaking positions in government may be excepted from the
competitive service to ensure presidential control, see 5 U.S.C.
2302(a)(2)(B), 3302' (Free Enterprise Fund v. Public Company Accounting
Oversight Board, 2010).'' \123\
---------------------------------------------------------------------------
\123\ The full cite to this opinion is 561 U.S. 477 (2010).
---------------------------------------------------------------------------
The ``confidential, policy-determining, policy-making or policy-
advocating'' provision was intended to permit agency heads to directly
appoint a cadre of political appointees who have a close and
confidential working relationship with the President's appointees to
further and support the priorities of the President and the President's
appointees. As discussed extensively throughout this final rule, the
term of art, ``confidential, policy-determining, policy-making or
policy-advocating,'' has a longstanding meaning that equates to
political appointments, typically made under Schedule C. OPM, in this
rulemaking, is defining that phrase as it is used in the statutory
exception in 5 U.S.C. 7511(b)(2) for the reasons explained in the
proposed rule \124\ and in Section IV(B).\125\
---------------------------------------------------------------------------
\124\ 88 FR 63862, 63871-73.
\125\ See also Comment 2134 (``The preamble and the regulation
accurately reflect the executive branch's historical understanding
that Congress intended for the competitive service exception for
`confidential, policy-determining, policy-making, or policy-
advocating' positions to apply only to a small class of political
appointee positions.'').
---------------------------------------------------------------------------
Comment 4097 also argued that a separate provision, 5 U.S.C
2302(a)(2)(B), defining a ``covered position'' for the purposes of
protections from prohibited personnel practices, similarly excludes
from protections positions excepted from the competitive service
because of their ``confidential, policy-determining, policy-making, or
policy-advocating character.'' Commenter claimed this demonstrates that
``policymaking positions in government may be excepted from the
competitive service to ensure presidential control.'' Although this
final rule does not directly amend regulations dealing with prohibited
personnel practices, OPM construes this statutory language in 5 U.S.C
2302(a)(2)(B) as aligning with the reasoning in OPM's final rule with
respect to chapter 75. It simply means that positions of a
``confidential, policy-determining, policy-making, or policy-
advocating'' character have long been understood to be political
appointees and, in addition to not having adverse action rights, are
not covered by protections against prohibited personnel practices.\126\
That is perfectly consistent with the nature of Schedule C employees.
Congress has chosen to extend these protections only to the career
civil service as described further in Section IV(B).
---------------------------------------------------------------------------
\126\ OPM notes, though, that the rule does not amend
regulations related to prohibited personnel practices.
---------------------------------------------------------------------------
This commenter also cited 5 U.S.C. 3302, which says a President may
make necessary exceptions of positions from the competitive service if
``conditions of good administration warrant,'' to support the assertion
that career policymaking positions in government
[[Page 24992]]
may be excepted from the competitive service to ensure presidential
control. Again, OPM's rule does not change this Presidential authority
to except positions from the competitive service where necessary and
where conditions of good administration warrant such action. But, as
explained above, OPM disagrees that the authority to make exceptions in
section 3302 also allows for the removal of incumbents' accrued adverse
action rights under chapter 75.\127\ Section 3302 and the
``warrant[ed]'' by ``conditions of good administration'' standard
relates to whether positions should be excepted from the competitive
service. Congress did not suggest--in chapter 33 or chapter 75--that
the same standard also be used in determining whether to remove civil
service protections for the incumbents of such positions. Further, as
explained in Sections IV.(A)-(B), OPM does not believe the exception in
5 U.S.C. 7511(b)(2) can remove the previously accrued adverse action
rights of the incumbents of such positions.
---------------------------------------------------------------------------
\127\ See supra note 107.
---------------------------------------------------------------------------
As noted above, commenter also cited Free Enterprise Fund to
support its assertion that the President can issue an action like
Schedule F. The application of Free Enterprise Fund and other
Appointments Clause and removal cases to this rulemaking are addressed
further at Section III(F), but in short, commenter's reliance on this
case is beside the point and inapt. Whether a president can lawfully
enact Schedule F by executive order does not affect the ability of OPM
to promulgate this rule pursuant to its authority. In any event, in
Free Enterprise Fund, the Supreme Court examined the constitutionality
of multiple layers of removal restrictions for select positions at an
independent agency (one layer of removal protections for the
commissioners of the SEC and the next layer of protections for members
of the Public Company Accounting Oversight Board (PCAOB or Board)). As
an initial matter, most of the agencies that hire and fire subject to
title 5 are not independent agencies, so they would not have multiple
for-cause limitations on removal (i.e., most Secretaries, Directors,
and other agency heads can be removed at will by the President). But
even in most independent agencies, the removal restrictions at issue in
Free Enterprise Fund are of limited relevance. There, the Supreme Court
focused specifically on the removal protections of Board members, whom
the Court held were executive officers ``as the term is used in the
Constitution'' and who exercise ``significant authority.'' It clarified
that ``many civil servants within independent agencies would not
qualify'' as executive officers and none of the civil servants or
corresponding protections addressed by the dissenting opinion introduce
the same constitutional problems as those of the Board. One group the
dissent specifically mentions are employees in the Senior Executive
Service.\128\ Even though SES employees work on policy and have
significant leadership responsibilities, they also have civil service
protections. The majority states that ``none of the positions [the
dissent] identifies,'' which would include SES positions, ``are
similarly situated to the Board.'' \129\ ``Nor do the employees
referenced by the dissent enjoy the same significant and unusual
protections from Presidential oversight as members of the Board,'' the
majority added. In other words, Free Enterprise Fund explicitly
declined to hold that career SES positions, which have adverse action
protections under 5 U.S.C. 7541-7543, pose constitutional concerns in
and of themselves. Commenter invokes Free Enterprise Fund to argue that
a lower-level strata of career civil servants (with fewer
responsibilities and authority) cannot have civil service protections
if they keep confidences or work on policy. But the Court stressed that
``[n]othing in our opinion, therefore, should be read to cast doubt on
the use of what is colloquially known as the civil service system
within independent agencies.'' If nothing in Free Enterprise Fund casts
doubt on the civil service system within independent agencies, it does
not cast any doubt on the civil service system within the Executive
Branch generally.\130\
---------------------------------------------------------------------------
\128\ See 561 U.S. at 541.
\129\ Id. at 506.
\130\ Free Enterprise Fund notes that civil service statutes in
section 7511 contain an exception from adverse action rights for
positions of a confidential, policy-determining, policy-making, or
policy-advocating character, but it did not define what those
phrases mean. See 561 U.S. at 506.
---------------------------------------------------------------------------
Further, in Free Enterprise Fund, the Supreme Court crafted a
narrow remedy to address the unique problem the statute presented,
holding that members of the Board would have to be removable at will by
the Commission to render the statutory scheme consistent with the
Constitution. More recently, in United States v. Arthrex,\131\ the
Supreme Court crafted a different remedial solution for another
statutory scheme presenting employees with significant responsibilities
who enjoyed statutory removal protections. Arthrex concerned
Administrative Patent Judges (APJs), whose duties included sitting on
the Patent Trial and Appeal Board and issuing binding decisions. The
Federal Circuit, sitting en banc, had held that APJs were principal
officers whose appointments were unconstitutional because neither the
Secretary nor Director could review their decisions or remove them at
will. To remedy this constitutional violation, the Federal Circuit
invalidated the APJs' tenure protections, making them removable at will
by the Secretary. The Supreme Court, however, vacated and remanded,
concluding that it was preferable to reform the statute to require the
Director, a Presidential appointee who already oversaw APJs for other
functions, to serve as a final reviewing and issuing official for
decisions rendered by the Patent Trial and Appeal Board. The Court left
the APJs' tenure provisions intact. The limited solutions adopted by
the Supreme Court in Free Enterprise Fund and Arthrex are far removed
from a proposal to remove previously accrued adverse action rights from
thousands of traditional civil servants simply because, for example,
some of their work might touch on policymaking. Nothing in this
rulemaking is contrary to Free Enterprise Fund or any other binding
precedent. On the other hand, an overwhelming number of precedents are
contrary to commenter's positions, as described in this final rule.
---------------------------------------------------------------------------
\131\ 141 S. Ct. 1970 (2021).
---------------------------------------------------------------------------
Comment 4097 argued that ``[t]he CSRA also allows the President to
except positions from the competitive service for the purpose of
nullifying removal restrictions.'' The Supreme Court has cautioned
against using vague statutory provisions to alter ``fundamental details
of a regulatory scheme,'' stating that Congress ``does not hide
elephants in mouseholes.'' \132\ Commenter seems to suggest that
Congress did just that when it enacted the CSRA, even though that
authority went undiscovered and unexercised for these purposes in over
40 years. Under this assertion, all a President would have to do is
proclaim by unilateral order that ``good administration warrants'' a
change and the carefully balanced and longstanding civil service
protections provided by Congress would fall away if the positions could
be characterized as having a ``confidential'' \133\ or ``policy''
[[Page 24993]]
character--terms commenter argued require no further elaboration. That
would be contrary to the very purpose of the CSRA, a result that
Congress could not have possibly intended.
---------------------------------------------------------------------------
\132\ See Whitman v. Am. Trucking Assocs., Inc., 531 U.S. 457,
468 (2001).
\133\ In describing positions with confidential or policy
characteristics, E.O. 13957 states ``The heads of executive
departments and agencies (agencies) and the American people also
entrust these career professionals with non-public information that
must be kept confidential.'' If that were the sole standard for a
``confidential'' position, it would be hard to think of a career
position that would not have been ``confidential,'' since the
incumbents of virtually all positions have this obligation regarding
non-public information. Such a novel reading of the adverse action
exclusion could have led to untenable results. Of course, Congress,
the courts, and the Federal Government have historically not read
these and similar terms so broadly and have instead long given them,
as used in 5 U.S.C. 7511(b)(2), a much narrower meaning.
---------------------------------------------------------------------------
As explained in Comment 2134, a joint comment by a nonprofit
organization and a former federal official, and further in Section
IV(B), Congress, courts, and the Federal Government have parsed the
meaning of the term of art ``confidential, policy-determining, policy-
making or policy-advocating'' over at least the past 90 years and
consistently viewed it as applying to noncareer political
appointees.\134\ Further, competitive service employees have in the
past been moved involuntarily to excepted service schedules that do not
contain adverse action rights, but those incumbents have kept rights
they have accrued (as detailed in Section IV(A)). Executive Order 13957
and Schedule F's attempt to strip accrued rights by moving positions
into the excepted service would run contrary to longstanding precedent,
including Roth v. Brownell,\135\ as explained in Section IV(A). See
Comment 2134. OPM therefore disagrees with commenter's broad assertion
that the CSRA allows the President to except positions from the
competitive service ``for the purpose of nullifying removal
restrictions.''
---------------------------------------------------------------------------
\134\ Comment 2134, as detailed in Section IV(B), explained that
the phrase ``confidential, policy determining, policy-making or
policy-advocating'' was first used in the CSRA in 1978. Before then,
though, phrases such as ``confidential or policy-determining'' and
``policy-making and confidential'' were used. Those phrases were
interchangeable and had the same meaning.
\135\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954) (confirming that employees
with competitive status retained their appeal rights upon
involuntary movement to the excepted service).
---------------------------------------------------------------------------
Comments Regarding Schedule F's Use of an Exception To Broadly
Eliminate Adverse Action Rights
Commenters supportive of the rule agreed with OPM and argued that,
because the terms ``confidential'' and ``policy-making, policy-
determining, or policy-advocating'' are so broad, Schedule F had no
limiting principle and used the exception in 7511(b)(2) to broadly
swallow adverse action rights. A professor commented that the ``lack of
clear definition and breadth of Schedule F allows it to serve as a
promise for wide scale partisan retribution for any federal employee
who might raise concerns about the legality of [a] policy agenda.''
Comment 50. A labor union argued that ``the plain purpose of Schedule F
was to create an exception so broad, it swallowed the rule of
apolitical, merit based Federal employment and rendered meaningless the
protections afforded to career Federal employees by the CSRA.'' Comment
2640. As described in the proposed rule \136\ and in this final rule,
OPM shares some of these concerns.
---------------------------------------------------------------------------
\136\ 88 FR 63862, 63871-73.
---------------------------------------------------------------------------
One commenter opposed to this rule argued that the statutory
exceptions in 7511(b)(2) are broad enough to include career positions.
Comment 4097 argued that ``[n]othing in the words `confidential,
policy-determining, policy-making, or policy-advocating' hints at
covering only political appointments or references the duration of an
employee's tenure. Instead, the CSRA makes clear these terms cover both
career and noncareer positions.'' OPM disagrees that these words can be
read in isolation or separated from their historical context and
development. As explained in Section IV(B) and shown in Comment 2134,
which extensively details the context, history, and meaning of these
terms of art, they have, except in Executive Order 13957, always meant
noncareer political appointees. Section 7511 was amended as part of the
Civil Service Due Process Amendments of 1990, in which Congress, for
the first time, extended the ability to accrue adverse action rights
(and for certain adverse actions, appeal rights) to individuals in the
excepted service other than preference eligibles, who already had the
ability to accrue such rights. Congress did not intend to undercut this
extension of rights by permitting broad exclusions. In discussing what
positions would be excluded from such rights, Congress stated that the
bill ``explicitly denies procedural protections'' to these types of
political appointees--``presidential appointees, individuals in
Schedule C positions [which are positions of a confidential or policy-
making character] and individuals appointed by the President and
confirmed by the Senate,'' and that ``[e]mployees in each of these
categories have little expectation of continuing employment beyond the
administration during which they were appointed'' because they
``explicitly serve at the pleasure of the President or the presidential
appointee who appointed them.'' \137\
---------------------------------------------------------------------------
\137\ H.R. Rep. No. 101-328, at 4-5, as reprinted in 1990
U.S.C.C.A.N. at 698-99.
---------------------------------------------------------------------------
We also discuss below the argument that Congress did not
distinguish between career and noncareer positions in the SES in
discussing the possibility that SES positions could involve policy-
influencing duties. In brief, the SES was a new service, created in the
CSRA and has its own distinct rules, rather than building on the
existing structure of the competitive and excepted services. In the SES
scheme, Congress did not need to address exclusions because the only
SES appointees covered by the sections addressing procedural and appeal
rights were career appointees. There was no attempt to distinguish
between those whose duties could be regarded as policy-influencing and
those whose duties could not be so characterized. Congress included
separate provisions limiting the number of noncareer appointees.
Comment 4097 also suggested that concerns about Schedule F are
misguided because the schedule would have been limited to a small group
of senior policy-influencing positions. There are approximately 4,000
political positions in the civil service (though some commenters noted
between 20-25 percent of those usually remain unfilled). See Comment
2134.\138\ Of these, between 1,000 to 1,500 positions are Schedule C
political appointees--a number that has stayed relatively steady since
the 1950s. See id. Comment 4097 estimates Schedule F would have covered
between two and three percent of the federal workforce, which would
have grown the positions vulnerable to political favor (even if not
explicitly ``subject'' to such favor) by over an order of magnitude,
from 4,000 to 50,000 positions. Comment 4097 attempts to
[[Page 24994]]
rationalize the scope of Schedule F by contending it would have been
limited to ``senior policy-influencing officials''--a term that does
not appear in Executive Order 13957. But as explained above and in the
proposed rule,\139\ the GAO found that Schedule F was interpreted by
agencies to have a broad reach, with one agency, for example,
petitioning to place 68 percent of its workforce within Schedule F,
including positions at the GS-9 level.\140\
---------------------------------------------------------------------------
\138\ See also U.S. Civil Serv. Comm'n, ``Maintaining the
Integrity of the Career Civil Service,'' p. 10 (1960), https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005815857&seq=20&q1=%22competitive+status%22; U.S. Off.
Of Pers. Mgmt., ``General, Questions and Answers'' (detailing the
different types of political appointments, including presidential
appointments requiring senate confirmation (PAS), presidential
appointments not requiring senate confirmation (PA), noncareer
Senior Executive Service positions, Schedule C positions, and
others), https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/; P'ship for Pub. Serv., Center for Presidential
Transition, ``Frequently Asked Questions About the Political
Appointment Process,'' (estimating there are 1,200 PAS positions,
750 noncareer SES positions, 450 PA positions, and 1,550 Schedule C
positions), https://presidentialtransition.org/appointee-resources/ready-to-serve-prospective-appointees/frequently-asked-questions-about-the-political-appointment-process/.
\139\ 88 FR 63862, 63868.
\140\ See supra note 110. A former OPM official involved in the
Schedule F approval process told GAO that ``positions above GS-11
were generally included'' but OMB's approved petition ``also
included positions at the GS-9 and GS-10 levels.'' Id. at p. 19 &
n.14.
---------------------------------------------------------------------------
Confirming that the number of employees that would have been
subject to Schedule F extends beyond senior positions responsible for
agency policy, Comment 4097 included a spreadsheet labelling a career
line attorney at an agency's general counsel's office as a ``policy''
employee. OPM notes that government attorneys are generally Schedule A
employees, and therefore, by definition, are specifically ``not of a
confidential or policy-determining character,'' \141\ but in any event,
whatever limiting principles commenter may have in mind for justifying
Schedule F, they remain unclear. While commenter states that two to
three percent of the federal workforce would have been impacted by
Schedule F, commenter then suggests that up to 10 percent of jobs \142\
could fit its interpretation of confidential and policy positions,
which would equate to approximately 250,000 employees. The number of
positions that could be covered by a Schedule F-type action is thus
indeterminate and without meaningful boundary.
---------------------------------------------------------------------------
\141\ 5 CFR 213.3101 (describing Schedule A positions).
\142\ See Comment 4097, p. 24 (surmising that 90% of jobs are
not policy-influencing). Because there are millions of civil
servants, each percentage point in this estimate equates to a
significant number of potentially impacted employees.
---------------------------------------------------------------------------
Commenter added that, because of Schedule F's allegedly limited
scope, OPM's recruitment concerns are ``meritless.'' It claimed that
``Schedule F would have virtually no applicability to technical
positions such as IT and cybersecurity that OPM cites as ongoing
recruitment challenges.'' This statement certainly does not capture the
nature of cybersecurity and other technical positions which require the
maintenance of confidences while fending off cyberattacks from foreign
countries or domestic bad actors with respect to data breaches, for
example. It is difficult to imagine situations where the requirement to
maintain confidences would be more important. Commenter concluded that
OPM does not ``offer any evidence that making confidential and policy-
influencing career positions at-will--as opposed to converting them to
political appointments--would create recruitment challenges.'' As
detailed further in Section V.(B), regarding the impact of
politicization on recruitment, hiring, and retention, OPM received a
significant number of comments concerned about the negative impacts of
Schedule F, or a similar effort, on federal civil service recruitment.
Because of Schedule F's unprecedented treatment of the confidential and
policy exception in 5 U.S.C. 7511(b), the concerns about such a
schedule were broad and not isolated to discrete parts of the
workforce. For instance, concerned commenters included academic
researchers showing the negative impact of politicization on
recruitment to individuals, including those in IT and technical
positions who expressed that the existence of an action like Schedule F
would dissuade them from seeking federal employment.
Comments Regarding Schedule F and Politicization in Hiring and Firing
Comment 4097 also argued that, contrary to widespread opinion,
Schedule F rejected the spoils system and was sufficiently protective
from the dangers of politicization. Commenter contended that ``if E.O.
13957 was intended to fill the bureaucracy with political loyalists,
President Trump chose an extremely odd way of doing it. He could have
directly converted career positions to political positions, dismissed
career incumbents through a reduction in force, and filled the roles
with political appointees.'' None of these alternatives is simple or
free of costs. For instance, additional Schedule C positions would
require an agency to budget for and create new slots, obtain OPM's
approval of such slots, and pursue a variety of other procedural steps
designed to sustain civil service protections and merit system
principles. Reductions in force are complex and the outcomes are
unpredictable. They have often been the subject of extended
litigation.\143\
---------------------------------------------------------------------------
\143\ See, e.g., James v. Von Zemensky, 284 F.3d 1310 (Fed. Cir.
2002) (construing whether a ``staff adjustment'' resulting in the
separation of a physician in the Veterans Health Administration of
the Department of Veterans Affairs, could be appealed under the
reduction-in-force statute and regulations, notwithstanding
Congress' placement of VHA positions under title 38, U.S. Code, for
at least some purposes); Harants v. U.S. Postal Serv., 130 F.3d 1466
(Fed. Cir. 1997) (construing a reassignment during a Postal Service
reorganization that the employee had accepted as an appealable
reduction-in-force action in the context of complex developments,
including intervening MPSB opinions, cancellations, and
restorations, a stay of enforcement, and a subsequent reduction-in-
force notice).
---------------------------------------------------------------------------
Commenter argued that the White House Office of Presidential
Personnel would not have been involved in Schedule F appointments, but
commenter does not address why that would promote efficiency or lead to
less agency politicization. The prior administration was slow to fill
even the political slots at its disposal and many remained unfilled.
See, e.g., Comment 2124 (``Increasing [politically-based appointments]
by a factor of 5 or more will certainly mean that more jobs will go
unfilled and more tasks will go uncompleted.''). Under Schedule F,
agency political and career leadership could target, interview, and/or
select politically-aligned applicants just as well as PPO.
Regarding Schedule F's purported protections from the dangers of
politicization, an advocacy nonprofit organization argued that
``Schedule F made sure to protect these policymaking employees from
discriminatory firing based on political beliefs or party allegiance.''
See Comment 3892; see also Comment 2346. Once hirings and firings are
at-will, however, the employee might not have an entitlement to written
notice of the reasons for the adverse action, an opportunity to
respond, or a written decision.\144\ Nor would the decision generally
be appealable.\145\ It would thus be, at a minimum, difficult for
employees to protect themselves from actions based on political beliefs
or party allegiance because no cause (or evidence) would be required
prior to such an action. Under Schedule F, because such an employee
would be at-will, the employer would need to give little or no reason
prior to a termination. In short, Schedule F leaves innumerable ways
for politics to factor into these traditionally merit-based decisions
in a manner that would be difficult to detect or remedy.
---------------------------------------------------------------------------
\144\ 5 U.S.C. 7513(b).
\145\ 5 U.S.C. 7513(d).
---------------------------------------------------------------------------
Comment 4097 contended that ``OPM's concerns about a return to the
patronage system also ignore the evidence that the Federal Government
ended patronage because it had become obsolete'' and passed the
Pendleton Act because ``patronage no longer served their interests.''
Although the influence of politics in the civil service was greatly
diminished following the Pendleton Act, it has taken consistent
legislative, executive, and regulatory action to stem the tide of
patronage over the past 140 years. For instance,
[[Page 24995]]
Comment 2134 gave an overview of the election of 1936, which featured
concerns about the return of the spoils system, and executive action in
the 1950s to create Schedule C due to concerns that political actors
were burrowing in as career civil servants. As previously mentioned,
the CSRA was enacted in the aftermath of the Nixon Administration's
plan to implement the Malek Manual, a blueprint to replace the civil
service merit system with a political hiring scheme that would begin by
purging all Democrats from federal employment.
Comment 4097 also contended that today's rank-and-file government
jobs are not enticing enough to invite patronage and that ``the really
big bucks aren't in the political appointments game.'' At the same
time, commenter argued that confidential and policy positions are so
important to the functioning of government that the President should
have unfettered control over these positions. Executive Order 13957
likewise justified removing protections from these positions because
the ``importance of the functions they discharge.'' Commenter seems to
recognize the threat of unqualified individuals discharging important
functions. OPM agrees that qualified individuals should discharge
important functions, and this rule is based on OPM's determination that
injecting politicization into the nonpartisan career civil service (or
creating the conditions where it can be injected by individual actors)
runs counter to merit system principles and would not only harm
government employees, agencies, and services, but also the American
people that rely on them, as discussed in the proposed rule \146\ and
further below.
---------------------------------------------------------------------------
\146\ 88 FR 63862, 63881.
---------------------------------------------------------------------------
Comments Regarding Schedule F as a Performance Management Tool
One of the justifications for Schedule F was that it allegedly
allowed agencies to address poor performance, but many commenters
asserted that this rationale was flawed and a pretext for removing
protections and culling the civil service of dissenting opinions.
Comment 13, a former OMB official, commented that ``[t]he proponents of
Schedule F claim that it is needed for accountability and to be able to
fire poor performers. Yet they offer little or no support for their
claims. Thousands of poor performers are dismissed annually, and even
more are transferred to other positions.'' This commenter argued that
the last Administration's ``own presidential appointees [were the ones]
who most visibly resisted his directives, not career civil servants.''
\147\ Comment 2816, a former federal official, argued that Schedule F
``relied on vague and conclusory assertions that competitive selection
procedures inhibit the hiring of candidates with appropriate `work
ethic, judgment, and ability to meet the particular needs of the
agency,' and that more `flexibility to expeditiously remove poorly
performing employees' was needed without any consideration of the
countervailing considerations that favor strong employee protections.''
See also Comment 3803. A professor argued that it was not civil service
incompetence that spurred Schedule F, but competence. Comment 42.
``This competence insisted on following scientific consensus on climate
change. It insisted that cures such as ivermectin and hydroxyquinoline
would not treat Covid-19. The legal expertise in the federal
bureaucracy insisted that impounding funds that Congress had explicitly
delegated for Ukraine was illegal. These are some of the most prominent
examples of bureaucratic competence coming into conflict with the
preferences'' of the previous Administration. Id. Finally, commenters
noted that, while some want to ``eliminate incompetent people or
redundant roles--[ ] allowing elected officials to hand-pick civil
service members prevents neither.'' Comment 2828.
---------------------------------------------------------------------------
\147\ Citing James P. Pfiffner, ``President Trump and the
Shallow State: Disloyalty at the Highest Levels,'' Presidential
Studies Quarterly, Vol. 53, Issue 3 (Sept. 2022), https://doi.org/10.1111/psq.12792.
---------------------------------------------------------------------------
OPM agrees that Schedule F was poorly designed as an effort to
meaningfully improve performance management or allow managers to more
effectively address performance issues. Agencies were directed to move
employees occupying ``confidential, policy-determining, policy-making,
or policy-advocating'' positions into Schedule F, thereby purportedly
making them at-will employees who could be terminated without any
adverse action procedures. But the characteristics of an employee's
job--including whether the employee works on policy--has nothing to do
with an employee's performance. Schedule F sought to streamline
terminations based on the type of work that an employee performs, not
based on how well the employee performs. It is therefore difficult to
understand how Schedule F can be reconciled with its purported aim of
addressing poor performance.
If the concern is that managers face some difficulties in
attempting to take actions under chapter 75 or chapter 43, the solution
is not for the Executive Branch to issue an executive order seeking to
undermine those statutory provisions. Nor would such an executive order
effectively address the complexity of the various remedial schemes
Congress has created. For example, creating Schedule F will do nothing
to prevent a particular employee from lodging a complaint of unlawful
discrimination under the various civil rights statutes; will do nothing
to stop administrative judges of the Equal Employment Opportunity
Commission from presiding over discovery in relation to such claims and
adjudicating them; and may result in decisions adverse to managers that
will then be non-reviewable in a Federal court. Similarly, excepting
individuals from adverse action rights would likely lead to attempts to
file constitutional claims in the Federal district courts, thereby
defeating the benefits of the claim-channeling provisions of the
CSRA.\148\
---------------------------------------------------------------------------
\148\ OPM discusses performance management further in Section
V.(B).
---------------------------------------------------------------------------
Still, some commenters argued that Schedule F was a valid tool to
remove poor performers and increase accountability. For instance,
Comment 7 contended that ``Schedule F and similar tools `aim[ ] to
increase accountability and efficiency in the Federal government by
removing `poor-performing employees.' '' See also Comments 45, 1811,
3130; 4097. Comment 4097, an advocacy nonprofit organization, argued
that civil service protections and merit-based hiring procedures ``make
it difficult to hire the best candidates and prohibitively difficult to
dismiss employees for all but the worst offenses.'' With respect to
merit-based hiring procedures, we observe that even if we accepted this
premise as true, which OPM does not, commenter ignores the fact that
merit-based hiring procedures contained in title 5 are the law of the
land. If a commenter believes they ``make it difficult to hire the best
candidates'' the solution is to make this argument to Congress, not
attempt to evade the requirements established in title 5. We also note
that many of the ``difficulties'' commenter observes arise from the
Veterans' Preference Act, as amended, which is codified throughout
title 5's provisions on hiring. An observer might argue that there
should be no veterans' preference, but that would seem a grave
disservice to the sacrifice and commitment of veterans across the
Nation. And even if a persuasive policy argument in favor of veterans'
preference reform could be made, it
[[Page 24996]]
would have to be made to Congress. Finally, the merit-based hiring
procedures are one of the ways agencies can defend themselves from
unsupported assertions of illegal discrimination. Attempts to create
unwarranted exceptions to avoid legal requirements have been
counterproductive and resulted in substantial litigation.\149\
---------------------------------------------------------------------------
\149\ See, e.g., Nat'l Treasury Employees Union v. Horner, 854
F.2d 490 (D.C. Cir. 1988), which overturned OPM's decision to place
all Professional and Administrative Career positions in Schedule B
of the excepted service after entering into a consent decree that
required OPM to develop a new examination for such positions. The
Federal court of appeals, on review from a district court
determination that OPM had violated the Administrative Procedure Act
in excepting this broad category from the competitive service, noted
that filling positions through the competitive process was the norm
and OPM could depart from that norm only when ``necessary'' for
``conditions of good administration,'' quoting 5 U.S.C. 3302. The
court also noted that OPM, while asserting that the cost of
developing a new examination was prohibitive, did not present
evidence that would meet the standard of review. Cf. Gingery v.
Dept. of Defense, 550 F.3d 1547 (Fed. Cir. 2008) (holding that
President Clinton's creation of the Federal Career Intern Program, a
Schedule B appointing authority, did not permit the agency to use
OPM's modified process for agency pass-overs of preference eligibles
in an excepted service hiring process, in light of Congress'
command, at 5 U.S.C. 3320, to apply the same procedures used for the
competitive service, i.e., the procedures specified in 5 U.S.C.
3318).
---------------------------------------------------------------------------
As to difficulties dealing with ``poor performers,'' there already
exist a variety of tools to address inappropriate conduct and
unacceptable performance and civil servants are removed using these
tools, as described above and explored further below in the Section
V.(B). Commenter also does not address civil servants who are
terminated during their probationary/trial periods or before they have
met their durational requirements when their civil service protections
would attach. The purpose of probation is to permit observation of new
appointees on the job before their appointments became permanent. It is
sometimes described as the final stage of the examining process. Such
filtering, when done properly, addresses many performance issues early
and grants the agency wide latitude to remove that worker.\150\
---------------------------------------------------------------------------
\150\ On December 13, 2023, OPM issued guidance to agencies on
Maximizing Effective Use of Probationary Periods, available at
https://www.chcoc.gov/content/maximizing-effective-use-probationary-periods. This guidance advises agencies to periodically remind
supervisors and managers about the value of the probationary period
and to make an affirmative decision regarding the probationer's
fitness for continued employment. The guidance also provides
practical tips for supervisors and recommends good management
practices for supervisors and managers to follow during this
critical assessment opportunity.
---------------------------------------------------------------------------
Commenter attributes any misalignment with a President's political
agenda (or ``policy resistance'') as ``misconduct'' which justifies
termination, even if such conflict cannot be proved. But a mere
difference of opinion with leadership does not qualify as misconduct or
unacceptable performance or otherwise implicate the efficiency of the
service in a manner that would warrant an adverse action. To the
contrary, identifying objections to government action early in internal
discussions ultimately strengthens government policy by addressing
meritorious considerations and explaining why other objections are
unwarranted. Moreover, Executive branch employees have an affirmative
obligation to report waste, fraud, and abuse to appropriate
authorities, which could fall under commenter's broad notion of
``policy resistance'' \151\ and is another reason this notion is
unworkable
---------------------------------------------------------------------------
\151\ See 5 CFR 2635.101(b)(11).
---------------------------------------------------------------------------
Comment 4097 cited some examples of what commenter considers to be
poor performance, misconduct, or other justifications for Schedule F.
Comment 2822, a legal nonprofit organization, examined many of those
examples and those in Tales from the Swamp, written by the same author
as Comments 3156 and 4097 and cited throughout those two comments. It
concluded that Tales from the Swamp ``regularly engages in cherry-
picking, slanted interpretation, and outright inaccuracy to justify its
conclusions in support of Schedule F.'' Regarding Tales from the
Swamp's complaints about agency losses in court, Comment 2822 stated it
``makes a substantial and baseless leap'' from the previous
Administration's ``loss rate in court (true) to career staff sabotage
being the culprit (unsupported).'' Comment 2822 explained that ``the
most thorough report prepared on the'' previous Administration's
``record in court found that the Administration regularly `ignored
clear-cut statutory and regulatory duties,' with losses on statutory
interpretation grounds making up the bulk (117) of the administration's
losses in court.'' \152\ In many of these cases, ``the Administration
lost `because the agency had acted outside of the bounds of its
authority or had adopted an interpretation that blatantly contradicted
the statute at issue.' These losses were the result of unlawful policy
efforts by political decisionmakers, not the product of agency staff
doing a poor job of building a rulemaking record.'' Comment 2822
criticized Tales from the Swamp's other examples of alleged poor
performance \153\ and finds ``many of the anecdotes relied on by TFTS
lack crucial context, or mischaracterize important facts about
agencies' work'' and the ``only thing these anecdotes consistently show
is that some political appointees'' during the last Administration
``occasionally found it challenging to implement their regulatory
goals. But that experience is not unique to Trump-era political
appointees, and it does not justify reorienting the civil service
towards political fealty.''
---------------------------------------------------------------------------
\152\ Citing Bethan A. Davis Noll, `` `Tired of Winning':
Judicial Review of Regulatory Policy in the Trump Era,'' 73 Admin.
L. Rev. 353, 397-98, 397 fig.5 (2021), https://www.law.nyu.edu/sites/default/files/DavisNoll-TiredofWinning_0.pdf.
\153\ These include Department of Education enforcement against
for-profit colleges, FDA laboratory test oversight, USDA attempts to
narrow food stamp eligibility, the rollback of offshore drilling
safety requirements, re-issuance of the school nutrition rule, and
the classical architecture mandate.
---------------------------------------------------------------------------
Many commenters argued that, instead of poor performance or
accountability, Schedule F was motivated by a desire to increase
political loyalty in nonpartisan career civil servants. A professor
argued that the previous administration has touted the prior Schedule F
as a way ``to impose personal loyalty tests, and to use government as
an instrument of his power. This is at odds with the purpose and
traditions of the American state.'' Comment 50; see also Comments 448,
1779. Other commenters pointed to numerous public statements which,
they argue, demonstrate the intent behind Schedule F, including calls
from the previous Administration to ``root out'' political opponents,
referring to civil servants as the ``deep state'' that needs to be
``destroyed'' or ``brought to heel,'' and statements that they would
``pass critical reforms making every executive branch employee fireable
by the president of the United States.'' See Comments 50, 668, 2512
(citing news articles documenting the previous Administration and its
supporters' desire to purge the civil service), 3398. Such firings
would likely be at odds with statutory, regulatory, or constitutional
protections and rights as explained in this final rule.
3. Political Appointees in Career Civil Service Positions
Executive Order 13957 could have facilitated burrowing in.
``Burrowing in'' occurs when a current (or recently departed) political
appointee is hired into a permanent competitive service, nonpolitical
excepted service, or career SES position without having to compete for
that position or having been appropriately selected in accordance with
merit system principles and the normal procedures applicable to the
[[Page 24997]]
position under civil service law. OPM has long required that ``politics
play no role when agencies hire political appointees for career Federal
jobs.'' \154\ OPM adopted procedures to review appointments of such
individuals for compliance and Congress has now essentially codified
that procedure by requiring OPM to submit periodic reports of its
findings.\155\ Executive Order 13957, interpreted broadly, could have
opened the door for agency heads to move current political appointees
into new Schedule F positions, or transferred vacancies in existing
positions to Schedule F, without competition and in a manner not based
on merit system principles. In effect, this would have allowed
political appointees on Schedule C appointments, who would normally
expect to depart upon a presidential transition, to ``burrow'' into
permanent civil service appointments.
---------------------------------------------------------------------------
\154\ U.S. Off. of Pers. Mgmt., ``Guidelines on Processing
Certain Appointments and Awards During the 2020 Election Period,''
https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.pdf.
\155\ See The Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvement Act of 2015, Public Law 114-136
(Mar. 18, 2016), which requires OPM to submit these reports to
Congress.
---------------------------------------------------------------------------
Comments Regarding Schedule F and Burrowing In
One commenter argued that Schedule F would have reduced burrowing
in because the burrowed employee would be removable at will anyway. See
Comment 4097. That view overlooks the ability of burrowed employees to
obtain a job in the first place because these employees could be hired
into Schedule F without the usual filters for qualifications currently
in place in the competitive civil service. Schedule F would have
allowed unqualified employees to be hired, albeit at will, who may
never have been able to enter the competitive service. Regardless of
whether employees moved would be ultimately removable, the opening of
the door to the conversion of Schedule C political appointees to
Schedule F positions--or, indeed, the hiring of any number of new
candidates because they were politically aligned with the existing
administration--increased the risk of burrowing in. We discuss
burrowing further in Section IV(A).
4. Additional Comments Regarding the Potential Impacts of Schedule F
Comments Regarding Potential Negative Outcomes of Schedule F
Several former and current civil servants, individuals,
organizations, and Members of Congress commented on what they perceived
as the negative aspects of Schedule F. A former OMB official contended
that Schedule F would inhibit, if not prevent, successful presidential
transitions and would degrade the performance of government employees
by replacing career civil servants with political appointees. Comment
13. A professor contended that ``[t]aking qualified and even expert
civil servants and making them weigh the tradeoff between voicing the
views based on their expertise and keeping their jobs would utterly
undermine their expertise.'' Comment 42. Also ``it would mean that
presidents would not be getting advice based on expertise but on what
employees thought they wanted to hear'' and ``Congressional will as
expressed in the statutes that enable the executive branch to make
policy would be discounted.'' Not only would career civil servants and
institutional expertise be harmed (see Comment 2267), but commenters,
including Members of Congress, detailed the potential impact of
Schedule F to communities, small businesses, and families across
America (Comment 48); the environment (Comment 33); National Park
Service personnel, national parks, and the public who values them
(Comment 1094); critical infrastructure (Comment 2501); federal
investigations and prosecutions (Comment 2616); and the SNAP program
and other hunger safety nets (Comment 3149); to name a few.
Several commenters expressed concerns about the potential impact of
Schedule F on whistleblowers. Comment 3340, a whistleblower protection
nonprofit organization, argued that ``Schedule F would have given the
President blank check discretion to cancel the Whistleblower Protection
Act by removing employees from the competitive service,'' removing
their civil service protections, and then firing them. See also
Comments 3466, 3894. If Schedule F allowed removals at will, commenters
claimed that it would be difficult to prove an employee was removed
because of protected and important whistleblowing activities. Also, if
an incumbent was in a ``confidential, policy-making, policy-
determining, or policy-advocating'' position for the purposes of
adverse action protections and excluded from such protections under
section 7511(b)(2), as Schedule F attempted, then such a position would
also presumably be excluded from the definition of ``covered position''
for the purposes of the prohibited personnel practices under section
2302(a)(2)(B)(i).
A professor commented that Schedule F would also have weakened
legislative power. Comment 50 expressed that ``[t]he Founders were
deeply concerned with the amassing of centralized power, and Schedule F
frustrates the institutional design of checks and balances. In
particular, it weakens legislative power. The creation of the civil
service system was a response to a spoils system that led to abuses of
state resources and power.''
Another commenter identified possible costs of Schedule F.
Commenter argued that ``a likely consequence of Schedule F would be a
greater reliance on private contractors to carry out the work of
federal government agencies'' and a ``[g]reater reliance on contractors
would, almost certainly, be more expensive than our current system.''
Comment 2109. Commenter further noted that ``the federal government is
the source of a considerable amount of scientific and economic data
that both businesses and researchers around the world trust and rely
upon'' and argued that this ``data is trusted precisely because it is
curated by career civil servants who are free from political influence.
If concerns about political influence in the generation of this data
begin to seep into the public consciousness, enormous amounts of social
value will be lost.'' Id.
Comments Regarding Schedule F and the Pendleton Act
One commenter who opposed the rule argued that the 19th-century
reformers who created America's civil service believed that tenure and
job protections were ``inimical to merit'' and that ``[t]he Pendleton
Act consequently deliberately made minimal changes to the dismissal
process'' besides prohibiting removal for making or failing to make
``political contributions.'' Comment 4097. Commenter, an advocacy
nonprofit organization, argued that Schedule F would have ``returned
the federal civil service to its foundations.'' While the Pendleton Act
focused on merit-based hirings, Congress did address removals even at
this early stage in the development of the career civil service--it
forbade removals on political or religious grounds.\156\
---------------------------------------------------------------------------
\156\ See Ari Hoogenboom, ``The Pendleton Act and the Civil
Service,'' The Am. Historical Rev., Vol. 64, No. 2c, p. 307 (Jan.
1959) (``The Pendleton Act forbade removals on political or
religious grounds.''); see also Nat'l Archives, supra note 18,
quoting Pendleton Civil Service Reform Act of 1883, sec. 2 (``[I]t
shall be the duty of [the commissioners of the Civil Service
Commission]: First. To aid the President, as he may request, in
preparing suitable rules for carrying this act into effect, . . .
Second. And, among other things, said rules shall provide and
declare, as nearly as the conditions of good administration will
warrant, as follows: . . . [T]hat no person in the public service is
for that reason under any obligations to contribute to any political
fund, or to render any political service, and that he will not be
removed or otherwise prejudiced for refusing to do so.''
---------------------------------------------------------------------------
[[Page 24998]]
Commenter adds that the reformers who created the civil service
feared that requiring ``a virtual trial at law'' to dismiss an employee
would ``entrench incompetence and intransigence in the federal
workforce'' and that ``[n]ot until the 1960s did the general federal
workforce gain the ability to appeal dismissals. The experience of the
past six decades has demonstrated the folly of that decision.'' This
may be commenter's conclusion, but Congress has concluded otherwise and
repeatedly strengthened employee rights during the period in question--
through the CSRA, the Civil Service Due Process Amendments Act of 1990,
and the Whistleblower Protection Act and its amendments.\157\ Moreover,
at the time of the Pendleton Act's enactment, there was a rigorous
debate about the extent of merit-based hirings and removals protections
and the compromise position on the latter was that further removal
protections were unnecessary at the time because hiring based on merit
would ``remov[e] the temptation to an improper removal.'' \158\
Commenter quotes from George William Curtis, one of the drafters of the
Pendleton Act, regarding the ``fear'' of ``virtual trial[s] at law,''
but further context is important here too. Curtis' longer quote starts
``[h]aving annulled all reason from the improper exercise of the power
of dismissal, we hold that it is better to take the risk of occasional
injustice from passion and prejudice, which no law or regulation can
control, than to seal up incompetency, negligence, insubordination,
insolence, and every other mischief in the service, by requiring a
virtual trial at law before an unfit or incapable clerk can be
removed.'' \159\ Removing improper bases for removals was a key
antecedent to the statement regarding virtual trials at law. Curtis
added, ``If the front door [is] properly tended, the back door [will]
take care of itself.'' \160\ At the time, this meant that, if civil
service restrictions prevented the President from appointing a hand-
picked replacement for a person he removed, his incentive to remove for
political reasons would be diminished.\161\
---------------------------------------------------------------------------
\157\ Public employees have been challenging their removals in
court since at least the 1800s. See, e.g., Ex Parte Hennen, 38 U.S.
(13 Pet.) 230 (1839); United States. v. Wickersham, 201 U.S. 390,
398-399 (1906).
\158\ See, e.g., Debate in the Senate on the Civil Service
Reform Act of 1883, December 14th, 1882, https://digital.lib.niu.edu/islandora/object/niu-gildedage%3A24020.
\159\ George William Curtis, President, Address at the Annual
Meeting of the National Civil-Service Reform League, Nat'l Civil-
Serv. Reform League (Aug. 1, 1883), in Proceedings at the Annual
Meeting of the National Civil Service Reform League, pp. 3, 24-25.
\160\ Paul P. Van Riper, ``History of the United States Civil
Service,'' at p. 102 (1958).
\161\ David Rosenbloom, ``Federal Service and the
Constitution,'' at pp. 87-88; Van Riper, supra note 160, at p. 102.
---------------------------------------------------------------------------
Regardless of how the Pendleton Act should be best interpreted,
Congress has since established procedures set out in the CSRA and other
laws, which channels employee appeals to an administrative agency, the
MSPB, and reviewing courts.
Comments Regarding Comparison of Schedule F to State-Level Civil
Service Reforms
Comment 4097 also argued that several states have adopted policies
like Schedule F and that such efforts have proven successful. Commenter
asserted that Arizona, Florida, Georgia, Indiana, Mississippi,
Missouri, Texas, and Utah have instituted Schedule F-type reforms and
concluded that ``[e]valuations generally show positive results, while
fears of a return to patronage failed to materialize.''
As explained in the following sections, OPM received comments from
civil servants in these states that described the various ways in which
they believe that their jobs have worsened because of these reforms.
Also, a former federal official counters Comment 4097's assertion about
the benefits of these state reforms. See Comment 2816. The former
federal official cited a ``lengthy survey of state-level civil service
changes that reduced civil service protections in the 2000s'' which
found that ``in many cases, reforms were politically driven efforts to
establish and defend political actors' capacities . . . to carry out
the agendas of elected executives, legislators, and other policy
makers.'' The study notes that some State governors ``aggressively
pushed reforms designed to remove merit system barriers to direct and
tighten policy control over state agencies and their employees.'' These
types of initiatives, as with Schedule F, ``are often `sold' in terms
of a need to enhance executive leadership and accountability for
results and, inevitably, to allow the removal of the legions of
`unresponsive, incompetent, insulated, bureaucrats' who the public is
easily convinced lurk in the shadows of state agencies.'' The report
continues that ``there has been `[g]rowing awareness among policy
makers, public employees and their organizations, and human resource
professionals that' state-level reforms to weaken civil service
protections `have not delivered the benefits they promised and may well
dampen enthusiasm for [similar] initiatives by the states that
contemplate sudden, wholesale, changes in existing arrangements.' ''
Comment 2816 continued that, in their study of civil service employee
responses to Georgia's reforms, ``these authors found measurable
decline in the number of employees saying they liked their jobs and an
increase in those intending to leave employment within the coming year.
Employees did not believe the reforms would result in high-performing
employees being rewarded, did not trust that performance would take
precedence over office politics, and did not believe as much as before
the changes that performance appraisals were conducted fairly and
believing they understood their job expectations.'' The study concludes
that ``[o]ver 75 percent of state employees disagreed that the reforms
`had resulted in a state workforce that is now more productive and
responsive to the public.' '' OPM finds this comment and study
persuasive as a more rigorous examination than Comment 4097's
conclusions that some HR professionals believe at-will status is useful
and an ``essential piece of modern government management.'' It also
undercuts Comment 4097's argument that OPM ``ignore[s] the evidence
from the states that at-will employment is both consistent with a merit
system and can improve government performance.'' Comment 4097 does not
show that these changes are consistent with merit system principles nor
that they improve performance. It also did not identify the metrics by
which performance could improve; it just stated that they make
employees more responsive and give management more flexibility.
Comments Regarding Potential Effect of Schedule F on the Number of
Political Appointees
Commenters opposed to the rule argued that the civil service does
not have enough political appointees and Schedule F would have given
administrations greater control over the federal workforce and
priorities. Comment 3190, a law school clinic, contended that
``Schedule F proposed to expand the class of political appointees from
roughly 4,000 positions to 20,000-50,000 positions'' and that ``[u]nder
such a modest change, political appointees would still constitute only
2.5 percent of the federal workforce.'' As explained further below and
in Comment 2134, a joint comment by a nonprofit organization and former
[[Page 24999]]
federal official, the number of political appointees has stayed
relatively stable for 70 years, so such a change would be anything but
``modest.'' \162\ Also, this comment appears to concede that a
possible, and perhaps desired, effect of Schedule F was to create a new
category of ``political appointees.'' This runs counter to Comment
3156, written by the same author as Comment 4097. Comment 3156 takes
issue with Comment 50, saying Comment 50's characterization of Schedule
F positions as ``political appointees is simply wrong.'' Comment 4097
then argued that Schedule F was designed to ``keep these policy-
influencing positions in the career civil service,'' such that they
would not be political appointees. Even amongst proponents of Schedule
F and opponents of this rulemaking, there are disagreements regarding
what Schedule F meant and the breadth of its potential effects on the
civil service. And one aspect of a ``career'' appointment, as that term
has long been understood, is the opportunity to serve the United States
across administrations with the concomitant accrual of career status
and adverse action rights--an opportunity Schedule F would have
jeopardized.
---------------------------------------------------------------------------
\162\ The overall number of federal employees has also remained
relatively stable. In fact, there were more federal employees during
the last years of the Reagan Administration than there are today.
See, e.g., U.S. Off. of Pers. Mgmt., ``Executive Branch Employment
Since 1940,'' https://www.opm.gov/policy-data-oversight/data-analysis-documentation/federal-employment-reports/historical-tables/executive-branch-civilian-employment-since-1940/.
---------------------------------------------------------------------------
Ultimately, President Biden rescinded Executive Order 13957 before
any positions could be placed into Schedule F. As noted above, on
January 22, 2021, President Biden issued Executive Order 14003,
``Protecting the Federal Workforce,'' rescinding Executive Order 13957,
stating that ``it is the policy of the United States to protect,
empower, and rebuild the career Federal workforce,'' and that the
Schedule F policy ``undermined the foundations of the civil service and
its merit system principles.'' \163\
---------------------------------------------------------------------------
\163\ E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021), https://www.federalregister.gov/documents/2021/01/27/2021-01924/protecting-the-federal-workforce.
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If a future Administration concludes that a policy that implements
the principles of Schedule F is preferable to this rule and seeks to
rescind this rule and replace it with such a policy, a future
Administration would need to comply with the Administrative Procedure
Act and principles of reasoned decision-making.\164\ For example, to
rescind this rule and replace it with a new Schedule F-type policy, a
future Administration would need to, among other things: explain how
the new policy is consistent with the carefully crafted legislative
balance that Congress struck in the CSRA; set forth reasons for why it
is departing from OPM's prior determination, reconfirmed here, that
creating a new schedule for at-will employees who are not political
appointees--similar to Schedule F--is inconsistent with that balance;
justify the departure from the fundamental principle that career
Federal employees' tenure should be linked to their performance rather
than to the nature of their position; address whether that departure is
consistent with the accrued property interests of employees, the
settled expectations of career Federal employees' tenure, and the
decisions individuals have made in response to those expectations;
explain why any novel definition of ``confidential, policy-determining,
policy-making, or policy-advocating character'' is consistent with the
CSRA; discuss why that novel definition is being adopted even though it
departs from long-established understandings--reconfirmed in this
preamble--of what that phrase means; and explain how a new policy would
(1) ensure that new hires formerly required to go through the
competitive hiring process have the knowledge, ability, expertise, and
skills necessary to work effectively; (2) adequately protect career
Federal employees against potential political retaliation or coercion;
and (3) make certain that critical positions in the federal workforce
currently and ably held by career Federal employees will continue to
function even if they may be replaced by individuals regardless of
qualification or suitability.
---------------------------------------------------------------------------
\164\ See, e.g., Perez v. Mortgage Bankers Ass'n, 575 U.S. 92,
101 (2015) (agencies under the Administrative Procedure Act must
``use the same procedures when they amend or repeal a rule as they
used to issue the rule in the first instance'').
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E. General Comments
As explained in Section II, OPM received more than 4,000 comments
regarding this rulemaking whereby commenters provided useful insights
into various aspects of these regulatory amendments. The comments below
relate to general concepts regarding the civil service, civil service
protections, and merit system principles that inform this rulemaking.
In the following sections, OPM considers comments related to specific
provisions of this final rule, the need for this rule, regulatory
alternatives, and the costs and benefits of this rule.
Comments Regarding Why Civil Servants Should Be Nonpartisan
As a baseline concept, many commenters agreed with OPM that career
civil servants should be nonpartisan. An association of administrative
law judges cited Alexander Hamilton in Federalist No. 79, as saying
``[i]n the general course of human nature, a power over a man's
subsistence amounts to a power over his will.'' Comment 1042. The
association argued that ``[t]he principles of merit service require the
federal government to base hiring decisions upon experience and
expertise, and serve to ensure a nonpartisan, expert federal
workforce.'' An individual commenter cited research that politicization
of the civil service ``has significant consequences for the proper
functioning of government.'' Comment 1427. This research included that
of David Lewis (2008) on increased politicization of OPM during the
1980s and the resulting ill effects. Commenter argued that this report
shows that politicization had ``severe consequences for agency
competence.'' Experienced career professionals left the agency and it
was hard to replace them. These developments, in turn, discouraged
promising entry-level candidates from applying to work in the agency,
which resulted in decreased morale and difficulty conducting long-term
planning. By the 1990s, commenter argued, the agency had suffered
reputational damage. See also Comments 46 (supporting nonpartisan
career civil service with studies showing politicization undercuts
Federal Government performance and economic growth); 2822 (noting that
civil service laws ``emphasize responsibilities to the government, U.S.
citizens, the Constitution, laws, and ethical principles'' and not
``political agendas''). One commenter suggested a reason for the
differences in performance between neutral and politicized staff was
that that ``career civil servants who perceive their agencies to be
politicized are less likely to invest in training and more likely to
leave the agency'' thereby reducing long-term government expertise.
Comment 2446. OPM appreciates these views and agrees that the career
civil service should remain nonpartisan.
Commenters further argued that the United States civil service is
already more politicized than those of peer countries. A professor
argued that, among those countries, the United States ``is an outlier
in terms of its existing level of politicization.'' Comment 50. This is
because ``[w]e use about 4,000 political appointees to run the
executive branch. Up to the top five layers of leadership in a
department or agency can be appointees, a sharp
[[Page 25000]]
contrast with most peer countries where only the top layer is part of
the political class.'' Id. Commenter noted that this presents a problem
when Presidents invariably struggle to fill these slots, leading to
delays in appointments and vacancies in leadership. See also Comments
2186 (``[T]he United States' executive branch is more politicized than
our peers.'' (citing 2007 OECD survey)), 3359 (``Compared to other
major democracies, the United States already maintains a higher number
of political appointees.'').
Conversely, some commenters argued that career civil servants need
more political alignment with an administration's policies to be more
``accountable'' to the President. A former political appointee argued
that a merit system ``is important only as far as it helps the
government better serve the American people,'' and that ``the American
people are best served when the government is in the control of the
President they chose to entrust with control over the Executive
Branch.'' Comment 50; see also Comment 3892 (``The federal bureaucracy
is not currently adequately or constitutionally accountable to the
elected president.''). As explained in later sections, executive branch
employees are already tasked with executing the administration's
policies and there is little evidence that further politicization
improves government performance for the American people. Politicization
is associated with poorer performance outcomes, as described below.
Some commenters opposed to the rule asserted that the Constitution
allows a president to closely control executive branch civil servants.
A law school clinic argued that, ``as a general matter, the
Constitution gives the president the authority to remove those who
assist him in carrying out his duties,'' because ``[w]ithout such
power, the President could not be held fully accountable for
discharging his own responsibilities.'' Comment 3190. For this
proposition, commenter cited Seila Law LLC v. Consumer Financial
Protection Bureau \165\ (quoting Free Enterprise Fund).\166\ Commenter
cited general concepts in these cases regarding independent agencies--
the CFPB in Seila Law and the SEC in Free Enterprise Fund--which
explore the specific removal protections of principal officers therein,
and the constitutionality of multiple layers of removal protections, as
supportive of commenter's propositions. But as explained above
regarding Free Enterprise Fund and further in Section III(F), nothing
in those holdings or their progeny conflict with this final rule
regarding title 5 protections to the career civil service. Career
employees, the vast majority of whom would not be considered inferior
officers, are accountable through a supervisory chain that typically
runs upwards through layers of political appointees. As the official
ultimately responsible for the agency can generally be removed at the
President's will, and as those officials are ultimately responsible for
the performance management of their subordinates, accountability is
maintained. The fact that accountability in the form of removal may
involve certain processes for those employees covered by adverse action
procedures and, in some cases, appeal rights, does not make those
protections unconstitutional.
---------------------------------------------------------------------------
\165\ 140 S. Ct. 2183, 2191 (2020).
\166\ 561 U.S. at 513-14.
---------------------------------------------------------------------------
Some commenters argued that a subset of civil servants actively
work against the policies of conservative administrations. A legal
organization opposed to the rule asserted that ``[i]nsulating federal
employees from removal and answerability emboldens political activists
with the federal government to disrupt or delay Presidential
initiatives.'' Comment 2866; see also Comment 2652. Comment 3156, an
advocacy nonprofit organization, further contended that ``[a]ny
authority civil servants purport to exercise derives its legitimacy
from the election of the President, and any attempt by civil servants
in the executive branch to undermine the lawful actions of a President
are an attack on the Constitution and on democracy itself.'' OPM does
not agree that employing civil servants--without consideration of their
political views--thwarts the agenda of any President, and commenter's
objections lack any well-founded support. Republican and Democratic
administrations have achieved important policy goals with a nonpartisan
career civil service whose members undoubtedly encompass a wide variety
of personal political perspectives. One former civil servant explained
that ``[t]he Reagan and later administrations successfully implemented
new policy directions with the professional Civil Service.'' Comment
3038. A legal nonprofit organization concurred and added that civil
servants ``did not stop [the last Administration's] deregulatory
efforts'' and to the extent that regulatory agenda was significantly
delayed, ``the best explanation is not left-wing civil servants'
resistance to a conservative agenda.'' Comment 2822.
For example, in the first term of the George W. Bush
Administration, agencies helped to establish new and reimagined
personnel systems for both the Department of Homeland Security and the
Department of Defense in response to the terrorist attacks on America
on September 11, 2001.\167\ Implementing these systems required two
sets of complex regulations promulgated jointly by OPM and each agency.
Government attorneys then vigorously defended these programs against
legal challenges in the Federal courts.\168\ As noted in the 2003
edition of Biography of an Ideal, with respect to DHS:
---------------------------------------------------------------------------
\167\ See Homeland Security Act of 2002, Public Law 107-296
(2002); National Defense Authorization Act for Fiscal Year 2004,
108-36 (2003).
\168\ See, e.g., Nat'l Treasury Employees Union v. Chertoff, 452
F.3d 839 (D.C. Cir. 2006) and Am. Fed. of Gov. Employees v. Gates,
rehearing denied, 486 F.3d 1316 (D.C. Cir. 2007).
OPM successfully advocated the paramount importance of equipping
the new Department with a modern human resources system that would
make possible the flexible use of all aspects of the system as tools
to help management accomplish strategic objectives and results. The
legislation establishing DHS granted authority for the Secretary of
Homeland Security and the Director of OPM to create, by jointly
issued regulation after extensive employee involvement and
consultation with stakeholders (such as unions, employee
associations, academic experts, and executives in the corporate and
nonprofit sectors), modern pay and job evaluation systems. . .
.\169\
---------------------------------------------------------------------------
\169\ U.S. Off. of Pers. Mgmt, supra note 20, at pp. 307-08.
The career civil service fulfilled the tasks they were asked to
perform to stand up these systems rapidly regardless of their personal
politics or views.
Comments Regarding Nonpartisan Career Civil Servants and Neutral
Competence
Several commenters supportive of this rule touted that a
significant benefit of a nonpartisan career civil service is their
``neutral competence.'' A former OMB official who joined the agency in
1980 commented that, ``[l]ike other OMB career staff, I was not
primarily a Democrat or a Republican, but instead I strongly endorsed
and practiced the ethos of `neutral competence' that served the
president, without regard to the party of the president.'' Comment 13.
An employee with the Bureau of Land Management commented that ``[c]ivil
service positions provide a continuous level of expertise and
neutrality to the functioning of the
[[Page 25001]]
federal government. Making these positions political appointees would
destroy institutional knowledge and result in crippling
inefficiencies.'' Comment 3758; see also Comments 659, 678, 1818
(touting ``value of the experience of those who have worked in [a
policy] area and the need to insulate them from political pressures of
a specific administration''). A federal policy analyst commented ``I
have worked closely and successfully with political appointees under
the Obama, Trump, and Biden administrations to issue regulations and
policy guidance consistent with the policy priorities of those
administrations.'' Comment 3195. Commenter continued that
``[n]aturally, I have personal opinions about the policy work I do, and
I sometimes disagree with my politically appointed leaders about
specific policies or projects. In fact, robust civil service
protections have empowered me--and, collectively, my coworkers and
other career employees--to occasionally share policy recommendations or
serious concerns with agency leadership, which sometimes results in
leadership changing course.'' Commenter concluded that this is a
``perfectly normal and healthy process, as career civil servants are
supposed to provide candid deliberative advice to the politically
appointed leaders which ultimately make the decisions. . . . At the
same time, I and other career federal employees certainly understand
that we are not decisionmakers. Elections in a democracy have
consequences, and it is entirely appropriate for agencies to pursue the
policy preferences of the elected President that appoints its
leaders.'' A former civil servant added ``[h]istory makes the case that
stable societies with healthy economies rely on steady, capable
administration. For security, for uninterrupted routine transactions
and for predictable decisions and communication. When things work,
unfortunately, few people notice.'' Comment 3038. A 32-year civil
servant described serving under six presidents--three Republicans and
three Democrats--and working ``every day devoted to serving the
Constitution, the laws and regulations, [ ] agency missions and the
American people.'' Commenter asserted that ``our system thereby strikes
an appropriate balance between presidential control and professional
independence.'' Comment 2371; see also Comments 2208 (33-year federal
attorney who served under several administrations), 2258 (former HHS
attorney who also served under several administrations).
A few commenters opposed to the rule argued that career civil
servants are not politically neutral--they instead seek to influence
policy through politicized competence. Comment 3156 argued that
contrary to the premise of OPM's rulemaking, career federal employees
``have strong views on policy and actively desire to shape it.''
Commenter asserted that they offer ``politicized competence'' instead
of ``neutral competence.'' An advocacy nonprofit organization commented
that the federal civil service is not politically neutral because in
the 2016 presidential election, for example, ``federal employee
donations--as recorded by the FEC--went 95 percent to the Democratic
nominee for president.'' Comment 3892. OPM recognizes that many federal
civil servants have their own constitutionally protected political and
policy preferences, which they are free to express subject to the
requirements of the Hatch Act and other statutes and regulations. But
even assuming commenter's beliefs about the policy and political
preferences of civil servants are accurate, these comments do not
convincingly tie a civil servant's personal beliefs to concrete and
actionable unacceptable performance or misconduct.
Comment 4097, an advocacy nonprofit organization, tried to equate
political misalignment with poor performance. Commenter argued that
``scholars virtually universally accept the fact that federal employees
have their own policy views and often seek to advance them.'' Commenter
cites one article, Nou (2019),\170\ for this proposition, but Nou's
analysis is much more nuanced and measured. Nou's article is about
hierarchical dynamics in government and she qualifies the findings as
``an initial exploration of the implication'' of overt (not covert)
civil servant disobedience. ``The aim is to . . . examine principles
for normatively evaluating the practice.'' The article's ``hope is to
start, not end, more nuanced conversations--to move past simplistic
references to the `deep state' or `the resistance' towards a greater
appreciation of the complexity of intra-executive branch dynamics.''
Nou's preliminary conclusions are that ``[b]ureaucratic resistance,
broadly defined, is neither exceptional nor unprecedented.'' Nou
contends that ``[e]ven the most ardent proponents of executive power
may have to acknowledge that some forms of it are inevitable in
hierarchies with imperfect information.'' Nou also explains that it
would be ``difficult, if not impossible, to verify empirically''
whether bureaucratic resistance changed qualitatively under the
previous Administration.\171\ Nou's article--focused on macro group
dynamics--does not support commenter's proffer that it is universally
understood that civil servants advance their own policy views instead
of those of the administration or their agencies.
---------------------------------------------------------------------------
\170\ See Jennifer Nou, ``Civil Servant Disobedience,'' Univ. of
Chicago Law Sch., Public Law and Legal Theory Working Papers (2019),
https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory.
\171\ See id. at p. 351.
---------------------------------------------------------------------------
Comment 4097 continued, arguing that ``[s]cholars find it very
clear that bureaucrats are not neutral parties in the policymaking
process. Rather, they have their own set of interests that they
actively work to protect.'' For this, commenter also cited one article,
Potter (2017b).\172\ But commenter's proposition does not align with
Potter (2017b) nor with a related citation in the comment to Potter
(2017a).\173\ Potter does not examine the relationship between
individual bureaucrats' political ideologies and the speed with which
they act. Instead, she explains that ``[r]ules take a long time to
complete'' and ``[b]ecause agencies make important--and binding--policy
through rulemaking, political overseers keep a watchful eye over the
process. Each branch of government--the president, Congress, and the
courts--plays a role in overseeing agency rulemaking.'' Potter
continues that, ``[w]hile each branch of government's authority over
rulemaking is exercised in a different manner, the key insight here is
that each branch has the power to overturn an agency rule or, at a
minimum, raise the agency's cost of doing business.'' Rule reversals
and rebukes are significant setbacks with ``long-term consequences for
agency reputations, autonomy, and bureaucrats' career trajectories.''
Potter's thesis is that agencies can anticipate, and possibly stave
off, some types of oversight by pacing their rules to line up with a
favorable president, Congress, and/or courts. Potter finds that ``the
pace of rules slows significantly when [any of these three] are more
inclined to disagree with--and potentially punish--the agency issuing
the rule in
[[Page 25002]]
question.'' \174\ Instead of employees' personal politics or policy
preferences, Potter finds that agencies time regulation strategically
``[b]ecause bureaucrats seek to avoid negative political repercussions
such as rule overturns or reprimands.'' \175\
---------------------------------------------------------------------------
\172\ Rachel Augustine Potter, ``The strategic calculus of
bureaucratic delay,'' Midwest Pol. Sci. Assoc., (2017b), https://www.mpsanet.org/strategic-calculus-of-bureaucratic-delay/.
\173\ Rachel Augustine Potter, ``Slow-Rolling, Fast-Tracking,
and the Pace of Bureaucratic Decisions in Rulemaking. Journal of
Politics,'' (2017a), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2759117.
\174\ Potter (2017b), supra note 172.
\175\ Potter (2017a), supra note 173, at p. 28.
---------------------------------------------------------------------------
Comment 4097 expressed frustration with career civil servants in
the last Administration, in which the author of the comment was a
political appointee, but does not consider the roles and impacts of the
court system or a divided Congress on the policy priorities of that
Administration--two key factors that Potter highlights as impacting
regulatory timing. Instead, Comment 4097 included a list of instances
that allegedly show career employees withholding information from
political appointees in the last Administration, refusing ideologically
distasteful work, delaying and ``slow-walking'' work, providing
unacceptable work product, leaking information, and being
insubordinate. For these points, the comment largely cited a separate
publication by the author of the comment, Tales from the Swamp. As
described above, another commenter, Comment 2822, addressed and many of
these examples.
In sum, Comment 4097 pointed to select articles and makes
conclusions that the articles do not fully support and with which OPM
does not agree. Still, commenter claimed OPM's rulemaking ignores
whether ``federal employees may have their own goals and motivations or
how they behave when their goals differ from the President's'' but, as
shown in the proposed rule and here, OPM has thoroughly examined this
dynamic, as has Congress when it enacted civil service protections and
merit system principles that include disciplinary mechanisms for when
employees do engage in improper behavior. Indeed, it is Congress' views
that are paramount, and this rule is in furtherance of the statutory
scheme and protections that Congress enacted through the CSRA.
Comments Regarding the Benefits of a Nonpartisan Civil Service
Many commenters agreed with OPM that career civil servants provide
experience and expertise that benefit the country. For instance,
Comments 148 and 686 described the work civil servants do to protect
``our legal system, our transportation networks, the safety of our food
and drugs, our borders, our air and water, our farmlands, and so much
more.'' Several other commenters asserted that a professional and
nonpartisan civil service bolsters legitimacy and public trust in
government. As a result, the American public holds civil servants in
higher esteem than elected officials and political officers. A former
federal official argued that, while as of May 2022, ``trust in career
employees at government agencies had declined from previous years, a
majority of Americans still reported having a great deal or fair amount
of confidence in career employees to act in the best interest of the
public; substantially more Americans believe this about career
employees than about political appointees.'' Comment 2186; see also
Comment 2814 (a research and advocacy nonprofit organization, arguing
``Americans tend to hold these public servants in relatively high
esteem, recognizing their professionalism and independence'' which
``contrasts particularly with Americans' views of elected officials and
political officers.''). The former federal official cited a study which
found that ``emphasizing the technocratic expertise of agency
officials, including that they could not be hired for their political
views or fired for disagreements with political leaders,'' resulted in
a ``statistically significant . . . [increase] in legitimacy scores.''
The study found smaller increases in perceived legitimacy from
emphasizing public participation and found no increase in perceived
legitimacy from emphasizing the responsiveness of the agency action to
the President's priorities and White House staff. The study also
cautioned that ``the conclusion that expertise and political insulation
boost legitimacy has a converse: those desiring to erode public support
for agencies ought to weaken the civil service.'' This risks a negative
feedback loop concerning agencies' legitimacy and civil-service
protections (i.e., fewer protections lead to worse perceptions, which
lead to fewer protections, and so on).
Relatedly, commenters noted that political appointees are
associated with lower program performance. A professor cited studies to
this effect.\176\ Comment 50. The research found a ``negative
relationship between political appointment status and program
performance, while showing that appointees selected because of their
campaign or party experience were especially likely to undermine
performance.'' \177\ The professor also cited findings that ``[m]ore
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' \178\ This proposition is supported by other comments that
discuss the potential effects of politicization on recruitment, hiring,
and retention (see Section V.(B)). Another professor noted that the
``consensus,'' as ``evidenced by a large volume of peer reviewed
research,'' is that ``highly politicized bureaucracies are less
transparent, less responsive and less accountable to the public, less
conducive to stable governance, less capable of operating effectively,
and more prone to corruption and clientelism than those with more
neutral bureaucratic structures.'' Comment 1927.
---------------------------------------------------------------------------
\176\ Citing David E. Lewis, ``Testing Pendleton's Premise: Do
Political Appointees Make Worse Bureaucrats?'' The Journal of Pol.
69, no. 4, pp. 1073-88 (2007), https://www.jstor.org/stable/10.1111/j.1468-2508.2007.00608.x.
\177\ Citing Nick Gallo and David E. Lewis, ``The Consequences
of Presidential Patronage for Federal Agency Performance,'' Journal
of Pub. Admin. Rsch. and Theory, Vol. 22, Issue 2, pp. 219-43 (Apr.
2012), https://doi.org/10.1093/jopart/mur010.
\178\ Citing Mark Richardson, ``Politicization and expertise:
Exit, effort, and investment.'' The Journal of Pol. 81, no. 3, pp.
878-91 (2019), https://doi.org/10.1086/703072.
---------------------------------------------------------------------------
This view regarding the performance benefits of career civil
servants as compared to political appointees is not new. A few
commenters pointed to a 1989 commission led by former Federal Reserve
Chair Paul Volcker proposing that the U.S. ``reduce the number of
political appointees, pointing to the delays and performance problems
associated with America's reliance on often inexperienced appointees.''
See Comment 3973 (an anti-poverty nonprofit organization). A similar
recommendation ``was made again in a 2003 report.'' Id.
Data submitted by other commenters also highlight the benefits of
civil service protections and merit system principles on performance
outcomes and reducing government corruption. A professor asserted that
a recent ``systemic review of empirical research'' on the use of merit-
based processes across countries concluded that ``factors such as
meritocratic appointments/recruitment, tenure protection, impartiality,
and professionalism are strongly associated with higher government
performance and lower corruption.'' Comment 50. A former federal
official presented that ``a professional and independent civil service
that is insulated from the whims of political appointees also has been
shown to meaningfully reduce opportunities for corruption.'' Comment
2816. This commenter cited a study of
[[Page 25003]]
520 experts across 52 countries that found, ``even when controlling for
a very broad range of political and institutional factors, bureaucratic
professionalism is a statistically significant deterrent of
corruption.''
This difference in performance is due in large part to civil
service job stability and the opportunity to accumulate expertise. A
former federal official cited one study that found that ``previous
experience within an agency's bureau, and prior length of tenure, had
significant positive impacts on program performance.'' Comment 2186.
While removing ``low performers who are hampering an agency's mission''
is important, proposals that would ``facilitate rapid mass firings of
experienced employees to suit a presidential administration's political
agenda would likely impact the ability of agencies to preserve
institutional knowledge and use it to improve agency operations over
time.'' Comment 1181, an individual, contended that research by
political scientists Sean Gailmard and John Patty shows that the
protections of the United States civil service system ``generate better
outcomes because they allow public officials a time horizon and
security to invest in task-specific expertise in public sector skills.
Politicizing the workplace does the opposite.'' \179\ Id.; see also
Comments 50, 1759 (professors citing the same research). This commenter
wrote that recent research confirms this point, ``showing that more
politicized environments undermine incentives for career bureaucrats to
invest in their skills, and instead encourages them to look for work
elsewhere.'' Commenter concluded that, ``[s]ince much of federal
employment work is technical in nature, and requires deep knowledge of
programs, this makes both task-specific knowledge and institutional
experience important, and impossible to easily replace.''
---------------------------------------------------------------------------
\179\ Citing Sean Gailmard and John W. Patty, ``Learning while
governing: Expertise and accountability in the executive branch,''
Univ. of Chicago Press (2012).
---------------------------------------------------------------------------
Comment 1427, an individual, cited James Rauch (1995), who
researched city governments during the Progressive Era and argued that
lessons learned there can apply to the Federal Government. Rauch
demonstrates that the ``institution of civil service protections was
responsible for a greater focus on larger and longer-term
infrastructure, which led to significantly increased economic
development for cities with civil service protections over those
without.'' Commenter concluded that the same can be extrapolated to the
Federal Government--``that civil servants with career protections will
be able to focus on long-term projects with beneficial economic impact,
rather than seeing their efforts driven only by their political
patron.''
Comment 4097, an advocacy nonprofit organization, took issue with
OPM's assertion, in the proposed rule, that there is little evidence
showing that firing of career civil servants without appropriate
process will improve the government's performance. In a footnote,
commenter argued that performance between political appointees and
career civil servants is not the relevant metric--it should be ``how
at-will career officials perform relative to tenured career
officials.'' Commenter then pointed again to ``state HR directors'' who
report that at-will employment ``is an essential modern management
tool,'' and that this rulemaking would deny federal agencies that
``tool.''
It is the Federal statutory scheme, as demonstrated by Section
7511(b)(2), not OPM rulemaking, that is ``denying'' Federal agencies
this purported ``tool.'' Through the CSRA, Congress chose to make
removal protections the default for career employees, allowing only for
limited exceptions.
In addition, commenter cited no data or studies demonstrating that
at-will employees outperform ``tenured career officials'' in state, let
alone federal, agencies. Also, unless a civil servant, whose
protections are governed by title 5, is in their probation/trial period
or has not met the durational requirements under 5 U.S.C. 7511, they
will generally \180\ have adverse action protections, as noted above.
So the pool of at-will federal employees is difficult to gauge for a
comparison. There is little doubt that at-will employment without
initial procedures or back-end review makes firing easier, but that
does not demonstrate that at-will employment produces better results.
And although there is a legitimate purpose for a small cadre of
Schedule C employees to act as confidantes and handle particularly
sensitive tasks for presidential appointees, turning a large segment of
the career staff--who do not ordinarily function in that fashion--into
at-will employees would be an altogether different proposition and
inconsistent with the historic trend of congressional enactments
extending protections to larger segments of the workforce.
---------------------------------------------------------------------------
\180\ For instance, they would not have adverse action
protections if excluded from the definition of ``employee'' under 5
U.S.C. 7511(b)(2).
---------------------------------------------------------------------------
Moreover, at-will civil servants would suffer from the same
deficiencies as political appointees under the studies cited above, in
that they would lack the job stability that incentivizes ``invest[ing]
in task-specific expertise in public sector skills.'' See Comment 1181.
Also, as shown by Comment 2186, a former federal official, studies
looking at state reforms leading to at-will employment found ``[o]ver
75 percent of state employees disagreed that the reforms `had resulted
in a state workforce that is now more productive and responsive to the
public.' '' For these reasons, Comment 4097 has not shown that
hypothetical at-will federal employees would outperform career civil
servants.
Commenters supportive of the rule also noted that career civil
servants tend to be more moderate than political appointees. Comments
50, a professor, and 1227, an individual, cited research by Brian
Feinstein and Abby K. Wood which looked at donation records and
concluded that political appointees tend to be at ideological extremes
on both the right and left, ``while career officials tend to be more
moderate.'' \181\ See also Comment 2822 (legal nonprofit organization).
---------------------------------------------------------------------------
\181\ See Brian Feinstein and Abby K. Wood, ``Divided
Agencies.'' S. Cal. L. Rev. 95, 731 (2021), https://southerncalifornialawreview.com/wp-content/uploads/2022/12/WoodFeinstein_Final.pdf.
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A few commenters opposed to the rule argued that career civil
servants are too partisan and skew left compared to the public. See
Comment 1958 (an advocacy nonprofit organization). Comment 3156, an
advocacy nonprofit organization, examined donor information, and
attempts to refute Comment 50's conclusions, above, by arguing that the
federal workforce has ``self-politicized'' and that the premise ``that
civil servants are more moderate than political appointees--no longer
holds.'' Whether or not there is probative value in examining donation
differences between career civil servants and political appointees, no
commenter established a connection between donation records or trends
in donations to unacceptable performance by career civil servants.
Federal workers are entitled to their political opinions and to support
candidates on their free time (subject to the Hatch Act and other
applicable laws). But they also must fulfill the duties of their
positions appropriately or face an adverse action.
Comments Regarding the Nonpartisan Career Civil Service's Support of
Presidential Transitions
Various commenters supportive of the rule argued that career civil
servants are important because they provide stability
[[Page 25004]]
and continuity between administrations. A former OMB official commented
that his ability to provide nonpartisan, objective, informed analyses--
``using the work of OMB's 400+ career staff--greatly assisted
[administration] transitions.'' Comment 13.
A group of former OMB employees expressed a similar commitment to
providing expertise through presidential transitions. Comment 2511
contended that having in place an effective and knowledgeable career
staff ``has proven to be a vital capability for new leaders after
Inauguration Day--especially as new Administrations seek solid footing
and/or confront unexpected challenges.'' Another former OMB employee
added that ``the virtues of institutional memory, dedication to
democratic governance principles, and professionalism evident at OMB
are comparably shared at every federal department and agency.'' Comment
2538. Career employees at OPM similarly play a significant role in
advising incoming administrations as to options for filling critical
positions during the first few days of the administration. OPM staff
produce a Presidential Transition Guide to Federal Human Resources
Management Matters that assists incoming leaders on this point.\182\
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\182\ For example, the Guide published for the 2020 election
year is available at https://www.opm.gov/about-us/reports-publications/presidential-transition-guide-2020.pdf. The importance
of an effective transition was also the subject of ``The Fifth
Risk'' (2018), a book by author Michael Lewis.
---------------------------------------------------------------------------
A public service nonprofit organization concurred, writing
``[c]areer employees allow a president to begin their administration by
tapping into valuable institutional expertise that can help drive their
agenda from day one, rather than starting from scratch.'' Comment 44;
see also Comment 46 (an individual). OPM agrees that civil servants are
a valuable bridge across administrations, especially during the
critical transition period. Our government, our democracy, and the
American public rely on this smooth transition of power so that
everything from the critical matters of the day to routine services are
not stalled.
Beyond the transition period, political appointees rely on career
civil servants to carry out their policies and missions, commenters
argued. Comment 1493, a former political appointee, stated, ``I relied
heavily on the experience, expertise, and advice of senior career civil
service employees in evaluating and managing programs, developing
policy and regulatory proposals, investigating and resolving cases, and
otherwise administering the laws Congress has authorized those agencies
to implement and enforce. I depended on those employees to provide
advice and guidance based not on their allegiance to a particular
politician or political party, but rather on their thorough
understanding of the applicable statutes and regulations, their
institutional knowledge of the history of the agencies, and their
substantial technical expertise.'' Even friction between political
appointees and career civil servants has benefits. OPM received a
comment from a former Schedule C political appointee who expressed
``[t]here was no problem accomplishing the agenda of the
administration. In fact, the expertise and experience of the civil
servants made it possible.'' Comment 3522. Comment 2816, a former
federal official, cited studies that found benefits to some ``friction
between political agency heads and career staff'' which ``have served
to protect the public interest in a variety of ways.'' For instance,
these agencies ``tend to move more cautiously through rulemakings,
utilizing less hurried rulemakings with particularly thorough records,
with these rulemakings just as likely to produce final rules as in
agencies with less internal conflict.''
Comments Regarding the American Public and Government's Reliance
Interests
Many commenters agreed with OPM that the American public relies on
the nonpartisan civil service in all aspects of their lives. Comments
148 and 686 explained that these civil servants are ``hired via fair
processes, are often paid less than their private sector counterparts,
and are retained via the benefit of steady work and pride of service.''
A private sector scientist described benefiting from the ``tremendous
value provided by fellow scientists and engineers employed by our
national agencies,'' and from ``the countless more who contribute to a
functioning society.'' Comment 451. An individual described relying
``on multiple agencies'' every day, from experts who protect consumers
from fraudulent business practices to those who manage the
infrastructure and transportation needs of the country. Comment 1201.
Commenter concluded that ``[a]llowing these workers to be fired for
political reasons would be disastrous.'' Comment 3641 (an individual)
adds that politicization ``would be bad for individuals and
businesses'' because many companies rely on civil servants and their
``public data to make decisions.''
Several others commented about the many ways they and other
Americans benefit from a nonpartisan career civil service. See Comments
136 (former air traffic controller who served for 25 years), 817 (an
economic researcher whose work ``relies heavily on the efforts of
career civil servants across the Federal Government''), 842 (adding
that other nations also rely on the work of our federal agencies), 1155
(plant scientist and assistant professor who works closely with career
employees at USDA), 1157 (former DOE, FWS, NPS, Forest Service, Army
Corps of Engineers, Bureau of Reclamation, EPA, and NOAA civil servant
who was ``consistently impressed with the dedication, expertise, and
professionalism of staff''), 1299 (small business owner who works
closely with federal agencies on climate change issues), 1518 (cancer
researcher who relies on HHS science and NIH grants), 2082 (small
business owner who relies on the ``stability of our government and its
rules to conduct business''). An individual argued that even high-level
political officials, such as members of Congress and the President,
``rely on the advice, expertise, and execution capabilities of a
professional civil service.'' Comment 1047. By ensuring that the civil
service is staffed by individuals chosen for their merit and
``protected from political winds, we ensure a more stable, effective,
and reliable government.'' Comment 1047 concluded that, ``[i]n essence,
this rule isn't just about protecting jobs; it's about protecting the
integrity of our government and the quality of our democracy. By
ensuring that our civil service is merit-based, we are fostering an
environment where the best and brightest can thrive, irrespective of
the political climate.''
Many nonprofit organizations commented that Congress relies on a
nonpartisan civil service to manage complex federal programs and
therefore has an interest in legislating civil service protections and
merit system principles. See Comments 2222, 2559, 2620, 3095 (coalition
of public interest organizations), 3149, 3687. They contended that
Congress directly creates agencies, details agency authority, and sets
policy goals for the agency to achieve using its authority, and ``may
choose to grant an agency the authority to issue legislative rules,
enforce provisions of law, or adjudicate claims.'' \183\ They asserted
that, while ``leaders in the executive branch may
[[Page 25005]]
shape implementation of agency programs, the agencies (and their staff)
are themselves supposed to be stewards of programs created, funded, and
given direction by acts of Congress,'' and protecting the expertise and
experience of agency staff ``ensures that agencies can fulfill this
role.'' A coalition of public interest organizations argued that
``[a]gencies exist to carry out programs created and authorized by
Congress that last much longer than any single administration, and our
organizations see significant value in preserving the knowledge civil
servants build over the course of many years carrying out these
programs.'' Comment 3095. A legal nonprofit organization concluded
that, while ``[s]ome critics argue that the role of civil servants is
`diligently following orders and implementing policies of elected
officials,' or `accomplishing the agenda of a president' rather than
protecting `the office of the president [or] their institutions,' ''
civil servants instead have ``responsibilities to the Constitution, to
Congress, to the law, and to the American people. The critics'
exclusive focus on implementation of a president's agenda
misunderstands and distorts the structural role of our civil
servants.'' Comment 2822 (citations omitted). OPM agrees that Congress,
as a co-equal branch of government, has a vested interest in a well-
functioning federal workforce, especially since that workforce is
tasked with carrying out the programs Congress authorizes. Congress
plays an important role in legislating civil service protections, as it
has done regularly since 1883.
---------------------------------------------------------------------------
\183\ Citing Todd Garvey & Sean M. Stiff, ``Congress's Authority
to Influence and Control Executive Branch Agencies,'' Cong. Rsch.
Serv., R45442, p. 10 (Mar. 2023), https://crsreports.congress.gov/product/pdf/R/R45442.
---------------------------------------------------------------------------
Another concern of politicization expressed by commenters is that
it lowers responsiveness to the public and Congress. A professor cited
research for this proposition.\184\ Comment 50; see also Comment 3687
(a science advocacy organization) (discussing the ``virtuous circle''
of feedback from positive customer experiences leading to improved
employee performance and back again). Commenter explained that, while
``Senate-confirmed appointees have been shown to be more reliable
trustees of Congressional intent based on scrutiny in appointment,
inserting thousands of unilateral appointments into the civil service
would effectively impede Congress's ability to provide oversight.''
---------------------------------------------------------------------------
\184\ See Abby K Wood and David E Lewis, ``Agency Performance
Challenges and Agency Politicization,'' Journal of Pub. Admin. Rsch.
And Theory, Vol. 27, Issue 4, pp. 581-95 (Oct. 2017), https://doi.org/10.1093/jopart/mux014.
---------------------------------------------------------------------------
Commenters cited data showing the many benefits that federal civil
servants provide to Americans across the country. Comment 44, a public
service nonprofit organization, argued that the approximately 2.2
million civil servants are ``primarily located outside of the
Washington DC region.'' At least 80% of the federal workforce is
located across the country as well as around the world. Commenter
continued, ``[o]ur nation's federal employees deliver essential
services including Social Security and Medicare benefits, assist small
businesses, care for veterans, disrupt international criminal
syndicates, maintain the safety of our transportation systems, protect
the food supply, find cures for diseases, carry out the nation's
foreign policy, and advance our national security.'' OPM agrees that
civil servants are fanned out across the country and the world, which
allows them to be more responsive to constituents regarding the local
and international functions of government.
Comments Regarding Regulated Entities' Reliance Interests
Another benefit of a nonpartisan civil service, many nonprofit
organizations commented, is that they provide valuable certainty to
regulated entities. See Comments 2222, 3095 (coalition of public
interest organizations), 3149, 3687, 3973. They argued that regulatory
certainty provides ``a stable framework for regulated entities,
partners, and federal grantees to understand their regulatory
obligations and plan for the future, including across presidential
administrations.'' This predictability provides the ``certainty that
these entities need to make investments, ensure compliance with legal
requirements, and focus on delivering impact in their work rather than
navigating uncertain and ever-changing legal frameworks.'' Further,
``stable regulatory frameworks advance values of uniformity and
fairness.'' By contrast, ``substantial turnover in federal staff in
service of whipsaw changes to federal regulations can cause turmoil for
partners and regulated entities.'' They concluded that ``purges of
agency staff are a poorly-tailored and excessively blunt tool for
policy change, handicapping agencies' ability to actually develop and
implement new policies while also potentially misdiagnosing barriers to
policy change as personnel-related rather than legal, political, or
practical.'' OPM agrees with these commenters and their conclusions
regarding benefits the nonpartisan civil service provides to regulated
entities.
Comments Regarding Concerns About Politicization of the Nonpartisan
Civil Service
OPM received several comments from individuals concerned about a
politicized civil service and the effects of politicization on them,
their communities, and larger society. See Comments 80, 502, 1030.
Comment 373, an individual, argued that the amount of ``institutional
knowledge and training that would be lost if these roles ever became
[politically] appointed would be unfathomable'' and that the people
that would be paying the cost from this constant churn would be
ordinary citizens who rely on the ``daily affairs of government that no
one ever thinks about.'' An individual from Ohio stated that government
employees account for a significant percentage of the workforce in that
state. Comment 312. Commenter concluded that protecting the federal
workforce ``is vital to protecting Ohio's economy.'' Id. Comment 460,
an individual, concluded that the ``rule will reinforce public trust in
our government institutions and ensure that civil servants can carry
out their duties without undue political interference, thus maintaining
the high standards of public service that our society expects and
deserves.''
OPM also received several comments from current and former civil
servants who are concerned about improper political influence and
removals. These included concerns like, ``[a]s a government employee, I
have worked with both [Republican and Democrat] appointees. I have
never feared for my job because of the civil service protections. My
expertise is what I am paid for, not my political party.'' Comment 470;
see also Comments 60, 1991. An attorney and current civilian employee
of the U.S. Department of Health and Human Services, expressed ``I have
long planned to build my career primarily in public service. While not
without its flaws, the minor miracle of the modern civil service system
is a major motivating factor in my decision to pursue this career in
public service and in particular to focus on the federal government.''
Comment 1401. Commenter adds ``[t]he already-published plans'' of some
organizations to ``fundamentally alter or eviscerate the civil service
system--and ultimately to vitiate the concept of professionalism
itself--would, in the micro, certainly require me to rethink my own
career and would, more broadly, drastically threaten the functioning of
our United States government.'' OPM received similar comments from a
career employee in the Department of Defense (Comment 1349), a member
of the Foreign Service (Comment 2320), a federal contractor (Comment
2338), and a contractor at the Office of Community
[[Page 25006]]
Oriented Policing Services (Comment 2749), to name a few.
Finally, commenters were concerned that experiences from other
countries and states with a politicized civil service showed possible
downsides of further politicizing the civil service. Comment 74
contended that, ``[a]s a scholar of India who has watched the
politicization of the bureaucracy unfold under the current ruling party
and its deeply detrimental effects on public welfare and civic
society,'' politicization ``represents an existential threat to
democracy and state functioning in the US.'' Comment 1649 stated ``I
have lived in a country with a political rather than merit based civil
service and can testify as to the appalling impact of that system on
public safety, institutional integrity, and community trust. There are
many things that don't work well in the American system, but our civil
service is one of the few that does.'' And Comment 2186, a former
federal official, cited a 2005 report for the European Institute of
Public Administration which argued that efforts to weaken state-level
civil service protections had a ``tendency to punish state employees''
with ``demoralizing `bureaucrat bashing' rhetoric of the ideologically
and politically driven reformers.'' But there has been ``[g]rowing
awareness among policy makers, public employees and their
organizations, and human resource professionals that'' state-level
reforms to weaken civil service protections ``have not delivered the
benefits they promised and may well dampen enthusiasm for [similar]
initiatives by the states that contemplate sudden, wholesale, changes
in existing arrangements.''
F. OPM's Authority To Regulate
The OPM Director has direct statutory authority to execute,
administer, and enforce all civil service rules and regulations as well
as the laws governing the civil service.\185\ The Director also has
authorities Presidents have conferred on OPM pursuant to the
President's statutory authority.\186\
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\185\ See 5 U.S.C. 1103(a)(5)(A). This authority does not
include functions for which either the MSPB or OSC is primarily
responsible. Among other authorities, the MSPB has specific
adjudicative and enforcement authority upon the satisfaction of
threshold showings that an employee has established appeal rights.
It also has authority to administer statutory provisions relating to
adjudication of adverse action appeals. OSC has specific and limited
investigative and prosecutorial authority. See 5 U.S.C. 1213-1216.
\186\ See Presidential rules codified at 5 CFR parts 1 through
10.
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As explained here, in enacting the CSRA, Congress conveyed broad
regulatory authority over Federal employment directly to OPM throughout
title 5.\187\ In addition, many of these specific statutory enactments,
including chapter 75, expressly confer on OPM authority to regulate.
Pursuant to 5 U.S.C. 7514, OPM may issue regulations to carry out the
purpose of subchapter II of chapter 75, and pursuant to 5 U.S.C. 7504,
OPM may issue regulations to carry out the purpose of subchapter I of
chapter 75.
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\187\ See, e.g., 5 U.S.C. 1103, 1302, 3308, 3317, 3318, 3320;
Chapters 43, 53, 55, 75.
---------------------------------------------------------------------------
The same is true with respect to chapter 43. Pursuant to 5 U.S.C.
4305, OPM may issue regulations to carry out subchapter I of chapter
43.
Prior to the reorganization proposal \188\ approved by Congress
that created OPM, the CSC exercised its broad authorities, in part, to
establish rules and procedures concerning the terms of being appointed
in the competitive or excepted services and of moving between these
services. Since its inception in 1978, OPM has used that same
authority, as well as other statutory authorities such as 5 U.S.C.
1103(a)(5) and 5 U.S.C. 1302, to establish rules and procedures
concerning the effects on an employee of being appointed in, and of
moving between, these services. OPM has used these authorities to
create government-wide rules for Federal employees regarding a broad
range of topics, such as hiring, promotion, performance assessment,
pay, leave, political activity, retirement, and health benefits.\189\
For instance:
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\188\ President Jimmy Carter, ``Reorganization Plan'' No. 2,
secs. 101 and 102 (May 23, 1978). The plan specifies in section 102
that ``[e]xcept as otherwise specified in this Plan, all functions
vested by statute in the United States Civil Service Commission, or
the Chairman of said Commission, or the Boards of Examiners
established by 5 U.S.C. 1105 are hereby transferred to the Director
of the Office of Personnel Management.''
\189\ See, e.g., 5 CFR parts 2, 6, 212, 213, 335, 430, 550, 630,
733, 734, 831, 890.
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5 CFR part 6 requires OPM to publish in the Federal
Register on a regular basis the list of positions that are in the
excepted service.\190\
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\190\ 5 CFR 6.1(c), 6.2; see 28 FR 10025 (Sept. 14, 1963), as
amended by E.O. 11315; E.O. 12043, 43 FR 9773 (Mar. 10, 1978); E.O.
13562, 75 FR 82587 (Dec. 30, 2010); see also E.O. 14029, 86 FR 27025
(May 19, 2021).
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5 CFR 212.401(b), promulgated in 1968,\191\ well before
the CSRA, provides that ``[a]n employee in the competitive service at
the time his position is first listed under Schedule A, B, or C remains
in the competitive service while he occupies that position.'' This
regulation, as discussed further in Section IV(A), was intended to
preserve competitive service status and rights for employees who were
initially appointed to positions in the competitive service and whose
positions were subsequently moved involuntarily into the excepted
service (such as administrative law judges).\192\
---------------------------------------------------------------------------
\191\ See 33 FR 12408 (Sept. 4, 1968).
\192\ Id.
---------------------------------------------------------------------------
5 CFR 302.102, promulgated in part to implement 5 U.S.C.
3320, provides that when an agency wishes to move an employee from a
position in the competitive service to one in the excepted service, the
agency must: ``(1) Inform the employee that, because the position is in
the excepted service, it may not be filled by a competitive
appointment, and that acceptance of the proposed appointment will take
him/her out of the competitive service while he/she occupies the
position; and (2) Obtain from the employee a written statement that he/
she understands he/she is leaving the competitive service voluntarily
to accept an appointment in the excepted service.'' \193\
---------------------------------------------------------------------------
\193\ See 55 FR 9407 (Mar. 14, 1990), as amended at 58 FR 58261
(Nov. 1, 1993).
---------------------------------------------------------------------------
5 CFR part 432 sets forth the procedures to be followed,
if an agency opts to pursue a performance-based action against an
employee under chapter 43 of title 5, U.S. Code. As with the adverse
action rules in part 752, the rules applicable to performance-based
actions apply broadly to employees in the competitive and excepted
services, with specific exceptions that include political
appointees.\194\
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\194\ See 54 FR 26179 (June 21, 1989), redesignated and amended
at 54 FR 49076 (Nov. 29, 1989), redesignated and amended at 58 FR
65534 (Dec. 15, 1993); 85 FR 65982 (Oct. 16, 2020); 87 FR 67782
(Nov. 10, 2022).
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5 CFR part 752 implements chapter 75 of title 5, U.S.
Code, and sets forth the procedural rights that apply when an agency
commences the process for taking an adverse action against an
``employee,'' as defined in 5 U.S.C. 7511. These regulations apply
broadly to employees in the competitive and excepted services meeting
the section 7511 criteria.\195\
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\195\ See 74 FR 63532 (Dec. 4, 2009), as amended at 85 FR 65985
(Oct. 16, 2020); 87 FR 67782 (Nov. 10, 2022).
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Moreover, the President, pursuant to his own authorities under the
CSRA, as codified at 5 U.S.C. 3301 and 3302, has explicitly delegated a
variety of these authorities to OPM concerning execution,
administration, and enforcement of the competitive and excepted
services. For example, under Civil Service Rule 6.1(a), ``OPM may
except positions from the competitive service when it determines that .
. . appointments thereto through competitive examination are not
practicable.'' \196\ And under Civil
[[Page 25007]]
Service Rule 6.1(b), ``OPM shall decide whether the duties of any
particular position are such that it may be filled as an excepted
position under the appropriate schedule.'' \197\
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\196\ 5 CFR 6.1(a).
\197\ 5 CFR 6.1(b).
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Comments Regarding OPM's Statutory Authority
Several commenters, as discussed further in Section IV regarding
the specific regulatory amendments, argued that regulatory changes
proposed by OPM in its proposed rule fell within OPM's statutory
authority. Certain Members of Congress commented that these are
``critical regulatory updates that would continue the efforts of the
Pendleton Act of 1883 and the Civil Service Reform Act of 1978.''
Comment 48, see also Comment 2134 (joint comment by nonprofit
organization and former federal official, providing extensive
background on this point, as summarized in Section IV).
A few comments, like Comment 4097, commented that OPM does not have
the statutory authority to issue the regulatory amendments in this
rule. OPM will discuss these arguments further in the following section
because they relate to the specific amendments. See Sec. IV.
Comments Regarding the President's Constitutional Authority
A few commenters argued that this rule would improperly restrict
the powers of the President and is, therefore, unconstitutional. A
former political appointee argued that the rule ``is an attempt to
usurp Presidential authority by the bureaucrats in the Executive Branch
sworn to serve the Constitution.'' Comment 45. Comments 462 and 2012
(submitted by the same individual) argued that ``[a]ll employees of the
Executive Branch serve at the sole discretion of the President and any
laws, rules, regulations, or guidelines that restrict this
discretionary power subvert the authority of the U.S. Constitution and
as such are unconstitutional.'' As described above, in Executive Order
14003, the President declared that ``[c]areer civil servants are the
backbone of the Federal workforce, providing the expertise and
experience necessary for the critical functioning of the Federal
Government.'' \198\ The President ordered that ``[i]t is the policy of
the United States to protect, empower, and rebuild the career Federal
workforce,'' and that the Federal Government ``should serve as a model
employer.'' The Order described Executive Order 13957 (and Schedule F),
as ``unnecessary to the conditions of good administration,'' and
therefore revoked Executive Order 13957 because it ``undermined the
foundations of the civil service and its merit system principles, which
were essential'' to the Pendleton Act's ``repudiation of the spoils
system.'' Far from usurping the President's authority, this rule
effectuates the discretionary authority and policy positions of the
President.
---------------------------------------------------------------------------
\198\ 86 FR 7231.
---------------------------------------------------------------------------
Also, while it is true that the President has broad and significant
authority over the civil service, such as the power to create excepted
service schedules when ``necessary'' and when ``conditions of good
administration warrant'' or direct OPM to issue regulations, it is not
the case that all employees of the Executive Branch serve ``at the sole
discretion'' of the President. This argument disregards 140 years of
precedent and the role of Congress in shaping the civil service--which
is tasked with executing Congressional programs--as expressed most
notably in the Pendleton Act, the Lloyd-La Follette Act, the CSRA, and
other statutory changes designed to protect the civil service from
actions contrary to merit.
Comments 2866, a legal organization, and 4097, an advocacy
nonprofit organization, made a related argument that this final rule
would violate Supreme Court precedent in Free Enterprise Fund, which
the commenters argued ``held that the President has general authority
to remove subordinates, and it is unconstitutional to shield inferior
officers from Presidential control.'' These comments suggest that OPM's
construction in this final rule would ``give inferior officers with
substantive policymaking or administrative authority binding removal
protections.'' As previewed in Section III(E), above, relating to a
similar comment, nothing in this rule conflicts with Free Enterprise
Fund or its progeny.
First, these comments are mistaken in their assertion that ``many
senior career officials are inferior officers.'' OPM is not aware of
any judicial decision holding so and the comments cite none. Instead,
the comments cite Justice Breyer's dissent in Free Enterprise Fund,
which listed several civil service positions that the dissent worried
might be imperiled and subject to at-will removal under the majority's
analysis. The majority, however, responded to Justice Breyer's concerns
by explaining that ``none of the [civil service] positions [the
dissent] identifies are similarly situated to the [PCAOB].'' \199\ The
Court went on to clarify that ``many civil servants within independent
agencies would not qualify as `Officers of the United States' ''
because they do not `` `exercise[e] significant authority pursuant to
the laws of the United States.' '' \200\ Neither the comments nor the
Free Enterprise dissent explained which, if any, civil service
positions might exercise such ``significant authority,'' or which are
``established by law.'' \201\ That is not surprising, as even in 1879,
ninety percent of the government's workforce was undoubtedly composed
of employees rather than officers, and ``[t]he applicable proportion
has of course increased dramatically since'' then.\202\
---------------------------------------------------------------------------
\199\ 561 U.S. at 506.
\200\ Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976)).
\201\ U.S. art. II, Sec. 2, cl. 2.
\202\ 561 U.S. at 506 n.9. (citing United States v. Germaine 99
U.S. 508, 509 (1879)).
---------------------------------------------------------------------------
Second, inferior officer status, even where it applies, does not
require employees to be at will. The Supreme Court has consistently
upheld for-cause and good-cause removal restrictions for inferior
officers. Over 130 years ago, the Supreme Court held that Congress may
constitutionally provide removal restrictions to inferior officers in
the military. In United States v. Perkins,\203\ an inferior officer in
the Navy challenged his removal without cause as unlawful, as Congress
had provided that such inferior officers could be removed in peacetime
only pursuant to a court-martial sentence.\204\ The Supreme Court
agreed, holding that it ``ha[d] no doubt'' that Congress ``may limit
and restrict the power of removal'' for inferior officers.\205\
---------------------------------------------------------------------------
\203\ 116 U.S. 483 (1886).
\204\ Id. at 483-84.
\205\ Id. at 485.
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Perkins was consistent with the contemporaneous judgment of both
Congress and the President that merit-based appointments and removals
from federal positions were in the Nation's interest. When Congress
enacted the Pendleton Act, it provided for merit-based selection and
prohibited removal based on partisan politics \206\ and those removal
restrictions applied to inferior officers appointed by the
President.\207\ President McKinley strengthened those removal
restrictions by amending the Civil Service rules to prohibit removals
``except for just cause and upon written charges filed with the head of
the department.'' \208\ And Congress soon thereafter codified those
restrictions to provide that ``no person'' in the Civil
[[Page 25008]]
Service may be removed ``except for such cause as will promote the
efficiency of said service.'' \209\
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\206\ 22 Stat. 403, 403-04 (1883).
\207\ See 29 Cong. Rec. 416-17 (1897).
\208\ United States v. Wickersham, 201 U.S. 390, 398 (1906).
\209\ Lloyd La-Follette Act, Public Law 62-336, sec. 6, 37 Stat.
539, 555 (1912).
---------------------------------------------------------------------------
Those longstanding removal restrictions constitutionally apply to
inferior officers. In United States v. Arthrex, Inc.,\210\ as discussed
above, the Supreme Court explained that administrative patent judges
can properly serve as inferior officers with restrictions on their
removal, so long as their decisions are subject to review by a superior
who is accountable to the President. Although the Federal court of
appeals had invalidated the officers' removal restrictions,\211\ the
Supreme Court reinstated them.\212\ Arthrex is just another decision
confirming the principle that Congress may permissibly restrict removal
of inferior officers, as it has for over a century.
---------------------------------------------------------------------------
\210\ 141 S. Ct. 1970, 1986-87 (2021).
\211\ Id. at 1987.
\212\ Id.
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Indeed, the independent counsel in Morrison v. Olson,\213\
constitutionally enjoyed a restriction on her removal except for ``good
cause.'' \214\ By statute, the independent counsel had ``full power and
independent authority to exercise all investigative and prosecutorial
functions and powers of the Department of Justice,'' could conduct
``grand jury proceedings and other investigations,'' could pursue
``civil and criminal'' litigation, and could appeal any adverse court
decisions.\215\ The Supreme Court nonetheless held that the independent
counsel was constitutionally subordinate to the Attorney General
because, ``[m]ost importantly, the Attorney General retains the power
to remove the counsel for `good cause,' a power that we have already
concluded provides the Executive with substantial ability to ensure
that the laws are `faithfully executed.' '' \216\ Accordingly, the
Court held that the independent counsel properly served as an inferior
officer, and that the removal restriction ``does not violate the
separation-of-powers.'' \217\ And Free Enterprise Fund confirmed that
the holdings in Morrison and Perkins continue to stand for the
proposition that Congress may enact certain ``restrictions on the power
of principal executive officers--themselves responsible to the
President--to remove their own inferiors.'' \218\
---------------------------------------------------------------------------
\213\ 487 U.S. 654 (1988).
\214\ Id. at 663.
\215\ Id. at 662.
\216\ Id. at 696.
\217\ Id. at 697.
\218\ 561 U.S. at 483.
---------------------------------------------------------------------------
Third, these comments suggest that inferior officers within
independent agencies cannot have any removal restrictions. Both the
Trump and Biden Administrations, however, have consistently taken the
position that inferior officers within independent agencies can
constitutionally have removal restrictions.\219\ As the Solicitor
General explained in 2018, when inferior officers within an independent
agency can be removed for ``failure to perform adequately or to follow
agency policies,'' such removal restrictions ``afford[ ] a
constitutionally sufficient degree of accountability and Executive
Branch control.'' \220\
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\219\ See, e.g., Resp. Br. 45-55, Lucia v. SEC, No. 17-130 (U.S.
Feb. 21, 2018); Petr. Br. 44-65, SEC v. Jarkesy, No. 22-859 (U.S.
Aug. 28, 2023).
\220\ Resp. Reply Br. 17, Lucia v. SEC, No. 17-130 (U.S. Apr.
16, 2018).
---------------------------------------------------------------------------
The comments' comparisons of civil service removal restrictions to
those at issue in Free Enterprise Fund fail to describe the materially
significant difference in degree of those restrictions. The inferior
officers in Free Enterprise Fund could be removed only for willful
violations of federal securities laws, willful abuse of authority, or
failure to enforce compliance with the securities laws ``without
reasonable justification or excuse.'' \221\ Thus, the inferior officers
of the PCAOB could not be removed ``for violations of other laws,'' and
could not be removed even if they were to ``cheat[ ] on [their]
taxes.'' \222\ Those ``rigorous'' removal restrictions,\223\ applied to
the Board's inferior officers, who had ``significant independence in
determining [their] priorities and intervening in the affairs of
regulated firms (and the lives of their associated persons) without . .
. preapproval or direction'' by any other officer.\224\ By contrast,
members of the civil service can be removed for ``the efficiency of the
service,'' \225\ subject to the civil service's prohibited personnel
practices which, as a general matter, is both good policy and
constitutional. And members of the civil service are overseen by other
officers within the Executive Branch, who can direct policy and approve
or disapprove of their actions. The Court in Free Enterprise Fund noted
that the removal provisions that apply to the more general civil
service are substantially different from the stringent removal
restrictions for the PCAOB, and the Court made clear that ``[n]othing
in our opinion'' should ``be read to cast doubt on the use of what is
colloquially known as the civil service system within independent
agencies.'' \226\
---------------------------------------------------------------------------
\221\ 561 U.S. at 486 (quoting 15 U.S.C. 7217(d)(3)).
\222\ Id. at 503.
\223\ Id.
\224\ Id. at 505.
\225\ 5 U.S.C. 7513(a).
\226\ 561 U.S. at 507.
---------------------------------------------------------------------------
Other commenters supportive of the rule argued that it in no way
infringes on the President's legal authority. Comment 422, an
individual, explained that ``the proposed rule does not eliminate the
ability of the executive to, within the confines of legislation,
execute policy decisions or discretion'' and ``the proposed provisions
retain the distinction between the career civil service and political/
excepted appointments, who retain their abilities to direct policy
within the delegation of authority provided to by law.'' As explained
above, OPM agrees that the President has significant power over the
civil service and this final rule does not infringe on those powers.
Instead, it makes regulatory changes, in line with OPM's authorities
(some conferred directly by Congress and others conferred by the
President, by re-delegation of an authority conferred upon him by
Congress) to clarify and reinforce statutory texts and advance the
President's policy, as stated in Executive Order 14003, ``to protect,
empower, and rebuild the career Federal workforce.''
Comments Regarding Regulatory Justifications
Some commenters argued that the rule is procedurally unlawful
because it is a pretext to block Schedule F. Comment 164, a form
comment, stated that ``[t]he attempt to counter Schedule F through this
rule amounts to a Deep State Protection Scheme that would
undemocratically undermine to [sic] core constitutional principle that
executive power is vested in the president.'' Comment 101, another form
comment, stated there is a ``discrepancy between the stated purpose of
the rule and its actual intended purpose'' which, the comment contends,
is to prevent Schedule F. Comment 1958, an advocacy nonprofit
organization, argued that ``[r]egulations are supposed to be responsive
to specific problems. OPM's proposal is not an attempt to address an
ongoing, active problem. Instead, it is a blatant defensive play''
against Schedule F. Comments 2866, a legal organization, and 3156
argued that Department of Commerce v. New York \227\ held that the
stated intent behind the actions of executive agencies cannot be
different from the agencies' actual motivation.'' They also argue that
``OPM's stated intent of enhancing efficiency is demonstrably different
[[Page 25009]]
from their actual motivation of impeding future implementation of
Schedule F to undermine future administrations.''
---------------------------------------------------------------------------
\227\ 139 S. Ct. 2551, 2573 (2019).
---------------------------------------------------------------------------
As explained extensively in the proposed rulemaking and in this
final rule, OPM set forth a variety of reasons for promulgating this
final rule. And, far from hiding concerns about Schedule F, the
proposed rulemaking includes extensive discussion \228\ about the prior
Schedule F and OPM's view that its implementation would have
constituted a stark and unwarranted departure from 140 years of civil
service protections and merit system principles. The proposed rule and
this final rule note that Schedule F sought to exploit the exception in
section 7511(b)(2). As observed in the proposed rule \229\ and by
several commenters responding to that notice,\230\ however, Congress,
OPM, and other agencies had long understood the meaning of the phrase
``confidential, policy-determining, policy-making, or policy-advocating
character'' to be a gloss on the description of positions that could be
placed in Schedule C of the excepted service at 5 CFR 213.3301(a),
i.e., ``positions of a confidential or policy-nature.'' In light of the
issuance of Executive Order 13957, and its departures from the common
understanding of the meaning of section 7511(b)(2), OPM determined to
issue this rule. Among other reasons, the rule elucidates the proper
scope of the exception in 5 U.S.C. 7511(b)(2) and clarifies any
confusion that may have been introduced by the promulgation of the now-
revoked order and schedule.
---------------------------------------------------------------------------
\228\ See 88 FR 63862, 63867-69, 63874, 63878.
\229\ Id. at 63883.
\230\ See, e.g., Comment 2134, a joint comment by a nonprofit
organization and former federal official, at pp. 12-33.
---------------------------------------------------------------------------
OPM is authorized by Congress and the President, throughout title
5, to regulate the civil service and carry out the purposes of the
civil service statutes. OPM does not and cannot prevent a President
from creating excepted service schedules or from moving employees, and
this rule does not do that. Instead, the rule promulgates certain
definitions clarifying the meaning of statutory language based on
longstanding legislative history and intent, legal precedent, and past
practices.
IV. Regulatory Amendments and Related Comments
In this section, OPM discusses the regulatory amendments to 5 CFR
parts 210, 212, 213, 302, 432, 451, and 752 and related comments. The
first subsection discusses the retention of status and civil service
protections upon an involuntary move to or within the excepted service
(revisions to parts 212 and 752). The second discusses the definition
for positions of a ``confidential, policy-determining, policy-making or
policy-advocating'' character as used in 5 U.S.C. 7511(b)(2) (revisions
to parts 210, 213, 302, 432, 451, and 752). And the third discusses
processes for moving employees and positions to or within the excepted
service and related appeal rights (revisions to part 302).
A. Retention of Status and Civil Service Protections Upon a Move
OPM amends 5 CFR part 752 (Adverse Actions) to reflect OPM's
longstanding interpretation of 5 U.S.C. 7501 and 7511 and the
congressional intent underlying the statutes, including exceptions to
civil service protections outlined in 5 U.S.C. 7511(b). These
amendments clarify that ``employees,'' under 5 U.S.C. 7501, 7511(a), in
the competitive service or excepted service will retain the rights
previously accrued upon an involuntary move from the competitive
service to the excepted service, or from one excepted service schedule
to another, or any subsequent involuntary move, unless the employee
relinquishes such rights or status by voluntarily encumbering a
position that explicitly results in a loss of, or different, rights.
The rule also conforms the regulation for non-appealable adverse
actions with statutory language in 5 U.S.C. 7501 and Federal Circuit
precedent to clarify which employees are covered. OPM amends 5 CFR part
212 (Competitive Service and Competitive Status) to further clarify a
competitive service employee's status in the event the employee and/or
their position is moved involuntarily to Schedules A, B, C, or any
schedule created after the promulgation of this rule.
A voluntary movement is generally characterized by an employee
initiating a reassignment, conversion, or transfer by pursuing and
accepting an offer to serve in a different position, either at the
employee's own agency or another Federal agency. A voluntary move may
extinguish accrued rights, depending on the circumstances of each such
situation.\231\ If, on the other hand, an agency initiates an action to
move the employee's position from the competitive service to the
excepted service or from one schedule in the excepted service to
another, based on the nature of the position, that movement will be
regarded as involuntary, vis a vis the incumbent, and should not affect
previously accrued rights. Similarly, if an employee is reassigned to a
different position by the agency, on the agency's own initiative, to
better meet agency needs, the reassignment or conversion will be
regarded as involuntary and should not affect previously accrued
rights.
---------------------------------------------------------------------------
\231\ See, e.g., Garcia v. Dep't of Homeland Sec., 437 F.3d
1322, 1328 (Fed. Cir 2006); Shoaf v. Dep't of Agriculture, 260 F.3d
1336, 1341-42 (Fed. Cir. 2001); Staats v. U.S. Postal Serv., 99 F.3d
1120, 1123 (Fed. Cir. 1996) (regarding voluntariness in the
retirement context).
---------------------------------------------------------------------------
As noted above in Section III(B), adverse action protections and
related eligibility and procedures are covered in 5 U.S.C. chapter 75.
Subchapter I covers suspensions for 14 days or less and 5 U.S.C. 7501
defines ``employee'' for the purposes of adverse action procedures for
suspensions of this duration. Under 5 U.S.C. 7504, OPM may prescribe
regulations to carry out the purpose of subchapter I. Subchapter II
covers removals, suspensions for more than 14 days, reductions in grade
or pay, or furloughs for 30 days or less. In subchapter II, 5 U.S.C.
7511 defines ``employee'' for the purposes of entitlement to adverse
action procedures. Under 5 U.S.C. 7514, OPM may prescribe regulations
to carry out the purposes of subchapter II except as it concerns any
matter where the MSPB may prescribe regulations.
Performance-based actions under chapter 43 and related eligibility
and processes are covered in 5 U.S.C. 4303. Section 4303(e) defines
when an employee is entitled to appeal rights to the MSPB. Chapter 43
cross-references chapter 75, providing that any employee who is a
preference eligible, in the competitive service, or covered by
subchapter II of chapter 75, and who has been reduced in grade or
removed under section 4303, is entitled to appeal the action to the
MSPB under 5 U.S.C. 7701. Under 5 U.S.C. 4305, OPM may issue
regulations to carry out subchapter I of chapter 43.
OPM received several overarching comments regarding the proposed
changes to Parts 212 and 752. OPM will discuss these comments, followed
by specific comments related to these regulatory changes.
Comment Regarding the History of Status and Rights Upon an Involuntary
Move
A joint comment from a nonprofit organization and a former federal
official provided an extensive history of retention of accrued status
and civil service protections upon the involuntary movement to an
excepted service schedule or within the excepted service and agreed
with OPM that this rulemaking would reinforce and clarify the
longstanding legal interpretations
[[Page 25010]]
and practice pertaining to employees' retention of accrued civil
service status and protections. See Comment 2134. Commenter concluded
that OPM's proposed regulatory provisions on retention are a
clarification, rather than an expansion, of rights. Because of its
thorough citation to facts and sources relevant to these regulatory
changes, OPM will summarize portions of the comment here.
Commenter began the analysis with a detailed historical treatment
of status and civil service protections and then turned to Roth v.
Brownell,\232\ a key precedent on this issue, and its progeny.
---------------------------------------------------------------------------
\232\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,
Brownell v. Roth, 348 U.S. 863 (1954).
---------------------------------------------------------------------------
Commenter detailed that, before Roth, the enactment of the Veterans
Preference Act of 1944 enhanced the civil service rights of preference
eligible employees. Consistent with the Ramspeck Act of 1940 and
applicable executive orders,\233\ the CSC's regulations at the time
acknowledged that some employees in excepted service positions enjoyed
competitive status.
---------------------------------------------------------------------------
\233\ Citing Ramspeck Act, Public Law 76-880, sec. 1, 54 Stat.
1211 (1940), https://www.loc.gov/resource/llsalvol.llsal_054/?sp=1245&st=image; E.O. 9830 (Feb. 24, 1947), https://www.archives.gov/federal-register/codification/executive-order/09830.html; E.O. 8743 (Apr. 23, 1941), https://www.archives.gov/federal-register/codification/executive-order/08743.html.
---------------------------------------------------------------------------
Commenter noted that, in 1950, the United States Court of Claims
reviewed the CSC's regulations applicable to nonveterans and explained
that ``employees serving under other than a probational or temporary
appointment in the competitive service, and employees having a
competitive status who occupy positions in Schedule A and B, shall not
be removed or demoted except for such cause as will promote the
efficiency of the service and in accordance with set procedures.''
(emphasis in original).\234\
---------------------------------------------------------------------------
\234\ Citing Lamb v. United States, 90 F. Supp. 369, 372-73 (Ct.
Cl. 1950) (``[W]e conclude that a government employee having
competitive status and serving in an excepted position in Schedule
A, must be separated from such position in accordance with the Civil
Service Regulations, regardless of the length of time he has
occupied such excepted position.'').
---------------------------------------------------------------------------
In 1953, President Eisenhower created Schedule C in Executive Order
10440, which purported to strip employees, ``[e]xcept as may be
required by the Veterans' Preference Act,'' of accrued procedural
protections upon their movement to Schedule C.\235\ President
Eisenhower then issued Executive Order 10463, which purported to remove
accrued procedural protections from employees in Schedule A, as well.
An unfavorable decision in Roth v. Brownell would later lead President
Eisenhower to revoke and replace both executive orders.
---------------------------------------------------------------------------
\235\ Citing E.O. 10440, sec. 6.4 (Mar. 31, 1953) (``Except as
may be required by the Veterans' Preference Act, the Civil Service
Rules and Regulations shall not apply to removals from positions
listed in Schedule C or from positions excepted from the competitive
service by statute. The Civil Service Rules and Regulations shall
apply to removals from positions listed in Schedules A and B of
persons who have competitive status, however they may have been or
may be appointed.''), https://www.presidency.ucsb.edu/documents/executive-order-10440-amendment-civil-service-rule-vi.
---------------------------------------------------------------------------
Commenter explained that, in Roth, the D.C. Circuit considered a
decision by Attorney General Herbert Brownell to challenge these civil
service protections. Though plaintiff, Roth, had been appointed to the
competitive service under the Ramspeck Act and President Roosevelt's
1941 Executive Order, a 1947 order by President Truman moved his
position to a reestablished Schedule A. In 1953, the Eisenhower
Administration moved his Schedule A position to Schedule C and
purported to remove his civil service status and procedural
protections. The Executive Director of the CSC had stated in a letter
to Roth that career employees whose jobs were moved to Schedule C
retained their civil service protections. The D.C. Circuit ruled for
plaintiff and ordered his reinstatement. The court held that neither of
these moves stripped Roth of the competitive status and protections he
had accrued, explaining that ``[t]he power of Congress thus to limit
the President's otherwise plenary control over appointments and
removals is clear,'' and ``[i]t is immaterial here that the President
has long been `authorized to prescribe such regulations for the
admission of persons into the civil service of the United States as may
best promote the efficiency thereof . . . [because] [c]omplete control
over admissions does not obviate the removal requirements of the Lloyd-
La Follette Act.' '' \236\
---------------------------------------------------------------------------
\236\ Roth, 215 F.2d at 501-02.
---------------------------------------------------------------------------
Commenter explained that, a month after the Roth decision,
President Eisenhower issued Executive Order 10577, revoking Executive
Orders 10440 and 10463.\237\ The new Executive Order provided that ``an
employee who is in the competitive service at the time his position is
first listed under Schedule A, B, or C shall be considered as
continuing in the competitive service as long as he continues to occupy
such position.'' In January 1955, the CSC issued new guidance
consistent with the court's order in Roth and Executive Order 10577,
redefining for Federal agencies the coverage of the competitive civil
service and the removal protection of certain Federal employees under
the Lloyd-La Follette Act. The CSC explained that an employee who is
serving with competitive status in a competitive position at the time
his position is listed under Schedules A, B, or C, continues to be in
the competitive service during his occupancy of that position (thus the
employee is entitled to the removal protection of the Lloyd-La Follette
Act, which applies to the competitive civil service). The CSC also
explained that, where proposed appointees to a Schedule A, B, or C
position are serving in the competitive service, the employees shall
not be appointed until they are advised in writing that acceptance of
the excepted appointment will result in their leaving the competitive
service. This will put the employees clearly on notice that, upon
acceptance of the excepted position, they will no longer be under the
protection of the Lloyd-La Follette Act.\238\ A few days after this
issuance, the CSC published a Federal Register notice to codify the
Eisenhower Administration's recognition of these rights.\239\
---------------------------------------------------------------------------
\237\ Citing E.O. 10577 (Nov. 23, 1954), https://www.presidency.ucsb.edu/documents/executive-order-10577-amending-the-civil-service-rules-and-authorizing-new-appointment.
\238\ Citing Press Release, U.S. Civil Sev. Comm'n, 1 (Jan. 24,
1955).
\239\ Citing Appeals from Employees Entitled to But Denied
Protection of Lloyd-La Follette Act, Civil Serv. Comm'n Prop. Reg. 5
CFR pts. 9 &20, 20 FR 599, 601 (Jan. 28, 1953), https://archive.org/details/sim_federal-register-find_1955-01-28_20_20/mode/2up.
---------------------------------------------------------------------------
In giving its instructions to agencies about movement of employees
after January 23, 1955, to Schedule A, B, or C positions, the CSC also
took steps to protect employees who were moved prior to that time. It
stated that employees in three groups who were moved prior to January
23, 1955, would still be considered to be in the competitive
service.\240\
---------------------------------------------------------------------------
\240\ Citing Press Release, U.S. Civil Serv. Comm'n, pp. 1-2
(Jan. 24, 1955).
---------------------------------------------------------------------------
Commenter showed that contemporaneous legal analyses, such as a
1955 law review article, concluded that Roth had confirmed the
durability of personally accrued status, at least in the case of an
involuntary move.\241\ That same year, the Comptroller General
demonstrated the broad applicability of Roth by confirming the
appropriateness of the National Labor Relations Board's award of
backpay to a similarly situated
[[Page 25011]]
employee who had been improperly removed.\242\
---------------------------------------------------------------------------
\241\ Citing De Seife, Rodulphe, 5 Cath. U.L. Rev. 110 (1955),
https://scholarship.law.edu/cgi/viewcontent.cgi?article=3073&context=lawreview.
\242\ Citing Gov. Accountability Off., Op. for Guy Farmer,
Chairman, NLRB (July 25, 1955), https://www.gao.gov/products/b-123414.
---------------------------------------------------------------------------
On May 12, 1955, the CSC highlighted the difference between an
employee's voluntary and involuntary movement to Schedule C, explaining
that under civil service rules, ``a vacant Schedule C job may not be
filled by the appointment of an employee serving in the competitive
service until the employee has been given notice in writing that
acceptance of the position will result in his leaving the competitive
service. Leaving the competitive service would result in his giving up
the job-removal protections of the Lloyd La Follette Act.'' On the
other hand, ``if an occupied job in the competitive civil service is
moved to Schedule C, an incumbent who has civil-service status
continues to have the removal protection of the Lloyd-La Follette Act
during his occupancy of the position.'' \243\
---------------------------------------------------------------------------
\243\ Citing Press Release, U.S. Civil Serv. Comm'n, 3 (May. 12,
1955).
---------------------------------------------------------------------------
As commenter demonstrated, the next several presidential
administrations did not differ in their interpretation regarding the
retention of status and rights. Under President Lyndon Johnson, for
example, the CSC codified the principle of retained status at 5 CFR
212.401(b).\244\ OPM notes that this regulation remained unchanged
until this final rule, which, consistent with the intent of the
original regulation, modifies the regulation to cover any newly created
schedules.
---------------------------------------------------------------------------
\244\ Citing Revision of Regulations, U.S. Civil Serv. Comm'n,
Final Reg. 5 CFR ch. I, subch. B (other than pt. 213), 33 FR 12402-
08 (Sep. 4, 1968) (``An employee in the competitive service at the
time his position is first listed under Schedule A, B, or C remains
in the competitive service while he occupies that position.''),
https://archives.federalregister.gov/issue_slice/1968/9/4/12396-12526.pdf#page=23.
---------------------------------------------------------------------------
Under President Ford, the CSC acknowledged the continuing relevance
of Roth in a memorandum emphasizing that employees retained accrued
status and civil service protections upon movement to positions
designated as confidential or policy-determining.\245\ A related
handout for officials with presidential transition responsibilities
explained that Schedule C employees with status were entitled to appeal
their removal to the CSC under the commission's regulations at 5 CFR
part 752.\246\
---------------------------------------------------------------------------
\245\ Citing Memo. from Raymond Jacobson, Exec. Dir., CSC, 5
(Nov. 10, 1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf.
\246\ Citing CSC, Procedures for Removals from Excepted
Positions, p. 2 (1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf.
---------------------------------------------------------------------------
Still further, a decade after enactment of the CSRA, and during the
Reagan Administration, OPM issued a government-wide advisory that cited
Roth as establishing the guiding principle for removing employees with
status from Schedule C positions, explaining that an employee who was
serving in a position in the competitive service when OPM authorized
its conversion to Schedule C and who is still serving in that position
may be removed from that position only ``for such cause as will promote
the efficiency of the service'' and in accordance with the procedures
established by 5 U.S.C. 7511 et seq. and part 752 of OPM's
regulations.\247\
---------------------------------------------------------------------------
\247\ Citing Memo. from Constance Horner, Dir., U.S. Off. of
Pers. Mgmt. to heads of departments and agencies, ``Civil Service
and Transition to a New Presidential Administration,'' pp. 8-9 (Nov.
30, 1988), https://www.cia.gov/readingroom/docs/CIA-RDP90M01364R000800330004-0.pdf.
---------------------------------------------------------------------------
Commenter also referenced subsequent cases and administrative
opinions where this reasoning prevailed. For instance, in Saltzman v.
United States,\248\ the Court of Claims held that the plaintiff,
despite occupying a position that was now in the excepted service, was
entitled to the civil service protections afforded to competitive
service employees, explaining that ``Plaintiff never lost the rights he
acquired under the Lloyd La Follette Act when he acquired permanent
competitive status in the classified civil service.''
---------------------------------------------------------------------------
\248\ 161 Ct. Cl. 634 (1963).
---------------------------------------------------------------------------
Commenter then discussed Stanley v. Department of Justice,\249\
where the Federal Circuit reviewed the adverse action rights of term-
limited Bankruptcy Trustees who were moved into Schedule C because they
were proclaimed to be encumbering positions that were ``confidential,
policy-determining, policy-making or policy-advocating'' in character.
As explained below in response to another contention in Comment 4097,
this 2005 ruling was entirely consistent with the longstanding view
that an employee cannot be stripped of status involuntarily but can
waive it voluntarily.
---------------------------------------------------------------------------
\249\ 423 F.3d 1271 (Fed. Cir. 2005), cert. denied, 547 U.S.
1098 (2006).
---------------------------------------------------------------------------
Analogous principles apply to employees subject to transfers of
functions.\250\ In 1980, for instance, the Comptroller General agreed
with OPM guidance determining ``that employees who transfer to the
Peace Corps would be transferred incident to a transfer of functions
and accordingly would retain their status as employees with competitive
civil service appointments notwithstanding that the Peace Corps'
appointment authority is solely under the Foreign Service Act of 1946
as amended.'' \251\
---------------------------------------------------------------------------
\250\ See 5 U.S.C. 3503, 5 CFR 351.301-302.
\251\ Citing Matter of Clement J. Zalocki, House of Reps., B-
19818 L/M, 1980 WL 16731 (Comp. Gen. 1980), https://www.gao.gov/products/b-198187-lm.
---------------------------------------------------------------------------
Further, the MSPB has held that a determination under 5 U.S.C.
7511(b)(2) is not adequate unless it is made before the employee is
appointed to the position.\252\ The MSPB has also required agencies to
follow applicable procedures when making determinations under 5 U.S.C.
7511(b)(2). In Blalock v. Department of Agriculture,\253\ for example,
the MSPB rejected an agency's claim that it had removed employees from
their Schedule A positions by reduction-in-force (RIF) procedures and
appointed them to new Schedule C positions. It found that this RIF was
improper and the redesignation was not a ``reorganization.'' Therefore,
the agency could not have conducted a RIF and the agency's abolishment
of their Schedule A positions constituted individual adverse actions
against the incumbents. The MSPB directed the agency to reinstate
preference eligible employees whom it had separated without adhering to
applicable adverse action procedures.
---------------------------------------------------------------------------
\252\ Citing Thompson v. Dep't of Justice, 61 M.S.P.R. 364 (Mar.
30, 1994) (No. DE-1221-92-0182-W-1), subsequent history at 70
M.S.P.R. 251, aff'd, 106 F.3d 426 (Fed. Cir. 1997), Chambers v.
Dep't of the Interior, No. DC-0752-004-0642-M-2, 2011 WL 81797
(M.S.P.B. Jan. 11, 2011) (Member Rose concurring) (inadvertently
citing paragraph (b)(8) instead of (b)(2): ``For the section
7511(b)(8) exclusion to be effective as to a particular individual,
the appropriate official must designate the position in question as
confidential, policy-determining, policy-making, or policy-
advocating before the individual is appointed.''); Owens v. Dep't of
Health & Human Servs., 2017 WL 3400172 (July 31, 2017) (No. AT-0752-
17-0516-I-1) (citing Briggs for the proposition that ``a
determination under 5 U.S.C. 751l(b)(2) is not adequate unless it is
made before the employee is appointed to the position''); Vergos v.
Dep't of Justice, 2003 WL 21417091 (June 6, 2003) (No. AT-0752-03-
0372-I-1) (citing Thompson for the proposition that a
``determination under the 5 U.S.C. 7511(b)(2) is not adequate unless
it is made before the employee is appointed to the position''). See
also King v. Briggs, 83 F.3d 1384, 1387 (Fed. Cir. 1996) (noting, in
affirming a Board decision reinstating the Executive Director of the
Council on Disabilities, that the administrative judge who
adjudicated the Director's appeal had found that ``the Council `had
never made a determination that [Briggs'] position was a
confidential, policy-making, policy-determining, or policy-
advocating position,' and thus excluded from the definition of
employee in section 7511(a),'' and ``even if the Council had made
such a determination, `it never communicated that fact' to
Briggs.'').
\253\ 28 M.S.P.R. 17, 20 (1985), aff'd sub nom., Huber v. MSPB,
793 F.2d 284 (Fed. Cir. 1986).
---------------------------------------------------------------------------
OPM appreciates Comment 2134 providing such extensive and detailed
factual history and agrees with the comment's analyses and conclusion
that
[[Page 25012]]
``OPM correctly characterized as `longstanding' the executive branch's
interpretations of sections 7501 and 7511 of title 5, as well as the
congressional intent as to the meanings of those sections.''
Comments Regarding Property Interests in a Position and the Retention
of Accrued Status and Rights Upon an Involuntary Move
A coalition of national and local unions agreed with OPM's
contention in the proposed rule,\254\ as recognized in Supreme Court
precedent, that in light of congressional enactments creating various
prerequisites to a removal for employees who meet specified conditions,
employees can earn a property interest in their positions once they
satisfy their probationary/trial period or their durational requirement
of current continuous service under 5 U.S.C. 7511 and retain those
rights upon an involuntary move from the competitive service to the
excepted service or within the excepted service. See Comments 41.
---------------------------------------------------------------------------
\254\ See 88 FR 63862, 63865-66, 63877.
---------------------------------------------------------------------------
Commenters supportive of the rule argued that the President cannot
take away a vested property right through an executive order. The same
coalition of national and local labor unions wrote that no President,
through an ``Executive Order or other action can override the
Constitution or Chapter 75'' and remove the property interest that
certain career employees accrue in their continued federal employment.
See Comment 41. A former federal official argued that OPM's rulemaking
regarding part 752 would help protect career civil servants against
``arbitrary adverse actions while serving in their positions'' and
would help preserve those employees' protections even when a
competitive service position is moved into the excepted service. See
Comment 2816. Commenter continued that this rule would reduce the risk
of misapplying the civil service statutes by using rescheduling to
bypass civil service protections. OPM agrees with the contention
regarding property rights and the expected benefits of this rule.
A commenter opposed to the rule argued that the President can use
rescheduling to eliminate civil service protections. Comment 4097
conceded that OPM accurately explains in the proposed rule that the
Supreme Court has held that civil service protections give government
employees a property interest in their job, and that those same cases
also state that the government cannot constitutionally remove these
property interests without due process. Commenter contended,
nevertheless, that the government can eliminate civil service
procedures and, in doing so, extinguish the underlying property
interest previously created. The cases and examples commenter cited in
support (see Comment 4097, fn. 8), however, involve state legislative
action, not executive action, to alter or remove civil service
protections. This appears to be in line with Loudermill which instructs
that a ``legislature may elect not to confer a property interest in
public employment, [but] it may not constitutionally authorize the
deprivation of such an interest once conferred, without appropriate
procedural safeguards.'' \255\ Federal appellate courts have held that
rights conferred on state employees by legislative action can be
revoked, but that revocation also requires legislative action.\256\
Also, it is unclear which, if any, cited cases removed protections from
incumbents as opposed to unencumbered positions, which could run
contrary to Roth and its progeny as explained above.
---------------------------------------------------------------------------
\255\ 470 U.S. at 541.
\256\ See, e.g., id.; Correa-Ruiz v. Fortuno, 573 F.3d 1, 14-15
(1st Cir. 2009); Gattis v. Gavett, 806 F.2d 778, 779-81 (8th Cir.
1986).
---------------------------------------------------------------------------
Commenter also argued that, in light of section 7511(b)(2), courts
have held that federal agencies can declare positions policy-
influencing and thereby eliminate civil service removal requirements
that previously attached, citing Stanley v. Department of Justice \257\
and Stanley v. Gonzales.\258\ OPM disagrees with commenter's
characterization of these two cases, in which the Federal and Ninth
Circuits heard challenges to the removal of two U.S. Trustees who were
serving five-year terms. The original text of the statutory provision
concerning U.S. Trustees, 28 U.S.C. 581, provided that the Attorney
General could remove a U.S. Trustee only for cause.\259\ In 1986,
however, Congress amended the statute to eliminate the ``for cause''
requirement.\260\ At the time the trustees were initially appointed, no
Attorney General had made a determination that the position should be
considered confidential, policy-determining, policy-making, or policy-
advocating. Later, however, Attorney General Janet Reno declared U.S.
Trustee positions to be ``confidential, policy-determining, policy-
making or policy-advocating'' in character, and therefore not subject
to chapter 75's protections.\261\ Several years later, Attorney General
John Ashcroft fired the Trustees.\262\ Commenter argued that the
``courts upheld these dismissals because the trustees now occupied
policy-influencing positions; they no longer had MSPB appeal rights.''
But this glosses over the actual facts of these cases. As noted by
Comment 2134, and as explained in Stanley v. Department of Justice,
even though Attorney General Reno made this determination, the
Department of Justice acknowledged in writing ``that Trustees appointed
prior to the proclamation would not be affected--they would retain
appeal rights--but that all those appointed after the proclamation were
exempt from the due process provisions contained in Title 5.'' \263\
And these appointments were subject to a term of five years.
Accordingly, any rights in the original appointment would have ended at
the end of that term. The initial five-year terms of these two Trustees
later expired. When the individuals affected voluntarily accepted new
appointments to subsequent five-year terms, those appointments were now
subject to Attorney General Reno's intervening determination that the
positions were confidential, policy-determining, policy-influencing, or
policy-advocating. During the Trustees' second five-year term, a new
presidential administration removed them. The Federal Circuit found
that the intervening determination by Attorney General Reno, before
their voluntary acceptance of a second term, deprived them of any
entitlement to particular procedures before they could be terminated
from the positions.
---------------------------------------------------------------------------
\257\ 423 F.3d 1271 (Fed. Cir. 2005), cert. denied, 547 U.S.
1098 (2006).
\258\ 476 F.3d 653 (9th Cir. 2007).
\259\ 423 F.3d at 1273-74.
\260\ Id.
\261\ Id. at 1273.
\262\ Id.
\263\ Id.
---------------------------------------------------------------------------
Thus, far from demonstrating that ``courts have held that federal
agencies can declare positions policy-influencing and thereby eliminate
civil service removal requirements that previously attached,'' Stanley
v. Department of Justice demonstrates only that when Congress excepts a
position from the competitive service by statute and confers authority
on the agency head to remove without cause, and when the agency head
thereafter determines that the position is policy-influencing, the
subjects of new appointments thereafter will not be entitled to
procedural or appeal rights under chapter 75 and 5 U.S.C. 7701.
Reliance upon the related Stanley v. Gonzales case also does not
support commenter's position. In that case, the Ninth Circuit affirmed
a holding by a
[[Page 25013]]
Federal district court that that court lacked jurisdiction over Ms.
Stanley's new constitutional claims arising from the same facts.
Although Ms. Stanley argued that the CSRA did not preclude her from
pursuing relief directly under the Constitution, the Ninth Circuit
concluded that it could not even reach that question because she had
failed to allege a colorable constitutional claim. More specifically,
in concluding she could not state a cognizable property interest in her
position, the Ninth Circuit focused on the key details that Stanley was
on a time-limited second appointment and that, by statute (citing 28
U.S.C. 581), she could be removed without cause by the Attorney
General.
There is nothing about these decisions that is inconsistent with
OPM's position that a career employee's accrued rights cannot be
stripped involuntarily.
A former political appointee opposed to the rule argued that OPM
claimed it is acting in accordance with statutory text, legislative
history for that text, and Congressional intent but there is nothing in
the CSRA that states congressional intent to preserve rights upon a
move. See Comment 45. Commenter argued that OPM's rulemaking is
speculative with regard to the intent of the statutes, especially
``since neither 5 U.S.C. 7501 nor 5 U.S.C. 7511 clearly state their
intents'' and ``neither statute talks about or insinuates
`congressional intent.' '' It is unclear what this commenter is
attempting to convey. The language in chapter 75 does not provide an
explicit definition for certain terms used therein. OPM notes, however,
that congressional intent is not always spelled out in statutory text,
especially in a comprehensive statute that deals with many discrete
topics. In that situation, courts, regulated entities, and others
seeking to interpret statutory language may look to traditional tools
of statutory interpretation, including structure, statutory and
legislative history and other indicia of intent, as well as relevant
precedents. As explained throughout this final rule, these statutes
have extensive statutory and legislative history and there are
precedents that support OPM's rulemaking. The extensive history
discussed in Comment 2134, for example, supports OPM's rule regarding
the retention of status and rights upon an involuntary move.
A nonprofit organization opposed to the rule commented that 5
U.S.C. 7501 and 7511 refer to current continuous service in a same or
similar position, but do not contemplate a move from the competitive
service to the excepted service. See Comment 1811. The organization
asserted that OPM offers no case law ``relevant to this specific
instance'' and because ``the current regulations do not address this
particular situation,'' commenter believes rulemaking ``is not the
proper way for OPM to address this concern.'' Instead, ``Congress ought
to clarify worker protection here.'' The reference to current
continuous service relates to how rights are accrued in the first
place. Once an employee has accrued the requisite service, different
considerations apply with respect to the consequences of an involuntary
move of a position or person from the competitive to the excepted
service. A different advocacy nonprofit organization stated that ``OPM
does not have the authority to permanently attach removal
protections.'' See Comment 1958. Moreover, commenter argued that
``worker classifications exist to tie different levels of protection to
different types of jobs.'' Allowing a worker to carry over a protection
to a new classification ``undercuts the purpose of worker
classifications.'' Commenter argued that this ``provision is a
significant change in law, not a mere clarification[.]''
OPM will make no revisions based upon these comments. As explained
previously, Roth held that once a Federal employee has accrued civil
service status and procedural rights, the employee retains the status
and rights even if the employee's position is later moved to an
excepted service schedule that would otherwise lack such status and
rights. Roth was consistent with the cases that followed, such as
Loudermill and its progeny, which OPM describes here and in the
proposed rulemaking. In the absence of specific examples, we are
unaware what commenter means by ``different levels of protection'' for
``different types of jobs.'' An ``employee'' as defined in section
7511, who has met the requisite service requirement, is entitled to the
procedures specified in section 7513, whether the employee is in the
competitive service or the career excepted service.
A nonprofit organization opposed to the rule commented that
employees moved from the competitive service to the excepted service
should not as a matter of policy retain their accrued rights. Comment
1811. Commenter asserted that the changes to part 752 would make
terminations harder for agencies by strengthening civil service
protections. OPM notes that these revisions largely clarify the status
quo so they would not make it more difficult to remove employees for
the efficiency of the service or pursuant to the optional procedures in
chapter 43 for action based on unacceptable performance. Section
212.401(b) of this part, promulgated in 1968, already provides that
``[a]n employee in the competitive service at the time his position is
first listed under Schedule A, B, or C remains in the competitive
service while he occupies that position.'' As noted in the proposed
rule,\264\ this regulation was intended to preserve civil service
protections and adverse action rights when positions are moved. Comment
1811 then argued that ``[w]hen employees move from the Competitive
Service to the Excepted Service, it is not logical that their accrued
worker protections should follow them. They will report to new
supervisors, have new work, and different responsibilities.'' For the
reasons described above regarding Comment 2134 and its analysis of Roth
and its progeny, OPM disagrees that such retention of rights is
illogical. On the contrary, it is well grounded in decades of civil
service precedent and practice. Without these protections, an agency
might try to defeat accrued rights by reassigning individuals to new
positions in another service or schedule. Although we believe the case
law would already make such an attempt futile, we have chosen to
clarify our regulations by addressing the consequences of such a move
explicitly in this final rule. Moreover, there is nothing to support
the contention that moving an employee to the excepted service would
necessarily result in new supervisors, new work, or different
responsibilities.
---------------------------------------------------------------------------
\264\ See 88 FR 63862, 63869.
---------------------------------------------------------------------------
Comments Regarding the Regulatory Changes and Creation of ``New
Rights''
Two commenters opposed to this rule argued that it grants new
rights that are contrary to statute. One former political appointee
argued that ``Congress has distinguished between the competitive
service and exempted [sic] service'' in that they are different
classifications with different hiring processes, responsibilities, and
protections. Comment 45. Commenter continued that it ``is unfair that
civil servants who have worked in the exempted [sic] service for years
would not have protections, while those who had just been moved from
the competitive service would have protections, solely by virtue of
their previous classification.'' We assume, for purposes of responding
to this comment, that commenter meant to refer to the excepted service,
as there is no
[[Page 25014]]
``exempted service'' category.\265\ Commenter appears to suggest that
excepted service employees do not have civil service protections.
Excepted service positions may accrue the same adverse action rights as
competitive service employees once they satisfactorily complete their
probationary/trial period or satisfy their durational requirement. See
5 U.S.C. 7511. Following a decade of experience under the CSRA,
Congress expanded the scope of employees covered by adverse action
procedures in the 1990 Amendments by conferring such rights on
employees who had been appointed to career excepted service positions
and had accrued 2 years of continuous service in the same or a similar
position.\266\ The main exception to this, as discussed throughout this
rule, are those excluded under 5 U.S.C. 7511(b), including political
appointments requiring senate confirmation, Schedule C political
appointees, and presidential appointments. Also, as explained
previously, for almost 60 years, executive action, legal precedent, and
regulations have recognized that civil servants moved involuntarily
from the competitive service to the excepted service keep their rights.
---------------------------------------------------------------------------
\265\ The confusion may arise from section 302.101(c) of this
part, which lists a small set of positions in the excepted service
that are also exempt from the part 302 procedures that would
normally apply to the hiring of employees into the excepted service.
As noted above, section 3320 of title 5, U.S. Code, requires
appointing authorities hiring individuals into the excepted service
to use the same procedures described in sections 3308 to 3318 of
title 5 to effectuate veterans' preference. OPM's regulations at
part 302 are intended to provide the means for an agency to meet
that requirement. Part 302 provides for limited exemptions where
compliance is essentially impossible (e.g., attorney positions, for
which Congress has forbidden examination in annual appropriation
provisions). For those discrete positions, veterans' preference must
still be applied as far as administratively feasible. 5 CFR
302.101(c).
\266\ See Civil Service Due Process Amendments Act, 101 Public
Law 376 (Aug. 17, 1990).
---------------------------------------------------------------------------
Another commenter argued that 5 U.S.C. 7511(b) categorically
exempts policy-influencing excepted service positions from chapter 75's
adverse action procedures and OPM has no authority to extend civil
service removal restrictions to employees in such positions. Comment
4097.\267\ This misstates this final rule. OPM is not extending civil
service protections to employees excluded by section 7511(b). OPM's
regulatory amendments elaborate upon and clarify the retention of
rights upon an involuntary move and further define the exception in 5
U.S.C. 7511(b)(2), as explained further in Section IV(B), based on its
longstanding interpretation of the statute, elucidated by legislative
and statutory history, additional indicia of intent, and precedent.
Commenter then contended that OPM fails to cite any cases holding that
employees retain removal restrictions after their positions are
determined to be policy-influencing and instead OPM cited two cases
``that deal with an entirely different issue.'' (referring to footnote
117 of the proposed rule, which cites McCormick v. Department of the
Air Force (2002) and Greene v. Defense Intelligence Agency (2005)). See
Comment 4097. OPM did not cite either of those cases for this
proposition. They were cited in this rulemaking because OPM is making
conforming regulatory changes based on the precedent, holding that once
an employee satisfactorily completes their probationary/trial period or
durational requirement under 5 U.S.C. 7511, they are entitled to
adverse action rights. Footnote 117 from the proposed rule states,
``[t]hese proposed regulatory changes are consistent with how similar
statutory rights have been interpreted by Federal courts and MSPB when
employees change jobs by moving to a different Federal agency.'' \268\
That is precisely the reason these two cases were cited. Also, as
previously explained, longstanding precedent shows that employees
retain adverse action protections if moved to or within the excepted
service. See also Comment 2134, (detailing precedent, starting with
Roth and including the Stanley cases, which explain that incumbent
employees can retain rights even after their position is found to be
policy-influencing).
---------------------------------------------------------------------------
\267\ We also note that section 7511(b)(2) does not
automatically exempt policy-influencing General Schedule positions
from chapter 75 protections. The position must be placed in the
excepted service by the President, OPM, or Congress, and a
determination must be made, by the appropriate person or entity, as
described in more detailed subparagraphs under subparagraph (b)(2),
that the position is of a confidential, policy-determining, policy-
making, or policy-advocating character. The provision is not self-
executing, as the Stanley cases demonstrate. In the absence of a
determination by the appropriate party, and communicated at the time
of appointment, section 7511(b)(2) would not limit adverse action
rights.
\268\ See 88 FR 63862, 63871.
---------------------------------------------------------------------------
Finally, some commenters opposed to the rule argued that pay and
privileges should flow with the position, not the person. One professor
emeritus commented that a basic principle of the civil service has been
that pay and privileges flow to the position and it would be
inconsistent for individuals to permanently carry with them the
attributes and protections that applied to their previous positions.
Comment 3953, see also Comment 4097 (``Nothing in title 5 says or
implies those restrictions follow individual employees.''). Comment
3953 continued that it would be unreasonable to expect that individuals
who move from ``career to noncareer positions'' would, or could,
permanently carry with them the protections they once enjoyed. But
federal workers become ``employees'' entitled to rights under chapter
75 based on their ability to complete a probationary/trial period and
continuous service in a position or similar position.\269\ Once those
rights are earned, employees retain that status even if they are moved
to an excepted service schedule or within the excepted service, so long
as the move was involuntary. A move from ``career to noncareer
positions'' would only retain adverse action rights, as explained
above, if such a move was involuntary. For instance, a voluntary
movement from the competitive service to Schedule C would require an
acknowledgment from the employee that adverse action rights would be
waived.\270\ A contrary rule would allow Federal workers to be
reclassified at the whim of an agency without regard to how the civil
service system has operated for decades, despite longstanding reliance
on these protections by the Federal workforce.
---------------------------------------------------------------------------
\269\ See 5 U.S.C. 7501, 7511.
\270\ See 5 CFR 302.102 (regarding processes for voluntary
movements).
---------------------------------------------------------------------------
OPM is promulgating the following changes to 5 CFR parts 212 and
752:
Part 212--Competitive Service and Competitive Status
Subpart D--Effect of Competitive Status on Position
Section 212.401 Effect of Competitive Status on Position
Part 212 addresses competitive service and competitive status and
this final rule revises the regulations in 5 CFR 212.401(b) regarding
the effect of an employee's competitive status on the employee's
position. This final rule establishes that a competitive service
employee whose position is first listed under Schedule A, B, C, or any
future excepted service schedule remains in the competitive service for
the purposes of status and protections, while the employee continues to
occupy the position or any other positions to which the employee is
moved involuntarily.
As described throughout this final rule, OPM's longstanding view is
that Federal employees maintain the civil service status and
protections that they have accrued. Since 1968, civil service
regulations have provided that an employee with competitive service
[[Page 25015]]
status (i.e., in the competitive service), at the time the employee's
position is first listed (i.e., moved) under Schedule A, B, or C of the
excepted service, remains in the competitive service as long as the
employee continues to occupy the position.\271\ OPM is updating 5 CFR
212.401(b) consistent with this final rule to establish that a
competitive service employee whose position is first listed
involuntarily under any future excepted service schedule remains in the
competitive service. OPM is updating to account for the possibility of
new excepted service schedules which may be established after
promulgation of this rule or other efforts to involuntarily move
positions to or within the excepted service.
---------------------------------------------------------------------------
\271\ 33 FR 12402, 12408 (Sept. 4, 1968).
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 212.401
One commenter opposed to the rule expressed a view that OPM
believes is a misreading of the regulatory change. Comment 3190, a law
school clinic, argued that the rulemaking creates ``a new pathway for
burrowing'' because it would amend 5 CFR 212.401(b) to allow that an
``employee in the competitive service at the time his position is first
listed under Schedule A, B, or C, or whose position is otherwise moved
from the competitive service and listed under a schedule created
subsequent to'' the effective date of final rule, to remain in the
competitive service.\272\ Commenter argued that, under such a
provision, an outgoing administration could burrow personnel by
promoting ideologically aligned competitive service civil servants to
Schedule C positions. A president would then be stuck with individuals
who oppose his agenda, even though Schedule C positions are ``policy
determining'' positions that often ``involve a close and confidential
working relationship with the head of an agency or other key appointed
officials.'' \273\ OPM believes this concern is misplaced. The portion
of the regulation that commenter identifies, relating to Schedules A,
B, and C, is not a ``new'' revision in this final rule. That language
already existed in 5 CFR 212.401(b) prior to this rule's amendment and
dates to 1968.\274\ The final rule adds the language, ``or whose
position is otherwise moved from the competitive service and listed
under a schedule created subsequent to [effective date of final
rule],'' to establish that a competitive service employee whose
position is first listed under any future excepted service schedule
remains in the competitive service as long as the employee continues to
occupy the position, or any other positions, in sequence to which the
employee is moved involuntarily, as has been the case for almost 60
years.
---------------------------------------------------------------------------
\272\ 88 FR, 63862, 63882.
\273\ Id. at 63872.
\274\ Citing Revision of Regulations, Civil Serv. Comm'n Final
Reg. 5 CFR ch. I, subch. B (other than pt. 213), 33 FR 12402-08
(Sep. 4, 1968) (``An employee in the competitive service at the time
his position is first listed under Schedule A, B, or C remains in
the competitive service while he occupies that position.''), https://archives.federalregister.gov/issue_slice/1968/9/4/12396-12526.pdf#page=23. Fifty-five years later, this regulation remains
unchanged. 5 CFR 212.401(b).
---------------------------------------------------------------------------
As explained above and in Comment 2134, the original language in 5
CFR 212.401(b) was added during the Johnson Administration to track
judicial decisions finding that employees retained accrued status and
civil service protection upon an involuntary movement to excepted
service positions. Regarding Schedule C, specifically, the CSC in 1955
noted the difference between an employee's voluntary and involuntary
movement to that schedule. Regarding a voluntary move, the CSC
explained that competitive service employees would lose adverse action
rights. It stated, ``a vacant Schedule C job may not be filled by the
appointment of an employee serving in the competitive service until the
employee has been given notice in writing that acceptance of the
position will result in his leaving the competitive service. Leaving
the competitive service would result in his giving up the job-removal
protections of the Lloyd La Follette Act.'' Conversely, in the case of
an involuntary movement, the CSC noted that a competitive service
employee would retain their rights, explaining, ``if an occupied job in
the competitive civil service is moved to Schedule C, an incumbent who
has civil-service status continues to have the removal protection of
the Lloyd-La Follette Act during his occupancy of the position.'' See
Comment 2134.\275\ OPM also issued an advisory during the Reagan
Administration that explained, ``[t]he only Schedule C employees
covered by statutory appeal procedures [under 5 U.S.C. 7513] and who,
therefore, may appeal removal actions to the Merit Systems Protection
Board (MSPB) are those who were serving in a position in the
competitive service when OPM authorized its conversion to Schedule C
and who still serve in those positions (i.e., have status in the
position--cf. Roth v. Brownell, 215 F.2d 500 (D.C. Cir. 1954)).'' See
Comment 2134 (brackets in original). In that advisory, OPM continued,
``[a]n employee who was serving in a position in the competitive
service when OPM authorized its conversion to Schedule C and is still
serving in that position may be removed from that position `for such
cause as will promote the efficiency of the service.' Moreover, the
action must be taken in accordance with the procedures established by 5
U.S.C. 7511 et seq. and part 752 of OPM's regulations. These procedures
provide for the right: (1) to a 30-day advance written notice which
states the reasons for the proposed removal specifically and in detail;
(2) to reply personally and in writing; (3) to be represented; (4) to
have the reply considered; and (5) to a written decision stating the
reasons for the action. The employee may appeal the action to MSPB.''
For these reasons, OPM disagrees with Comment 3190 and the conclusions
that this provision regarding Schedules A, B, and C is new or
problematic.
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\275\ Citing Press Release, U.S. Civil Serv. Comm'n, p. 3 (May
12, 1955).
---------------------------------------------------------------------------
Other commenters were generally supportive of this regulatory
change. Comment 2134, a joint comment by a nonprofit organization and
former federal official, was supportive but suggested that Sec.
212.401(b) be revised to clarify that competitive status is defined in
Sec. 212.301. OPM will adopt this suggestion and revise Sec.
212.401(b) to specifically reference an employee in the competitive
service who had competitive status as defined in Sec. 212.301. This
revision reduces the risk of inconsistent interpretation or application
of the regulations by referring to competitive status with uniform
language.
This comment also suggested that OPM revise Sec. 212.401(b) to
address the movement of employees and not only the movement of
positions. The comment also suggested that OPM revise the rule to make
explicit that employees who otherwise meet the conditions of Sec.
212.401 retain their competitive status regardless of the number of
times the position or employee is moved involuntarily (so long as the
sequence is not broken by a voluntary decision to apply for and accept
a different position, in which case, different rules may apply). OPM
will revise the language to clarify, based on the context and history
described above, that once status and rights are accrued, the key to
determining whether they are retained upon a move is whether the move
was voluntary or involuntary. The number of times the employee is moved
is immaterial to this analysis if all such movements are involuntary.
OPM will therefore revise the end of Sec. 212.401(b) accordingly.
[[Page 25016]]
Part 752--Adverse Actions
Part 752 addresses the procedural requirements for suspensions of
14 days or less, suspension for more than 14 days, reduction in grade
or pay, or furlough for 30 days or less for covered employees.
General Comments Regarding Amendments to 5 CFR Part 752
One management association offered strong support for OPM's
proposed changes. Comment 2849. It stated, with respect to the part 752
amendments, that ``[i]f an administration can bypass the civil service
framework established by Congress in the CSRA by moving employees to a
new excepted service, it would undermine the intention of the CSRA and
make its extensive employee protections obsolete.'' Another management
association said that, with respect to part 752, OPM's rule provides
sufficient protections and clarity. Comment 763.
A national union stated the proposed language for part 752 ``would
effectively deter moving a federal employee's position to the excepted
service for the purpose of retaliation, circumvention of due process,
or discriminatory action against any federal employee.'' Comment 3278.
A different national union stated that one reason for their support of
the amendments to part 752 was because ``employees will not feel safe
reporting fraud, waste, and abuse unless they have the ability to
challenge arbitrary, unfounded, and/or unreasonable disciplinary
actions.'' Comment 2640.
A local union stated that OPM's proposed language to amend 5 CFR
part 752 ``ensures that employees moved into excepted positions retain
their critical rights and should be enacted as proposed.'' Comment
1042. The local union maintained that adverse action procedures and
appeal rights ensure that Federal employees are retained based on merit
and are protected from retaliation and discrimination, including due to
their political affiliation. This commenter further asserted that the
rights accrued in a prior Federal position should not be lost solely
because the employee has been moved involuntarily, as such an approach
would encourage retaliation and limit agencies' ability to recruit top
candidates due to applicants' fears that they could eventually lose
protections they earned in that federal position by administrative
reassignment.
Another organization said that they ``particularly support'' the
amendments to part 752 to clarify that employees who are moved from the
competitive service or from one excepted service schedule to another
retain the protections they had already accrued. Comment 1904.
As stated above, other commenters expressed general disapproval of
OPM's regulatory amendments to part 752. OPM is not persuaded to make
any revisions based on those comments for the reasons stated above,
namely the comments are at odds with existing protections in chapter 75
that OPM's final rule clarifies, and the statutory text, legislative
history, and legal precedents construing it.
Subpart B--Regulatory Requirements for Suspension for 14 Days or Less
This subpart addresses the procedural requirements for suspensions
of 14 days or less for covered employees. Chapter 75 of title 5, U.S.
Code, provides a straightforward process for agencies to use in adverse
actions involving suspensions of this duration. The changes conform
this subpart with statutory language to clarify which employees are
covered by subpart B when an agency takes an action for such cause as
will promote the efficiency of the service.
Section 752.201 Coverage
This section describes when an employee has or retains coverage
under the procedures of this subpart. Paragraphs (b)(1) through (b)(6)
of 5 CFR 752.201 enumerate the conditions under which an individual
would qualify for coverage. OPM's revision to 5 CFR 752.201(b)(1)
prescribes that, even if an agency intends to suspend for 14 days or
less an employee in the competitive service who is serving a
probationary or trial period, the employee is entitled to the
procedural rights provided under 5 U.S.C. 7503 if the individual has
completed 1 year of current service in the same or similar position
under other than a temporary appointment limited to 1 year or less.
As set forth in the proposed rule,\276\ OPM is revising subpart B
of part 752 to conform to the Federal Circuit decisions in Van Wersch
v. Department of Health & Human Services \277\ and McCormick v.
Department of the Air Force.\278\ These cases now guide the way the
MSPB applies 5 U.S.C. 7511(a)(1), which defines employees who have the
right to appeal major adverse actions, such as removals, to the MSPB.
Van Wersch addressed the definition of ``employee'' for purposes of
nonpreference eligibles in the excepted service and, a few years later,
McCormick addressed the meaning of ``employee'' for purposes of the
competitive service. As explained supra, section 7511(a)(1) states that
``employees'' include individuals who meet specified conditions
relating to the duration of their service or, for nonpreference
eligibles, relating to their probationary or trial period status. The
Federal Circuit explained that the word ``or,'' here, refers to
alternatives: some individuals who traditionally had been considered
probationers with limited rights are actually entitled to the same
appeal rights afforded to non-probationers if the individuals meet the
other requirements of section 7511(a)(1), namely (1) their prior
service is ``current continuous service,'' (2) the current continuous
service is in the ``same or similar positions'' for purposes of
nonpreference eligibles in the excepted service, and (3) the total
amount of such service meets a 1 or 2-year requirement, and was not in
a temporary appointment limited to 1 or 2 years, depending on the
service.\279\
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\276\ 88 FR 63862, 63871, 63881.
\277\ 197 F.3d 1144 (Fed. Cir. 1999).
\278\ 307 F.3d 1339 (Fed. Cir. 2002).
\279\ See McCormick, 307 F.3d at 1341-43; Van Wersch, 197 F.3d
at 1151-52.
---------------------------------------------------------------------------
In a prior rulemaking,\280\ OPM modified its regulations for
appealable adverse actions in 5 CFR part 752, subpart D, to align with
Van Wersch and McCormick and statutory language. OPM has consistently
advised agencies construing 5 U.S.C. 7501 to do so in light of the
Federal Circuit's interpretation of similar statutory language in 5
U.S.C. 7511. In this rule, OPM modifies language in 5 CFR 752.201(b)(1)
to conform to that understanding (and thus with the statutory language
in 5 U.S.C. 7501, as construed by the Federal Circuit in a precedential
decision). OPM's revision to section 752.201(b)(1) prescribes that,
even if an employee in the competitive service who has been suspended
for 14 days or less is serving a probationary or trial period, the
employee retains the procedural rights provided under 5 U.S.C. 7503 if
the individual has completed 1 year of current continuous service in
the same or similar position under other than a temporary appointment
limited to 1 year or less.
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\280\ U.S. Off. of Pers. Mgmt., ``Career and Career-Conditional
Employment and Adverse Actions,'' 73 FR 7187 (Feb. 7, 2008).
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 752.201
Some commenters discussed OPM's changes to conform regulations to
Federal Circuit precedent in Van Wersch and McCormick and most were
supportive. A coalition of national and local unions expressed support
for
[[Page 25017]]
aligning the language of section 752.201(b)(1) for suspensions of less
than 14 days ``with the language of 5 U.S.C. 7501 and its interpreting
jurisprudence.'' Comment 41. An organization emphasized its support of
OPM's change to section 752.201 regarding the employees eligible for
grievance rights for suspensions. Comment 1904.
One former political appointee opposed to the rule questioned how
an individual meets the criterion for ``continuous service'' in this
regulatory change. Comment 45. Commenter asked how ``continuous
service'' applies to individuals who are teleworking or ``not turning
on their government computers given certain data from the Government
Accountability Office about the `massive increase in telework and
underutilization of office buildings.''' OPM is unclear whether this is
a serious inquiry, but notes that the term ``current continuous
employment'' is defined in 5 CFR 752.201(d) for suspensions of 14 days
or less as ``a period of employment or service immediately preceding a
suspension action without a break in Federal civilian employment of a
workday,'' and does not turn on whether the employee is exercising
flexibilities such as remote work or telework. Although commenter
raised concerns about ``continuous service'' with respect to section
752.201, OPM also notes that the language is present in subpart D of
part 752 as it applies to regulatory requirements for removals,
suspensions for more than 14 days, reductions in grade or pay, and
furloughs for 30 days or less. In section 752.402, the term ``current
continuous employment'' is defined as ``a period of employment or
service immediately preceding an adverse action without a break in
Federal civilian employment of a workday.'' This rulemaking does not
amend these definitions. Apart from the fact that these definitions are
unrelated to an individual's use of telework or occupancy in government
office buildings, we note that, during a lengthy period starting in
March 2020 and extending into the beginning of the Biden
Administration, Federal office buildings were closed to all but a few
employees whose work required their physical presence, making it
unavoidable that most employees were working from alternative
locations.\281\ Accordingly, the need to monitor whether employees are
actually working when not in the agency's brick-and-mortar workplace is
not a new consideration and can be addressed, as always, through
traditional performance management tools. OPM has already issued
extensive guidance on this topic.\282\
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\281\ See, e.g., U.S. Off. of Mgmt. and Budget, M-20-15 (Mar.
15, 2020); M-20-16 (Mar. 17, 2020); M-20-23 (April 20, 2020).
\282\ See U.S. Off. of Pers. Mgmt., ``2021 Guide to Telework and
Remote Work in the Federal Government,'' https://www.opm.gov/telework/documents-for-telework/2021-guide-to-telework-and-remote-work.pdf.
---------------------------------------------------------------------------
In addition, the amended regulations section 752.201(b)(1) through
(b)(6) explain that individuals retain their status as covered
employees if they are moved involuntarily from the competitive service
to the excepted service, unless specifically prohibited by law.
One joint comment by a nonprofit organization and former federal
official supportive of the rule argued that OPM's proposed language for
section 752.201(b)(1), (b)(2), and (b)(6) provides coverage if the
employee is moved involuntarily and ``still occupies that position or a
similar position[.]'' Comment 2134. Likewise, commenter noted that
section 752.201(b)(4) applies only if the employee still occupies that
position. Commenter stated that these provisions collectively may be
too narrow to achieve OPM's purpose and that the ``number of
involuntary moves should not be relevant to the coverage of this
subsection.'' Commenter noted that an agency might deliberately move an
employee to a dissimilar position for the purpose of stripping the
employee of their rights. For these reasons, the organization
``suggest[s] that OPM end these paragraphs with the following language:
`that position or another position to which the employee is moved
involuntarily.'''
OPM agrees with commenter that the revision suggested would better
meet and strengthen the policy that OPM is advancing with the final
rule, and we will revise these provisions accordingly. OPM's proposed
rule was based the procedural rights in section 752.201(b)(1), (b)(2),
and (b)(6) in Subchapter I of chapter 75, title 5, U.S. Code. The
definitions for that subchapter are codified at 5 U.S.C. 7501, which
defines an employee as ``an individual in the competitive service who
is not serving a probationary or trial period under an initial
appointment or who has completed 1 year of current continuous
employment in the same or similar positions under other than a
temporary appointment limited to 1 year or less.'' (emphasis added).
OPM agrees with commenter, though, that the ``same or similar
positions'' language used in chapter 75 relates to how rights are
accrued in the first instance. Based on the precedent described above,
the key factor to whether accrued status and rights are retained
following a move to or within the excepted service is whether the move
was voluntary or involuntary. The position to which an employee is
involuntarily moved need not be the ``same or similar'' for the
employee who has already accrued rights to continue to retain such
rights. OPM will therefore revise the provisions in paragraphs 5 CFR
752.201(b)(1), (b)(2), and- (b)(6) by clarifying that the provision
applies where the employee is moved involuntarily and continues to
occupy that position or any other position to which the employee is
moved involuntarily. In addition, based on the precedent explained
above, OPM will revise 5 CFR 752.201(b)(3) through (5) to apply the
same language.
The final rule also establishes a new 5 CFR 752.201(c)(7) to make
clear that employees in positions determined to be of a confidential,
policy-determining, policy-making, or policy-advocating character as
defined in 5 CFR 210.102 are excluded from coverage under subpart B of
part 752, consistent with congressional intent and as described more
fully below.\283\
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\283\ Please see also the discussion in Section IV(B) regarding
the definition of the phrases ``confidential, policy-determining,
policy-making or policy-advocating'' and ``confidential or policy-
determining.''
---------------------------------------------------------------------------
An agency commented that the ``inclusions/exclusions in 5 CFR
752.201 appear to conflict.'' Comment 2766. The agency explained that
the subsection of the proposed regulation addressing employees included
at Sec. 752.201(b) indicates that in many cases, ``an employee will be
covered if the employee is moved involuntarily into the excepted
service (or [into a] different schedule[ ]of the excepted service) and
still occupies this position.'' The agency noted, however, that the
subsection addressing employees excluded at Sec. 752.201(c) would
preclude coverage of individuals whose position has been determined to
be of a confidential, policy-determining, policy-making, or policy-
advocating character. The agency noted that subsection (c) does not
specify that the exclusion would apply only if the individual lacked
the accrued rights referenced in paragraph (b). The agency then
recommended a change to Sec. 752.201(c)(7) to address the perceived
conflict.
Based on this agency's comment, OPM is persuaded that a change is
necessary to effectuate the policy advanced by this final rule
consistent with statutory text, legislative history, and legal
precedents. As Comment 2134
[[Page 25018]]
noted, under Roth and other precedents, it is well-established that
when an employee with accrued rights is involuntarily moved from the
competitive service to an excepted service schedule without such
rights, the employee retains the accrued rights while the employee
remains in that position or any subsequent position to which the
employee is involuntarily moved. OPM will accept the agency's
recommendation to revise the exclusion at Sec. 752.201(c)(7) by
clarifying that the exclusion does not apply if the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
Sec. 752.201(b).
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
This subpart addresses the procedural requirements for removal,
suspension for more than 14 days, reduction in grade or pay, or
furlough for 30 days or less for covered employees. This includes, but
is not limited to, adverse actions based on misconduct or unacceptable
performance. The changes are intended to reinforce the civil service
protections that apply when an agency pursues certain adverse actions
for the efficiency of the service under chapter 75.
Section 752.401 Coverage
The changes add language to provide that an ``employee'' (i.e., for
purposes of this part, an individual who has accrued adverse action
rights by completing probation or a current continuous service
requirement) who occupies a position that is moved from the competitive
service into the excepted service, or from one excepted service
schedule to another, is covered by the regulatory requirements for
removal, suspension for more than 14 days, reduction in grade or pay,
or furlough for 30 days or less.
The changes to Sec. 752.401 reflect the impact of statutory
requirements--namely, that once an employee meets certain conditions,
the individual gains certain statutory procedural rights and civil
service protections which cannot be taken away from the individual by
moving the employee's position involuntarily into the excepted service,
or within the excepted service. These regulatory changes are consistent
with how similar statutory rights have been interpreted by Federal
courts and the MSPB when employees change jobs by moving to a different
Federal agency.\284\
---------------------------------------------------------------------------
\284\ See, e.g., McCormick, 307 F.3d at 1341-43; Greene v. Def.
Intel. Agency, 100 M.S.P.R. 447 (2005).
---------------------------------------------------------------------------
Paragraph (c) of 5 CFR 752.401 enumerates the conditions under
which an individual would qualify for coverage. The amended regulation
explains that those individuals retain their status if moved
involuntarily unless specifically prohibited by law.
Consistent with the proposed rule,\285\ OPM's final rule revises
Sec. 752.401(c) to clarify that employees in the competitive and
excepted services who have fulfilled their probationary or trial period
requirement or the durational requirements under 5 U.S.C. 7511 will
retain the rights conferred by subchapter II if moved involuntarily
from the competitive service to the excepted service or within the
excepted service to a new excepted service schedule, except in the case
where an employee relinquishes such rights or status by voluntarily
seeking, accepting, and encumbering a position that explicitly results
in a loss of, or different, rights.
---------------------------------------------------------------------------
\285\ 88 FR 63862, 63871.
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Comments Regarding Amendments to 5 CFR 752.401
One former political appointee opposed to the rule cited language
in the proposed rule regarding the retention of rights on an
involuntary move or the relinquishment of rights on a voluntary move
and characterized it as OPM wanting ``employees being transferred to
have the authority to determine if they relinquish their pay/benefits/
protections'' which would be, commenter argued, the ``equivalent of
placing someone on paid leave but allowing them to decide how much pay
to receive while they are gone.'' Comment 45. OPM disagrees with this
assessment. This section of OPM's proposed rule addressed rights
following the movement of an employee and differentiated between
voluntary and involuntary movements.\286\ It is not, as Commenter seems
to suggest, similar to leave following a disciplinary action. As
explained in the proposed rule and this final rule, absent a voluntary
movement, accrued rights are established in statute, as confirmed by
case law construing the statute, and cannot be taken from employees by
involuntarily moving them. Commenter's comparison of the retention of
rights following a move to an employee's rights following a
disciplinary action is therefore inapt.
---------------------------------------------------------------------------
\286\ See 5 CFR 302.102 (regarding processes for voluntary
movements).
---------------------------------------------------------------------------
As with 5 CFR 752.201, Comment 2134, which strongly supported the
proposed amendments, requested modifications to ensure that if ``an
agency moves an employee involuntarily more than once, the employee''
would ``retain any applicable status and civil service protections.''
Comment 2134. Commenter contended that an agency might deliberately
move an employee multiple times to a dissimilar position for the
purpose of stripping the employee of rights. Commenter noted that OPM's
proposed language for Sec. 752.401(c)(3), (4), (5), and (7) provides
coverage if the employee is moved involuntarily and ``still occupies
that position or a similar position[.]'' Commenter recommended
``replacing language that refers to a subsequent movement to a `similar
position' with language that refers to any position to which an
employee is moved involuntarily.'' For these reasons, commenter
recommended adding the language, ``or another position to which the
employee is moved involuntarily'' directly after ``and still occupies
that position'' in each of these paragraphs.
OPM is persuaded that this concern is well-founded and that the
change would strengthen the policy that the final rule advances. OPM
will revise these provisions accordingly. Section 752.401(c)(3) covers
an ``employee in the excepted service who is a preference eligible in
an Executive agency as defined at section 105 of title 5, United States
Code, the U.S. Postal Service, or the Postal Regulatory Commission[.]''
Section 752.401(c)(4) covers certain individuals in the Postal Service,
and Sec. 752.401(c)(5) covers certain nonpreference eligibles in the
excepted service. OPM's proposed rule focused on the fact that all such
individuals derive their rights and protections from 5 U.S.C.
7511(a)(1)(B) or (a)(1)(C), both of which require the work to have been
performed ``in the same or similar positions[.]'' With respect to Sec.
752.401(c)(7), the language covers an employee who previously ``was''
in the competitive service with competitive status and is currently in
the excepted service. As explained above, OPM agrees with commenter
that the ``same or similar positions'' language used in chapter 75
relates to how rights are accrued in the first instance and the key
factor in determining whether accrued status and rights are retained
following a move to or within the excepted service is whether the move
was voluntary or involuntary. OPM will therefore revise the provisions
in 5 CFR 752.401(c)(3), (c)(4), and (c)(5) to replace the words ``a
[[Page 25019]]
similar position'' with the words ``any other position to which the
employee is moved involuntarily.'' In addition, OPM will revise 5 CFR
752.401(c)(6) and (c)(8) to apply the same language. In 5 CFR
752.401(c)(7), OPM will replace ``a similar position'' with the words
``any other position to which the employee is moved involuntarily.''
OPM will also correct a typographical error by changing the period at
the end of 5 CFR 752.401(d)(2)(iii) to a semicolon.
In addition, the final rule modifies 5 CFR 752.401(d)(2) to make
clear that employees in positions determined to be of a confidential,
policy-determining, policy-making, or policy-advocating character as
defined in 5 CFR 210.102 are excluded from coverage under subpart D of
part 752. In this final rule, OPM defines these terms as descriptors
for the positions held by noncareer political appointees, as discussed
in Section IV(B).
As with 5 CFR 752.201, an agency asserted that the ``inclusions/
exclusions in 5 CFR 752.401 appear to conflict.'' Comment 2766. The
agency expressed that the subsection addressing employees excluded at
section 752.401(d) would preclude coverage of individuals whose
position has been determined to be of a confidential, policy-
determining, policy-making, or policy-advocating character but does not
specify that the exclusion would apply only if the individual lacked
the accrued rights referenced in paragraph (c). The agency then
recommended a change to 5 CFR 752.401(d)(2) to address the perceived
conflict. Based on this agency's comment, OPM is persuaded that a
change is necessary for the same reasons explained above relating to 5
CFR 752.201. OPM will revise the exclusion at Sec. 752.401(d)(2) by
clarifying that the exclusion does not apply if the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
Sec. 752.401(c).''
Finally, this final rule revises 5 CFR 752.401(c)(2)(ii) to reflect
the repeal of 10 U.S.C. 1599e, effective December 31, 2022, by the
National Defense Authorization Act for Fiscal Year 2022.\287\ The
repeal restores a 1-year probationary period for covered Department of
Defense employees (and also reduces the alternative continuous service
prong to 1 year). With respect to OPM's amendment to reflect the repeal
of the 2-year probationary period in the Department of Defense, an
individual disagreed with OPM's chosen language, stating that the
proposed regulation would ``codify an erroneous reading of the clear
language'' of sections 7501 and 7511 of title 5, U.S. Code. Comment
474. Commenter expressed concern that under OPM's proposed regulation,
individuals who were in a 2-year probationary period at the time of
their appointment (due to the now-repealed law) would not benefit from
the conforming amendment that modified 5 U.S.C. 7511 to remove
references to the now-repealed 2-year period. Commenter discussed both
Department of Defense guidance and multiple canons of statutory
construction. Commenter stated that the provision in 5 CFR
752.401(c)(2)(ii) in the proposed rule should be deleted in the final
rule to reflect the language of 5 U.S.C. 7501(1) and 7511(a)(1)(A)(ii).
---------------------------------------------------------------------------
\287\ See Public Law 117-81, 135 Stat. 1541, Sec. 1106(a)(1).
---------------------------------------------------------------------------
OPM will not adopt commenter's suggested revision but will make a
clarification. Section 1106 of Public Law 117-81 had two sections, (a)
and (b). Section (a) repealed a 2-year probationary period in the
Department of Defense. Section (b) provided the ``Technical and
Conforming Amendments.'' Section (a) states that the modifications of
probationary periods created by the repeal ``shall only apply to an
individual appointed as such an employee on or after the effective date
specified'' by the statute.\288\ The amendments to the U.S. Code that
follow in section (b) are alterations intended to conform the code to
the intent of the legislation, including the repeal of similar
provisions in 5 U.S.C. 7501 and 5 U.S.C. 7511. OPM interprets Public
Law 117-81 section 1106(a)(1) to mean that someone who was on a 2-year
probationary period (or 2-year continuous service requirement) under
section 1599e as of the effective date of the repeal, must still
complete one of those 2-year periods notwithstanding the repeal. Anyone
hired on or after the effective date, need only complete a 1-year
period. The current regulatory text indicates that covered employee
includes an employee ``[e]xcept as provided in section 1599e of title
10, United States Code, who has completed 1 year of current continuous
service under other than a temporary appointment limited to 1 year or
less.'' OPM will therefore revise this provision to clarify that the 2-
year probationary period applies to individuals hired prior to December
31, 2022, the date that section was otherwise repealed by Public Law
117-81, section 1106.
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\288\ See Public Law 117-81, Sec. 1106(a)(1).
---------------------------------------------------------------------------
Additional Comments Regarding Amendments to 5 CFR Part 752
A former federal official supportive of the rule suggested that OPM
clarify that the changes proposed in 5 CFR part 752 include SES
Positions. Comment 2816. Commenter included proposed language that
would modify 5 CFR 752.601, which deals with regulatory requirements
for taking adverse action relating to the SES. Commenter suggested
adding ``including such an employee who is moved involuntarily into the
excepted service and still occupies that position or a similar
position'' at the end of 5 CFR 752.601(c)(1)(i), (ii), (iii), and
(2)(i). OPM agrees with the policy goal that SES employees maintain
their adverse action protections, but we will not make any changes in
response to this comment. As described further in Section IV(B), this
rule addresses the competitive and excepted services, specifically the
retention of status and rights upon an involuntary movement from the
competitive service into or within the excepted service, the exclusion
of adverse action rights for excepted service positions of a
``confidential, policy-determining, policy-making or policy-advocating
character,'' and processes for moving employees and positions from the
competitive service into or within the excepted service. As described
above, the SES is its own separate service that it is not governed by
provisions applicable to the competitive or excepted services. Any
transfer of SES employees and positions would be governed by the SES
statute and regulations. Importantly, the exception to adverse action
rights under 5 U.S.C. 7511(b)(2) does also not apply to the SES. The
career SES is governed by separate adverse action procedures that,
unlike the rules governing the competitive and excepted services, make
no mention of whether a position is of ``a confidential, policy-
determining, policy-making or policy-advocating character.'' \289\ For
these reasons, as explained more fully below in Section IV(B), OPM will
make no modifications to the rule based on this suggestion.
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\289\ See 5 U.S.C. 7541-7543.
---------------------------------------------------------------------------
B. Positions of a Confidential, Policy-Determining, Policy-Making, or
Policy-Advocating Character
Part 210 of title 5, Code of Federal Regulations, addresses basic
concepts and definitions used throughout the Civil Service regulations
in 5 CFR chapter I, subchapter B. This final rule
[[Page 25020]]
adds a definition for the phrases ``confidential, policy-determining,
policy-making, or policy-advocating'' and ``confidential or policy-
determining.'' Positions of this character are excepted from the
chapter 75 protections described above.
OPM defines these phrases to make explicit OPM's interpretation of
this exception in 5 U.S.C. 7511(b)(2)--grounded in the statute,
traditional tools of statutory interpretation, and longstanding
policy--that Congress intended to except from chapter 75's civil
service protections individuals in positions of a character exclusively
associated with a noncareer political appointment that is both (a)
identified by its close working relationship with the President, head
of an agency, or other key appointed officials who are responsible for
furthering the goals and policies of the President and the
administration, and (b) that carries no expectation of continued
employment beyond the presidential administration during which the
appointment occurred.
OPM is also defining these phrases as descriptors for the positions
held by noncareer political appointees because the phrases are
currently used in the regulations to describe, among other things, a
``position'' or the ``character'' of a position. OPM is conforming
changes to 5 CFR 213.3301, 302.101, 432.101, 451.302, 752.201, and
752.401 to standardize the phrasing used to describe this type of
position.
As explained in this section and in the proposed rule,\290\
Congress has been careful to strike a balance between career
employees--who are covered by civil service protections under chapter
75 because of the need for a professional civil service no matter
whether they are in the competitive or excepted service--and political
appointees who serve as confidential assistants and advisors to the
President and other politically appointed officials who have direct
responsibility for carrying out the Administration's political
objectives. These political appointees are not required to compete for
their positions in the same manner as career employees, serve at the
pleasure of their superiors, and have no expectation of continued
employment beyond the presidential administration during which their
appointment occurred.
---------------------------------------------------------------------------
\290\ 88 FR 63862, 63871-73.
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When Congress created the adverse action protections under chapter
75, it excluded, among others, employees appointed by the President,
with or without Senate confirmation,\291\ and employees in the excepted
service ``whose position has been determined to be of a confidential,
policy-determining, policy-making or policy-advocating character.''
\292\ Likewise, Congress specifically excluded from the positions
safeguarded against prohibited personnel practices under 5 U.S.C.
2302(a)(2)(B)(i) any position that is ``excepted from the competitive
service because of its confidential, policy-determining, policy-making,
or policy-advocating character.''
---------------------------------------------------------------------------
\291\ See 5 U.S.C. 7511(b)(1), (b)(3).
\292\ See 5 U.S.C. 7511(b)(2).
---------------------------------------------------------------------------
Chapter 75 does not specifically define the phrase as used in the 5
U.S.C. 7511(b)(2) exception, but as described in the proposed rule--and
as made further clear by public comments--this is a term of art and the
history of the phrase and the exception have long meant political
appointees.
Comments Regarding the Need To Clarify the Exception
Several commenters agreed with OPM that the phrase in this
exception needs further clarification because of the risk it could be
read, counter to the history of its usage, unreasonably broadly to
strip rights from career civil servants. One commenter discussed the
difficulty in identifying which employees have duties that are of a
``[c]onfidential, policy-determining, policy-making, or policy-
advocating'' character if the phrase is interpreted not to mean, as has
been broadly understood for decades, political appointees. Comment 6.
Merely being in an office or position titled ``policy,'' ``policy
analysis,'' ``policy implementation'' or such is not determinative.
Likewise, some employees with a title such as ``policy analyst'' or in
an office with a policy or planning-related title may be mid- or lower-
level. And countless federal employees work on issues that relate to or
touch upon policy. Thus, commenter argued, OPM's proposal to define
these policy positions as used in 5 U.S.C. 7511(b)(2) to noncareer
political appointees will be ``helpful in limiting the adverse
impacts'' of politicization to policy roles. Another commenter argued
that, without these changes, there is a risk of overbroad
classification of positions as ``policy-making,'' potentially
subjecting a substantial number of federal employees to unwarranted
political interference. Comment 2516. Commenter argued that this
interference could adversely impact employees' ability to perform their
duties effectively and could potentially paralyze the essential
functions of their agencies. Therefore, ``the need for clear
delineation in the interpretation of these terms is paramount to
prevent unintended consequences that could impede vital government
services.'' Id., see also Comment 3491. A professor emeritus noted that
the different potential interpretations of the exception are
represented in the various estimates on the potential scope of Schedule
F. See Comment 3953. Commenter showed that, in the early days of
Schedule F, the estimates were ``in the thousands.'' Since then, the
proponents have varyingly suggested that the number would be at least
50,000 and perhaps as many as 100,000.\293\ In public discussions, some
Schedule F supporters have made clear that their goal is for all 2.2
million federal employees to serve at the pleasure of the president.
Id.
---------------------------------------------------------------------------
\293\ Citing, for example, Drew Friedman, ``Divide over Schedule
F reveals deeper need for federal workforce reform, Partnership
says,'' Federal News Network (July 3, 2023), https://federalnewsnetwork.com/workforce/2023/07/divide-over-schedule-f-reveals-deeper-need-for-federal-workforce-reform-partnership-says/.
---------------------------------------------------------------------------
Conversely, a former political appointee argued that the statutory
exception was clear and did not require further definition. See Comment
45. OPM believes that the phrase itself--``confidential, policy-making,
policy-determining or policy-advocating''--may be, when viewed in
isolation, capable of more than one interpretation. But employing the
standard tools of statutory interpretation, including past practice,
legislative history, intent, and legal precedents, provides that the
best reading of the exception refers to noncareer political appointees
typically listed in Schedule C.
Comment Regarding the History of the Exception
The same joint comment by a nonprofit organization and former
federal official that extensively detailed the historical treatment of
accrued status and civil service protections upon an involuntary move
to an excepted service schedule, summarized in Section IV(A), also
commented at length regarding the executive branch's historical
understanding that the exception for ``confidential, policy-
determining, policy-making or policy-advocating'' positions applies
only to a small class of political appointee positions. See Comment
2134. This phrase and the related phrase, ``confidential or policy-
determining,'' have ``been used with consistency for between seven and
nine decades.'' This history is important because, as OPM recounts in
its proposed rule and in this final rule, a common understanding of the
terminology gave meaning to the
[[Page 25021]]
language of 5 U.S.C. 7511(b) when Congress enacted the CSRA. Commenter
concluded, after exhaustively detailing the relevant history, that
OPM's proposed regulatory definition is fully consistent with the
phrase's historical meaning.
Commenter also showed that the executive branch has consistently
designated only around 1,500 positions as confidential or policy
positions and has applied that definition to political appointees with
no expectation of continued employment beyond the presidential
administration during which the appointment occurred. See Comment 2134.
Because of the extensive citation to facts and history relevant to
this regulatory change, OPM summarizes commenter's arguments here.
Commenter began with the legal context of the exception. While the
phrase ``confidential, policy-determining, policy-making or policy-
advocating'' is not further defined in chapter 75, commenter argued
that other sections of the U.S. Code make clear that this phrase refers
to political appointees. Commenter cited as examples four laws that
directly state that incumbents of ``confidential, policy-determining,
policy-making or policy-advocating'' positions are political
appointees. One law applicable to the Department of Homeland Security
declares plainly that ``the term `political appointee' means any
employee who occupies a position which has been excepted from the
competitive service by reason of its confidential, policy-determining,
policy-making, or policy-advocating character.'' \294\ Congress used
similar language in laws applicable to the Department of
Agriculture,\295\ the National Aeronautics and Space
Administration,\296\ and the Department of Veterans Affairs.\297\
Commenter also showed that Congress has enacted laws that apply
restrictions to classes of political appointees that include incumbents
of positions of a ``confidential, policy-determining, policy-making or
policy-advocating'' character, including laws with government-wide
applicability.\298\
---------------------------------------------------------------------------
\294\ Citing 6 U.S.C. 349(d)(3) (``For purposes of paragraph
(1)--(A) the term `career employee' means any employee (as such term
is defined in section 2105 of title 5), but does not include a
political appointee; and (B) the term `political appointee' means
any employee who occupies a position which has been excepted from
the competitive service by reason of its confidential, policy-
determining, policy-making, or policy-advocating character.'').
\295\ Citing 7 U.S.C. 6992(e)(2).
\296\ Citing 5 U.S.C. 9803(c)(2).
\297\ Citing U.S. Dep't of Veterans Affairs, ``VA's
Administrations,'' https://www.ruralhealth.va.gov/aboutus/
structure.asp#:~:text=VA%20is%20the%20federal%20government's,Veterans
%2C%20their%20families%20and%20survivors.
\298\ Citing 5 U.S.C. 4107(b)(3), 5753(a)(2), 5754, 5758,
10104(d), see also 12 U.S.C. 4511, 5584; 22 U.S.C. 3983(d)(3); 38
U.S.C. 308(d)(2).
---------------------------------------------------------------------------
Further illustrating the political nature of positions excluded
under 5 U.S.C. 7511(b)(2), commenter cited a law applicable to the
Social Security Administration that imposes an aggregate limit on the
total number of noncareer (i.e., political) SES positions and
confidential or policy positions.\299\
---------------------------------------------------------------------------
\299\ Citing 42 U.S.C. 904(c), see also 5 U.S.C. 1215(b) (Office
of Special Counsel statute that requires that office to notify the
President of a Hatch Act violation by ``an employee in a
confidential, policy-making, policy-determining, or policy-
advocating position appointed by the President, by and with the
advice and consent of the Senate,'' which reinforces political
meaning of the phrase), 2 U.S.C. 1601 (Lobbying Disclosure Act
listing ``confidential, policy-determining, policy-making, policy-
advocating'' with other political appointees and executive and
military officers).
---------------------------------------------------------------------------
In addition to pointing to Congress' understanding of the phrases,
commenter also extensively detailed the history of these phrases
through various administrations, beginning in 1936 with the Roosevelt
Administration, and concluded that this context further supports OPM's
definition in this rulemaking. The history confirms that these phrases
have the same meaning, refer to political appointees, and cover only a
small number of positions in the executive branch (roughly 1,500).
As commenter points out, at least as early as the Roosevelt
Administration, the executive branch sought to treat confidential and
policy positions differently than it treated career excepted and
competitive service employees.\300\ In 1937, President Roosevelt called
for converting all positions other than ``policy-forming'' positions to
the classified (i.e., competitive) service, a position with which the
CSC agreed.\301\
---------------------------------------------------------------------------
\300\ Citing Democratic Party Platform of 1936 (June 23, 1936)
(``For the protection of government itself and promotion of its
efficiency, we pledge the immediate extension of the merit system
through the classified civil service . . . to all non-policy-making
positions in the Federal service.''), https://www.presidency.ucsb.edu/documents/1936-democratic-party-platform.
\301\ Citing Task Force on Pers. & Civil Serv., Report on
Personnel and Civil Service, 6 (1955) https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC; U.S.
Civil Serv. Comm'n, Fifty-Fourth Report, 2 (1937), https://babel.hathitrust.org/cgi/pt?id=hvd.hl29qu&seq=10&q1=policy&format=plaintext.
---------------------------------------------------------------------------
Further, as commenter noted, and as OPM explained in its proposed
rulemaking, the Roosevelt Administration's Brownlow Committee, studying
the executive branch organization, issued a report explaining that its
conception of policy-determining positions was extremely narrow and
such positions should be ``relatively few in number,'' consisting
mainly of ``the heads of executive departments, under secretaries and
assistant secretaries, the members of the regulatory commissions, the
heads of a few of the large bureaus engaged in activities with
important policy implications, the chief diplomatic posts, and a
limited number of other key positions.'' \302\
---------------------------------------------------------------------------
\302\ Citing ``Hearings on Reorganization of the Executive
Departments, before Joint Comm. on Gov't Org.,'' 75th Cong., 112
(1937) (testimony of Louis Brownlow), https://babel.hathitrust.org/cgi/pt?id=mdp.39015022777190&seq=124&q1=policy&format=plaintext.
---------------------------------------------------------------------------
Testifying before Congress, Louis Brownlow, the committee chair,
explained the meaning of this policy-determining position exception:
``[P]olicy-determining officers should be political officers and, in my
opinion, should change when the President changes.'' \303\
Contemporaneous materials support this meaning of the term ``policy-
determining.'' \304\
---------------------------------------------------------------------------
\303\ Id.
\304\ Citing ``Civil Service Aide Defends Federal Plan, Cites
Administration's increase in Employes Under System,'' Cincinnati
Post (May 11 1936); Nat'l Civil Service Reform League, ``The Civil
Service in Modern Government, A Study of the Merit System,'' p. 19
(1937), https://babel.hathitrust.org/cgi/pt?id=mdp.39015005609923&seq=27.
---------------------------------------------------------------------------
President Roosevelt then pursued the Committee's recommendation and
issued Executive Order 7916,\305\ adopting the term ``policy-
determining'' in lieu of the term ``policy-forming'' which his
Administration had initially used. The order created a framework for
giving employees in excepted service positions, other than those in
``policy-determining'' positions, competitive status.
---------------------------------------------------------------------------
\305\ Citing E.O. 7916 (June 24, 1938), https://www.presidency.ucsb.edu/documents/executive-order-7916-extending-the-competitive-classified-civil-service.
---------------------------------------------------------------------------
Two commissions led by former President Herbert Hoover agreed with
the same reading of this exception. During the Truman Administration,
the first Hoover Commission recommended a civil service exception for
``policy-making'' positions, saying that ``[t]op policy-making
officials must and should be appointed by the President. But all
employment activities below these levels, including some positions now
in the exempt category, should be carried on within the framework of
the decentralized civil service system recommended in this report.''
\306\ Later,
[[Page 25022]]
a second Hoover commission determined the term ``policy-determining''
was ``used to describe positions which should properly be reserved for
political executives, and hence not be converted to classified
status.'' \307\
---------------------------------------------------------------------------
\306\ Citing U.S. Dep't of Justice, ``Hiring Procedures for
Attorneys,'' 3 Op. O.L.C. 140, 145, n.7 (1979) (``[Attorneys] were,
pursuant to Exec. Order No. 8743, in the competitive service.''),
https://www.justice.gov/d9/olc/opinions/1979/04/31/op-olc-v003-p0140_0.pdf.
\307\ Citing Task Force on Pers. and Civil Serv., Report on
Personnel and Civil service, p. 6 (1955) (emphasis added)), https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC.
---------------------------------------------------------------------------
The Eisenhower Administration maintained this same distinction
between career positions and political positions. In March 1953, the
White House issued a press release describing ``types of positions that
do not belong in the Civil Service System'' which included (1) those
positions that received a delegation to shape the policies of the
Government and (2) those where the duties required a close personal and
confidential relationship.\308\ As commenter noted, the focus of this
press release was Schedule A because, at the time, career positions had
been comingled with political positions under that schedule. Later that
month, President Eisenhower created a new home for political positions
through Executive Order 10440, which established Schedule C for both
types of positions described in the press release. The order combined
these types of positions, referring to them as ``positions of a
confidential or policy-determining character.'' \309\
---------------------------------------------------------------------------
\308\ Citing Press Release, The White House, p. 1 (Mar. 5, 1953)
(signed by James C. Hagerty, Press Sec'y to the President).
\309\ Citing E.O. 10440 (Mar. 31, 1953), https://www.presidency.ucsb.edu/documents/executive-order-10440-amendment-civil-service-rule-vi.
---------------------------------------------------------------------------
The CSC explained that Schedule C aimed ``to enable the
Administration to make appointments directly to those positions
involving the determination of major executive policies'' and
identified the purpose of the new schedule for positions of a
confidential or policy-determining character: ``This action was taken
in order to make a clear distinction between jobs which belong in the
career service and those which should be subject to change with a
change in administration.'' \310\
---------------------------------------------------------------------------
\310\ Citing Memo. From Philip Young, Chairman, CSC, to Heads of
Dep'ts and Indep. Estabs. (Apr. 1, 1953); CSC, 70th Annual Report,
p. 2 (Nov. 16, 1953), https://babel.hathitrust.org/cgi/pt?id=uiug.30112069434923&seq=532&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
As commenter asserts, the Eisenhower Administration recognized that
the universe of political positions was small and showed restraint in
redesignating or creating Schedule C positions. By mid-1954, there were
only 1,086 Schedule C positions.\311\ This understanding about the
limited nature of this Schedule and corresponding restraint has endured
to this day.
---------------------------------------------------------------------------
\311\ Citing Press Release, U.S. Civil Serv. Comm'n, p. 2 (Aug.
6, 1954); U.S. Civil Serv. Comm'n, Schedule C Approvals and
Disapprovals by Agency Based Upon Civil Service Commission Decisions
(Jul. 23, 1954).
---------------------------------------------------------------------------
The precedent from 1936-1960 gave meaning to the phrase
``confidential or policy-determining'' by recognizing that it applied
to political appointees and only a small number of positions. As
commenter showed, Presidents Kennedy, Johnson, Nixon, Ford, and Carter
solidified that meaning by continuing to recognize the appropriate
scope of the phrase ``confidential or policy-determining.'' Under those
five presidents, the number of confidential and policy-determining
positions remained consistent, never exceeding 1,590 positions.\312\
---------------------------------------------------------------------------
\312\ Citing Mike Causey, ``Reagan's Plum Book Plumper Than
Carters,'' Wash. Post (May 11, 1984), https://www.washingtonpost.com/archive/local/1984/05/11/reagans-plum-book-plumper-than-carters/4b45ea11-5f41-4b0b-a3c3-f0e4b5774543/;
Attachment to Memo. from Raymond Jacobson, Exec. Dir., U.S. Civil
Serv. Comm'n, to Dirs. Of Pers., at p. 5 (Nov. 10, 1976), https://www.fordlibrarymuseum.gov/library/document/0067/1563179.pdf; H.
Comm. On Post Off. And Civil Serv., 94th Cong., the Merit System in
the United States Civil Service, p. 22 n.1 (Comm. Print 94-10 1975)
(monograph by Bernard Rosen), https://babel.hathitrust.org/cgi/pt?id=mdp.39015078700211&view=1up&seq=1&q1=%22schedule+c%22.
---------------------------------------------------------------------------
By the time Congress enacted the CSRA in 1978, the meaning of
``confidential or policy-determining'' was firmly established as
referring only to a small class of political positions. In enacting the
CSRA, Congress opted for the slightly longer and more descriptive
phrase ``confidential, policy-determining, policy-making or policy-
advocating.'' But as commenter showed, the two phrases have always
meant the same thing.
Congressional deliberations over the CSRA exception for
``confidential, policy-determining, policy-making or policy-
advocating'' positions reflected a contemporaneous understanding that
the legislature's longer phrase referred to the same thing as the
executive branch's shorter phrase.\313\ During hearings on the bill
that would become the CSRA, participants used the terms ``policy-
determining,'' ``policy-making'' and ``policy-advocating''
interchangeably. Floor debate in the Senate, for example, discussed
reports of the two Hoover Commissions,\314\ demonstrating that Congress
was aware of the history of the terms when it enacted the CSRA. The
House Committee on the Post Office and Civil Service issued a report in
1978 that showed congressional understanding and approval of the
historical use of the ``confidential or policy-determining'' exception,
stating ``[a]n employee whose position is of a confidential or policy
determining character, generally political appointees, would not be
entitled to the benefits of this legislation.'' \315\ The House
Committee continued that the CSC ``issues regulations to define
positions which are of a policy or confidential nature, and the
committee believes the current regulatory definitions for these
positions are adequate.''
---------------------------------------------------------------------------
\313\ Citing ``Hearings on H.R. 12080, Civil Service Amendments
of 1976, Before the Subcomm. on Manpower and Civil Serv., H. Comm.
on Post Off. and Civil Serv.,'' Serial No. 94-67, 29 (1976), https://babel.hathitrust.org/cgi/pt?id=pur1.32754078079963&seq=33&q1=advocating&format=plaintext.
\314\ Citing 124 Cong. Rec. (Senate) 27540 (Aug. 24, 1978)
(remarks of Senator Charles Percy (R-IL)) (``The Hoover Commission
believed that in a true career service, the employee could go as far
as his ability and initiative and qualifications indicated,
excepting only decisionmaking or confidential posts. It held: [`]Top
policy-making officials must and should be appointed by the
President. But all employment activities below these levels,
including some positions now in the exempt category, should be
carried on within the framework of (the civil service
system).[']''), https://www.govinfo.gov/content/pkg/GPO-CRECB-1978-pt20/pdf/GPO-CRECB-1978-pt20-7-1.pdf.
\315\ Citing H.R. Rep. No. 95-1207, at 5 (1978), https://babel.hathitrust.org/cgi/pt?id=mdp.39015087614379&seq=1053&q1=policy-determining.
---------------------------------------------------------------------------
Commenter showed that the House of Representatives committee
responsible for the CSRA explicitly indicated in its 1978 report that
it meant for the new language, ``confidential, policy-determining,
policy-making or policy-advocating,'' to cover only the types of
positions that the executive branch had already included in Schedule C
or designated as noncareer (i.e., politically appointed) executive
positions.\316\
---------------------------------------------------------------------------
\316\ Citing H. Comm. on Post Off. and Civil Serv., Legislative
History of the Civil Service Reform Act of 1978, vol. II, 242 (Comm.
Print 96-2 1979), https://babel.hathitrust.org/cgi/pt?id=uc1.b4177360&seq=242&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
This limitation, confining the language to political appointees,
was well understood after the CSRA's enactment as well. In 1990, when
Congress amended 5 U.S.C. 7511 to grant nonpreference eligible
employees a right to appeal removals and other major adverse actions to
the MSPB, the relevant congressional committee was again clear in
describing confidential and policy positions as political
appointees.\317\
---------------------------------------------------------------------------
\317\ H.R. Rep. 101-328, 5, 1990 U.S.C.C.A.N. 695, 699
(``Schedule C, positions of a confidential or policy-determining
character. These are political appointees who are specifically
excluded from coverage under section 7511(b) of title 5. H.R. 3086
does not change the fact that these individuals do not have appeal
rights.'').
---------------------------------------------------------------------------
[[Page 25023]]
In 1992, a bipartisan group of senators and congressional
representatives filed an amicus brief emphasizing that ``the effective
synonym for confidential policy positions is `political appointees.' ''
\318\ Their brief cited an MSPB decision that had said the phrase was,
``after all, only a shorthand way of describing positions to be filled
by so-called `political appointees.' ''
---------------------------------------------------------------------------
\318\ Citing Amicus Curiae Brief of Sens. Charles Grassley and
David Pryor and Reps. Connie Morella, Patricia Schroeder, and Gerry
Sikorski, reprinted in ``Hearing on S. 1981 To Extend Authorization
of Appropriations for the U.S. Office of Special Counsel, and for
Other Purposes before S. Comm. on Govt'l Affairs, Subcomm. on Fed.
Servs., Post Off., and Civil Serv.,'' 102d Cong., 101-10 (1992),
https://babel.hathitrust.org/cgi/pt?id=pst.000022216847&seq=59&q1=policy-determining&format=plaintext.
---------------------------------------------------------------------------
Comment 2134 also showed that, in 1994, the Senate Select Committee
on Ethics reaffirmed this common understanding. Following the enactment
of the Hatch Act Reform Amendments, the committee issued guidance on a
new prohibition applicable to members of Congress regarding personnel
action recommendations or statements for ``all non-political Federal
employment.'' This meant that the prohibition did not apply to
political appointments. The committee specifically noted that the
prohibition did not apply to recommendations for presidential
appointments or for positions determined to be of a ``confidential,
policy-determining, policy-making, or policy-advocating character.''
\319\ The committee understood the term of art to mean political
positions.
---------------------------------------------------------------------------
\319\ Citing ``Dear Colleague'' Letter from the Senate Select
Committee on Ethics to United States Senators, 1 (Mar. 2, 1994),
reprinted in the 1996 Senate Ethics Manual, 1996 Ed., 238, https://babel.hathitrust.org/cgi/pt?id=mdp.39015038182369&seq=256&q1=advocating; see also U.S. Off.
of Pers. Mgmt., ``The status of the Senior Executive Service,'' p.
12 (1994) (``Executive branch agencies are barred from accepting or
considering prohibited political recommendations and are required to
return any prohibited recommendations to the sender, marked as in
violation of the law. Presidential appointees and employees in
confidential, policy-making or policy-advocating positions are
exempted from the regulations.'').
---------------------------------------------------------------------------
Finally, commenter noted that OPM further affirmed the common
understanding of this phrase when it responded to questions posed by
Senator Christopher Shays (R-CT) during a hearing in 1996. Illustrating
the consistency of OPM's position on the meaning of the phrase it now
defines, OPM wrote: ``OPM has authority to except positions from the
competitive service on the basis that they are of a confidential or
policy-making, policy-determining, or policy-advocating character
(`political' positions).'' \320\
---------------------------------------------------------------------------
\320\ Citing ``Hearing before the S. Comm. on Govt'l Affairs,''
104th Cong, S. Hrg. 104-483, 20, 92 (Feb. 7, 1996) (responses of
Off. of Pers. Mgmt. to Questions for the Record by Rep. C. Shays
(Mar. 21, 1996) as read into the record by Chairman Ted Stevens (R-
AK)), https://babel.hathitrust.org/cgi/pt?id=uc1.b5141898&seq=1&q1=policy-determining.
---------------------------------------------------------------------------
Commenter concluded, correctly, that this extensive history shows
that the ``terms mean precisely what OPM's proposed definition says
they mean. They describe positions meant to be filled by political
appointees who have no expectation of continuing beyond the terms of
either the president who appointed them or the term-limited
presidential appointees they support.'' The history also reveals there
are few such positions. The number has remained steady at around 1,500
positions and has never exceeded 1,800 positions.
Other Comments Regarding the History of the Exception
Several other comments supportive of the rule concurred with OPM's
understanding that Congress intended the phrase ``confidential, policy-
determining, policy-making or policy-advocating'' to mean political
appointees. A labor union expressed that the clarification is
consistent with the general understanding that the exception was
intended to only cover political appointees and was not intended to
extend to all federal employees whose jobs touch on policy in some way,
which, if read broadly, could encompass a substantial portion of the
federal civil service. Comment 40. The potential for turning the
exception into one that ``eats the rule'' is clear and the rule is a
sensible approach to prevent such future abuses. Id. A coalition of
national and local unions agreed with OPM's contention that there has
been a long, consistent understanding that this exception should
encompass only a category of political appointees. Comment 41.
Comments Opposing this Regulatory Change
An advocacy nonprofit organization opposed to the rule argued that
the legislative history for this exception merely confirms that it
covers Schedule C political appointees. Comment 4097. But commenter
contended that the legislative history does not state that the policy
influencing exception covers only political appointments and excludes
career employees. OPM disagrees with this position for the reasons
detailed in the proposed rule, this final rule, and Comment 2134. Since
at least 1936, this phrase and the resulting exception in 5 U.S.C.
7511(b)(2) have been understood to mean political appointees. Commenter
cites nothing that counters this extensive record. Even if there were
some uncertainty regarding the scope of section 7511(b)(2), OPM would
adopt the same definition because it is the best reading of the
statute, reflects the understanding articulated by Congress in enacting
the CSRA and, as discussed throughout this preamble, reasonably
reinforces and clarifies longstanding civil service protections and
merit system principles.
The same commenter opposed to the rule argued that OPM's
clarification of the longtime understanding of this exception would be
unconstitutional. Comment 4097 argued that OPM ``does not appear to
have considered the implications of its interpretation: accepting this
construction would render many inferior officers' civil service
protections unconstitutional.'' For this, commenter again cited Free
Enterprise Fund. For the reasons explained above in Sections III.(E),
(F), OPM does not agree with this conclusion or that Free Enterprise
Fund supports commenter's position. That case dealt with an independent
agency with multiple layers of removal protections for their inferior
officers (which generally do not exist in agencies where the President
can remove a Secretary, Director, or other agency head at will). In
Free Enterprise Fund, the second layer of protection was also
``significant and unusual'' \321\ and the Court specifically said that
other civil servants, like members of the SES, did not have such
rigorous protections even when they worked in independent agencies, and
further noted that many such employees would not qualify as
constitutional officers. Free Enterprise Fund casts no doubt on the
constitutionality of the civil service within independent agencies and
that decision provides no support to commenter's assertion that lower-
ranking employees in all agencies must lose civil service rights if
they work on policy or that somehow confirming their rights is
unconstitutional. And commenter made no showing that career civil
servants working on policy matters, especially below the ranks of the
SES--those to which this definition would apply--are always, or by
definition, inferior officers, nor is OPM aware of any judicial
decisions holding so.
---------------------------------------------------------------------------
\321\ 561 U.S. at 506.
---------------------------------------------------------------------------
[[Page 25024]]
One former political appointee appears to have argued that 5 U.S.C.
7511(b)(3) \322\ already exempts presidential appointees from adverse
action protections, so OPM's definition applicable to the exception in
7511(b)(2) would be superfluous. See Comment 45. But subsections
7511(b)(1)-(3) exclude three distinct types of political appointments
from the definition of ``employee,'' and by extension, from adverse
action rights.\323\ The first excludes high-level presidential
appointees requiring Senate confirmation (PAS).\324\ The third excludes
other presidential appointees who do not require Senate
confirmation.\325\ The middle category, and the subject of this
regulatory change, excludes those in positions determined to be of a
``confidential, policy-determining, policy-making or policy-advocating
character''--traditionally understood to refer, in the main, to
Schedule C political appointees.\326\ The creation of such a position
is approved in advance by OPM. Although the appointments are approved
by the Presidential Personnel Office, the individuals selected are
actually appointed by the head of the agency (or a designee) where the
individual will be assigned. Section 7511(b)(2) was enacted as part of
the Civil Service Due Process Amendments Act of 1990,\327\ where
Congress sought, inter alia, to eliminate the general exclusion of
nonpreference eligible excepted-service employees from ``independent
[MSPB] review.'' \328\ Accordingly, unlike the presidential appointees
discussed in (b)(1) and (b)(3), which are automatically excluded from
the adverse action procedures in chapter 75, some person or entity must
make an affirmative determination whether a position in the excepted
service is of a ``confidential, policy-determining, policy-making, or
policy-advocating'' character, a description which, as we have noted
above, was consistent with Congress' understanding of the unique set of
excepted service positions comprising Schedule C. Subparagraph (A) of
section 7511(b)(2) specifies that any such determination must be made
by the President, for a position that the President has excepted from
the competitive service; subparagraph (B) specifies that any such
determination must be made by OPM, for a position that OPM has excepted
from the competitive service; and subparagraph (C) specifies that any
such determination must be made by the President or the agency head for
a position that Congress itself has excepted from the competitive
service. As noted above, Congress explained that ``the key to the
distinction between those to whom appeal rights are extended and those
to whom such rights are not extended is the expectation of continuing
employment with the Federal Government.'' Congress stated that the bill
that would become the Civil Service Due Process Amendments Act of 1990
``explicitly denies procedural protections'' to these types of
political appointees--``presidential appointees, individuals in
Schedule C positions [which are positions of a confidential or policy-
making character] and individuals appointed by the President and
confirmed by the Senate,'' and that ``[e]mployees in each of these
categories have little expectation of continuing employment beyond the
administration during which they were appointed'' because they
``explicitly serve at the pleasure of the President or the presidential
appointee who appointed them.'' \329\ By enacting section 7511(b)(3),
therefore, Congress intended to exclude from the procedural and appeal
rights of 5 U.S.C. chapter 75 a discrete group of political appointees
separate from those described in section 7511(b)(2), namely those
individuals appointed directly by the President \330\ but who do not
require Senate confirmation.
---------------------------------------------------------------------------
\322\ Commenter argued ``Chapter 75 Sec. 7511(c) says that all
Presidential appointees are exempt. However, other subsections
enumerate other categories for exemption. Chapter 75 Sec. 7511
(b)(2) outlines exemptions for policymaking employees. If Congress
had intended that ONLY political appointees be exempt, they would
not have outlined under what circumstances other employees would
have been exempt for policymaking reasons. Therefore, Congressional
intent was for there to be members of the civil service who are
considered `policymaking.' '' Comment 45. Commenter cited 5 U.S.C.
7511(c) but appears to mean 7511(b)(3). Also, OPM never argues that
only political appointees are excepted from adverse action rights.
It is defining the exception in 5 U.S.C. 7511(b)(2) to mean
political appointees.
\323\ See supra note 138 (detailing the different types and
numbers of political appointments).
\324\ See 5 U.S.C. 7511(b)(1).
\325\ See 5 U.S.C. 7511(b)(3).
\326\ See 5 U.S.C. 7511(b)(2). Paragraph (b)(2) also specifies
who may make the determination for positions that Congress itself
excepts from the competitive service. See 5 U.S.C. 7511(b)(2)(C). An
example of such a position is the U.S. Trustee position discussed in
Stanley v. Dep't of Justice, 423 F.3d 1271 (Fed. Cir. 2005).
\327\ Public Law 101-376, 2, 104 Stat. 461, 461-62.
\328\ H.R. Rep. No. 101-328, at 3, as reprinted in 1990
U.S.C.C.A.N. 695, 697.
\329\ H.R. Rep. No. 101-328, at pp. 4-5, as reprinted in 1990
U.S.C.C.A.N. at 698-99.
\330\ See, e.g., 5 CFR 213.3102(c); U.S. Off. of Pers. Mgmt.,
``Frequently Asked Questions: Political Appointees and Career Civil
Service Positions FAQ'' (listing various types of political
appointments), https://www.opm.gov/frequently-asked-questions/political-appointees-and-career-civil-service-positions-faq/general/which-types-of-political-appointments-are-subject-to-opmrsquos-pre-hiring-approval/.
---------------------------------------------------------------------------
Some commenters opposed to the rule argued that career civil
servants, not just political appointees, can be ``policymakers'' and
excluded from the definition of ``employee'' and stripped of rights
under 5 U.S.C. 7511(b)(2). One former political appointee contended
that career civil servants significantly impact policy in agencies
across the Federal Government and that it makes little sense to say
they are not policymakers. See Comment 45. Comment 4097, an advocacy
nonprofit organization, argued that the CSRA expressly applies the
terms ``policy-determining'' and ``policy-making'' to career positions.
To support this point, commenter points to 5 U.S.C. 3132, which relates
to the duties of both career and noncareer SES and states that SES
members exercise ``important policy-making, policy-determining, or
other executive functions.'' 5 U.S.C. 3132(2)(E). Commenter concludes
similar phrasing in 5 U.S.C. 7511(b)(2) must also apply to career
members of the competitive and excepted services. OPM disagrees, for
multiple reasons.
As an initial matter, the terminology and the structure of 5 U.S.C.
7511(b) are different from 5 U.S.C. 3132. As explained extensively
throughout this final rule, the phrase ``confidential, policy-
determining, policy-making or policy-advocating,'' as Congress used it
in 5 U.S.C. 7511(b)(2), is a term of art with a clear history and a
consistent usage. By contrast, Congress, in enacting the provisions
establishing the SES, was writing on a clean slate and used a different
statutory structure and language. Section 3132(2)(E) describes the SES
as exercising ``important policy-making, policy-determining, or other
executive functions'' (emphasis supplied), a new formulation of
characteristics. Congress, in creating the SES, also established a
different mechanism to provide flexibility for hiring a certain number
of noncareer appointees, while limiting such appointments pursuant to a
numerical formula.\331\
---------------------------------------------------------------------------
\331\ See 5 U.S.C. 3133.
---------------------------------------------------------------------------
Further, Comment 4097's comparison to language in the SES cuts
against its larger argument--that Congress contemplated that career
civil servants, by the function of having confidential or policy
responsibilities, can and should lose adverse action rights. As
commenter points out, the law acknowledges that all SES positions,
career and noncareer, ``exercise[ ] important policy-making, policy-
determining, or other executive
[[Page 25025]]
functions,'' yet the career SES appointees under these positions are
entitled to adverse action protections.\332\ And these protections do
not include any exception for career SES officials, similar to 5 U.S.C.
7511(b)(2), for positions of a ``confidential, policy-determining,
policy-making or policy-advocating'' character.\333\ To the contrary,
all career SES officials who have completed a probationary period--
again, officials who, by statute, ``exercise important policy-making''
and ``policy-determining'' functions--receive adverse action
protections.\334\ It does not follow that Congress would create a
statutory scheme where the SES could have policy responsibilities and
adverse action rights but a lower-ranking strata of career civil
servants--managed by that SES--could lose adverse action rights the
moment they worked on policy.
---------------------------------------------------------------------------
\332\ See 5 U.S.C. 7541-7543.
\333\ As explained, the exception at 5 U.S.C. 7511(b)(2) does
not apply to the SES. That exception applies to the excepted service
and whether those civil servants have adverse action rights. But the
excepted service does not include the SES. See 5 U.S.C. 2103(a)
(defining ``excepted service,'' and stating, ``[f]or the purpose of
this title, the `excepted service' consists of those civil service
positions which are not in the competitive service or the Senior
Executive Service.'').
\334\ The Subchapter on adverse actions establishes the at-will
status of noncareer SES by simply defining ``employee'' for purposes
of that Subchapter as career employees, at section 7541(1)). Thus,
there was no need, in crafting, sections 7541-7543, to make an
exception similar to 5 U.S.C. 7511(b)(2), for positions of a
``confidential, policy-determining, policy-making or policy-
advocating'' character.''
---------------------------------------------------------------------------
A professor emeritus opposed to this rule made a related argument
that, in practice, career civil servants perform policy roles. See
Comment 3953. Commenter argued that OPM's definition of the statutory
exception fails to recognize that there is a significant number of
career employees who exercise ``confidential, policy-determining,
policy-making, or policy-advocating'' roles within the government. The
rulemaking, commenter argued, therefore presumes a separation of
policymaking and policy implementation and between political appointees
and career officials that does not exist. As explained above, however,
this final rule does not say that only political appointees should or
do work on policy. Instead, it clarifies the longtime understanding of
the exception in 5 U.S.C. 7511(b)(2) as political appointees.
Comment 4097 further argued that a 1994 amendment to 5 U.S.C. 2302,
relating to prohibited personnel practices, shows that career
incumbents ``can lose statutory protections if their positions are
declared policy-influencing.'' Section 2302(a)(2)(B) defines ``covered
position'' with respect to any personnel action, but excludes from
coverage any position which is, ``prior to the personnel action . . .
excepted from the competitive service because of its confidential,
policy-determining, policy-making, or policy-advocating character.'' 5
U.S.C. 2302(a)(2)(B) (emphasis added). Commenter suggests that the 1994
amendment added ``prior to the personnel action'' to this clause, and
this means that Congress contemplated the designation of a position as
confidential, policy-making, policy-determining, or policy-advocating
and the subsequent removal of those positions as ``covered'' under
section 2302. That career incumbent, according to commenter, would then
lose the corresponding protections from prohibited personnel practices
after the position's move to the excepted service. Section
2302(a)(2)(B) clarifies that the status of the underlying position at
the time of the personnel action determines whether the incumbent can
pursue relief pursuant to section 2302. OPM notes that this final rule
deals with adverse action rights under 5 U.S.C. chapter 75 and
corresponding regulations, but not prohibited personnel practices.
Adverse action protections and the ability to seek corrective action in
response to a prohibited personnel practice are two separate types of
rights with distinct processes. Nothing about the 1994 amendments
change the meaning of the exclusion in section 7511(b)(2) as explained
above. OPM, moreover, agrees that a select few employees have been
moved from the competitive service to Schedule C because conditions of
good administration warranted such a move, or have been placed in the
excepted service by Congress, via a statute creating unique appointment
and removal provisions, as in the Stanley cases.\335\ But as these
cases show, when it comes to adverse action rights, even the incumbents
of confidential, policy-determining, policy-making, or policy-
advocating positions, when moved to Schedule C, retain previously
accrued adverse action rights if the move was involuntary.
---------------------------------------------------------------------------
\335\ See also 5 CFR 6.8(c) (moving USDA Agriculture
Stabilization and Conservation state executive directors and Farmers
Home Administration state directors into Schedule C).
---------------------------------------------------------------------------
Comments Regarding the MSPB's Interpretation of This Exception
Other commenters supporting the rule contended that the MSPB has
interpreted the phrase to mean political appointees. A coalition of
national and local labor unions noted, as did OPM in its proposed
rule,\336\ that the MSPB has construed this phrase for decades. Comment
41. The Board has explained that the phrase ``confidential, policy-
determining, policy-making or policy-advocating'' is ``only a shorthand
way of describing positions to be filled by so-called `political
appointees.' '' \337\
---------------------------------------------------------------------------
\336\ See 88 FR 63862, 63872.
\337\ Citing Special Counsel v. Peace Corps, 31 M.S.P.R. 225,
231 (1986).
---------------------------------------------------------------------------
One commenter opposed to the rule argued that MSPB decisions have
``little relevance here'' since chapter 75 gives the President, OPM,
and agency heads responsibility for determining that positions are
policy-influencing. Comment 4097. Commenter argued that MSPB case law
does not and cannot determine the scope of these exceptions. The MSPB
is authorized to hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the jurisdiction of the Board.\338\
Subject to otherwise applicable provisions of law, it may take final
action on any such matter.\339\ It may order any Federal agency or
employee to comply with any order or decision it issues and enforce
compliance with any such order.\340\ It is true that the MSPB cannot
compel the Federal Circuit or the Supreme Court to adopt a different
position, but MSPB's interpretations of title 5's terms are
nevertheless significant. Where possible, it is prudent to interpret
statutes harmoniously and in a manner that will not expose agencies to
unwarranted liability. Also, as Comment 2134 described, Congress itself
has relied on the MSPB decisions and viewed them as persuasive in
defining terms in title 5. In 1992, a bipartisan group of senators and
congressional representatives filed an amicus brief emphasizing that
``the effective synonym for confidential policy positions is `political
appointees.' '' See Comment 2134. Their brief cited an MSPB decision
that said the phrase was, ``after all, only a shorthand way of
describing positions to be filled by so-called `political appointees.'
'' Id. OPM is not simply deferring to existing MSPB decisions, but
rather has considered those decisions and finds their reasoning to be
compelling and in accord with our own. The fact that multiple agencies
within the Executive Branch with authority to interpret and apply title
5 have reached the same determination about what this title 5
[[Page 25026]]
term of art means only underscores the persuasiveness of that
conclusion.
---------------------------------------------------------------------------
\338\ 5 U.S.C. 1204(a)(1).
\339\ Id.
\340\ 5 U.S.C. 1204(a)(1)(2).
---------------------------------------------------------------------------
Finally, a former political appointee argued that ``policy-making''
under 5 U.S.C. 7511(b)(2) is not determined by how employees are
hired--as a political appointee or career civil servant--but rather, it
is determined based on holding an excepted position. Comment 45. Under
5 U.S.C. 3302, however, excepted service positions can be created for a
variety of reasons when conditions of good administration warrant. The
President has delegated to OPM--and, before that, to its predecessor,
the CSC--concurrent authority to except positions from the competitive
service when it determines that appointments thereto through
competitive examination are not practicable. Merely holding an excepted
service position does not make someone a policy-making employee nor
does working on policy necessitate being in an excepted service.
As Congress described during the 1990 Amendments, the ``key to the
distinction'' between those civil servants on whom appeal rights are
conferred and those to whom such rights are not conferred is the
``expectation of continuing employment with the Federal Government.''
Some commenters opposed to this rule ignore this distinction. Comment
4097 argued that certain employees would not enjoy adverse action
rights but would keep their jobs if they ``faithfully advanced the
President's agenda.'' Such a scheme would be directly contrary to this
``key'' distinction that Congress identified as animating the adverse
action exceptions.
Improperly applying the phrase ``confidential, policy-determining,
policy-making, or policy-advocating'' to describe positions held by
career employees, who have an expectation of continuing employment
beyond the presidential administration during which they were
appointed, and to strip them of civil service protections, even when
the Senior Executives to whom such individuals report retain
protections, would be inconsistent with the statute. OPM's rule, on the
contrary, is the best reading of the statute--as confirmed by the
statutory scheme, congressional intent, legislative history, and
decades of applicable case law and practice. Congress carefully
balanced the need for long-term employees who have knowledge of the
history, mission, and operations of their agencies with the need of the
President for individuals in certain positions who will ensure that the
specific policies of the Administration will be pursued. The phrase has
long been interpreted as ``a shorthand way of describing positions to
be filled by political appointees,'' including any appointment required
or authorized to be made by the President, or by an agency head when
there are ``indications that the appointment was intended to be, or in
fact was, made with any political considerations in mind.'' \341\ In
this final rule, therefore, OPM is making explicit this longtime,
consistent understanding.
---------------------------------------------------------------------------
\341\ O'Brien v. Off. of Indep. Counsel, 74 M.S.P.R. 192, 206
(1997) (quoting Special Counsel, 31 M.S.P.R. at 231).
---------------------------------------------------------------------------
OPM is promulgating the following changes to 5 CFR parts 210, 213,
432, 451, and 752:
Part 210--Basic Concepts and Definitions (General)
Subpart A--Applicability of Regulations; Definitions
Section 210.102 Definitions
The final rule amends 5 CFR 210.102 to add a definition for the
phrase ``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining'' to describe
positions generally excepted from chapter 75's protections to reinforce
the longstanding interpretation that, in creating this exception to 5
U.S.C. 7511(b), Congress intended to except noncareer political
appointments from the civil service protections, which are identified
by their close working relationship with the President, head of an
agency, or other key appointed officials who are responsible for
furthering the goals and policies of the President and the
administration, and that carry no expectation of continued employment
beyond the presidential administration during which the appointment
occurred. OPM defines the phrase as descriptors for the positions held
by noncareer political employees because the phrase is currently used
in the regulations to describe, among other things, a ``position'' or
the ``character'' of a position.
OPM also conforms changes to 5 CFR 213.3301, 302.101, 432.101,
451.302, 752.201, and 752.401 to standardize the phrasing used to
describe this type of position. Additional comments related to this
definition are addressed here.
Comments Regarding Amendments to 5 CFR 210.102
An oversight nonprofit organization supportive of this rule
suggested that it would be improved if OPM provided a list of the
positions that do not meet the definition of ``confidential, policy-
determining, policy-making, or policy-advocating.'' Comment 3894. This
commenter was especially concerned that OPM enumerate the non-
confidential, policy-determining, policy-making, and policy-advocating
positions involving national security, public health, emergency
management, whistleblower protection, government ethics, audits, legal
and regulatory interpretation, budget development and execution,
medical and scientific research, and data collection and analysis.
Commenter suggested that an explicit enumeration is necessary to ensure
that the appropriate positions in critical areas are not mistakenly
categorized as confidential, policy-determining, policy-making, or
policy-advocating. OPM will not make revisions based on this comment.
OPM has adequately and thoroughly clarified the exception in 5 U.S.C.
7511(b)(2) by explaining that it applies to noncareer political
appointees. It would be impracticable for OPM to effectively enumerate
all such political positions, especially since new positions may be
created over time. OPM also notes that a (necessarily partial) list of
positions that do not meet the definition may be misunderstood as an
attempt at an exhaustive list, generating confusion rather than
clarity.
Several commenters requested that OPM clarify how the definition of
``confidential, policy-determining, policy-making, or policy-
advocating'' in this final rule applies, if at all, to the members of
the SES.\342\ Comments 44, a public service nonprofit organization, and
3687, a science advocacy organization, asked that OPM clarify how this
definition affects SES employees. Comment 763, a management
association, expressed concern that OPM's clarification of these types
of positions will lead to SES employees getting cut out of their
current policy supporting roles. They recommended that OPM define
``policy determining, making, and advocating'' as covering issues that
rise to a level needing decisions by Presidential appointees. They
further recommended that OPM address how our proposed amendments to 5
CFR part 210 interact with the statutes and regulations governing the
SES and other senior career leaders that make clear that career SES are
involved in many policy-related activities, explicitly including
support for policy advocacy. Comments 2442 and 3428 (submitted by the
same individual) request further clarification in light of the
provisions of 5 U.S.C.
[[Page 25027]]
3132, which states career members of the SES exercise ``important
policymaking, policy-determining, or other executive functions.'' As
described above and further below, no changes to the proposed rule are
necessary, as the SES is governed by a separate statutory structure
that protects the career SES in different ways from the framework
governing the competitive and excepted services.
---------------------------------------------------------------------------
\342\ The extension of all parts of this rule to the SES was a
common request and theme in the comments. See Comments 2193, 2222,
2260, 2796, 2816, 2822, 3049, 3095, 3149, 3687, 3973.
---------------------------------------------------------------------------
As explained in Section III(D), the Federal civil service created
by the CSRA consists of three ``services'': the competitive service,
the excepted service, and the SES.\343\ This regulation addresses the
competitive and excepted services, which are governed by the statutory
and regulatory provisions cited in the proposed rule and this final
rule, including, specifically, the adverse action rules set forth at 5
U.S.C. 7501-7515. Congress established the SES as a separate service
``to ensure that the executive management of the Government of the
United States is responsive to the needs, policies, and goals of the
Nation and otherwise is of the highest quality for executive-level
Federal employees.'' \344\ The SES has a different system for hiring
executives, managing them, and compensating them.\345\ It provides for
both career and noncareer positions and sets its own limitations on the
appointment of noncareer positions. Career SES employees are governed
by separate adverse action procedures. Because, pursuant to the
definitions in 5 U.S.C. 7541, those adverse actions are limited to
``career'' employees, there was no need, unlike with the rules
governing adverse actions for employees in the General Schedule, to
call out and exclude positions of ``a confidential, policy-determining,
policy-making or policy-advocating character,'' and thus there is no
reference to such positions in the provisions at section 7541-7543.
---------------------------------------------------------------------------
\343\ There are also a small number of officials, typically
those appointed by the President with or without consent of the
Senate, who are paid on the Executive Schedule and not considered
part of any of these services.
\344\ 5 U.S.C. 3131.
\345\ See 5 U.S.C. 5131-5136.
---------------------------------------------------------------------------
Instead, chapter 75's adverse action procedures for the SES,
codified at 5 U.S.C. 7543, indisputably apply to any career appointee
in the SES who has completed the relevant probationary period in the
SES or had accrued adverse action protections while serving in the
competitive or excepted services prior to joining the SES.\346\
Accordingly, even though SES employees engage in important policy-
related work, the phrase ``confidential, policy-determining, policy-
making or policy-advocating character,'' as used to describe positions
that are excepted from chapter 75's adverse action protections, does
not apply to the SES.
---------------------------------------------------------------------------
\346\ 5 U.S.C. 7541.
---------------------------------------------------------------------------
Further, in addition to providing explicit adverse action
protections for career SES, Congress also sought to protect and
preserve a career SES free from undue partisan political influence in
other ways, including by setting strict limits on the number of SES
positions that could be designated as ``noncareer'' (i.e.,
political).\347\ The rules are clear: the number of noncareer SES in
any agency is to be determined annually by OPM, not by the agency;
``the total number of noncareer appointees in all agencies may not
exceed 10 percent of the total number of Senior Executive Service
positions in all agencies''; and the number of noncareer SES in any
single agency may not be more than ``25 percent of the total number of
Senior Executive Service positions in the agency'' or ``the number of
[certain executive and Executive Schedule] positions in the agency
which were filled on the date of the enactment of'' the CSRA.\348\
There are also limits on the number of emergency and limited-term SES
appointments. The governmentwide total may not exceed 5 percent of the
governmentwide total of all SES.\349\
---------------------------------------------------------------------------
\347\ See 5 U.S.C. 3134.
\348\ See id.
\349\ See 5 U.S.C. 3134(e).
---------------------------------------------------------------------------
As discussed above, any suggestion that Congress provided more
protections for SES employees who work on policy than it did for
competitive and excepted service employees who work on policy would
make little sense within the statutory scheme. Members of the SES make
up the most senior ranks of the civil service beneath the presidential
appointment level. They work most directly with the President's
political appointees. They have managerial authority over employees in
the competitive and excepted services. This includes the ability to
direct their work and hold them accountable for poor performance or
misconduct. A system that provided greater protections to its senior
executives than it does to its rank-and-file employees would be
ineffective and impractical.
Another commenter expressed concern that the proposed definition
would lead to a reduction in the responsibilities of current positions,
and a reclassification of those positions into the excepted service.
Comment 2445 (an individual), see also Comment 763 (management
association, expressing concern about career staff who support the
policy development process through their work but do not have
confidential, policy-determining, policy-making, or policy-advocating
positions). Comment 2445 suggested that OPM clarify that some
confidential, policy-determining, policy-making, or policy-advocating
work may be delegated without changing the character of the delegee's
position. The comment also suggested that OPM clarify that duties
typically performed by those in competitive service positions are not
confidential, policy-determining, policy-making, or policy-advocating.
OPM will not make revisions based on these comments. OPM will clarify
though, as described above, that OPM acknowledges and understands that
career employees across government touch, support, and otherwise work
on policy. This final rule in no way suggests that only political
appointees do or should work on policy. Instead, the purpose of this
rule is much more specific--to clarify the meaning of the exception to
adverse action rights in section 7511(b)(2)--which, as explained, is a
term of art that has long meant political appointees.
Finally, one individual encouraged OPM to define positions of a
``confidential, policy-determining, policy-making, or policy-
advocating'' character as narrowly as possible. Comment 920. OPM will
not make revisions based on this comment. OPM notes that the definition
adopted accords with Congressional intent, legislative history, and
past practices and is the best reading of the statute. The comment also
suggested that OPM add additional protections to prevent positions from
being moved into Schedule C and to prevent the creation of a new
schedule of political appointees. OPM will not make revisions based on
this comment. The President has the authority to create excepted
service schedules and except positions where necessary and if
conditions of good administrations warrant such exceptions. What this
rule is addressing is the retention of accrued status and rights
following an involuntary move to or within the excepted service and a
clarification of when the exception of 5 U.S.C. 7511(b)(2) applies.
Part 213--Excepted Service
Part 213 sets forth provisions for positions and appointments in
the excepted service. OPM is amending 5 CFR 213.3301 to conform to the
revised 5 CFR 210.102.
OPM received no comments specifically about the regulatory changes
to 5 CFR part 213, sees no
[[Page 25028]]
reason to amend the proposal, and will finalize the language as
proposed.
Part 432--Performance Based Reduction in Grade and Removal Actions
Section 432.102 Coverage
Part 432 sets forth the procedures to be followed if an agency opts
to pursue a performance-based action against an employee under chapter
43 of title 5, U.S. Code. As with the adverse action rules in part 752,
the rules applicable to performance-based actions apply broadly to
employees in the competitive and excepted services, with specific
exceptions that include political appointees. The final rule amends 5
CFR 432.102 to make clear that employees in positions determined to be
of a confidential policy-determining, policy-making, or policy-
advocating character as defined in 5 CFR 210.102 are excluded from
coverage under part 432, consistent with congressional intent.
Comments Regarding Changes to 5 CFR 432.102
An agency expressed the view that part 752 would provide ``coverage
to employees who are involuntarily moved into roles in the excepted
service that have confidential, policy-determining, policy-making, or
policy-advocating character,'' as described in Section IV(A) and then
requested that part 432 be treated similarly by revising the exclusion
at 5 CFR 432.102(f)(10). See Comment 2766. OPM will accept the agency's
recommendation for the same reasons it adopted similar suggested
revisions to part 752 and will revise section 432.102(f)(10) by adding
``unless the incumbent was moved involuntarily to such a position after
accruing rights as delineated in paragraph (e) of this section.''
Part 451--Awards
Section 451.302 Ranks for Senior Career Employees
Part 451 applies to awards and 5 CFR 451.302 addresses ranks for
senior career employees. OPM is amending 5 CFR 451.302 to conform to
the revised 5 CFR 210.102. This amendment standardizes the phrasing
used to describe this type of position.
OPM received no comments specifically about the regulatory changes
to 5 CFR 451.302, sees no reason to amend the proposal, and will
finalize the language as proposed.
C. Agency Procedures for Moving Employees
OPM revises 5 CFR part 302 (Employment in the Excepted Service) to
require that Federal agencies follow specific procedures upon moving
positions from the competitive service to the excepted service or, if
the position is already in the excepted service, to a different
excepted service schedule following a direction from the President,
Congress, OPM, or their designees (hereinafter, ``a directive'').\350\
This final rule sets the procedures an agency must follow before taking
these actions, outlines the notice requirements that apply when the
positions are encumbered, and provides a right of appeal to the MSPB to
the extent any such move is involuntary and characterized as stripping
individuals of any previously accrued civil service status and
protections. OPM discusses the public comments related to these
provisions in turn.
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\350\ There are only three possible sources of a direction to
move a position from the competitive service to the excepted service
or from one schedule of the excepted service to another. The
direction may come from the President, 5 U.S.C. 3302; from OPM, id.;
see 5 CFR part 6.1(a); or from Congress, via an enactment that
creates an exception to the default rules established under 5 U.S.C.
3301 and 3302. If an agency purported to act at its own initiative,
that effort would be unauthorized and thus contrary to law.
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1. Procedures for Moving Positions
In enacting the CSRA, Congress made certain findings relevant to
the changes discussed here. It noted that the merit system principles,
many of which have existed since 1883,\351\ ``shall govern in the
competitive service'' and that these principles and the prohibited
personnel practices should be ``expressly stated'' in statute to
``furnish guidance to Federal agencies.'' \352\ As explained
previously, Congress then proceeded to divide functions previously
performed by the CSC among OPM, the MSPB, and OSC. It found that the
function of filling positions in the Executive Branch should be
delegated to agencies ``in appropriate cases'' but that OPM should
maintain control and oversight ``to protect against prohibited
personnel practices and the use of unsound management practices by the
agencies.'' \353\
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\351\ See supra note 53.
\352\ Public Law 95-454, sec. 3.2.
\353\ Id. at sec. 3.5
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OPM has concluded that imposing additional safeguards when agencies
move positions from one service to another, or one excepted service
schedule to another, will help OPM determine whether appointments to
the competitive service are ``not practicable,'' \354\ protect against
prohibited personnel practices, secure appropriate enforcement of the
laws governing the civil service, and avoid unsound management
practices with respect to the civil service. It is important to the
effective administration of the civil service that exceptions from the
competitive service norm be enforced within the terms of the specific
authority creating them and that employees who are said to have
voluntarily accepted positions that affect their rights share the same
understanding as their agencies and are aware of the potential
consequences of those moves.
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\354\ 5 CFR 6.1.
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Some background demonstrates why these changes are important.
Positions in the Federal Government are, by default, placed in the
competitive service. As noted by the D.C. Circuit, 5 U.S.C. 3301 and
3302 ``make it clear . . . that `competitive service [is] the norm
rather than the exception.' '' \355\ The President, however, is
authorized by Congress to provide for ``necessary exceptions of
positions from the competitive service'' whenever warranted by
``conditions of good administration.'' \356\ The President, in turn,
has delegated to OPM the authority to except positions from the
competitive service, which means either the President or OPM may except
positions, as situations warrant.\357\ It has been a longstanding
practice under these authorities for the President, and for OPM
exercising its delegated authority, to permit positions that would
otherwise be in the competitive service to be filled through excepted
service appointments where conditions of good administration warrant
exceptions from competitive examining procedures (e.g., for people with
disabilities and students). In some cases, positions have been placed
in the excepted service because it is not practicable to examine for
the position. For example, a perennial rider to OPM appropriations
prohibits OPM--and before that, its predecessor CSC--from examining for
attorney positions.\358\
[[Page 25029]]
This appropriations bar makes examinations not practicable, and
attorney positions have been placed in Schedule A of the excepted
service since at least 1947.\359\ See Comment 2134 (detailing history
of federal attorneys in the competitive service and Congress' bar of
attorney examinations resulting in Schedule A). In all these cases, OPM
is subject to the standard that any departure must be compelled by
conditions of good administration.\360\
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\355\ Nat'l Treasury Employees Union v. Horner, 854 F.2d 490,
493 (D.C. Cir. 1988); accord, Dean v. Off. of Pers. Mgmt., 115
M.S.P.R. 157, ] 15 (2010); see also supra note 149.
\356\ 5 U.S.C. 3302.
\357\ 5 CFR 6.1(a).
\358\ See, e.g., Treasury, Postal Service and General
Appropriation Act, 1982, H.R. 4121, 97th Cong., 1st Sess. (1981);
Fiorentino v. United States, 607 F.2d 963, 965-66 (Ct. Cl. 1979)
(``It has long been known . . . that the Congress has been always
opposed to Civil Service Commission (CSC) testing and examining of
attorney positions in the Executive branch under the competitive
system. . . . Defendant cites as the enacted expression of this
[opposition] the annual prohibition against appropriated funds of
the CSC being used for the Commission's Legal Examining Unit. An
unbroken series of such clauses runs from the Act of June 26, 1943,
Pub. L. 90, 57 Stat. 169, 173, to the Act of October 10, 1978, Pub.
L. 95-429, 92 Stat. 1001, 1007. The President had set up a Board of
Legal Examiners (Legal Examining Unit), by E.O. 9358, July 1, 1943.
By E.O. 9830, 12 FR 1259 (1947), the President in s 6.1 provided
that positions in Schedule A and B should be excepted from the
competitive service. Section 6.4 is Schedule A. Item IV therein is
`attorneys.' Whether the legislative intent is obvious to
`outsiders,' it certainly has been to the Executive branch, which
has never, since May 1, 1947, put attorney positions anywhere but in
the excepted service.'').
\359\ Fiorentino, 607 F.2d at 965-66.
\360\ See 5 U.S.C. 3302; see also Nat'l Treasury Employees Union
v. Horner, supra note 149.
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Traditionally, the President has exercised his authority to except
General Schedule positions from the competitive service through
executive orders.\361\ OPM has also authorized excepted service hiring
to address urgent needs of agencies,\362\ such as the need to bring on
staff quickly to respond to the COVID-19 pandemic.\363\ When OPM
exercises such authority, it determines that the characteristics of the
position make it impracticable to use the processes associated with
conducting a competitive examination.\364\ For example, it may be that
the qualification requirements established for competitive service
positions cannot be used because the series has been newly created. In
other instances, OPM determines that open competition is not conducive
to filling certain positions quickly because the applicant pool is
narrow.
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\361\ See, e.g., E.O. 13562, 75 FR 82583 (Dec. 30, 2010)
(establishing Schedule D for the Pathways programs); E.O. 13843, 83
FR 32755 (July 10, 2018) (establishing Schedule E for administrative
law judges).
\362\ 5 CFR part 213.
\363\ See U.S. Off. of Pers. Mgmt. Memo., ``Coronavirus (COVID-
19) Schedule A Hiring Authority,'' (March 20, 2020).
\364\ Even in those cases, however, OPM has provided that ``the
principle of veteran preference'' must be followed ``as far as
administratively feasible.'' 5 CFR 302.101(c). In practice, this
standard has been held to be satisfied by using veterans' preference
as a plus factor, and thus a tie-breaker, in comparing candidates at
similar levels of knowledge, skills, and abilities. See Patterson v.
Dep't of Interior, 424 F.3d 1151 (Fed. Cir. 2005).
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Sometimes, excepted service determinations are prescriptive, and
agencies need only execute the operational tasks necessary to implement
the direction of the President or OPM (for example, Schedule A
attorneys, Schedule E administrative law judges, or any number of other
positions specifically identified for excepted service status, such as
through Executive Orders 5560 and 6655). In other circumstances, either
the President or OPM establishes standards and conditions for agencies
to apply in deciding which positions should be moved--either
temporarily or permanently into the excepted service (for example,
Schedule D appointments for students and recent graduates and Schedule
A appointments related to the COVID-19 pandemic). In the latter
category, the determination of whether to place a position in the
excepted service has typically occurred prior to the position being
filled. In other words, with the notable exceptions of Schedule E,
established by Executive Order 13843,\365\ and of the prior Schedule F,
established by the now-revoked Executive Order 13957, these are
intended to be used as hiring authorities. It is notable that, in the
case of the creation of Schedule E, the President remarked that the
exigency presented by pending litigation was one of the motivations,
and expressly provided that incumbents who were in the competitive
service as of the date of enactment would remain in the competitive
service as long as they remained in their current positions.\366\
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\365\ 83 FR 32755 (July 10, 2018).
\366\ 83 FR 32755, 32756.
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When the President or OPM has chosen to establish standards for
agencies to apply in creating new positions or moving existing
positions into the excepted service (rather than specifically directing
that certain positions be excepted service positions), they have also
routinely required agencies to follow certain procedures subject to OPM
oversight.
The Pathways programs, originally established by President Barack
Obama in Executive Order 13562, is a good example. Under 5 CFR part
362, agencies seeking to use the Pathways programs to hire students and
recent graduates into excepted service positions must adhere to various
policies and procedures. There are rules governing how agencies must
use the Pathways programs as part of a larger workforce planning
effort, specifying procedures that are conditions of the agency's use
of the programs, identifying how Pathways positions are to be
announced, and setting parameters for eligibility for the
programs.\367\ OPM has the authority to cap Pathways hiring \368\ and
can even shut down an agency's ability to use Pathways altogether.\369\
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\367\ See, e.g., 5 CFR 362.105 (Pathways workforce planning
requirements) and 362.303 (Recent Graduate announcements).
\368\ See 5 CFR 362.108.
\369\ See 5 CFR 362.104(b).
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Based on this history and experience, OPM proposed and is now
establishing appropriate safeguards--i.e., a floor of procedures--that
would apply whenever an agency is executing discretion to move any
position or positions from the competitive service to the excepted
service, or from one excepted service schedule to another, under
authority exercised by the President, Congress, OPM, or their
designees. In each instance, the agency would have to adhere to the
following procedures:
1. Identify the types, numbers, and locations of the employee(s) or
position(s) that the agency proposes to move into or within the
excepted service;
2. Document the basis for its determination that movement of the
employee(s) or position(s) is consistent with the standards set forth
by the President, Congress, OPM, or their designees, as applicable;
3. Obtain certification from the agency's Chief Human Capital
Officer (CHCO) \370\ that the documentation is sufficient and movement
of the employee(s) or position(s) is both consistent with the standards
set forth by the President, Congress, OPM, or their designees, as
applicable, and advances sound merit system principles;
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\370\ The Chief Human Capital Officers Act of 2002, enacted as
part of the Homeland Security Act of 2002, established the role of
the CHCO in the Federal Government. CHCOs advise and assist in
carrying out agencies' responsibilities for selecting, developing,
training, and managing a high-quality, productive workforce in
accordance with merit system principles. See 5 U.S.C. 1401-1402.
They are also responsible for ``implement[ing] the rules and
regulations of the President, the Office of Personnel Management
(OPM), and the laws governing the civil service within an agency.''
5 CFR 250.202. OPM has delegated various responsibilities directly
to CHCOs. See, e.g., U.S. Off. of Pers. Mgmt., ``Personnel
Management in Agencies'' 81 FR 89357 (Dec. 12, 2016) (tasking CHCOs
with developing a Human Capital Operating Plan); U.S. Off. of Pers.
Mgmt, ``Human Resources Management in Agencies,'' 73 FR 23012 (Apr.
28, 2008) (implementing regulations for agencies and CHCOs regarding
the strategic management of the Federal workforce); 5 CFR 337.201
(giving CHCOs the ability to request direct-hire authority when OPM
determines there is a hiring need).
---------------------------------------------------------------------------
4. Submit the CHCO certification and supporting documentation to
OPM (to include the types, numbers, and locations of the employee(s) or
position(s)) in advance of using the excepted service authority;
5. Use the excepted service authority only after obtaining written
approval from the OPM Director to do so; and
[[Page 25030]]
6. Initiate any hiring actions under the excepted service authority
only after OPM publishes any such authorizations in the Federal
Register, to include the types, numbers, and locations of the positions
moved to the excepted service.
Comments Regarding the Implications of This Regulatory Change
Most of the comments regarding these changes were supportive, but
some, including a former political appointee, argued that creating
further procedures impedes the President's ability to act with his
constitutionally vested authority over the Executive Branch and its
functions. See Comment 45. Commenter also argued that ``Congress has
granted the President the authority to move Federal employees. This
rule seeks to impede this authority.'' As noted in Section III(F), the
CSRA, as codified, imposed upon OPM both authority and an obligation
to, among other things, ``execut[e], administer[ ], and enforce[ ] . .
. the civil service rules and regulations of the President and the
Office and the laws governing the civil service.'' \371\
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\371\ 5 U.S.C. 1103(a)(5).
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We will not make any changes as a result of this comment. The
President, pursuant to his own authorities under the CSRA, as codified
at 5 U.S.C. 3301 and 3302, has also delegated a variety of these
authorities to OPM concerning execution, administration, and
enforcement of the competitive and excepted services. Among other
things, the President has authorized OPM to ``promulgate and enforce
regulations necessary to carry out the provisions of the Civil Service
Act and the Veterans' Preference Act, as reenacted in title 5, United
States Code, the Civil Service Rules, and all other statutes and
Executive orders imposing responsibilities on the Office,'' \372\ and
to collect information and records regarding matters falling within the
civil service laws, rules, and regulations.\373\ OPM has acted pursuant
to these authorities to create government-wide rules for Federal
employees regarding a broad range of topics, such as hiring, promotion,
performance assessment, pay, leave, political activity, retirement, and
health benefits. Both the President and OPM also establish standards
and conditions for agencies to apply in deciding which positions should
be moved from the competitive into the excepted service. This rule is
squarely within these authorities.
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\372\ 5 CFR 5.1, 6.1, 6.2.
\373\ 5 CFR 5.4.
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Also, while the President can create excepted service schedules and
move positions into the excepted service, that ability is not
unqualified. For instance, Congress has mandated that exceptions occur
only when ``necessary'' and warranted by ``conditions of good
administration.'' \374\ Although the Administrative Procedure Act (APA)
does not apply to the President, it is applicable to OPM and the
agencies that implement directions from the President or OPM. The D.C.
Circuit has determined, for purposes of challenges under the APA, that
``several provisions of title 5 of the U.S. Code, viewed together,
provide a meaningful--not a rigorous, but neither a meaningless--
standard against which to judge'' a decision to except positions from
the competitive service, when it is OPM that creates the
exception.\375\ If determinations by agencies or OPM that certain
positions belong in a newly-created excepted service schedule would
similarly be reviewable, it is prudent for OPM to establish procedural
regularity into this process.
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\374\ 5 U.S.C. 3302; 5 CFR 6.1.
\375\ Horner, supra note 149, 854 F.2d at 495.
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Finally, this rule does not restrict the President's authorities.
These procedures, which establish uniform processes when agencies move
positions or people, will help OPM determine whether appointments to
the competitive service are ``not practicable,'' protect against
prohibited personnel practices, secure appropriate enforcement of the
law governing the civil service, and avoid unsound management practices
with respect to the civil service.
OPM is promulgating the following changes to 5 CFR part 302:
Part 302--Employment in the Excepted Service
Part 302 governs employment in the excepted service, including the
procedures an agency must follow when an employee serving under a
nontemporary appointment is selected for an excepted appointment. The
authority citation provided in the proposed rule did not reflect
changes made by the Fair Chance to Compete for Jobs final rule
published on September 1, 2023 (88 FR 60317). The updated authority
citation is reflected in this final rule.
Section 302.101 Positions Covered by Regulations
This section describes positions covered by part 302. OPM is
amending 5 CFR 302.101 to conform to the revised 5 CFR 210.102, which
adds a definition to the phrases ``confidential, policy-determining,
policy-making, or policy-advocating'' and ``confidential or policy-
determining.'' \376\
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\376\ See Section IV(B).
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Subpart F--Moving Employees and Positions Into and Within the Excepted
Service
OPM adds subpart F titled, ``Moving Employees and Positions Into
and Within the Excepted Service.'' In the event of a directive by the
President, Congress, OPM, or their designees, to move employee(s) or
position(s) from the competitive service to the excepted service, or
from one excepted service schedule to another, this new subpart
describes the processes and procedures an agency must follow to carry
out such a move.
Section 302.601 ``Scope''
This subsection describes the scope of the positions that would be
subject to the new procedures in subpart F.
Comments Regarding Amendments to 5 CFR 302.601
Comment 2134, a joint comment by a nonprofit organization and
former federal official, supported the rule but suggested that 5 CFR
302.601 be revised for clarity. Commenter noted that the proposed rule
clearly covered the movement of positions into an excepted service
schedule but was unclear about the involuntary movement of employees
from their current positions to other positions in an excepted service
schedule. Commenter suggested a revision to make clear that the
movement of employees, not just positions, falls within the scope of
Subpart F. OPM agrees with this comment and has revised this provision
accordingly.
One intended purpose of Subpart F is to regulate the movement of
positions to and within the excepted service. But covering the movement
of employees is an important feature of the subpart. For instance,
section 302.602(c) requires that agencies that seek to move an
encumbered position into or within the excepted service notify affected
employees of the movement and relevant rights. Covering both employees
and positions in this regulatory scheme is important because, once a
position is filled by an incumbent, that incumbent gains certain rights
and status over time as detailed in 5 U.S.C. 7511(a) and as explained
in Section IV(A). And once those rights and status accrue, the employee
retains those rights upon a move to or within the excepted service so
long as the moves, however many they may be or into whichever positions
they may be,
[[Page 25031]]
are involuntary. In this way, both positions and employees are covered
by this regulatory amendment.
OPM will modify the regulatory language to clarify this point. The
revised language at 5 CFR 302.601 will state that the subpart applies
to any situation where an agency moves--(1) a position from the
competitive service to the excepted service, or between excepted
services, whether pursuant to statute, Executive order, or an OPM
issuance, to the extent that this subpart is not inconsistent with
applicable statutory provisions; or (2) an employee who has accrued
status and civil service protections under 5 U.S.C. chapter 75,\377\
subchapter II, involuntarily to any position that is not covered by
that chapter or subchapter. It will also explain that the subpart
applies in situations where a position previously governed by title 5,
U.S. Code, will be governed by another title of the U.S. Code going
forward, unless the statute governing the exception provides otherwise.
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\377\ Commenter also suggests that we include regulatory
language addressing accrued civil service protections under 5 U.S.C.
chapter 23, relating to merit system principles and prohibited
personnel practices, in addition to those accrued under chapter 75.
As explained above, this final rule deals with adverse action rights
under chapter 75 and corresponding regulations, but not prohibited
personnel practices. Adverse action protections and the ability to
seek corrective action in response to a prohibited personnel
practices are two separate types of rights with distinct processes.
Also, OPM notes that 5 U.S.C. 2302 addresses certain prohibited
personnel actions with respect to ``covered'' positions, rather than
rights ``accrued'' by individuals over time.
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Another commenter, a former federal official, suggested that OPM
revise Subpart F to include movement of positions from the career-
reserved SES into the excepted service. See Comment 2816. For the
reasons described in the previous sections, OPM will not adopt these
suggestions. The SES, as noted above, is not in the excepted service
and is governed by a separate statutory structure that addresses access
to adverse action protections by type of appointment. The statute
expressly provides for ``career'' and ``noncareer'' positions. But an
``employee,'' for purposes of the SES adverse action provisions, is
defined as a ``career'' employee. Accordingly, the adverse action
provisions, which apply only to career employees, contain no explicit
exclusions, akin to section 7511(b)(2), based upon the character of the
position. Moreover, the provisions governing the SES directly address
reassignments and transfers of career senior executives,\378\ removal
of a career employee from the SES into a civil service position outside
of the SES during probation or as a result of less than fully
successful executive performance,\379\ and the circumstances in which
there may be guaranteed placement in other personnel systems for a
senior executive who has been removed from the SES.\380\
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\378\ 5 U.S.C. 3395.
\379\ 5 U.S.C. 3592.
\380\ 5 U.S.C. 3594.
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Section 302.602(a) ``Basic Requirements''
This section requires an agency to take certain steps after a
directive from the President, Congress, OPM or their designees to move
a position or positions from the competitive service to the excepted
service, or from one excepted service schedule to another. This final
rule establishes additional procedural requirements that apply when one
or more of the positions the agency seeks to move is encumbered by an
employee.
Section 302.602(a)(1) states that, if the directive explicitly
delineates the specific positions that are covered, the agency need
only list the positions moved in accordance with that directive, and
their location within the organization and provide the list to OPM.
Section 302.602(a)(2) states that, if the directive requires the
agency to select the positions to be moved pursuant to criteria
articulated in the directive, then the agency must provide OPM with a
list of the positions to be moved in accordance with those criteria,
those positions' location in the organization, and, upon request from
OPM, an explanation of how the positions met those criteria.
Section 302.602(a)(3) states that, if the directive confers
discretion on the agency to establish objective criteria for
identifying the positions to be covered, or which specific slots of a
particular type of position the agency intends to move, then the agency
must, in addition to supplying a list, supply OPM with the locations in
the organization, the objective criteria to be used, and an explanation
of how these criteria are relevant.
Section 302.602(b) describes the steps agency management must take,
independent of the impacted employees, with respect to such moves.
Section 302.602(b)(1) requires an agency to identify the types,
numbers, and locations of positions that the agency proposes to move
into the excepted service.
Section 302.602(b)(2) requires the agency to document the basis for
its determination that movement of the positions is consistent with the
standards set forth by the President, Congress, OPM, or their designees
as applicable.
Section 302.602(b)(3) requires the agency to obtain certification
from the agency's CHCO that the documentation is sufficient and
movement of the positions is both consistent with the standards set
forth by the President, Congress, OPM, or their designees as
applicable, and with merit system principles.
Section 302.602(b)(4) requires the agency to submit the CHCO
certification and supporting documentation to OPM (to include the
types, numbers, and locations of positions) in advance of using the
excepted service authority.
Section 302.602(b)(5) specifies that OPM shall then review the CHCO
certification and supporting documentation, and the agency shall be
able to use the excepted service authority only after obtaining written
approval from the OPM Director to do so.
Section 302.602(b)(6) specifies that OPM shall publish any such
authorizations in the Federal Register, to include the types, numbers,
and locations of the positions moved to the excepted service and that
the agency is not permitted to initiate any hiring actions under the
excepted service authority until such publication occurs.
Comments Regarding Amendments to 5 CFR 302.602(a) and (b)
Comment 2134 proposed several changes to OPM's proposed addition of
section 302.602. Commenter correctly noted that in paragraph (a)(1),
the second instance of the word ``list'' (following ``in accordance
with that'') is a mistake. OPM meant to write ``directive'' instead and
will adopt this suggestion. Paragraphs (a)(2) and (a)(3) require that
agencies provide a list or lists of the positions to be moved, the
locations in the organization, the objective criteria to be used, and
an explanation of how these criteria are relevant. Commenter is correct
that the list or lists should be provided to OPM. and OPM will make
that clear in the final regulatory language. Paragraphs (b)(1) and
(b)(2) require agencies to ``Identify'' and ``Document'' certain
information, respectively. Commenter asserted it is not clear how
agencies are to accomplish the identification and documentation and
suggested adding ``in a report to OPM'' after the words ``Identify''
and ``Document'' in these paragraphs. OPM will not adopt this
suggestion. OPM believes the reporting is implicit in the certification
by the CHCO and the accompanying data and
[[Page 25032]]
lists. OPM will consider providing further instructions about the forms
this information should take in guidance and will also consider
providing templates. For the reasons discussed above regarding
suggested revisions to section 302.601, commenter also suggested
expanding the coverage of section 302.602 to include not only the
movement of positions but also the movement of individual employees by
adding a new subsection (d) that reads: ``In addition to applying to
the movement of positions, the requirements of this section apply to
the involuntary movement of competitive service or excepted service
employees who have accrued status or civil service protections under 5
U.S.C. [ ] chapter 75, subchapter II, to positions that are not covered
by such chapter or subchapter.'' OPM will adopt this suggestion for the
same reasons it adopted the similar suggestion regarding section
302.601.\381\ OPM will modify this suggestion so that subsection (d)
reads: ``In addition to applying to the movement of positions, the
requirements of this section apply to the involuntary movement of
competitive service or excepted service employees with respect to any
earned competitive status, any accrued procedural rights, or depending
on the action involved, any appeal rights under chapter 75, subchapter
II, or section 4303 of title 5, United States Code, even when moved to
the new positions.''
---------------------------------------------------------------------------
\381\ Commenter also suggests that we include regulatory
language addressing accrued civil service protections under 5 U.S.C.
chapter 23, but for the reasons discussed in note 377, we decline to
do so.
---------------------------------------------------------------------------
Commenter then suggested that OPM consider increasing transparency
by ensuring that the public has access to the information discussed in
section 302.602. To enforce any such transparency requirement,
commenter suggested that OPM provide that personnel actions
implementing the movement of positions or employees will be ineffective
until 90 days after the release of this information to the public. This
period, commenter argued, would also provide Congress an opportunity to
conduct meaningful oversight in the event of a major upheaval of civil
service processes and protections. OPM believes that the processes in
this final rule already strike the appropriate balance among a variety
of factors, including transparency, the preservation of merit, and good
governance while also allowing for the efficiency and flexibility to
conduct normal government operations governed by statute, which can
include reorganizations or moving positions to or within the excepted
service if necessary and warranted by conditions of good
administration. Further, the presentation of information as described
in this subpart may lead to communications between OPM and an agency
that would generally be protected by the privilege afforded to the
deliberative process. OPM will not adopt these suggestions.
Finally, this commenter suggested that because section 302.602
refers to the movement of ``positions'' and uses other plural words,
this section might be construed to be inapplicable in the case of the
movement of only one employee or position. OPM agrees and will add a
new subsection (e) that reads: Notwithstanding the use of the plural
words ``positions,'' ``employees,'' and ``personnel actions,'' this
section also applies if the directive of the President, Congress, OPM,
or a designee thereof affects only one position or one individual.
Another commenter supportive of the rule suggested that OPM shift
documentation and other duties under section 302.602(b)(3) from agency
human resources to Department-level human resources or OPM. Comment 6.
OPM will not make revisions based on this comment. A CHCO is well
positioned to certify the sufficiency of an agency's documentation
pursuant to section 302.602(b). By law, CHCOs advise and assist in
carrying out agencies' responsibilities for selecting, developing,
training, and managing a high-quality, productive workforce in
accordance with merit system principles.\382\ They are responsible for
``implement[ing] the rules and regulations of the President, the Office
of Personnel Management (OPM), and the laws governing the civil service
within an agency.'' \383\ They are also experienced with these types of
duties because OPM has delegated various similar responsibilities
directly to CHCOs in the past. Commenter also suggested that the rule
require agencies, Departments, and OPM to consult with bargaining units
and unions concerning the effects of the movement of a position on
bargaining unit employees, prior to moving a position. OPM will not
make revisions based on this comment. Collective bargaining obligations
can arise with any new policies which impact bargaining unit employees.
This includes implementation of policies found in any new or revised
government-wide regulation, such as the final rule, so no new
consultation process is required. The proposed rule did not purport to
address new labor relations provisions and such matters are already
subject to requirements in the Federal Service Labor-Management
Relations Statute of 1978.
---------------------------------------------------------------------------
\382\ See 5 U.S.C. 1401-1402.
\383\ 5 CFR 250.202.
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Another commenter, an individual, suggested that these regulatory
amendments should be broadened to require that agencies disclose the
underlying reasons for the movement. Comment 407. Comment 3894, an
oversight nonprofit organization, also suggested that section
302.602(b)(6), regarding OPM publishing any such authorizations to move
positions in the Federal Register, should be revised to require a
solicitation for public comment. As stated above, OPM believes these
amendments already strike the appropriate balance between being
protective of rights and merit system principles and allowing for the
efficiency and flexibility of normal government operations, so OPM does
not believe that further process is necessary. Regarding Comment 407,
there may be many underlying reasons for a move and a precise
underlying reason, while potentially probative, does not get to the
central inquiry for the retention of rights and status, which is
whether the move was voluntary or involuntary. Still, those general
reasons are implicit in 5 CFR 302.602(b)(2), which requires that an
agency ``[d]ocument the basis for its determination that movement of
the positions is consistent with the standards set forth by the
President, Congress, OPM, or their designees as applicable.'' OPM does
not believe that further requirements on this point are necessary.
Regarding Comment 3894, the purpose of publishing this information in
the Federal Register is to increase transparency. OPM believes that
publishing this information is sufficient and that public comment would
add little further value. It would also risk the process becoming
unduly burdensome. For these reasons, OPM will not adopt these
suggestions.
Finally, Comment 2816, by a former federal official, again suggests
that OPM clarify that the changes proposed within 5 CFR 302.602 include
SES Positions. OPM will not adopt this suggestion for the same reasons
it did not adopt a similar suggestion regarding section 302.601. The
SES is not in the excepted service and is governed by a separate
statutory structure that protects the career SES in different ways from
the framework governing the competitive and excepted services.
2. Notice Rights for Encumbered Positions
OPM is promulgating additional requirements, under 5 CFR
302.602(c),
[[Page 25033]]
that would apply when one or more of the positions the agency wishes to
move is encumbered by an employee. It describes the information an
agency must provide an employee whose position is being moved from the
competitive service and placed in the excepted service, other than in
Schedules D or E, or with an excepted service employee whose position
is moved to another excepted service schedule, other than Schedules D
or E.\384\ In that case, under section 302.602(c)(1)(i), no less than
30 days prior to moving the position, the agency must provide written
notification to the employee of the intent to move the position. Under
section 302.602(c)(1)(ii), if the move is involuntary, the notice must
inform the employee that the employee maintains their civil service
status and protections, if any, notwithstanding the movement of the
position.
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\384\ OPM is omitting Schedules D and E from this regulatory
change because these schedules, for the Pathways programs
participants and Administrative Law Judges (ALJs), see 5 CFR 6.2,
respectively, have specific and unique requirements regarding
eligibility and entrance into these positions. In particular, the
Pathways programs, which were created by the President, not OPM,
already have highly reticulated schemes for conversion of the
appointee from the excepted service to the competitive service
following the successful conclusion of the initial excepted service
appointment. It is unlikely that the initial time-limited
appointments to the excepted service would be appropriate vehicles
for conversion to a different excepted service position, and, in any
event, the incumbent would likely not yet have accrued adverse
action rights in the excepted service positions they encumbered.
Even if such rights had accrued, these appointees would enjoy such
rights only for the balance of the original time-limited
appointment. ALJ appointments were changed in light of ALJs'
significant responsibilities in ``taking testimony,'' ``conducting
trials,'' ``enforcing compliance with their orders,'' and in some
cases issuing ``the final word [for] the agencies they serve.'' See
E.O. 13843. Those specific duties, carried out with ``significant
discretion,'' combined with a desire to eliminate any constitutional
concerns regarding the method of ALJ appointments, were the reasons
that ALJs were placed in the excepted service by the President as a
matter of ``sound policy,'' which allowed agencies to ``assess
critical qualities in ALJs candidates'' to ``meet the particular
needs of the agency,'' such as subject matter expertise relevant to
the agency's work. Id. In addition, special chapter 75 procedures
apply to incumbent ALJs, and they can be removed from ALJ positions
only by the employing agency at the conclusion of a specified
proceeding at the MSPB.
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Employees who are in the competitive service--and who the agency is
not planning to move--may wish to apply for a new position in the
excepted service and potentially relinquish accrued rights (such as a
voluntary move from a competitive service position to a position as a
Schedule C political appointee). In that situation, agencies must
continue to comply with longstanding rules--codified at 5 CFR
302.102(b)--providing that employees be given notice that they are
leaving the competitive service and requiring that employees
acknowledge they understand that they are voluntarily leaving the
competitive service to accept an appointment in the excepted
service.\385\
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\385\ Under 5 CFR 302.102(b), when an employee serving under a
temporary appointment in the competitive service is selected for an
excepted appointment, the agency must:
1. Inform the employee that, because the position is in the
excepted service, it may not be filled by a competitive appointment,
and that acceptance of the proposed appointment will take him/her
out of the competitive service while he/she occupies the position;
and
2. Obtain from the employee a written statement that he/she
understands he/she is leaving the competitive service voluntarily to
accept an appointment in the excepted service.
---------------------------------------------------------------------------
OPM did not receive comments specifically relating to 5 CFR
302.602(c). In this final rule, though, OPM is clarifying that a notice
under section 302.602(c)(1)(ii), informing the employee that the
employee maintains their civil service status and protections
notwithstanding the movement of the position, applies where the move is
involuntary.
3. Appeal Rights for Encumbered Positions
OPM further amends 5 CFR part 302 to establish that a competitive
service employee whose position is moved involuntarily into the
excepted service, or an excepted service employee whose position is
moved involuntarily into a different schedule of the excepted service,
may directly appeal to the MSPB if, contrary to these regulations, the
entity perpetuating the move asserts that the move will strip the
individual of any status and civil service protections they had already
accrued. This rulemaking would not apply to situations where the
employee applies for, is selected for, and accepts a new position with
fewer or different civil service protections, since acceptance of that
new position voluntarily relinquishes the protections the employee had
already accrued.
As explained previously in Section III(F), under 5 U.S.C.
1103(a)(5), a variety of other provisions governing specific topics
under title 5, and delegations from the President, OPM has broad
authority to execute, administer, and enforce civil service rules and
regulations. Exercising these authorities, OPM has previously conferred
rights of appeal to the MSPB with respect to a variety of personnel
determinations, including, for example, final suitability
determinations.\386\ The Federal Circuit has repeatedly sustained this
practice and ruled that where an appeal is solely by regulation, the
regulation circumscribes the scope of the appeal.\387\ Title 5
explicitly provides that an employee may appeal a personnel action made
appealable by regulation.\388\ The MSPB, in turn, has the
responsibility to ``hear, adjudicate, or provide for the hearing or
adjudication, of all matters within the jurisdiction of the Board under
. . . law, rule or regulation.\389\
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\386\ 88 FR 63862, 63876-77 (citing to 5 CFR part 731, subpart E
and identifying twelve instances in which OPM has provided in
regulation a basis for an appeal to the MSPB).
\387\ See Roberto v. Dep't of the Navy, 440 F.3d 1341, 1350
(Fed. Cir. 2006); Folio v. Dep't of Homeland Sec., 402 F.3d 1350,
1355 (Fed. Cir. 2005); Dowd v. United States, 713 F.2d 720, 722-23
(Fed. Cir. 1983); see also Gaxiola v. Dep't of the Air Force, 6
M.S.P.R. 515, 519 (1981).
\388\ 5 U.S.C. 7701(a).
\389\ 5 U.S.C. 1204(a)(1).
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Section 302.603 ``Appeals''
In these final regulations, OPM is prescribing an MSPB appeal right
for an employee whose position in the competitive service is moved to
the excepted service involuntarily, or whose position in the excepted
service is moved into a different schedule of the excepted service
involuntarily, and when an entity effectuating such a move, contrary to
these regulations, asserts that the individual loses any status and
civil service protections they had already accrued. This provision
would not apply when the employee voluntarily relinquishes such rights
by applying for and accepting a new position with different rights.
Such an appeal right would, however, cover an employee's allegation
that an agency coerced the employee to ``voluntarily'' move to a new
position that would require the employee to relinquish their
competitive status or any civil service protections. OPM notes that an
individual may choose to assert in any appeal to the MSPB that the
agency committed procedural error, if applicable, by failing to act in
accordance with the procedural requirements of section 302.602 while
effecting any placement from the competitive service into the excepted
service or from the excepted service to a different schedule of the
excepted service. In cases where an individual asserts procedural error
by the agency, OPM expects the MSPB would typically determine whether
the procedural error was harmful as a pre-requisite for any reversal of
the agency's action. The MSPB will find that an agency error is harmful
only when the record shows that it was likely to have caused the
[[Page 25034]]
agency to reach a different conclusion.\390\
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\390\ See 5 CFR 1201.3 (Appellate Jurisdiction); 1201.4(r)
(Definitions, MSPB Practices and Procedures), 1205 (Powers and
functions of the Merit Systems Protection Board); Ramey v. U.S.
Postal Serv., 70 M.S.P.R. 463, 467 (1996) (``An [MSPB]
administrative judge's adjudication of an action not only embraces
the provisions of law giving the Board jurisdiction over the action,
but includes review of any other relevant provision of law,
regulation or negotiated procedures as circumstances warrant.'');
Adakai v. Dep't of Interior, 20 M.S.P.R. 196, 201 (1984) (``There is
no question that an agency is obligated to conform to procedures and
regulations it adopts, and the Board is required to enforce such
procedures.'').
---------------------------------------------------------------------------
Comments Regarding Amendments to 5 CFR 302.603
Comment 2134 is supportive of the rule and the conferral of a
regulatory appeal right premised specifically on the movement of an
employee but suggested that OPM explain that, ``in creating this appeal
right, OPM is not taking a position as to whether employees would
otherwise lack appeal rights in all cases involving an involuntary
move.'' OPM agrees and is not in this rule addressing whether employees
would otherwise lack appeal rights in all cases involving an
involuntary move.
Commenter also suggested a revision regarding the proposed language
in section 302.603, which would allow employees to appeal to have their
rights ``reinstated.'' Commenter contended that the proposed text of
the rule implied that rights were lost upon the move but could then be
``restored'' by a successful appeal. Commenter also noted this
regulatory language does not specify a time in which an aggrieved
employee must file an appeal and expressed concern that this ``might
not fully achieve OPM's aims.'' Commenter expressed that, as proposed,
the language could suggest that an agency could strip an employee of
civil service status and protections in a manner contrary to this final
rule and put the onus on the employee to rectify such an action before
the MSPB. Or an agency might use silence or take a chance that an
employee will not timely appeal, but that outcome would be unjust.
Commenter therefore proposed a 180-day period for the employee to
appeal, which commenter offered would allow sufficient time for the
employee to gather information necessary for that appeal. OPM does not
believe the final rule should specify a time period; the timing
procedures should instead follow the normal processes associated with
appeals to the MSPB. But OPM agrees that it should add a clause to this
section specifying that the appeal rights conferred in part 302 are in
addition to, and not in derogation of, any right the employee would
otherwise have to appeal a subsequent personnel action undertaken
without following appropriate chapter 75 or chapter 43 procedures. The
appeal right created by this rule merely provides an additional avenue
for immediate correction if the agency asserts that accrued status or
rights will no longer apply or fails to provide notice of the impact on
accrued status or rights. To better capture OPM's intent, OPM will
revise 5 CFR 302.603(a) to read: (a) A competitive service employee
whose position is placed into the excepted service or who is otherwise
moved involuntarily to the excepted service, or an excepted service
employee whose position is placed into a different schedule of the
excepted service or who is otherwise involuntarily moved to a position
in a different schedule of the excepted service, may directly appeal to
the Merit Systems Protection Board, as provided in paragraphs (b), (c),
and (d) of this section. The appeal rights conferred in this section
are in addition to, and not in derogation of, any right the individual
would otherwise have to appeal a subsequent personnel action undertaken
without following appropriate procedures under chapter 75, subchapter
II, or section 4303 of title 5, United States Code.
Commenter also suggested that the right in section 302.603(b) to
appeal moves which ``purportedly'' strip protections is too narrow.
Commenter contended that it is possible that agencies will remain
silent on an employee's civil service status and protections, and
thereby could avoid an appeal because the agency has not ``purported''
to have any effect on employee status and protections. Commenter also
contended that subsection (b) addresses only the movement of a
position. In contrast, subsections (a) and (c) of section 302.603 also
cover the movement of an employee to a new position. OPM will revise
this language to clarify that agencies cannot circumvent this final
rule by moving an individual instead of a position. To better capture
OPM's intent in this final rule, OPM will revise 5 CFR 302.602(b) to
read: (b) Where the agency, notwithstanding the requirements of section
302.602 of this part, asserts that the move of the original position or
any subsequent position to which the individual is involuntarily moved
thereafter, will eliminate competitive status or any procedural and
appeal rights that had previously accrued, the affected individual may
appeal from that determination and request an order directing the
agency (A) to correct the notice to provide that any previously accrued
status or procedural and appeal rights under those provisions continue
to apply, and (B) to comply with the requirements of either chapter 75,
subchapter II or section 4303 of title 5, United States Code, in
pursuing any action available under those provisions, except to the
extent that any such order would be inconsistent with an applicable
statute.
To address the concern that an agency could remain silent regarding
an employee's status and rights upon a move, OPM will modify section
302.603(c) to read that: Where the agency fails to comply with Sec.
302.602(c)(1) of this part, and fails to provide an individual with the
requisite notice, the affected individual may appeal and request an
order directing the agency to comply with that provision.
Finally, this commenter suggested that OPM modify section 302.603
to also allow for appeals based on involuntary though not necessarily
coercive movements. OPM will adopt this suggestion. Employees retain
their civil service status and protections during involuntary movement
into or within the excepted service, regardless of whether the movement
was coerced or performed by other involuntary means. OPM will add a 5
CFR 302.603(d) to read: (d) An individual may appeal under this part on
the basis that (A) a facially voluntary move was coerced or otherwise
involuntary for purposes of this section or (B) a facially voluntary
move to a new position would require the individual to relinquish their
competitive status or any civil service protections and was coerced or
was otherwise involuntary.
Another comment from an employment lawyers association supportive
of the rule suggested that OPM revise the rule to bring section 302.603
appeals under 5 U.S.C. 7701, so that successful appellants are not
burdened with attorney's fees or the costs of litigation. Comment 40.
OPM appreciates this suggestion but will not add regulatory language to
this effect as it goes beyond the scope contemplated in the proposed
rule. If experience with such appeals indicates further changes might
be warranted, OPM can pursue regulatory options then.
Comment 920, an individual, was supportive of the rule but
expressed concern that it would not be sufficiently protective in cases
of ``wholesale reclassification.'' The comment questioned whether
individual appeals would be effective if an agency
[[Page 25035]]
attempted to involuntarily move a majority of its workforce all at once
while purportedly stripping them of civil service status and
protections. The President and OPM have the authority to reschedule
positions but, as explained in this rule, there are ways to do so
without infringing on this authority that are protective of the civil
service and merit system principles as envisioned by Congress. Further,
to the extent ``wholesale reclassification'' is unlawful, there exist
other avenues to challenge such a move besides the processes in this
final rule.\391\
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\391\ For example, in Blalock v. Dep't of Agric., 28 M.S.P.R.
17, 20 (1985), aff'd sub nom., Huber v. MSPB, 793 F.2d 284 (Fed.
Cir. 1986) the MSPB rejected an agency's claim that it had removed
employees from their Schedule A positions by RIF procedures and
appointed them to new Schedule C positions. It found that this RIF
was improper, there was no reclassification warranting a RIF, and
the redesignation was not a ``reorganization.'' Therefore, the
agency could not have conducted a RIF and the agency's abolishment
of their Schedule A positions constituted individual adverse actions
against the incumbents. The MSPB directed the agency to reinstate
the employees whom it had separated without adhering to applicable
adverse action procedures.
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A few commenters supportive of the rule queried what happens when,
by deliberative or inadvertent act, the MSPB is without a quorum. See
Comments 44, 2442, 3687. As explained above, the appeals described in 5
CFR 302.603 should be treated like all other appeals to the MSPB.
Therefore, OPM does not believe that it should revise this final rule
to account for the possibility of a lack of a MSPB quorum. Even without
a quorum, OPM notes, administrative judges (AJs) can issue initial
decisions. If neither party to a case files a petition for review, the
AJ's initial decision becomes the final decision of the Board.
Appellants could then choose to exercise their judicial review
rights.\392\ If either party files a petition for review to the MSPB, a
Board decision could not be issued until a quorum of at least two Board
members is restored but the Clerk of the Board can still exercise
delegated authority to ``grant a withdrawal of a petition for review
when requested by a petitioner.'' \393\
---------------------------------------------------------------------------
\392\ See 5 U.S.C. 7703.
\393\ See U.S. Merit Sys. Prot. Bd., ``Frequently Asked
Questions about the Lack of a Quorum Period and Restoration of the
Full Board, Updated: February 27, 2023,'' https://www.mspb.gov/New_FAQ_Lack_of_Quorum_Period_and_Restoration_of_the_full_board.pdf.
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Finally, Comment 2816, from a former federal official, again
suggests that OPM clarify that the changes proposed within 5 CFR
302.603 include SES Positions. OPM will not adopt it for the same
reasons it did not adopt a similar suggestion regarding sections
302.601 and 302.602.
V. Regulatory Analysis and Related Comments
A. Statement of Need
On December 12, 2022, OPM received a petition from the National
Treasury Employees Union (NTEU), which represents Federal workers in 34
agencies and departments,\394\ to amend OPM regulations in a manner
that would ensure compliance with civil service protections and merit
system principles for competitive service positions moved to the
excepted service.\395\ NTEU contends in its petition that Congress has
established protections for ``employees'' under chapter 75 in the
competitive service and these protections create a constitutionally
protected property interest in continued Federal employment. NTEU
argued that no President can take away these rights, once accrued,
without due process.
---------------------------------------------------------------------------
\394\ See Nat'l Treasury Employees Union, ``Our Agencies,''
https://www.nteu.org/who-we-are/our-agencies.
\395\ See Nat'l Treasury Employees Union, Petition for
Regulations to Ensure Compliance with Civil Service Protections and
Merit System Principles for Excepted Service Positions, (Dec. 12.
2022), https://www.nteu.org/~/media/Files/nteu/docs/public/opm/nteu-
petition.pdf?la=en.
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On May 23, 2023, the Federal Workers Alliance, a coalition of 13
labor unions representing over 550,000 Federal and postal workers,
wrote OPM in support of the rulemaking changes proposed by NTEU. On May
26, 2023, the American Federation of Government Employees, AFL-CIO, the
largest union of Federal employees representing more than 750,000
Federal and District of Columbia workers, did the same. For the reasons
described in the proposed rule and this final rule, OPM determined it
was prudent to consider the points raised.
By operation of law, certain Federal employees accrue a property
interest in their continued employment and are entitled to adverse
action rights under chapter 75 before they may be removed from career
positions. Agencies are statutorily obligated to extend the specific
protections codified at chapter 75 to eligible employees as defined in
5 U.S.C. 7511. OPM notes that this section precludes noncareer
political appointees and other statutorily specified categories of
employees from accruing these procedural rights, but OPM does not
interpret chapter 75 as allowing the President, OPM, or an agency to
waive the statutory rights that covered employees have accrued. These
final rules are to clarify and reinforce that point.
The now-revoked Executive Order 13957 introduced a new conception
of the phrase ``confidential, policy-determining, policy-making or
policy-advocating character,'' as used in the adverse action exception
in 5 U.S.C. 7511(b)(2), and sought to employ that conception to expand
the category of employees excluded from adverse action procedural
rights.\396\ This phrase is a term of art with a long history. It has
been broadly understood, based upon context, history, and practice, to
mean political appointees. Using that language as the former President
used it in Executive Order 13957--to remove rights from career civil
servants--departed from this established understanding. OPM has
determined that a regulation interpreting and clarifying this
provision, pursuant to OPM's statutory authority to prescribe
regulations to carry out the purpose of subchapter II of chapter 75, is
warranted.\397\
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\396\ 85 FR 67361-62.
\397\ 5 U.S.C. 7514.
---------------------------------------------------------------------------
The CSRA and merit system principles have informed OPM's
regulations regarding the competitive and excepted services, and
employee movement between them. One of those principles is that the
creation of new positions in--and movement of existing positions into--
the excepted service is meant to be an exception to the normal
procedure for filling competitive service positions and maintaining the
positions in that service thereafter. Accordingly, OPM has maintained
for decades several safeguards and transparency measures associated
with any such movements. These safeguards and measures may include
agency reporting to OPM,\398\ such as where positions are placed
temporarily in the excepted service for the purpose of a trial period
leading to a permanent appointment in the
[[Page 25036]]
competitive service; \399\ OPM authorization to create certain new
positions in--or move certain existing positions into--the excepted
service; \400\ publication in the Federal Register; \401\ and an
acknowledgment of the consent of affected employees when an existing
employee obtains a different position in another service or
schedule.\402\ The now-revoked directions to agencies contained in
Executive Order 13957, for implementing the now-defunct Schedule F,
called into question the continued vitality of these longstanding
principles with respect to employees who had accrued adverse action
rights. We seek to confirm these principles through this final rule.
---------------------------------------------------------------------------
\398\ See 5 CFR 5.1 (``The Director, Office of Personnel
Management, shall promulgate and enforce regulations necessary to
carry out the provisions of the Civil Service Act and the Veterans'
Preference Act, as reenacted in title 5, United States Code, the
Civil Service Rules, and all other statutes and Executive orders
imposing responsibilities on the Office.''); 5 CFR 5.4 (``When
required by the Office, the Merit Systems Protection Board, or the
Special Counsel of the Merit Systems Protection Board, or by
authorized representatives of these bodies, agencies shall make
available to them, or to their authorized representatives, employees
to testify in regard to matters inquired of under the civil service
laws, rules, and regulations, and records pertinent to these
matters''); 5 CFR 10.2 (OPM authority to set up accountability
systems); 5 CFR 10.3 (OPM authority to review agency personnel
management programs and practices).
\399\ See, e.g., 5 CFR part 362.
\400\ 5 CFR 6.1.
\401\ Id.
\402\ 5 CFR 302.102(b).
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OPM received numerous comments relating to the need for this rule.
Most of the comments were supportive.
Comments Regarding the Need for This Final Rule
Several comments agreed with OPM that this rule would protect the
nonpartisan career civil service and merit system principles. Comment
684, an individual, contended that ``[t]he rule will help preserve the
autonomy of the civil service, allowing its professionals to complete
their work without arbitrary fear or favor of current elected office
holders and making it possible for the government of the United States
to serve its people consistently and evenhandedly across
administrations.'' See also Comments 9 (arguing that the government
``cannot properly function if civil servants are forced to curry
political favor rather than carry out the work laid out for them by
law,''), 1310 (explaining that the rule will help preserve the many
benefits of the civil service), 3687 (same). Comment 1691, an
individual, contended that ``[b]y ensuring that federal employees
retain their civil service protections and status during transitions
between the competitive and excepted services, the rule enhances job
security and employee rights.'' Also, the rule ``clarifies the
definitions of roles exempt from these protections, bringing greater
transparency and adherence to legislative intent. Importantly, the
introduction of procedural safeguards and the right to appeal to the
Merit Systems Protection Board empowers employees, fostering a fairer
and more accountable federal workforce.'' Commenter concluded that
``[t]his rule change is not just a regulatory update; it's a
reaffirmation of our commitment to a merit-based, transparent, and
equitable civil service.'' See also Comment 949 (an individual,
expressing concern that ambiguities in the civil service statutes,
addressed by this rule, could allow for mass firings based on political
favor).
Regarding the rule's protection of merit system principles, an
individual wrote, ``[i]n a time when preserving the merit-based and
non-partisan principles of the federal workforce is of paramount
importance, this proposed rule stands as a beacon of clarity and
fairness.'' Comment 3800. It is ``essential to safeguard the rights and
protections of federal employees while also maintaining flexibility for
necessary personnel movements. It is my firm belief that implementing
this rule will promote good administration, uphold merit system
principles, and provide federal employees with the confidence that
their careers and rights are protected.'' Id. Commenter concluded that
the rule ``ensures that decisions related to the movement of positions
are made judiciously, with adherence to the rule of law and
congressional intent.''
Some commenters opposed to this rule argued that civil service
procedures cause hiring, performance management, and misconduct
challenges and this rule would only exacerbate those challenges and
hurt accountability. Comment 4097 stated, ``Chapters 43 and 75 have
proven to be longstanding and entrenched barriers to effectively
addressing performance and conduct issues. . . . The reality is that
they give federal employees `a de facto form of life tenure, akin to
that of Article III judges . . . What's more, federal employees know
it--and they take full-throated advantage of it.' '' \403\
---------------------------------------------------------------------------
\403\ Citing Feds for Med. Freedom v. Biden, 63 F. 4th 366 (5th
Cir. 2023) (J. Ho concurrence).
---------------------------------------------------------------------------
As noted in prior sections, OPM does not agree with commenter's
characterizations of the futility of chapters 43 and 75 or that career
civil servants are broadly ``taking advantage'' of those protections to
some inappropriate end. Under commenter's theory, Federal employment
should be at-will. As discussed above and in the following Section
V.(B), the civil service has sufficient and longstanding tools to deal
with actual misconduct or unacceptable performance. If a Federal
employee refuses to implement lawful direction from leadership, there
are appropriate vehicles for agencies to respond through discipline
and, ultimately, removal under chapter 75 or, alternatively, if
performance related, chapter 43 and other authorities. More
importantly, if commenter believes that the current performance
management system, as reflected in chapters 43 and 75, is inadequate,
then the appropriate solution is to try to convince Congress of that
proposition and suggest corresponding changes to the statutory scheme.
In contrast, distorting existing provisions to have a meaning
untethered to long-settled understandings and removing adverse action
rights from thousands of employees whom Congress intended to protect is
not an appropriate means of addressing the putative problem with the
statutory scheme.
Commenter 4097 also argued that this rule, and its removal
restrictions, are unnecessary to protect merit. Commenter wrote ``the
merit system operated for eight decades with federal employees
generally unable to appeal dismissals; the Lloyd-La Follette Act
expressly provided that no trial or hearing would be required to
effectuate removals. Many state governments currently operate at will.
Nonpartisan, merit-based civil services can, do, and did operate
effectively at will. Schedule F's elimination of those restrictions is
fully consistent with an effective merit service.'' Commenter then
added ``[n]onetheless, OPM's confusion on these points is
understandable'' because ``federal unions prompted this rulemaking''
and ``have long used the specter of the spoils system to oppose civil
service reforms.''
While a labor union petitioned OPM to promulgate regulations
regarding civil service protections, OPM is fully capable of analyzing
these issues on its own, and is promulgating measured amendments, using
its own expertise, and based squarely within statutory and regulatory
authority, legal precedent, and history, to reinforce and clarify these
longstanding civil service protections and merit system principles.
Also, as noted above, other commenters (see Comment 2822) take
issue with Comment 4097's interpretation of history and law in support
of Schedule F. Since the Pendleton Act, Congress has barred
terminations based on political grounds to preserve merit-system
principles. A few years later President McKinley required just cause
and written charges prior to removal--requirements which were codified
in the Lloyd La Follette Act to establish that covered Federal
employees were to be both hired and removed based on merit. Comment
2816, a former federal official, cited studies showing the negative
impacts of at-will employment on states and several other state
employees commented how these reforms have been harmful. OPM therefore
does not
[[Page 25037]]
agree that the elimination of civil service protections is ``fully
consistent with an effective merit service.''
Several individuals supportive of the rule argued that it would
effectively protect civil servants from politicization. Comment 11
wrote that the ``proposed rule is a necessary and timely response'' to
efforts that could ``undermine the civil service system and politicize
it for partisan purposes.'' Comment 371 stated that the rulemaking
would protect the civil service from ``employment decisions based on
anything but job performance and qualifications.'' See also Comments
704 (arguing that the rule ``acts as a necessary buffer against the
potential upheaval and erosion of our institutions, and would help to
ensure stability of essential government agencies.''), 711, 3751. A
professor contended the rule ``provides appropriate protection against
these negative effects'' of politicization. Comment 1971.
A coalition of national and local unions, including the union that
submitted the petition for rulemaking referenced above, expressed their
support for this rule. They stated, ``OPM would make important
clarifications regarding the rights of federal employees whose
positions might be shifted from the competitive service to the excepted
service or from one excepted service schedule to another. We urge OPM
to finalize the rule promptly.'' Comment 41.
Commenters opposed to this rule argued that the civil service needs
performance management, and this rule will have a negative effect on
the stated intent, resulting in government inefficiency and waste.
Comment 2866, a legal organization, argued that ``American taxpayers
should not be forced to fund lazy, incompetent, or insubordinate
federal employees who fail to complete their work, seek to undermine
the democratic process by failing to carry out the President's agenda,
or both.'' Comment 4097 argued ``OPM's proposed rule would instead make
dismissing employees in senior policy-influencing positions for poor
performance or intransigence considerably more difficult. This would
`seal up' poor performers in the bureaucracy. . . . [C]hapter 43 and 75
procedures are insufficient to combat these `levers of resistance.' ''
For the reasons stated above, OPM disagrees with commenters' views
as to the sufficiency of performance management tools. These tools are
also addressed further in Section V.(B). Moreover, this rule tracks the
status quo, so it would not make performance management more difficult.
The amendments to parts 210, 212, 432, and 752 clarify longstanding
civil service law and agency procedures. Nor do commenters explain how
the changes to part 302 and resulting procedures would impact
performance management. They are instead directed at potential
movements of positions or employees from the competitive to the
excepted service or between schedules in the excepted service, and
added for the purposes of good administration, to enhance transparency,
and to provide employees with a right of appeal to the MSPB to protect
against potential abuses. In essence, they provide an avenue of relief
to an employee in the event the employing agency fails to inform the
employee of the impact of the move on the employee's rights or the
employee is concerned that the move is an attempt to strip the employee
of civil service status and protections.
Further, actual resistance to supervisory direction would generally
be expected to produce unacceptable performance that could be
demonstrated on the record under either chapters 43 or 75.
Comment 4097, from an advocacy nonprofit organization, also argued
that this rule would increase politicization. See also Comment 3156
(the same commenter, arguing that ``political appointees rationally
respond to intransigent career staff by cutting them out of the policy
process.''). Comment 4097 argued that this rule would ``discourage
vetting prospective policies with career staff'' because ``the
practical consequence of insulating career staff from accountability is
political appointees cut them out of the loop to avoid leaks.''
Commenter added ``[i]f career officials feared leaking draft policies
could end their careers, political appointees would have more freedom
to seek their input.'' As an example, commenter states, ``OPM career
staff were entirely cut out of the development of Schedule F. The White
House realized sharing policy proposals with OPM career staff was
tantamount to sending them to federal unions and other reform
opponents.''
Generations of civil servants have worked with administrations and
political appointees of both parties to advance their policies. For
instance, as explained above, Comments 2822, a legal nonprofit
organization, and 3038, a former civil servant, observe that the
Reagan, Bush, and Trump Administrations succeeded in advancing many of
their policy efforts even if, as Commenter 4097 contends, federal
employees lean liberal.
Commenter adds ``[i]f there were no restrictions on removing
policy-influencing career staff political appointees could simply
dismiss employees they knew or strongly suspected leaked deliberative
policy documents.'' (emphasis added). This comment suggests that, under
its preferred scheme, suspicion of leaking, without proof, would be a
basis for removal. OPM believes such an environment would chill
employees broadly and interfere with their willingness to present
objective analyses and frank views in carrying out their duties, thus
diminishing the reasoned consideration of policy options. Moreover, by
instilling fear of reprisal and loss of employment, it would damage
retention and recruitment efforts, as explored in the following
section, thus further fracturing the successful functioning of
government and our democracy.
Individuals opposed to this rule also added that it is a means for
the ``bureaucracy'' to ``protect itself from any disruption or risk to
its continued employment.'' Comment 20, see also Comment 3130. Comment
45, a former political appointee, stated this rule ``is a truly clear
demonstration of bureaucrats in full self-protection mode, operating as
an independent, unaccountable, deep state fourth branch of government,
outside the United States Constitution'' and its ``goal is simply to
expand more protections to as many of the current administrative
state's lackeys as possible.'' Comment 31 adds ``[t]here is probably no
private business that allows its `employees' to first make up & approve
their own policy, salary, benefits, performance etc. and then to
`manage' and `interpret' their duties to the general public.''
OPM is headed by a presidentially appointed and Senate-confirmed
Director, who is accountable to the current President. It has both
career staff and political appointees. Accordingly, this rule is not
the work product of unaccountable bureaucrats. OPM also does not,
through this rule or any rule, ``make up'' the ``bureaucracy's''
adverse action rights--those rights have been granted to incumbents of
various positions in the civil service by Congress after vigorous and
careful debate. In that way, and many other ways, the civil service is
also unlike employees in private businesses in the same way that
government agencies, though mindful of sound business practices where
they appropriately apply, are not and cannot be identical to a
business. Congress decided, long ago, to create a civil service based
upon merit system principles (and has added,
[[Page 25038]]
over time, various protections for career employees) to protect against
politicization, build competencies, enhance the ability to transmit
knowledge during transitions, and generally advance the public
interest. OPM is tasked by statute with the authority to execute,
administer, and enforce all civil service rules and regulations as well
as the laws governing the civil service.\404\ All of its rules give
effect to Congress' intentions under title 5, including civil service
protections and merit system principles. This rule is a standard
exercise of the delegated authority Congress provided to OPM.
---------------------------------------------------------------------------
\404\ See 5 U.S.C. 1103(a)(5)(A).
---------------------------------------------------------------------------
Several commenters expressed support for the rule, in part, because
it is being promulgated through notice and comment in accordance with
the APA. This is contrasted with Executive Order 13957 establishing
Schedule F, which a professor argued ``was developed in secret, with no
consultation of public management researchers or experts who could
provide evidence to inform its adoption.'' Comment 50. It ``sought no
consultation of researchers or experts in public management, so the
Executive Order is free of any peer-reviewed evidence to support its
adoption.'' Comment 2594 (an individual), see also Comment 3213 (an
individual). The rule, commenters argued, ``is thoroughly researched,
and invites public comment,'' demonstrating a high degree of public
engagement. Comments 50, see also Comments 1677 (an individual), 1780
(same). OPM takes no position as to the executive processes leading to
Executive Order 13957 but does acknowledge this rulemaking process
resulted from OPM's own research, informed by 60 days of public
comment, and now reflects the review and consideration of the thousands
of comments received. This final rule, moreover, furthers the
objectives of Executive Order 14003. In the findings underpinning that
Executive order, President Biden observed that the foundations of the
civil service and its merit system principles were essential to the
Pendleton Act's repudiation of the spoils system.\405\ The President
further noted that revoking Schedule F was necessary ``to enhance the
efficiency of the civil service and to promote good administration and
systematic application of merit system principles.'' \406\ The
amendments in this final rule support the civil service and merit
system principles for career Federal employees.
---------------------------------------------------------------------------
\405\ E.O 14003, sec. 2.
\406\ Id.
---------------------------------------------------------------------------
B. Regulatory Alternatives
An alternative to this rulemaking is to not issue a regulation. OPM
has determined this is not a viable option. The risks of not issuing
this final rulemaking are many and include both fiscal as well as non-
fiscal consequences. As noted in the preamble, this rulemaking is
important for preserving the integrity of the Federal career workforce
as an independent entity selected in a manner that is free of political
influence, and free of personal loyalties to political leaders,
consistent with merit system principles. Promulgating measures that
help ensure that career employees maintain any status and procedural
rights they have accrued under law is a means of preserving the
integrity of the Federal career workforce. It preserves and promotes
employee morale and settled expectations, minimizes workforce
disruptions by preventing potential losses of seasoned or experienced
personnel, and contributes to a positive impact on agencies' ability to
meet mission requirements. Finally, and importantly, these changes will
promote compliance with statutory enactments.
The option of not regulating in this area carries with it fiscal
costs as well. These costs include that of recruiting and replacing
staff who separate before or after their positions are moved to the
excepted service in a manner that purportedly strips them of their
civil service protections, as well as the loss of or delay in services,
benefits, and entitlements owed to many of our nation's citizens. Many
of the citizens receiving these entitlements depend on them to meet
their basic living expenses.
Many commenters discussing regulatory alternatives focused on the
potential impact of this final rule on performance management and the
ability to recruit, hire, and retain talent.
Comments Regarding Performance Management
Commenters opposed to the rule commented that career civil servants
have too many poor performance issues and therefore fewer, not more,
protections are needed to allow for their removal. See, e.g., Comment
1802 (an advocacy organization). Comment 90, a form comment, points to
a 2020 Federal Employee Viewpoint Survey (FEVS) to say, generally, that
``the existing system . . . already faces challenges in addressing poor
performance.'' Comment 45, a former political appointee in favor in
Schedule F, similarly cited the 2020 FEVS results \407\ showing that
42% of employees agreed with the question: ``In my work unit, steps are
taken to deal with a poor performer who cannot or will not improve.''
Commenter then cited a different question in that FEVS which asked,
``In my organization, senior leaders generate high levels of motivation
and commitment in the workforce.'' (emphasis added). Commenter argued
that ``[a]cross five years from 2016 to 2020, we see worryingly low
rates of workers responding in the affirmative, with only 51% of
workers doing so in 2020 and it being lower in all previous years
surveyed.'' Commenter concluded that this ``not only signals a
demoralizing effect on those workers who do strive for efficiency and
satisfactory performance but is also a cause of poor performance
itself.''
---------------------------------------------------------------------------
\407\ U.S. Off. of Pers. Mgmt., 2020 Federal Employee Viewpoint
Survey, https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf.
---------------------------------------------------------------------------
OPM disagrees with commenter's analysis and conclusions. ``Senior
leaders'' in the FEVS are defined as the heads of departments/agencies
and their immediate leadership team responsible for directing the
policies and priorities of the department/agency.\408\ These can be
career employees but are most often political appointees. It is unclear
how the motivation and commitment question relating to senior leaders
ties to performance management, as commenter concluded, especially
since immediate supervisors--the personnel most likely to handle
performance management--scored higher than senior leaders in relevant
metrics in that same 2020 FEVS. For instance, 78% of respondents said
their immediate supervisor was doing a ``good job'' overall and 87%
said their supervisor treated them with respect. Regarding their close
colleagues, 82% of respondents said their work unit had the ``job-
relevant knowledge and skills necessary to accomplish organizational
goals'' and 84% said the people they worked with ``cooperate to get the
job done.''
---------------------------------------------------------------------------
\408\ U.S. Off. of Pers. Mgmt., ``Federal Employee Viewpoint
Survey,'' https://www.opm.gov/fevs/, see also U.S. Off. of Pers.
Mgmt., ``2022 Federal Employee Viewpoint Survey Results: Technical
Report,'' (defining ``Senior Leader''), https://www.opm.gov/fevs/reports/technical-reports/technical-report/technical-report/2022/2022-technical-report.pdf.
---------------------------------------------------------------------------
Comment 4097 and others also argued that FEVS data shows
``[a]gencies fail to address poor performers effectively,''
[[Page 25039]]
citing 2021-2023 FEVS data and the same question as above, this time
showing approximately 40% of respondents agreeing that ``their agency
had taken steps to deal with a poor performer who cannot or will not
improve.'' See also Comments 1811, 3190, 3892. A few also argued (or
cited surveys that they allege show) that public trust in government is
low. See Comments 1811, 1958. Comment 4097 adds that ``[m]isconduct--
including policy resistance--occurs at unacceptably high levels. The
federal hiring process is also widely recognized as broken. The federal
workforce needs reform.''
As explained above, under the law, a mere difference of opinion
with leadership does not qualify as misconduct or unacceptable
performance or otherwise implicate the efficiency of the service in a
manner that would warrant an adverse action. The FEVS data that
commenters argued shows there are too many poor performers in
government does not, in fact, show a numerical prevalence of poor
performers. There is an important difference between (a) data showing a
belief by respondents that poor performers exist and the agency has not
adequately addressed their performance and (b) the existence of too
many poor performers. For example, if a work unit contains one employee
with performance issues out of a 100, then 99 might have one example of
a poor performer who has not yet been removed or demoted, but that does
not necessarily mean the work unit has a prevalence of poor performers.
Also, unless the respondents are in the supervisory chain of an
employee with performance issues, they would have little way of knowing
what ``steps are being taken to deal with a poor performer who cannot
or will not improve,'' which is the FEVS question repeatedly cited in
these comments. For privacy reasons, supervisors would not normally
share information about a particular employee's performance or behavior
with other employees, nor would the supervisor be likely to disclose
what actions had been taken in response. Commenters have not shown that
there are significant numbers of poor performers in government. OPM
notes that a 2016 GAO report showed ``99 percent of all permanent, non-
SES employees received a rating at or above `fully successful' in
calendar year 2013. Of these, approximately 61 percent were rated as
either `outstanding' or `exceeds fully successful.' '' In any event,
even if it could be demonstrated that there was a high proportion of
unacceptable performance or misconduct among employees, OPM is not free
to remove adverse action rights from large swathes of career civil
servants. That is an action that may be taken only by congressional
enactment.
A few individuals opposed to the rule argued that career civil
servants are inefficient and/or provide poor service to the American
public. See Comments 18, 29. A nonprofit organization claimed the civil
service was ineffective and blamed it on the lack of competition ``that
makes the private sector efficient.'' Comment 1811. Commenter argued
that once an employee accrues worker protections, ``they have little
incentive to improve their work.'' And should an agency allege poor
performance, ``the federal worker has ample time to improve their
performance and challenge the claims of the agency.'' Comment 4097
concurred with this notion, arguing that ``[i]n addition to sheltering
poor performers, removal restrictions directly make federal employees
less productive. Economists consistently find that giving employees
removal protections reduces their productivity.'' OPM notes that
commenter cited Ichino and Riphahn (2005); Martins (2009); Riphahn
(2004); Scoppa (2010); Scoppa and Vuri (2014) for this proposition.
These studies all concern European workers with European-style labor
protections. Four exclusively consider private industry and three are
further restricted to the impact of a single statute on Italian labor
markets. None are about the American civil service. Also, these papers
do not purport to and could not show that removing American civil
service protections would make career civil servants more efficient. A
loss of protections, instead, would likely lead to a loss of motivation
to invest in and hone their skills.
With respect to the claim that, should an agency allege poor
performance, ``the federal worker has ample time to improve their
performance and challenge the claims of the agency,'' we note that many
supervisors can and do use chapter 75, rather than chapter 43, to
suspend, demote, or remove an employee with a history of unacceptable
performance. Although it is true that the statutory scheme provides for
a notice period and an opportunity to respond, in a chapter 75 adverse
action proceeding, the supervisor need only disclose the grounds for
proposing the action (which can be unacceptable performance), provide
evidence to support the charge, and demonstrate that the action
proposed will promote the efficiency of the service. There is no
requirement to let the employee try to improve their performance.
One form comment argued, without evidence, that career civil
servants do not deserve protections because they are captured by
industry. See Comment 14, 26. The comment contended that, once a career
federal employee has lost independence of decision making to ``the
patronage of a corporation,'' the employee is no longer applying their
merit to their employment function, thus their ``merit score would be
rendered `zero.' '' The comment argued the employee would then be
subject to employment termination. Commenter provided no evidence for
this assertion. Whether some civil servants are influenced improperly
by outside corporations in the way they conduct their official duties
is outside the scope of this rule. But OPM notes that such demonstrable
influence, to the extent it exists, could be a violation of federal
ethics laws and, in any event, could readily be addressed by existing
performance management mechanisms. We reiterate, as well, that whether
or not civil servants ``deserve'' adverse action protections, Congress
has provided for them by law, and OPM is not free to eliminate the
protections merely because it would allow agencies to more easily
remove employees.
Conversely, several commenters in support of the rule agreed with
OPM and argued that the civil service already has sufficient tools to
deal with performance issues. A public service nonprofit organization
commented that ``[c]ritics often claim that it is impossible to fire
poor performing federal employees, but data shows that over 10,000
federal employees are terminated or removed due to discipline or
performance issues each year (a trend that goes back to at least
2005).'' \409\ Comment 44. It continued, ``[d]espite many
misconceptions about the prevalence of poor performers in government,
there are reasonable approaches to ensuring managers are trained in
using disciplinary and removal procedures and have the necessary tools
to manage their workforce, including a streamlined adjudicatory and
appeals process.'' Comment 1228, an individual, argued that ``[t]hough
some may argue that the current system is incapable of removing bad
employees, a.) there is little evidence that such incapacity exists, it
seems like there are not only good agencies doing good work but also
the need to fully staff those same offices,
[[Page 25040]]
and b.) the benefits of removing low performing employees more easily
is drastically outweighed by the risk of an administration creating
massively unpredictable alterations to government functioning based on
the whims of an incoming administration.'' Comment 4016, an individual
who worked for the Federal Government for 30 years, added that
``[p]oliticization only leads to incompetence in the federal workforce.
It's not easy but a manager can remove poor performers. It can be done
as I've witnessed and have done many times.'' OPM agrees that the civil
service contains tools to address misconduct or performance issues.
---------------------------------------------------------------------------
\409\ Citing statistics on federal employees drawn from Office
of Personnel Management FedScope data on the federal workforce.
---------------------------------------------------------------------------
Comments Regarding the Effect of the Rule on the Recruitment, Hiring,
and Retention of Talent
In addition to comments about performance management, OPM received
many comments about the rule's impact on recruitment, hiring, and
retention efforts. This rulemaking is expected to create an incentive
for such efforts. It will enhance agencies' ability to fulfill
important merit system principles, that recruitment should be from
qualified individuals in an endeavor to achieve a workforce from all
segments of society, and that selection and advancement should be
determined solely on the basis of relative ability, knowledge, and
skills, after fair and open competition which assures that all receive
equal opportunity.\410\ It also promotes compliance with the
congressional policy to confer a preference on eligible veterans or
family members entitled to derived preference. In a more pragmatic
sense, diminishing or eliminating civil service protections from entire
categories of career employees would destabilize the civil service--
potentially repeatedly, each time there is a change in administration--
and eliminate a competitive advantage Federal agencies have long
enjoyed when competing with other sectors for needed talent: stable,
fair, merit-based employment.
---------------------------------------------------------------------------
\410\ See 5 U.S.C. 2301(b)(1).
---------------------------------------------------------------------------
Failure to protect adverse action rights and other civil service
protections risks a loss of experienced staff, leading to a disruption,
if not interruption, of agency mission operations. This is an
especially important consideration given the many challenges facing our
nation that require a response by the Executive branch. These
challenges include threats to our nation's economy writ large, as well
as problems impacting small businesses and emerging markets and
technologies. There are challenges associated with public health,
climate (including impacts on both private property and businesses
impacted by droughts, floods, wildfires, etc.), data security, and
pressing international and geopolitical matters, among others.
Many commenters were concerned that not issuing this rule would
allow politicization (or even the threat of politicization) to increase
in the career civil service, which would hurt government recruitment,
hiring, and retention efforts.
OPM received several comments concerning politicization that noted,
as a baseline concept, that the civil service, unlike much employment
in the private sector, is spurred by mission-driven work. Comment 3022
contended ``[o]pponents of the Civil Service often voice two
objections: `Government should be run like a business' and `The boss
has the right to hire and fire at will.' '' Commenter argued that
government is not a business because the purpose of a business is to
turn a profit whereas the purpose of government, as ``stated in the
first paragraph of the Constitution'' is to ``form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings
of Liberty to ourselves and our Posterity.''
This desire for mission-driven work helps explain why
politicization in the civil service impacts job satisfaction and
morale, argued commenters. Comment 2660, a science advocacy nonprofit
organization, cited evidence suggesting that when federal scientists
perceive that their workplaces are free from political interference,
there are positive knock-on effects, such as making that federal agency
more attractive when recruiting other federal scientists and increasing
retention. Comment 2816, a former federal official, showed that
``[e]mployees in highly politicized agencies evince `less general
satisfaction in the workplace and federal workers in more politicized
agencies are less likely to believe their agency compares favorably
with other organizations and to recommend their job as a good place to
work.' '' \411\
---------------------------------------------------------------------------
\411\ Citing David E. Lewis, ``Politicization and Performance:
The Larger Pattern, in The Politics of Presidential Appointments:
Political Control and Bureaucratic Performance,'' pp. 172, 191
(2008).
---------------------------------------------------------------------------
Other commenters in support of this rule argued that it would help
recruitment. Comment 2059, an individual, expressed that ``[a]s someone
considering joining the civil service, this is the type of
clarification and improvement I would need to see before moving
forward.'' See also Comments 84 (an individual, commenting about the
difficulty to recruit and retain competent and dedicated employees to
the civil service if they knew that they might lose their jobs at any
moment for political reasons), 3038 (a former civil servant arguing
that increased politicization diminishes the attraction of government
jobs ``to excellent workers with the temperament to be truly dedicated
public officials''). Comment 2193, a women's health nonprofit
organization, argued that ``[m]erit system protections are important
for attracting highly qualified individuals to fill open positions and
retaining employees who have developed valuable expertise in their
topic areas.'' Comment 2004, an individual, added that ``[e]roding
[civil service] protections would also damage the federal government's
ability to attract good people, as job security and a sense of purpose
are two attractive features of many federal jobs which attract talent
that could easily make more money working somewhere else.'' Commenter
continues, ``[i]f these employees have to worry that every election
could mean the end of their federal careers, we'll have a tough time
attracting and retaining good people, meaning we'll have severely
damaged the government's ability to effectively serve the country and
implement the policies and programs of any President or Congress.'' As
examples of politicization's potential impact on government
recruitment, Comment 1904, a national parks advocacy organization,
pointed to the National Park Service, saying ``[t]he NPS is already
struggling with recruiting and retaining employees and the risk of
political retribution or misguided politically-driven decisions would
only create further challenges.'' Comment 857, an individual, gives, as
an example, the Environmental Protection Agency, saying ``[t]he EPA and
other agencies will not be able to attract and retain the best
professional staff if they are subject to at will firing. U.S. citizens
will not be as safe as a result.''
Comment 407, an individual, detailed how this rule directly impacts
OPM's recruitment and human capital management goals. The rule would
``help to maintain the progress of the past two decades on strategic
human capital management.'' Since 2001, commenter noted, GAO has placed
strategic human capital on its biennial high-risk list. In the past two
decades, ``OPM has reported addressing government-wide skill gaps for
certain positions, such as auditors and
[[Page 25041]]
economists, while gaps persist for other specialties like acquisition
or cybersecurity.'' Commenter continued ``[t]o ensure continued
progress, it is imperative that the civil service remain an employer
that is professional, apolitical, merit-based, and stable.''
Conversely, ``inaction or weakened protections for career civil
servants may reverse the progress of the last two decades with
strategic human capital management and resolving skills gaps.'' As an
example, commenter stated ``auditors and economists may not apply for
or remain in federal positions in the face of political interference or
retaliation that slants their analysis and work to meet political
ends.'' The prospect of instability with each change in administration
would ``undermine the government's ability to recruit and retain such
key positions.'' Commenter concluded, ``it would be difficult to keep
highly sought and potentially high paid experts in federal employment
if they do not think that they will have a job in another 4 or 8 years
when the administration changes.''
OPM notes that agencies have specifically raised concerns around
attrition rates for scientific and technical positions as well as an
inability to hire quickly enough to meet demands. Regarding these types
of positions, Comments 3687, a science advocacy organization, and 3973,
an anti-poverty nonprofit organization, added that ``[i]ncreased
politicization of roles also makes public service less attractive and
can result in higher turnover and fewer incentives to develop
expertise. Managing federal science and technology programs requires a
steady cadre of subject area experts, including working with program
partners and grantees and balancing competing operational, legal, and
political needs. Federal agencies already face challenges hiring and
retaining employees in positions that require highly-specialized
technical expertise, and failure to insulate the civil service from
politicization introduces additional instability and exacerbates this
issue.'' Similarly, Comment 2660, another science advocacy
organization, argued that ``[f]ailing to ensure that federal
scientists' jobs are based on merit and other civil service protections
is more likely to push federal scientists to consider leaving federal
agencies for workplaces that better fit the demands and norms of their
scientific profession.'' Comment 3409, a former civil servant,
contended that ``researchers and evaluators who wish to conduct
unbiased analyses and present an honest representation of results may
avoid civil service positions under such conditions. The quality of the
federal workforce would decline as a result.'' Comment 2001 added
``[a]s a trained engineer with extensive software, data analysis, and
data science experience, I have long considered working for the federal
government a dream of mine that I would love to pursue should the
opportunity arise. The reason for that is that the United States'
strong tradition of an apolitical, well-protected civil service that is
hired and rewarded based on merit, rather than political connections,
makes it something that I couldn't help but aspire to. This tradition
must be protected.''
One commenter opposed to the rule argued it will hurt the ability
to hire, but that seems to be based largely on their concerns about the
time and resources necessary to hire into the competitive service.
Comment 4097 stated ``the competitive hiring process is broken. There
is widespread consensus that the federal hiring process needs reform.
It takes agencies an average of about 100 days--more than three
months--to fill vacant positions in the competitive service.''
Commenter argued that private employers do not have to use these
procedures and can hire qualified applicants much more expeditiously.
The Comment fails to acknowledge, however, that the rules governing the
competitive hiring process were established, largely, by Congress.
Congress' objective was to filter a merit system principle--that
selection and advancement of candidates be determined on the basis of
relative levels of knowledge, skills, and abilities--through rules
enacted to confer a defined advantage, in the process of rating and
selection, on individuals eligible for veterans' preference.\412\
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\412\ See 5 U.S.C. 2301(b)(1), 3301, 3304; see also 5 U.S.C.
3319, 3320.
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Comment 4097 concluded that OPM's recruitment concerns regarding
efforts to strip career employees of civil service protections are
misplaced. Commenter argued that, ``[Executive Order 13957] prohibited
patronage and stipulated that Schedule F positions would last beyond a
presidential term. . . . Contrary to OPM's concerns, Schedule F
employees would keep their jobs so long as they performed well and
faithfully advanced the President's agenda.'' As explained previously,
however, if career civil servants become at-will employees, thereby
subjecting them to removal without any cause, we do not understand the
basis for commenter's view that such employees ``would keep their
jobs.'' They may keep their jobs--but they also would be removable at
will for any number of reasons.
Comment 4097 stated that ``OPM's recruitment concerns have not
materialized in states with at-will workforces.'' Commenter again cited
snippets of a report concluding that at-will employment ``makes the HR
function more efficient.'' Whether states can more efficiently fill
these positions proves nothing about the applicant pool or the quality
of the candidates ultimately selected. See Comment 2816 (regarding the
effect on state civil servants of at-will laws). At any rate, as
Commenter 4097 concedes, these state systems operate under statutory
provisions that differ meaningfully from those of title 5.
Comments Outside the Scope of This Rulemaking and/or OPM's Regulatory
Authority
Commenters also suggested a variety of other changes. These
included requests to curb burrowing in, limit large scale movements of
employees (including capping the number of Schedule C appointments),
scrutinize the appointments and functions of the SES, review hiring
preferences and agencies' uses of preferences, add whistleblower
protections, modify assignment rights applicable to RIF, clarify how
agencies should better use probationary periods, reform chapters 43 and
75, streamline performance and accountability processes, and consider
whether policies promoted by the rule could be included in collective
bargaining agreements. See Comments 6, 33, 38, 44, 2442, 2849, 3049,
3227, 3428, 3687, 3894. OPM appreciates these suggestions but found
they were either outside the scope of this rulemaking, outside of OPM's
regulatory authority, or both.
As described above, commenters proposed revisions to some of OPM's
regulatory changes to 5 CFR parts 210, 212, 213, 302, 432, 451, and
752. For the reasons described above and summarized below, they were
adopted or rejected in whole or in part.
Regarding 5 CFR part 752, OPM's changes to the regulations for
adverse actions are consistent with statute and cannot be further
simplified. OPM conforms part 752 with Federal Circuit precedent \413\
and statutory language.\414\ In addition, OPM makes plain that an
employee who is moved involuntarily from the competitive service to a
position in the excepted service, or from
[[Page 25042]]
one excepted service schedule to another excepted service schedule,
retains the status and civil service protections the employee had
already accrued.
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\413\ See Van Wersch, 197 F.3d at 1151-52; McCormick, 307 F.3d
at 1341-43.
\414\ See 5 U.S.C. 7501.
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One regulatory alternative to conforming part 752 was to forgo
changes to the regulation and allow Federal agencies to continue
relying upon 5 U.S.C. 7501 and 7511 for a more complete understanding
of eligibility for procedural and appeal rights. However, as the MSPB
observed in urging OPM to update 5 CFR 752.401:
Retaining out-of-date information in a Government regulation can
confuse agencies, managers, and employees and produce unintended
outcomes. Human resources specialists or managers who are not experts
in employee discipline may inadvertently rely on these particular
regulations. Agencies may fail to use proper procedures and fail to
notify employees of appeal rights. Terminations may be reversed.\415\
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\415\ U.S. Merit Sys. Prot. Bd., ``Navigating the Probationary
Period After Van Wersch and McCormick,'' (Sept. 2006), https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_276106.pdf.
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OPM agrees that current regulations need updating and does so
through this rulemaking.
OPM is amending the coverage-related provisions in part 752 to
close the gap between current regulations and relevant precedent
interpreting the underlying statute, thus adding clarity. In addition,
OPM provides guidance on implementing the statute. Having regulations
that are congruent to the underlying statute, as interpreted in binding
precedent, should mitigate potential errors in cases where an agency
might mistakenly believe it is free to terminate employment without
following adverse action procedures. Failure to align the regulations
with applicable precedents could produce improper terminations. These
terminations might then be overturned at the MSPB, resulting in wasted
resources and frustration for agency supervisors. It could also mean
the continued employment of a poorly performing employee, until a
proceeding under chapter 75 or chapter 43 could be undertaken and
sustained. Revising this regulation thus promotes efficiency in
removing or disciplining employees and addresses complaints that the
Federal removal process is too cumbersome. Through this rulemaking, OPM
is conforming the regulation to essential statutory requirements that
have not been previously reflected in OPM's regulations.
OPM is issuing these regulations in the least burdensome way
possible. Fundamentally, the amendments to part 752 do not impose new
requirements on agencies that are not already in place through existing
statutes, regulations, and case law. This includes the provisions that
an employee retains accrued rights when the employee is moved
involuntarily from the competitive service to the excepted service or
placed in a new schedule within the excepted service.
With respect to 5 CFR part 210, OPM considered not defining
``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining'' positions but,
as stated in the proposed rule and here, doing so adds important
clarity. This final rule more explicitly defines the employees and
positions that are excluded from civil service protections to align
with relevant statutory text, congressional intent, legislative
history, legal precedent, and OPM's longstanding practice. Accordingly,
OPM adds a definition for these terms of art to clarify that they mean
a noncareer political appointment that is identified by its close
working relationship with the President, head of an agency, or other
key appointed officials who are directly responsible for furthering the
goals and policies of the President and the administration, and that
carries no expectation of continued employment beyond the presidential
administration during which the appointment occurred.
Finally, OPM's addition of 5 CFR 302.602 establishes minimum
requirements for moving employees and positions into and within the
excepted service and creates new guardrails to protect existing rights
and reinforce merit system principles. OPM also confers in 5 CFR
302.603 a narrow MSPB appeal right to an employee whose position is
placed involuntarily into the excepted service, or an excepted service
employee whose position is placed involuntarily into a different
schedule of the excepted service, and when, in any such move, in
violation of these regulations, an agency asserts that the employee
loses status or any civil service protections they had already accrued.
OPM weighed the alternative of not conferring a right of appeal to
the MSPB. As stated in 5 CFR 1201.3, the MSPB's ``appellate
jurisdiction is limited to those matters over which it has been given
jurisdiction by law, rule, or regulation.'' Currently, for personnel
actions for which there is no MSPB appellate coverage, an aggrieved
Federal employee may have multiple other options for contesting a
personnel decision, including filing an Equal Employment Opportunity
(EEO) complaint, an OSC complaint, an administrative grievance, or if
applicable, a grievance under a negotiated grievance procedure.
However, with regard to an allegation that an agency has asserted that
the employee loses status or any civil service protections the employee
has already accrued, or that an agency coerced the employee to move in
a manner that was facially voluntary to a new position that would
require the employee to relinquish their status or any civil service
protections, OPM concluded that the current scheme of avenues for
redress is less complete than preferable to safeguard against actions
brought against employees for reasons stated above. Such actions would
have an adverse impact on employee morale across Federal agencies and a
corrosive effect on the American public's confidence in equitable
administrative processes of Federal civilian service.
Currently, if an employee alleges that an agency has committed a
prohibited personnel practice, the employee can file a complaint with
OSC, or if the employee is contesting an otherwise appealable action,
the employee can file an MSPB appeal of the personnel action and claim
as an affirmative defense that the agency committed a prohibited
personnel practice. OPM's selected option--the addition of 5 CFR
302.603--provides an earlier recourse to employees, following an
involuntary movement, or at a later point, if a personnel action is
undertaken without following appropriate procedures, as detailed in
section 302.603. This enables employees to protect their status and
rights and reinforces that affected employees are deserving of fair and
equitable treatment in all aspects of their employment as it relates to
movement to and within the excepted service.
C. Impact
These revisions clarify and reinforce existing employee protections
and add procedures that agencies must follow to further advance merit
system principles. Congress enacted procedural rules to provide an
adequate opportunity to hear from the tenured employee and
appropriately explore the underlying facts and law before adverse
actions are taken and thus help ensure that such actions are taken for
proper cause.\416\
[[Page 25043]]
The procedural protections enacted by Congress are for all tenured
employees, not only for the few employees who will inevitably present
problems in a workforce of more than two million individuals. And
procedural protections exist for ``the whistleblower, the employee who
belongs to the `wrong' political party, the reservist whose periods of
military service are inconvenient to . . . [superiors], the scapegoat,
and the person who has been misjudged based on faulty information.''
\417\
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\416\ U.S. Merit Sys. Prot. Bd., ``What is Due Process in
Federal Civil Service,'' pp. ii, 4 (May 2015), https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf.
\417\ Id., at cover letter.
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Where Congress has created a property interest in a position for
tenured employees, due process considerations protect employees from an
unlawful deprivation of that interest.\418\ Procedural protections are
a small price to pay to deliver to the American people a merit-based
civil service rather than a system based on political patronage.\419\
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\418\ See Loudermill, 470 U.S. at 541.
\419\ U.S. Merit Sys. Prot. Bd., supra note 32 at pp. ii-iii.
---------------------------------------------------------------------------
For the reasons stated in the proposed rule and in Section IV(A-C)
of this final rule--including OPM's responses to comments therein--
these rules will reinforce protections and procedural requirements that
exist already for most Federal employees. OPM believes that those
portions of the rules will not change any existing requirements for
agencies covered by the rules and the impact on agencies is expected to
be negligible.
The procedural requirements for moving an employee from the
competitive service to the excepted service or within the excepted
service are no more rigorous than the many other regulations
promulgated by OPM for the administration of the civil service,
especially those reticulated regulations related to the excepted
service under schedules D and E (as described above). The reporting
requirements relating to excepted service positions align with those
with which OPM already must comply.
D. Costs
This final rule requires agencies to update internal policies and
procedures to ensure compliance with the final regulations at 5 CFR
210.102(b), 212.401, 213.3301, 302.101, 302.602, 302.603, 451.302 and
with the regulatory amendments to parts 432 and 752 as well as resolve
any appeals that may arise from contested moves covered by part 302.
Regarding the procedural requirements for moving positions, the rule
will affect the operations of approximately 80 Federal agencies,
ranging from cabinet-level departments to small independent agencies.
OPM cannot estimate these costs with great specificity because they
will vary depending on the specific number of positions an agency would
seek to move.
The cost analysis to update policies and procedures and resolve
appeals assumes an average salary rate of Federal employees performing
this work at the 2024 rate for a GS-14, step 5, from the Washington,
DC, locality pay table ($157,982 annual locality rate and $75.70 hourly
locality rate). We assume the total dollar value of labor, which
includes wages, benefits, and overhead, is equal to 200 percent of the
wage rate, resulting in an assumed labor cost of $151.40 per hour.
We estimate that the cost to comply with updating policies and
procedures in the first year would require an average of 40 hours of
work by employees with an average hourly cost of $151.40 per hour. Upon
publication of the final rule, this would result in first-year
estimated costs of about $6,056 per agency, and about $484,480
governmentwide. There are ongoing costs associated with routinely
reviewing and updating internal policies and procedures, but not
necessarily a measurable increase in costs for agencies.
To comply with the regulatory requirements in this final rule,
affected agencies would need to resolve any appeals that may arise
pursuant to section 302.603. We estimate that, in the first year
following publication of a final rule, this would require an average of
120 hours of work by employees with an average hourly cost of $151.40
per hour. This would result in estimated costs in that first year of
implementation of about $18,168 per agency, and about $1.45 million
governmentwide. In subsequent years, we assume a decreased need for
appeal resolution as agencies further refine their processes under
section 302.603, resulting in less staff time. Accordingly, in
subsequent years, we estimate an average of 80 hours of work by
employees with an average hourly cost of $151.40 per hour. This would
result in estimated costs of about $12,112 per agency annually, and
about $968,960 governmentwide annually in the years after the first
year of implementation.
OPM did not receive comments related to the financial costs of this
rulemaking, which were presented in the proposed rule.\420\ OPM adheres
to its view in the proposed rule and will adopt the estimates as set
forth here. In sum, OPM estimates the first-year cost to be
approximately $24,224 per agency, and about $1.94 million
governmentwide. For subsequent years, we estimate annual costs to be
$12,112 for agencies, and about $968,960 governmentwide.
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\420\ 88 FR 63862, 63880.
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E. Benefits
These final regulations clarify the Federal civil service
protections that are critical to balancing an effective, experienced,
and objective bureaucracy with Executive branch control. These
regulations benefit the American people not only by shoring up
longstanding civil service protections, but also by promoting good
government. As stated in Executive Order 14003, it is this
Administration's policy to ``protect, empower, and rebuild the career
Federal workforce.'' This rulemaking benefits the career Federal
workforce by reinforcing that it is deserving of the trust and
confidence of the American people.
OPM stated in its Fiscal Year 2019 Human Capital Review Summary
Report that ``Agencies face different challenges depending on their
mission and the current state of their organizations; but there is
little debate that effectively managing human capital is at the
forefront of leadership's greatest priorities.'' \421\ Among the top
trends that surfaced during OPM's review were (1) identifying and
closing skills gaps and (2) recruiting and retaining employees. For
example, agencies raised concerns around attrition rates for scientific
and technical positions as well as an inability to hire fast enough to
meet demands. The ongoing challenge with recruitment and retention for
IT and cyber positions is due to the ever-changing landscape,
competition with the private sector and other Federal agencies, and
difficulty retaining talent.
---------------------------------------------------------------------------
\421\ U.S. Off. of Pers. Mgmt., ``Fiscal Year 2019 Human Capital
Reviews Report,'' p. 1 (Mar. 2020), https://www.chcoc.gov/sites/default/files/2019%20Human%20Capital%20Review%20Summary%20Report.pdf.
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This final rule has several important benefits. It supports the
retention of Federal career professionals who provide the continuity of
institutional knowledge and subject-matter expertise necessary for the
critical functioning of the Federal Government.\422\ ``A vast body of
research'' shows ``public service motivation as a central factor in
public
[[Page 25044]]
employment'' and that civil servants ``invest effort and develop
expertise precisely because a stable public job provides an environment
where they can pursue their motivation to make a difference.'' \423\
The rights and protections afforded to career Federal employees offer a
more stable alternative to comparable private and non-government sector
positions.\424\ These professionals play an integral role in
transferring knowledge, not just as part of their official duties, but
also by training and mentoring newer and less experienced Federal
employees, interns, contractors, etc.
---------------------------------------------------------------------------
\422\ Donald P. Moynihan, ``Public Management for Populists:
Trump's Schedule F Executive Order and the Future of the Civil
Service,'' Pub. Admin. Rev., p. 174, 177 (Jan.-Feb. 2022).
\423\ Id.
\424\ Id.
---------------------------------------------------------------------------
A related benefit of this rulemaking is that it will mitigate costs
associated with recruitment of personnel needed to replace staff who
leave or are subsequently removed following placement in the excepted
service or a new schedule in the excepted service. ``Instability and
politicization makes public service less attractive, leading to higher
turnover of experienced civil servants and giving public officials less
reason to develop expertise.'' \425\ OPM cannot estimate the exact
value of this benefit to taxpayers because it would depend on the
number of positions moved by an agency. Nevertheless, the final rule
will protect agencies' abilities to meet mission requirements by
mitigating disruptions caused by upheavals within an agency's
workforce, the result of which could have a negative impact on an
agency's ability to meet mission requirements and use its resources
(including taxpayer funds) in a timely and efficient manner.
---------------------------------------------------------------------------
\425\ Id.
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Comments Regarding the Benefits of This Final Rule
The benefits of civil service protections, which this rule would
uphold, have been widely recognized by Congress, civil servants, and
the American public for 140 years. Comment 2816, a former federal
official, argued that ``[t]he notion of a competitively selected civil
service is far from a modern creation; the justification for
competitive selection stretches more than a century and a half.
Throughout that period, Congress has grappled with the same concerns--
whether and how to insulate civil servants from political forces, how
to ensure the civil service is staffed by experienced professionals,
how to promote trust that the government acts in the public interest--
that are at stake in contemporary debates about civil service
protections.''
For these reasons, OPM believes that civil service protections and
merit system principles provide significant benefits both to civil
servants and the American people. This final rule will reduce the risks
associated with misapplying the CSRA, depriving civil service
protections to those who have rightfully earned them, and needlessly
politicizing our nation's nonpartisan career civil service.
As several commenters noted, there is little evidence that supports
the notion that a more politicized civil service would increase
governmental performance.\426\ A professor noted that opponents of this
rule have cited a paper by Spenkuch, Teso and Xu, which argues that
political misalignment between political appointees and career agency
officials can lead to cost overruns and delays in procurement
contracts.\427\ Comment 50. The paper reaches this conclusion by
looking at voter registration data for civil servants, but especially
for procurement officers, and then examines the performance of
contracts the procurement officers oversaw, including any cost
overruns, ex post modifications, or delays. But Comment 50 argued that
the paper actually shows the risks of politicization. The professor
argued that, ``[w]hile there are certainly key decisions where
political appointees should shape policy, specific procurement outcomes
is not one. There is no Democratic or Republican ideological approach
to procurement that should alter how existing legal processes are
implemented.'' Commenter continued that politicizing procurement
through political alignment would risk ``temporary partisan employees
redirecting procurement processes to satisfy politically favored
contractors'' and that ``peer-reviewed research in the top-ranked
American Journal of Political Science'' demonstrates this point.\428\ A
review of federal procurement processes between 2003-2015 shows that
greater politicization is associated with more non-competitive
contracts and greater cost overruns. The authors of the study that
Comment 50 cites conclude that ``agency designs that limit appointee
representation in procurement decisions reduce political favoritism.''
\429\ Another professor argued that there is ``no equivalent body of
peer reviewed evidence'' supporting the idea that removing career civil
servants from office improves government performance or responsiveness.
Studies show that the opposite is true. Comment 1927.
---------------------------------------------------------------------------
\426\ See id.; see also Donald P. Moynihan, ``Populism and the
Deep State: the Attack on Public Service under Trump,'' Liberal-
Democratic Backsliding and Pub. Admin., (May 21, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3607309 (``If political
appointees offer responsiveness to elected officials through their
loyalty, this responsiveness comes at a cost. The best evidence we
have is that appointees generate poorer organizational performance
relative to career officials.'') (citation omitted); David E. Lewis,
``Testing Pendleton's Premise: Do Political Appointees Make Worse
Bureaucrats?'' The Journal of Pol., Vol. 69, No. 4 (Nov. 2007),
https://www.jstor.org/stable/10.1111/j.1468-2508.2007.00608.x
(``This analysis demonstrates that appointees get systematically
lower performance grades than careerists. Previous bureau experience
and longer tenure in management positions explain why careerist-run
programs get higher grades. . . . These results add weight to what
civil service reformers like George Pendleton believed, namely that
a merit-based civil service system would lead to lower turnover in
the Federal workforce and the cultivation of useful administrative
expertise.'').
\427\ Citing J[ouml]rg L. Spenkuch, Edoardo Teso, and Guo Xu.
``Ideology and Performance in Public Organizations.'' Econometrica,
91, no. 4, pp. 1171-1203 (2023), https://doi.org/10.3982/ecta20355.
\428\ Citing Carl Dahlstr[ouml]m, Mih[aacute]ly Fazekas, and
David E. Lewis, ``Partisan procurement: Contracting with the United
States Federal Government, 2003-2015,'' Am. Journal of Pol. Sci.,
65, no. 3 (2021), https://doi.org/10.1111/ajps.12574.
\429\ OPM is also not persuaded to change its analysis based on
this paper because it does not address the likely resource costs of
politicization on the civil service described in this rule, such as
increased attrition and the need to hire new employees with likely
less experience and expertise.
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Finally, agency counsel and employee relations practitioners will
benefit from the clarifications in this final rule that address current
inconsistencies between OPM regulations and statute. After the MSPB
recommended that OPM update its regulations to reflect the Federal
Circuit's decisions in Van Wersch and McCormick,\430\ OPM revised 5 CFR
part 752, subpart D to conform to the court's interpretation of 5
U.S.C. 7511 as it pertains to appealable suspensions, removals, and
furloughs. However, OPM elected at that time not to update subpart B of
part 752 for suspensions of 14 days or less. In addition to closing
regulatory gaps in part 752 by conforming the regulations to case law
and statute, OPM clarifies that an employee moved to or within the
excepted service retains accrued procedural and appeal rights. The
cumulative effect of these changes will be a comprehensive and robust
regulatory framework on which agency practitioners can rely for
understanding and applying the protections available to Federal
employees appropriately.
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\430\ U.S. Merit Sys. Prot. Bd., supra note 30.
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[[Page 25045]]
VI. Procedural Issues and Regulatory Review
A. Severability
If any of the provisions of this final rule is held to be invalid
or unenforceable by its terms, or as applied to any person or
circumstance, it shall be severable from its respective section(s) and
shall not affect the remainder thereof or the application of the
provision to other persons not similarly situated or to other
dissimilar circumstances. For example, if a court were to invalidate
any portions of this final rule imposing procedural requirements on
agencies before moving positions from the competitive service to the
excepted service, the other portions of the rule--including the
portions providing that employees in the competitive service maintain
their protections even if their positions are moved to the excepted
service if moved involuntarily--would independently remain workable and
valuable. Similarly, the portions of this final rule defining
``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential and policy-determining'' can and would
function independently of any of the other portions of this final rule.
In enforcing civil service protections and merit system principles, OPM
will comply with all applicable legal requirements.
B. Regulatory Flexibility Act
The Director of the Office of Personnel Management certifies that
this rulemaking will not have a significant economic impact on a
substantial number of small entities because the rule will apply only
to Federal agencies and employees.
C. Regulatory Review
OPM has examined the impact of this rulemaking as required by
Executive Orders 12866 (Sept. 30, 1993), 13563 (Jan. 18, 2011), and
14094 (Apr. 6, 2023), which direct agencies to assess all costs and
benefits of available regulatory alternatives and, if regulation is
necessary, to select regulatory approaches that maximize net benefits
(including potential economic, environmental, public, health, and
safety effects, distributive impacts, and equity). A regulatory impact
analysis must be prepared for certain rules with effects of $200
million or more in any one year. This rulemaking does not reach that
threshold but has otherwise been designated as a ``significant
regulatory action'' under section 3(f) of Executive Order 12866, as
supplemented by Executive Orders 13563 and 14094.
D. Executive Order 13132, 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), it is determined that this final rule does
not have sufficient federalism implications to warrant preparation of a
Federalism Assessment.
E. Executive Order 12988, Civil Justice Reform
This regulation meets the applicable standards set forth in section
3(a) and (b)(2) of Executive Order 12988 (Feb. 7, 1996).
F. Unfunded Mandates Reform Act of 1995
This rulemaking will not result in the expenditure by State, local,
or tribal governments, in the aggregate, or by the private sector, of
more than $100 million annually. Thus, no written assessment of
unfunded mandates is required.
G. Congressional Review Act
OMB's Office of Information and Regulatory Affairs has determined
this rule does not satisfy the criteria listed in 5 U.S.C. 804(2).
H. Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35)
This regulatory action will not impose any reporting or
recordkeeping requirements under the Paperwork Reduction Act.
VII. Regulatory Amendments
List of Subjects
5 CFR Parts 210 and 212
Government employees.
5 CFR Part 213
Government employees, Reporting and recordkeeping requirements.
5 CFR Parts 302 and 432
Government employees.
5 CFR Part 451
Decorations, Government employees.
5 CFR Part 752
Government employees.
Office of Personnel Management.
Stephen Hickman,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends 5
CFR parts 210, 212, 213, 302, 432, 451, and 752 as follows:
PART 210--BASIC CONCEPTS AND DEFINITIONS (GENERAL)
0
1. The authority citation for part 210 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218.
Subpart A--Applicability of Regulations; Definitions
0
2. Amend Sec. 210.102 by:
0
a. Redesignating paragraphs (b)(3) through (18) as paragraphs (b)(5)
through (20); and
0
b. Adding new paragraphs (b)(3) and (4).
The additions read as follows:
Sec. 210.102 Definitions.
* * * * *
(b) * * *
(3) Confidential, policy-determining, policy-making, or policy-
advocating means of a character exclusively associated with a noncareer
political appointment that is identified by its close working
relationship with the President, head of an agency, or other key
appointed officials who are responsible for furthering the goals and
policies of the President and the Administration, and that carries no
expectation of continued employment beyond the presidential
administration during which the appointment occurred.
(4) Confidential or policy determining means of a character
exclusively associated with a noncareer political appointment that is
identified by its close working relationship with the President, head
of an agency, or other key appointed officials who are responsible for
furthering the goals and policies of the President and the
Administration, and that carries no expectation of continued employment
beyond the presidential administration during which the appointment
occurred.
* * * * *
PART 212--COMPETITIVE SERVICE AND COMPETITIVE STATUS
0
3. The authority citation for part 212 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954-
1958 Comp., p. 218.
[[Page 25046]]
Subpart D--Effect of Competitive Status on Promotion
0
4. Amend Sec. 212.401 by revising paragraph (b) to read as follows:
Sec. 212.401 Effect of competitive status on position.
* * * * *
(b) An employee who was in the competitive service and had
competitive status as defined in Sec. 212.301 of this chapter at the
time:
(1) The employee's position was first listed under Schedule A, B,
or C, or whose position was otherwise moved from the competitive
service and listed under a schedule created subsequent to May 9, 2024;
or
(2) The employee was moved involuntarily to a position in the
excepted service; remains in the competitive service for the purposes
of status and any accrued adverse action protections, while the
employee occupies that position or any another position to which the
employee is moved involuntarily.
PART 213--EXCEPTED SERVICE
0
5. The authority citation for part 213 continues to read as follows:
Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954-
1958 Comp., p. 218; Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h),
and 8456; E.O. 13318, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 4301 et
seq.; Pub. L. 105-339, 112 Stat. 3182-83; E.O. 13162; E.O. 12125, 3
CFR 1979 Comp., p. 16879; and E.O. 13124, 3 CFR 1999 Comp., p.
31103; and Presidential Memorandum--Improving the Federal
Recruitment and Hiring Process (May 11, 2010).
Sec. 213.101 also issued under 5 U.S.C. 2103.
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307,
8337(h), and 8456; 38 U.S.C. 4301 et seq.; and Pub. L. 105-339, 112
Stat. 3182-83.
Subpart C--Excepted Schedules
0
6. Amend Sec. 213.3301 by revising the section heading and paragraph
(a) to read as follows:
Sec. 213.3301 Positions of a confidential or policy-determining
character.
(a) Upon specific authorization by OPM, agencies may make
appointments under this section to positions that are of a confidential
or policy determining character as defined in Sec. 210.102 of this
chapter. Positions filled under this authority are excepted from the
competitive service and constitute Schedule C. Each position will be
assigned a number from Sec. Sec. 213.3302 through 213.3999, or other
appropriate number, to be used by the agency in recording appointments
made under that authorization.
* * * * *
PART 302--EMPLOYMENT IN THE EXCEPTED SERVICE
0
7. The authority citation for part 302 continues to read as follows:
Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR
1954-1958 Comp., p. 218); Sec. 302.105 also issued under 5 U.S.C.
1104, Pub. L. 95-454, sec. 3(5); Sec. 302.501 also issued under 5
U.S.C. 7701 et seq. Sec. 302.107 also issued under 5 U.S.C. 9201-
9206 and Pub. L. 116-92, sec. 1122(b)(1).
Subpart A--General Provisions
0
8. Amend Sec. 302.101 by revising paragraph (c)(7) to read as follows:
Sec. 302.101 Positions covered by regulations.
* * * * *
(c) * * *
(7) Positions included in Schedule C (see subpart C of part 213 of
this chapter) and positions excepted by statute which are of a
confidential, policy-determining, policy-making, or policy-advocating
character;
* * * * *
0
9. Add subpart F consisting of Sec. Sec. 302.601 through 302.603, to
read as follows.
Subpart F--Moving Employees and Positions into and Within the
Excepted Service
Sec.
302.601 Scope.
302.602 Basic requirements.
302.603 Appeals.
Sec. 302.601 Scope.
(a) This subpart applies to any situation where an agency moves:
(1) A position from the competitive service to the excepted
service, or between excepted services, whether pursuant to statute,
Executive Order, or an OPM issuance, to the extent that this subpart is
not inconsistent with applicable statutory provisions; or
(2) An employee who has accrued status and civil service
protections under 5 U.S.C. chapter 75, subchapter II, involuntarily to
any position that is not covered by that chapter or subchapter.
(b) This subpart also applies in situations where a position
previously governed by title 5, United States Code will be governed by
another title of the United States Code going forward, unless the
statute governing the exception provides otherwise.
Sec. 302.602 Basic requirements.
(a) In the event the President, Congress, OPM, or their designees
direct agencies to move positions from the competitive service into the
excepted service under Schedule A, B, or C, or any schedule in the
excepted service created after May 9, 2024, or to move positions from a
schedule in the excepted service to a different schedule in the
excepted service, the following requirements must be met, as relevant:
(1) If the directive explicitly delineates the specific positions
that are covered, the agency need only list the positions moved in
accordance with that directive, and their location within the
organization and provide the list to OPM.
(2) If the directive requires the agency to select the positions to
be moved pursuant to criteria articulated in the directive, then the
agency must provide OPM with a list of the positions to be moved in
accordance with those criteria, denote their location in the
organization, and explain, upon request from OPM, why the agency
believes the positions met those criteria.
(3) If the directive confers discretion on the agency to establish
objective criteria for identifying the positions to be covered, or
which specific slots of a particular type of position the agency
intends to move, then the agency must, in addition to supplying a list
of the identified positions or specific slots of particular types of
position, supply OPM with the locations in the organization, the
objective criteria to be used, and an explanation of how these criteria
are relevant.
(b) An agency is also required to--
(1) Identify the types, numbers, and locations of positions that
the agency proposes to move into the excepted service.
(2) Document the basis for its determination that movement of the
positions is consistent with the standards set forth by the President,
Congress, OPM, or their designees as applicable.
(3) Obtain certification from the agency's Chief Human Capital
Officer (CHCO) that the documentation is sufficient and movement of the
positions is both consistent with the standards set forth by the
directive, as applicable, and with merit system principles.
(4) Submit the CHCO certification and supporting documentation to
OPM (to include the types, numbers, and locations of positions) in
advance of using the excepted service authority, which OPM will then
review.
(5) For exceptions effectuated by the President or OPM, list
positions to the
[[Page 25047]]
appropriate schedule of the excepted service only after obtaining
written approval from the OPM Director to do so. For exceptions
effectuated by Congress, inform OPM of the positions excepted either
before the effective date of the provision, if the statutory provisions
are not immediately effective, or within 30 days thereafter.
(6) For exceptions created by the President or OPM, initiate any
hiring actions under the excepted service authority only after OPM
publishes any such authorizations in the Federal Register, to include
the types, numbers, and locations of the positions moved to the
excepted service.
(c) In accordance with the requirements provided in paragraphs (a)
and (b) of this section--
(1) An agency that seeks to move an encumbered position from the
competitive service to the excepted service, or from one excepted
service schedule to another, must--
(i) Provide written notification to the incumbent employee of the
intent to move the position 30 days prior to the effective date of the
position being moved.
(ii) In the written notification required by paragraph (c)(1)(i) of
this section, if the movement was involuntary, inform the employee that
the employee retains any competitive status or procedural and appeal
rights previously accrued under chapter 75, subchapter II, or section
4303 of title 5, United States Code, notwithstanding the movement of
the position, and inform the employee of appeal rights conferred under
Sec. 302.603 and the timing for exercising such appeal rights.
(d) In addition to applying to the movement of positions, the
requirements of this section apply to the involuntary movement of
competitive service or excepted service employees with respect to any
earned competitive status, any accrued procedural rights, or depending
on the action involved, any appeal rights under chapter 75, subchapter
II, or section 4303 of title 5, United States Code, even when moved to
the new positions.
(e) Notwithstanding the use of the plural words ``positions,''
``employees,'' ``individuals,'' and ``personnel actions,'' this section
also applies if the directive of the President, Congress, OPM, or a
designee thereof affects only one position or one individual.
Sec. 302.603 Appeals.
(a) A competitive service employee whose position is placed into
the excepted service or who is otherwise moved involuntarily to the
excepted service, or an excepted service employee whose position is
placed into a different schedule of the excepted service or who is
otherwise involuntarily moved to a position in a different schedule of
the excepted service, may directly appeal to the Merit Systems
Protection Board, as provided in paragraphs (b), (c), and (d) of this
section. The appeal rights conferred in this section are in addition
to, and not in derogation of, any right the individual would otherwise
have to appeal a subsequent personnel action undertaken without
following appropriate procedures under chapter 75, subchapter II, or
section 4303 of title 5, United States Code.
(b) Where the agency, notwithstanding the requirements of section
302.602 of this part, asserts that the move of the original position or
any subsequent position to which the individual is involuntarily moved
thereafter will eliminate competitive status or any procedural and
appeal rights that had previously accrued, the affected individual may
appeal from that determination and request an order directing the
agency:
(1) To correct the notice to provide that any previously accrued
status or procedural and appeal rights under those provisions continue
to apply; and
(2) To comply with the requirements of either chapter 75,
subchapter II or section 4303, title 5, United States Code, in pursuing
any action available under those provisions, except to the extent that
any such order would be inconsistent with an applicable statute.
(c) Where the agency fails to comply with Sec. 302.602(c)(1) of
this part and fails to provide the individual with the requisite
notice, the affected individual may appeal the failure to provide the
requisite notice and request an order directing the agency to comply
with that provision.
(d) An individual may appeal under this part on the basis that:
(1) A facially voluntary move was coerced or otherwise involuntary;
or
(2) A facially voluntary move to a new position would require the
individual to relinquish their competitive status or any civil service
protections and the move was coerced or otherwise involuntary.
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
0
10. The authority citation for part 432 continues to read as follows:
Authority: 5 U.S.C. 4303, 4305.
0
11. Amend Sec. 432.102 by revising paragraph (f)(10) to read as
follows:
Sec. 432.102 Coverage.
* * * * *
(f) * * *
(10) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character, as defined in Sec. 210.102 of this chapter by--
(i) The President for a position that the President has excepted
from the competitive service;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service (Schedule C); or
(iii) The President or the head of an agency for a position
excepted from the competitive service by statute, unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (e) of this section.
* * * * *
PART 451--AWARDS
0
12. The authority citation for part 451 continues to read as follows:
Authority: 5 U.S.C. 4302, 4501-4509; E.O. 11438, 33 FR 18085, 3
CFR, 1966-1970 Comp., p. 755; E.O. 12828, 58 FR 2965, 3 CFR, 1993
Comp., p. 569.
Subpart C--Presidential Rank Awards
0
13. Amend Sec. 451.302 by revising paragraph (b)(3)(ii) to read as
follows:
Sec. 451.302 Coverage.
* * * * *
(b) * * *
(3) * * *
(ii) To positions that are excepted from the competitive service
because of their confidential or policy-determining character.
* * * * *
PART 752--ADVERSE ACTIONS
0
14. The authority citation for part 752 continues to read as follows:
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115-91, 131
Stat. 1283, and Pub. L. 114-328, 130 Stat. 2000.
Subpart B--Regulatory Requirements for Suspension for 14 Days or
Less
0
15. Amend Sec. 752.201 by revising paragraphs (b), (c)(5) and (6), and
adding paragraph (c)(7) to read as follows:
Sec. 752.201 Coverage.
* * * * *
(b) Employees covered. This subpart covers:
(1) An employee in the competitive service who has completed a
[[Page 25048]]
probationary or trial period, or who has completed 1 year of current
continuous employment in the same or similar positions under other than
a temporary appointment limited to 1 year or less, including such an
employee who is moved involuntarily into the excepted service and still
occupies that position or occupies any other position to which the
employee is moved involuntarily;
(2) An employee in the competitive service serving in an
appointment which requires no probationary or trial period, and who has
completed 1 year of current continuous employment in the same or
similar positions under other than a temporary appointment limited to 1
year or less, including such an employee who is moved involuntarily
into the excepted service and still occupies that position or occupies
any other position to which the employee is moved involuntarily;
(3) An employee with competitive status who occupies a position
under Schedule B of part 213 of this chapter, including such an
employee who is moved involuntarily into a different schedule of the
excepted service and still occupies that position or occupies any other
position to which the employee is moved involuntarily;
(4) An employee who was in the competitive service and had
competitive status as defined in Sec. 212.301 of this chapter at the
time the employee's position was first listed involuntarily under any
schedule of the excepted service and still occupies that position or
occupies any other position to which the employee is moved
involuntarily;
(5) An employee of the Department of Veterans Affairs appointed
under 38 U.S.C. 7401(3), including such an employee who is moved
involuntarily into a different schedule of the excepted service and
still occupies that position or occupies any other position to which
the employee is moved involuntarily; and
(6) An employee of the Government Publishing Office, including such
an employee who is moved involuntarily into the excepted service and
still occupies that position or occupies any other position to which
the employee is moved involuntarily.
(c) * * *
(5) Of a National Guard Technician;
(6) Taken under 5 U.S.C. 7515; or
(7) Of an employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character, as defined in Sec. 210.102 of this subchapter by--
(i) The President for a position that the President has excepted
from the competitive service unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (b) of this section;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (b) of this section; or
(iii) The President or the head of an agency for a position
excepted from the competitive service by statute unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (b) of this section.
* * * * *
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
0
16. Amend Sec. 752.401 by revising paragraphs (c) and (d)(2) to read
as follows:
Sec. 752.401 Coverage.
* * * * *
(c) Employees covered. This subpart covers:
(1) A career or career conditional employee in the competitive
service who is not serving a probationary or trial period, including
such an employee who is moved involuntarily into the excepted service;
(2) An employee in the competitive service--
(i) Who is not serving a probationary or trial period under an
initial appointment, including such an employee who is moved
involuntarily into the excepted service; or
(ii) Except as provided in the former section 1599e of title 10,
for individuals hired prior to December 31, 2022 (the date that section
was otherwise repealed by Public Law 117-81, section 1106), who has
completed 1 year of current continuous service under other than a
temporary appointment limited to 1 year or less, including such an
employee who is moved involuntarily into the excepted service;
(3) An employee in the excepted service who is a preference
eligible in an Executive agency as defined at section 105 of title 5,
United States Code, the U.S. Postal Service, or the Postal Regulatory
Commission and who has completed 1 year of current continuous service
in the same or similar positions, including such an employee who is
moved involuntarily into a different schedule of the excepted service
and still occupies that position or occupies any other position to
which the employee is moved involuntarily;
(4) A Postal Service employee covered by Public Law 100-90 who has
completed 1 year of current continuous service in the same or similar
positions and who is either a supervisory or management employee or an
employee engaged in personnel work in other than a purely
nonconfidential clerical capacity, including such an employee who is
moved involuntarily into a different schedule of the excepted service
and still occupies that position or occupies any other position to
which the employee is moved involuntarily;
(5) An employee in the excepted service who is a nonpreference
eligible in an Executive agency as defined at 5 U.S.C. 105, and who has
completed 2 years of current continuous service in the same or similar
positions under other than a temporary appointment limited to 2 years
or less, including such an employee who is moved involuntarily into a
different schedule of the excepted service and still occupies that
position or occupies any other position to which the employee is moved
involuntarily;
(6) An employee with competitive status who occupies a position in
Schedule B of part 213 of this chapter, including such an employee
whose position is moved involuntarily into a different schedule of the
excepted service and still occupies that position or occupies any other
position to which the employee is moved involuntarily;
(7) An employee who was in the competitive service and had
competitive status as defined in Sec. 212.301 of this chapter at the
time the employee's position was first listed involuntarily under any
schedule of the excepted service and who still occupies that position
or occupies any other position to which the employee is moved
involuntarily;
(8) An employee of the Department of Veterans Affairs appointed
under 38 U.S.C. 7401(3), including such an employee who is moved
involuntarily into a different schedule of the excepted service and
still occupies that position or occupies any other position to which
the employee is moved involuntarily; and
(9) An employee of the Government Publishing Office, including such
an employee who is moved involuntarily into the excepted service.
(d) * * *
(2) An employee whose position has been determined to be of a
confidential, policy-determining, policy-making, or policy-advocating
character, as defined in Sec. 210.102 of this chapter by--
[[Page 25049]]
(i) The President for a position that the President has excepted
from the competitive service unless the incumbent was moved
involuntarily to such a position after accruing rights as delineated in
paragraph (c) of this section;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (c) of this section; or
(iii) The President or the head of an agency for a position
excepted from the competitive service by statute unless the incumbent
was moved involuntarily to such a position after accruing rights as
delineated in paragraph (c) of this section;
* * * * *
[FR Doc. 2024-06815 Filed 4-4-24; 8:45 am]
BILLING CODE 6325-39-P
