Upholding Civil Service Protections and Merit System Principles
| Citation | 88 FR 63862 |
| Published date | 18 September 2023 |
| Record Number | 2023-19806 |
| Court | Personnel Management Office |
Federal Register, Volume 88 Issue 179 (Monday, September 18, 2023)
[Federal Register Volume 88, Number 179 (Monday, September 18, 2023)]
[Proposed Rules]
[Pages 63862-63885]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-19806]
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Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 /
Proposed Rules
[[Page 63862]]
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: Proposed rule.
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SUMMARY: The Office of Personnel Management (OPM) is proposing a rule
to reinforce and clarify longstanding civil service protections and
merit system principles, codified in law, as they relate to the
movement of Federal employees and positions from the competitive
service to the excepted service, or from one excepted service schedule
to another. First, it clarifies that, upon such a move, an employee
retains the status and civil service protections they had already
accrued by law, unless the employee relinquishes such rights or status
by voluntarily encumbering a position that explicitly results in a loss
of, or different, rights. Second, it interprets ``confidential, policy-
determining, policy-making, or policy-advocating'' and ``confidential
or policy-determining'' to describe positions, generally excepted from
civil service protections, in accordance with statutory text,
legislative history for that text, and congressional intent, to
reinforce the interpretation that this term was intended to mean
noncareer, political appointments. Third, it provides specific
additional procedures that apply when moving 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 employees with a right of appeal to
the Merit Systems Protection Board (MSPB or Board) to the extent any
such move purportedly strips employees of their civil service status
and protections.
DATES: Comments must be received on or before November 17, 2023.
ADDRESSES: You may submit comments, identified by the docket number or
Regulation Identifier Number (RIN) for this proposed rulemaking, by the
following method:
Federal eRulemaking Portal: https://www.regulations.gov. Follow the
instructions for sending comments.
All submissions must include the agency name and docket number or
RIN for this rulemaking. Please arrange and identify your comments on
the regulatory text by subpart and section number; if your comments
relate to the supplementary information, please refer to the heading
and page number. All comments received will be posted without change,
including any personal information provided. To ensure that your
comments will be considered, you must submit them within the specified
open comment period. Before finalizing this rule, OPM will consider all
comments within the scope of the regulations received on or before the
closing date for comments. OPM may make changes to the final rule after
considering the comments received.
FOR FURTHER INFORMATION CONTACT: Timothy Curry by email at
[email protected] or by phone at (202) 606-2930.
SUPPLEMENTARY INFORMATION: OPM proposes this rule to clarify and
reinforce longstanding civil service protections and merit system
principles, which started with the passage of the Pendleton Act of
1883. The Act ended the patronage, or ``spoils,'' system for Federal
employment and created the competitive civil service. For the past 140
years, Congress has enacted statutes, and agencies have promulgated
rules, that govern actions by Federal agencies and employees, 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
Veterans' Preference Act of 1944, as amended, and the Civil Service
Reform Act of 1978 (CSRA), extended and updated these civil service
provisions.
The CSRA, as discussed throughout this rulemaking, was monumental.
It ``overhauled the civil service system,'' \1\ creating an elaborate
``new framework'' \2\ of the modern civil service, protecting career
Federal employees from undue partisan political influence so that the
business of government can be carried out efficiently and effectively,
in compliance with the law.
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\1\ See Lindahl v. OPM, 470 U.S. 768, 773 (1985).
\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 Presidents and
their 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.).
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 of title 5, U.S.
Code, and other authorities. Under the law, however, mere disagreement
with leadership--without defiance of lawful orders--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 generally have a level of institutional
experience, subject matter expertise, and technical knowledge that
incoming political appointees may lack. Their ability to offer their
objective analyses and views in 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
[[Page 63863]]
envisioned by Congress when it enacted the CSRA--and strengthened those
protections through other actions, such as the Civil Service Due
Process Amendments Act of 1990.\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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The OPM Director is generally charged with executing,
administering, and enforcing the laws governing the civil service.\4\
In chapter 75, Congress provided Federal employees with certain
procedural rights and provided OPM with broad authority to prescribe
regulations to carry out the chapter's purposes.\5\ Moreover, OPM
regulations, promulgated via delegated authority from the President,
govern the movement of positions from the competitive service to the
excepted service, or from one excepted service schedule to another.\6\
Accordingly, OPM proposes this rule to clarify and reinforce
longstanding civil service protections and merit system principles as
codified in the CSRA. OPM proposes amending 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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1. Amending 5 CFR part 752 (Adverse Actions) to clarify that
employees who are moved from the competitive service to a position in
the excepted service, or from one excepted service schedule to another,
retain the status and civil service protections they had already
accrued unless the employee relinquishes such rights or status by
voluntarily encumbering a position that explicitly results in a loss
of, or different, rights.\7\ The proposed regulation also conforms part
752 to Federal Circuit precedent regarding the employees eligible for
appeal and grievance rights for removal actions and suspensions.
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\7\ As explained further infra, an individual can voluntarily
relinquish rights when moving to a position that explicitly results
int 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 different rights. See Williams v. Merit Systems Protection
Board, 892 F.3d 1156 (Fed. Cir. 2018).
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2. Amending 5 CFR part 210 (Basic Concepts and Definitions
(General)) to define ``confidential, policy-determining, policy-making,
or policy-advocating,'' and ``confidential or policy-determining'' \8\
in 5 CFR 210.102--which would apply throughout OPM's Civil Service
Regulations in 5 CFR chapter I, subchapter B \9\--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,\10\ political
appointees from the civil service protections.
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\8\ See 5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202,
752.401.
\9\ The relevant regulatory language currently varies slightly.
For instance, 5 CFR part 752 describes them as 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 proposed rule,
OPM adopts ``confidential, policy-determining, policy making, or
policy advocating'' and ``confidential or policy-determining'' as
two, interchangeable alternatives to describe these positions.
\10\ 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
continuing into a new administration.
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3. Amending 5 CFR part 302, for the purposes of good administration
and transparency, to provide specific additional procedures that apply
when moving positions from the competitive service to the excepted
service, or from one excepted service schedule to another, and to
provide employees encumbering such positions with a right of appeal to
the MSPB to the extent any such move purportedly strips employees of
their civil service status and protections. The proposed regulation
also amends 5 CFR part 212 (Competitive Service and Competitive Status)
to further clarify a competitive service employee's status in the event
the employee's position is moved to the excepted service.
As further detailed infra, this rulemaking will enhance the
efficiency of the Federal civil service and promote good administration
and systematic application of merit system principles.\11\ OPM requests
comments on this proposed rule, including on its potential impacts and
implementation, to better understand the potential effects of these
proposed regulations and to be in a position to consider any possible
modifications. OPM may set forth policies, procedures, standards, and
supplementary guidance for the implementation of any final rule.
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\11\ 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 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. Similarly,
these 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.
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I. Background
A. The Career Civil Service, Merit System Principles, and Civil Service
Protections
Prior to the Pendleton Act of 1883,\12\ Federal employees were
generally appointed, retained, and terminated or removed based on their
political affiliations and support for the political party in power
rather than their capabilities or competence.\13\ 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.\14\ This patronage, or ``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.'' \15\ Theodore Roosevelt, who served as a Civil
Service Commissioner before his presidency, 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.'' \16\ George William Curtis,
a 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,
[[Page 63864]]
seem[ed] to have become words of no meaning.'' \17\ 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.'' \18\
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\12\ Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883)
(22 Stat. 403).
\13\ U.S. Merit System Protections Board, ``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.
\14\ U.S. Office of Personnel Management, ``Biography of an
Ideal,'' p. 83 (2003), OPM-Biography-of-an-Ideal-History-of-Civil-
Service-2003.pdf (armywarcollege.edu).
\15\ 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.
\16\ U.S. Office of Personnel Management, supra note 14 at pp.
182-83.
\17\ 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.
\18\ Id. at pp. 183-84.
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Civil service advocates and then Congress, therefore, sought to
establish a Federal nonpartisan career civil service that would be
selected based on merit rather than political affiliation.\19\ Such a
workforce would reinvigorate government, making it more efficient and
competent.\20\ 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.\21\
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\19\ See Gaughan, supra note 15 at p. 787; U.S. Merit System
Protections Board, supra note 13 at pp. 3-5.
\20\ See Gaughan, supra note 15 at p. 787.
\21\ See U.S. Merit System Protections Board, supra note 13 at
pp. 4-5; U.S. Office of Personnel Management, supra note 14 at pp.
198-201.
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The Pendleton Act of 1883 reformed the patronage system by
requiring agencies to appoint Federal employees covered by the Act
based on competency and merit.\22\ The Act also established the Civil
Service Commission (CSC) to help implement and enforce the government's
adherence to merit-based principles.\23\
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\22\ 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.'').
\23\ Id. at 403.
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While the Pendleton Act focused on hiring, bases for removals
continued to vary depending on the preferences of the President in
office.\24\ 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.'' \25\ Congress
later codified these requirements in the Lloyd-La Follette Act of 1912
\26\ to establish that covered Federal employees were to be both hired
and removed based on merit. Specifically, section 6 of the Act
provided:
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\24\ The 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.'' Id at 404.
\25\ U.S. Merit System Protections Board, supra note 13 at p. 5.
\26\ 37 Stat. 555 (1912).
that no person in the classified civil service[\27\] of the United
States shall be removed therefrom except for such cause as will
promote the efficiency of said service and for reasons given in
writing, and the person whose removal is sought shall have notice of
the same 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 thereof.
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\27\ The ``classified civil service'' refers to the competitive
service. See 5 U.S.C. 2102.
Thereafter, Congress enacted further requirements and reforms. In
1944, Congress enacted the Veterans' Preference Act,\28\ 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.\29\ Then,
in 1962, President John F. Kennedy issued Executive Order 10988 to
extend adverse action rights to the broader civil service.\30\
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\28\ 58 Stat. 387 (1944).
\29\ 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 System Protections
Board, supra note 13 at pp. 7-8.
\30\ 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
civil servants and govern personnel actions, Congress passed the Civil
Service Reform Act (CSRA) of 1978 \31\--the most comprehensive Federal
civil service reform since the Pendleton Act.
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\31\ 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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The CSRA made significant organizational changes to civil service
management, adjudications, and oversight. It abolished the CSC and
divided its duties among OPM \32\ and the MSPB, which initially
encompassed the Office of Special Counsel (OSC). OSC later became a
separate agency to which specific duties were assigned.\33\ 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.\34\ 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.\35\ MSPB adjudicates challenges to
personnel actions taken under the civil service laws,\36\ among other
things, and OSC investigates and prosecutes prohibited personnel
practices.\37\ Other, more specific enactments confer upon these
entities the obligations or authorities to promulgate regulations on
specific topics.
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\32\ 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).
\33\ U.S. Government Accountability Office, ``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.
\34\ See 5 U.S.C. 1103(a)(5), (a)(7).
\35\ Id.; see 5 U.S.C. 8461.
\36\ See 5 U.S.C. 1204.
\37\ See 5 U.S.C. 1212.
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The CSRA codified fundamental merit system principles, which had
developed since 1883.\38\ These principles are summarized here:
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\38\ See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.
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Merit System Principles \39\
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\39\ See 5 U.S.C. 2301.
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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.
[[Page 63865]]
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.
Under the CSRA's ``elaborate new framework,'' challenges to non-
appealable adverse actions, appealable adverse actions, and
``prohibited personnel practices'' are channeled into separate
procedural tracks.\40\ The procedures an agency must follow in taking
an adverse action and whether the agency's action is appealable to MSPB
depend on the action the agency seeks to impose.
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\40\ 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
MSPB.\41\ 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.\42\
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\41\ 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
\42\ 5 U.S.C. 7503(b)(1)-(4); 5 CFR part 752, subpart B.
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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, assuming the subject of the
contemplated action meets the definition of an ``employee'' under 5
U.S.C. 7511.\43\ Incumbents, other than those who are statutorily
excepted from chapter 75's protections, receive the full panoply of
civil service protections in 5 U.S.C. 7513 after they satisfy the
length of service conditions in 5 U.S.C. 7511.\44\ 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 \45\ 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 \46\ 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 Rate 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.\47\
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\43\ See 5 CFR 752.401, 404, 1201.3; see also 5 U.S.C. 7504,
7512(1)-(5); Fausto, 484 U.S. at 446-47.
\44\ 5 U.S.C. 7513(d), 7701(a).
\45\ 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 System Protections Board,
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.
\46\ 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 service-connected disabled veteran. See 5 U.S.C.
2108(3) for additional explanation.
\47\ 5 U.S.C. 7511(a)(1). Under Federal Circuit case law, as
explained further infra, whether an employee has completed a
probationary or trial period is immaterial to this analysis if in
fact the employee has completed the requisite period of continuous
employment under subparagraphs (A)(ii) and (C)(ii).
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In the event of a final MSPB decision adverse to the employee,
employees may petition the United States Court of Appeals for the
Federal Circuit or another appropriate judicial forum to review MSPB's
final orders and decisions.\48\
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\48\ 5 U.S.C. 7503, 7513, 7701-7703, 7703(a)(1), (b)(1)(A).
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Excepted from these procedural entitlements and rights to appeal
conferred on other employees under chapter 75 are employees ``whose
position has been determined to be of a confidential, policy-
determining, policy-making, or policy-advocating character.'' \49\ This
is true regardless of veterans' preference or length of service in the
position. As detailed further infra, 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 only to noncareer, political
appointments that carry no expectation of continued employment beyond
the presidential administration during which the appointment
occurred.\50\ The unique responsibilities of political appointees,
typically 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 narrow, specific exception
from the competitive service, and each position listed in Schedule C is
revoked immediately upon the position becoming vacant.\51\ Agencies may
terminate political appointees at any time, often whenever the
relationship between the incumbent and the political appointee to whom
the incumbent reports ends. This also means that, absent any unique
circumstance provided in law or a request to stay by an incoming
administration, these positions are vacated following a presidential
transition.
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\49\ 5 U.S.C. 7511(b)(2)(b).
\50\ See infra, Sec. II. Proposed Amendments; 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).
\51\ See 5 CFR 213.3301.
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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 as an additional, and, in
Congress' view, potentially improved process for empowering supervisors
to address performance concerns.\52\ Accordingly, in addition to using
the provisions of chapter 75, agencies can now address performance
concerns under chapter 43 of title 5, U.S. Code.
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\52\ U.S. Merit System Protections Board, ``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 now 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 gain a
property interest in continued employment. 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
[[Page 63866]]
efficiency of the service.'' \53\ 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.\54\ In
Cleveland Board of Education v. Loudermill,\55\ the Court also held:
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\53\ See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a),
752.202(a).
\54\ 408 U.S. 564, 576-77 (1972). The Court described three
earlier decisions--Slochower v. Board of Education, 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 due
process rights applied to public employment.
\55\ 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.\56\
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\56\ 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 the constitutional concept of due
process. This obligation drives some of the procedures in both chapters
43 and 75, while others have been developed in accordance with
Congress's assessments of what is good policy.\57\ As a matter of law,
agencies must follow the procedures specified by Congress, in the
circumstances described, to effectuate a removal under those chapters.
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\57\ The exact procedures required will turn on the factual
situation and may be different from instance to instance.
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Finally, in addition to establishing the requirements and
procedures for challenging adverse actions and performance-based
actions, the CSRA includes a mechanism for employees in a ``covered
position'' to challenge a ``personnel action'' that constitutes a
``prohibited personnel practice'' because it has been taken for a
prohibited reason.\58\ ``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 exception on the basis that
the position is of a ``confidential, policy-determining, policy-making,
or policy-advocating character.'' \59\
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\58\ 5 U.S.C. 2302(a)(1), (a)(2), (b).
\59\ 5 U.S.C. 2302(a)(2)(B), 3302.
---------------------------------------------------------------------------
At 5 U.S.C. 2302(a)(2)(A), Congress lists twelve types of personnel
actions that can form the basis of a prohibited personnel practice
under 5 U.S.C. 2302(b). Generally, these personnel actions include (1)
an appointment; (2) a promotion; (3) an adverse personnel action for
disciplinary or non-disciplinary reasons; (4) a detail, transfer, or
reassignment; (5) a reinstatement; (6) a restoration; (7) a
reemployment; (8) a performance evaluation; (9) a decision concerning
pay, benefits, or awards, or concerning education or training if the
education or training may reasonably be expected to lead to an
appointment, promotion, performance evaluation; (10) a decision to
order psychiatric testing or examination; (11) the implementation or
enforcement of any nondisclosure policy, form, or agreement; and (12)
any other significant change in duties, responsibilities, or working
conditions.\60\
---------------------------------------------------------------------------
\60\ 5 U.S.C. 2302(a)(2)(A).
---------------------------------------------------------------------------
The CSRA codified a comprehensive list of prohibited personnel
practices, summarized here:
Prohibited Personnel Practices \61\
---------------------------------------------------------------------------
\61\ 5 U.S.C. 2302(b).
---------------------------------------------------------------------------
1. Illegally discriminate for or against any employee or applicant,
including on the basis of marital status or political affiliation.
2. Solicit or consider improper employment recommendations.
3. Coerce political activity or take action against an employee or
applicant for any person's refusal to engage in political activity.
4. Willfully obstruct a person's right to compete for employment.
5. Improperly influence any person to withdraw from competition for
a position.
6. Give unauthorized preference or improper advantage to improve or
injure a particular person's employment prospects.
7. Employ or promote a relative.
8. Act against a whistleblower, whether an employee or applicant.
9. Act against employees or applicants for filing or assisting with
an appeal, or cooperating with the Inspector General or Special
Counsel.
10. Discriminate on the basis of conduct that does not affect
performance.
11. Knowingly violate veterans' preference requirements.
12. Take or fail to take a personnel action where the action or
omission violates any law, rule, or regulation that implements or
directly concerns the merit system principles.
13. Implement or enforce an unlawful nondisclosure agreement.
14. Access the medical record of another employee or an applicant
in furtherance of a prohibited personnel practice.
OSC investigates allegations of prohibited personnel practices
brought by an individual and may investigate in the absence of such an
allegation to determine if corrective action is warranted.\62\ If OSC
concludes that corrective action is, in fact, warranted, and if OSC is
unable to obtain a satisfactory correction of the practice from the
corresponding agency, it may petition MSPB to grant corrective action,
and, if OSC proves its claim, MSPB may order the corrective action it
deems appropriate.\63\
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\62\ 5 U.S.C. 1214(a)(1)(A), (a)(5).
\63\ See 5 U.S.C. 1214(b)(2)(B), (C), (b)(4)(A). But note that,
by statute, OSC cannot request corrective action as to 5 U.S.C.
2302(b)(11). See 5 U.S.C. 2302(e)(2).
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C. The Competitive, Excepted, and Senior Executive Services
The Federal civil service consists of three services: the
competitive service, the excepted service, and Senior Executive
Service.\64\ 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.\65\
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\64\ 5 U.S.C. 2102(a)(1) (competitive service); 5 U.S.C. 2103(a)
(excepted service); 5 U.S.C. 3132(a)(2) (Senior Executive Service).
\65\ 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. Office of Personnel Management,
``Competitive Hiring,'' https://www.opm.gov/policy-data-oversight/hiring-information/competitive-hiring/.
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While most government employees are in the competitive service,
about one-third are in the excepted service.\66\ The excepted service
includes all positions in the Executive Branch that are specifically
excepted from the
[[Page 63867]]
competitive service by statute, Executive order, or by OPM
regulation.\67\ For positions excepted from the competitive service by
statute, selection must be made pursuant to the provisions Congress
enacted. 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.'' \68\ 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.''
\69\ This means that agencies should generally afford preference in the
same manner they would have for the competitive service, though, in a
few situations \70\ 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.\71\
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\66\ See Congressional Research Service, ``Categories of Federal
Civil Service Employment; A Snapshot,'' at p. 4 (May 26, 2019),
https://sgp.fas.org/crs/misc/R45635.pdf.
\67\ See 5 U.S.C. 2103; 5 CFR parts 213, 302.
\68\ 5 U.S.C. 2301(b)(1).
\69\ 5 U.S.C. 3320.
\70\ See infra notes 139-142.
\71\ 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.'' \72\ 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.\73\ 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.'' \74\
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\72\ 5 U.S.C. 3302.
\73\ 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.'').
\74\ 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
activities, including policy analysis, teaching, and technical
assistance.
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.\75\
---------------------------------------------------------------------------
\75\ 5 CFR 6.2.
---------------------------------------------------------------------------
As described supra, competitive and excepted service incumbents,
except those in Schedule C, become ``employees'' for purpose of civil
service protections after they satisfy the length of service conditions
in 5 U.S.C. 7511. Excepted service employees, except those in Schedule
C and some employees in certain Federal agencies excepted by statute,
maintain the same notice and appeal rights for adverse actions and
performance-based actions as competitive service employees.\76\
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 \77\--in an
executive agency, the Postal Service, or the Postal Rate Commission
must complete one year of current continuous service to avail
themselves of the relevant notice and appeal rights.\78\ 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
two 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.\79\
---------------------------------------------------------------------------
\76\ 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.
\77\ See 5 U.S.C. 2108(3).
\78\ See 5 U.S.C. 7511(a)(1)(B).
\79\ 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 MSPB.\80\
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 one year of current continuous employment under
other than a temporary appointment limited to one year or less; or (3)
the reduction in grade or removal of an employee in the excepted
service who has not completed one year of current continuous employment
in the same or similar positions.\81\
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\80\ See 5 U.S.C. 4303(e).
\81\ See 5 U.S.C. 4303(f).
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D. The Prior Schedule F
On October 21, 2020, President Donald Trump, through Executive
Order 13957, ``Creating Schedule F in the Excepted Service,'' sought to
alter the carefully crafted legislative balance that Congress struck in
the CSRA.\82\ That Executive order, if fully implemented, could have
transformed the civil service
[[Page 63868]]
by purportedly stripping adverse action rights under chapter 75,
performance-based action rights under chapter 43, and appeal rights
from large swaths of the Federal workforce--thereby turning them into
at-will employees--and by eliminating 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, 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. Executive Order 13957 was revoked, and
Schedule F was abolished, by President Joseph Biden through Executive
Order 14003, ``Protecting the Federal Workforce.'' \83\
---------------------------------------------------------------------------
\82\ 85 FR 67631 (Oct. 21, 2020).
\83\ 86 FR 7231 (Jan. 22, 2021).
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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 service) who occupied positions of a
``confidential, policy-determining, policy-making, or policy-advocating
character''--including positions the agency assessed, for the first
time, to arguably include these characteristics--and to petition OPM
for its approval to place them in Schedule F, a newly-created category
of positions excepted from the competitive service. If these positions
had, in fact, been placed in Schedule F, the employees encumbering them
would purportedly have been stripped of the adverse action procedural
rights under chapter 75 and MSPB appeal rights discussed supra, thus
allowing them to be terminated at will, by virtue of the placement of
the positions they occupied in this new schedule (and regardless of any
rights they had already accrued).\84\
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\84\ 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.
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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.'' \85\
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.\86\ 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.\87\
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\85\ E.O. 13957, sec. 1.
\86\ The Executive order provided 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. We note that the
``conditions of good administration'' language appears in 5 U.S.C.
3302. Section 3302 relates only to exclusions of positions from the
competitive service when conditions of good administration warrant
and does not purport to confer authority on the President to except
positions from the provisions of chapter 75. Similarly, chapter 75
itself does not itself purport to confer authority on the President
to except positions from the scope of chapter 75. President Trump
appeared to be attempting to effectuate the exception by requiring
agencies to identify career positions in the competitive or excepted
service that are ``not normally subject to change as a result of a
Presidential transition'' (and thus not encompassed by Schedule C)
but that are nevertheless of a ``confidential, policy-determining,
policy-making, or policy advocating character,'' to facilitate the
movement of such positions to a new Schedule F. In essence,
President Trump thought to separate this phrase from its historical
context, which was to describe positions normally placed in Schedule
C, which positions normally are subject to change as a result of a
presidential transition.
\87\ 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 Executive 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 Inauguration Day--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,'' \88\ 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,
more than 400 employees, within Schedule F.\89\
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\88\ See infra notes 137-141.
\89\ Government Accountability Office, ``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.
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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.'' \90\ 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, said to be 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.'' \91\ The stated purpose was to ``provide agency heads with
additional flexibility to assess prospective appointees without the
limitations imposed by competitive service selection procedures'' \92\
or, presumably, for positions already in the excepted service, without
the constraints imposed by 5 CFR part 302. Executive Order 13957
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.'' \93\ 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,
[[Page 63869]]
and ability to meet the particular needs of the agency.'' \94\
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\90\ 85 FR 67632.
\91\ 85 FR 67631.
\92\ 85 FR 67631.
\93\ 85 FR 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.
\94\ 85 FR 67632.
---------------------------------------------------------------------------
Executive Order 13957 failed to address the fact 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 and
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.
Executive Order 13957 also failed to 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.\95\ The summary imposition
of new competencies without validating them would be contrary to
existing statutory requirements and could potentially be discriminatory
in application, even if that were not the agency's intent.
---------------------------------------------------------------------------
\95\ 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.
---------------------------------------------------------------------------
3. Political Appointees in Career Civil Service Positions
An additional concern relating to Executive Order 13957 was that it
could have facilitated burrowing. ``Burrowing'' occurs when a current
(or recently departed) political appointee is hired into a permanent
competitive service, nonpolitical excepted service, or career Senior
Executive Service position without having to compete for that position
or having been appropriately selected in accordance with merit system
principles and the normal competitive or excepted service procedures
applicable to the position under civil service law. OPM has long
required that ``politics play no role when agencies hire political
appointees for career Federal jobs.'' \96\ Indeed, 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.\97\ Executive Order
13957 potentially would have allowed agency heads to move current
political appointees into new Schedule F positions, or vacancies in
existing positions transferred to Schedule F, without competition and
in a manner not based on merit system principles--in effect, allowing
political appointees on Schedule C appointments, who would normally
expect to depart upon a presidential transition, to ``burrow'' into
permanent civil service appointments.
---------------------------------------------------------------------------
\96\ OPM, ``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.
\97\ See The Edward ``Ted'' Kaufman and Michael Leavitt
Presidential Transitions Improvement Act of 2015. Pub. L. 114-136
(Mar. 18, 2016), which requires OPM to submit these reports to
Congress.
---------------------------------------------------------------------------
Ultimately, Executive Order 13957 was rescinded before any
positions could be placed into Schedule F. As noted above, on January
22, 2021, President Joseph Biden issued Executive Order 14003,
``Protecting the Federal Workforce,'' 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.''
\98\ Executive Order 14003 rescinded Executive Order 13957 and
abolished Schedule F.\99\
---------------------------------------------------------------------------
\98\ 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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E. 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. \100\ The Director also has
authorities Presidents have conferred on OPM pursuant to the
President's statutory authority.\101\
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\100\ See 5 U.S.C. 1103(a)(5)(A). This authority does not
include functions for which either MSPB or OSC is primarily
responsible. Among other authorities, 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.
\101\ 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.\102\ 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.
---------------------------------------------------------------------------
\102\ 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 \103\ 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 service and of moving between the
competitive and excepted service. Since its inception in 1978, OPM has
leveraged that same authority--including from Executive Order
10577,\104\ as amended, as well as from 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 the
competitive or excepted service and of moving between the competitive
and excepted service. OPM has used these authorities to create
government-wide rules for Federal employees regarding a wide range of
topics, such as hiring, promotion, performance assessment, pay, leave,
political activity, retirement, and health benefits.\105\ For instance:
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\103\ President Jimmy Carter, Reorganization Plan No. 2, sec.
101 and 102 (May 23, 1978). The plan specifies in section 102 that
``Except 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.''
\104\ 87 FR 7521 (Nov. 22, 1954).
\105\ 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.\106\
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\106\ 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,\107\ 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 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 into
the excepted service (such as administrative law judges).\108\
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\107\ See 33 FR 12408 (Sept. 4, 1968).
\108\ Id.
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[[Page 63870]]
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.'' \109\
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\109\ See 55 FR 9407 (Mar. 14, 1990), as amended at 58 FR 58261
(Nov. 1, 1993).
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5 CFR part 432 sets forth the procedures to be followed,
if an agency opts to pursue a performance-based action against an
employee under chapter 43 of title 5, U.S. Code. As with the adverse
action rules in part 752, the rules applicable to performance-based
actions apply broadly to employees in the competitive and excepted
service, with narrowly defined exceptions that include political
appointees.\110\
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\110\ 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 establishes 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 service meeting
the section 7511 criteria.\111\
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\111\ 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.'' \112\ And under Civil 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.''
\113\
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\112\ 5 CFR 6.1(a).
\113\ 5 CFR 6.1(b).
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OPM has other regulatory authority, for example, under 5 CFR parts
5 and 10, to oversee the Federal personnel system and agency compliance
with merit system principles and supporting laws, rules, regulations,
Executive orders, and OPM standards. OPM also administers the statutory
provisions governing the rights of Federal employees in connection to
adverse agency actions.\114\
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\114\ See 5 U.S.C. 7514 (granting OPM the authority to
``prescribe regulations to carry out the purpose of'' subchapter II
of chapter 75 of title 5); see also 5 U.S.C. 7511(c), 7513(a), see
also infra, Sec. II.A.
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II. Proposed Amendments
OPM proposes amending its regulations in 5 CFR chapter I,
subchapter B, as summarized below to clarify and reinforce longstanding
civil service protections and merit system principles.
A. Civil Service Protections
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 this subchapter, 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 MSPB may prescribe regulations.
OPM proposes amending 5 CFR part 752 (Adverse Actions) to reflect
OPM's longstanding interpretation of 5 U.S.C. 7501 and 5 U.S.C 7511 and
the congressional intent underlying the statutes, including exceptions
to civil service protections outlined in 5 U.S.C. 7511(b). OPM proposes
to clarify that employees who are moved from the competitive to the
excepted service, or from one excepted service schedule to another,
retain the status and civil service protections they had already
accrued. On the other hand, an employee may relinquish such rights or
status by voluntarily applying for, accepting, and then encumbering a
position that explicitly results in the loss of, or different, rights.
OPM also proposes revising its regulations at subpart B of 5 CFR
part 752 (Regulatory Requirements for Suspension for 14 Days or Less)
to conform this subpart with statutory language in 5 U.S.C. 7501. The
proposed revisions are intended to reinforce which employees are
covered by subpart B when an agency decides to take an action under
this subpart for such cause as will promote the efficiency of the
service.
OPM proposes revising subpart D of 5 CFR part 752 (Regulatory
Requirements for Removal, Suspension for More Than 14 Days, Reduction
in Grade or Pay, or Furlough for 30 Days or Less) to clarify that
employees in the competitive and excepted services (except for
positions in Schedule C) 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 from the
competitive service to the excepted service or from within 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.
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 MSPB. Notably, 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 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 proposes the following changes to 5 CFR part 752:
Part 752--Adverse Actions, Subpart B
As a preliminary matter, subpart B of part 752 applies to
suspensions for 14 days or less. 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 proposed changes
conform this subpart with statutory language to clarify which employees
are covered by subpart B when an agency decides to take an action under
this subpart for such cause as will promote the efficiency of the
service.
Section 752.201 Coverage.
Section 752.201(b) outlines which employees are covered by subpart
B. OPM is proposing to modify the language in Sec. 752.201(b) to
further clarify when an employee has or retains
[[Page 63871]]
coverage under the procedures of this subpart.
OPM proposes to revise subpart B of part 752 to conform to the
decisions of the Federal Circuit in Van Wersch v. Department of Health
& Human Services, 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v.
Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002). These
cases now guide the way 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 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 one or two-year requirement, and was not
in a temporary appointment limited to one or two years, depending on
the service.\115\
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\115\ See McCormick, 307 F.3d at 1341-43; Van Wersch, 197 F.3d
at 1151-52.
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In a prior rulemaking,\116\ 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 regarding 5 U.S.C. 7501 in light of the Federal
Circuit's interpretation of similar statutory language in 5 U.S.C.
7511. In this rule, OPM proposes to modify language in 5 CFR
752.201(b)(1) to conform with the statutory language in 5 U.S.C. 7501.
OPM's proposed revision to Sec. 752.201(b)(1) prescribes that, even if
an employee in the competitive service who has been suspended for 14
days or less is serving a probationary or trial period, the employee
retains the procedural rights provided under 5 U.S.C. 7503 if the
individual has completed one year of current continuous employment in
the same or similar position under other than a temporary appointment
limited to one year or less.
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\116\ OPM, ``Career and Career-Conditional Employment and
Adverse Actions,'' 73 FR 7187 (Feb. 7, 2008).
---------------------------------------------------------------------------
OPM also proposes to amend Sec. 752.201(b)(1) through (b)(6) to
clarify 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.
Finally, OPM proposes to add a new 5 CFR 752.201(c)(7) to further
clarify 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 because, as explained infra, Congress intended these positions
to mean noncareer, political appointments.
Part 752--Adverse Actions, Subpart D
Subpart D of part 752 applies to removal, suspension for more than
14 days, reduction in grade or pay, or furlough for 30 days or less.
This includes, but is not limited to, adverse actions based on
misconduct or unacceptable performance. The proposed 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.
Section 752.401(c) outlines which employees are covered by subpart
D. OPM is proposing to modify the language in Sec. 752.401(c) to
further clarify when an employee has or retains coverage under the
procedures of this subpart.
The proposed changes add language to provide that an employee 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 proposed 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 simply moving the employee's position into the excepted
service, or within the excepted service, as long as the employee
continues to occupy the same or similar position. These 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.\117\
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\117\ See, e.g., McCormick, 307 F.3d at 1341-43; Greene v. Def.
Intel. Agency, 100 M.S.P.R. 447 (2005).
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In addition, OPM proposes to update Sec. 752.401(c)(2)(ii) to
reflect the repeal of 10 U.S.C. 1599e, effected December 31, 2022.\118\
Prior to the repeal, certain individuals hired at the Department of
Defense were subject to a two-year probationary period. The repeal
restores a one-year probationary period for covered Department of
Defense employees.
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\118\ See Public Law 117-81, Sec. 1106(a)(1).
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Finally, OPM proposes to modify 5 CFR 752.401(d)(2) to further
clarify that political appointees intended to work on matters of a
confidential policy-determining, policy-making, or policy-advocating
character, as defined in Sec. 210.102, are excluded from coverage
under subpart D of part 752.
B. Positions of a Confidential, Policy-Determining, Policy-Making, or
Policy-Advocating Character
OPM proposes to amend 5 CFR part 210 (Basic Concepts and
Definitions (General)), to add a definition for the terms
``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining.'' Positions of
this nature are excepted from the chapter 75 protections described
above. OPM proposes to define these terms to make explicit OPM's
interpretation of this exception in 5 U.S.C. 7511(b), which is 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.
Specifically, OPM proposes to add this definition for
``confidential, policy-determining, policy-making, or policy-
advocating'' and ``confidential or policy-determining'' to 5 CFR
210.102, which applies throughout OPM's Civil Service Regulations in 5
CFR chapter I, subchapter B. OPM is proposing to define these terms as
descriptors for the
[[Page 63872]]
positions held by noncareer, political employees because the terms are
currently used in the regulations to describe, among other things, a
``position'' or the ``character'' of a position. OPM is also proposing
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 more fully later in this section, 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 to key
appointed officials who have direct responsibility for carrying out the
Administration's political objectives. These political appointees are
not required to compete for their positions in the same manner as
career employees, serve at the pleasure of their superiors, and have no
expectation of continued employment beyond the presidential
administration during which their appointment occurred.
When Congress created the adverse action protections under chapter
75, it excluded employees appointed by the President, with or without
Senate confirmation, and employees in the excepted service ``whose
position has been determined to be of a confidential, policy-
determining, policy-making or policy-advocating character.'' \119\
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.''
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\119\ See 5 U.S.C. 7511(b)(2).
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As explained infra, these narrow exceptions have long been
interpreted to apply to noncareer, political appointees typically
listed in Schedule C. Political appointees have long been considered a
powerful, but narrow, cross section of Executive Branch leadership.
These positions ``are relatively few in number'' and consist ``of only
the highest positions,'' \120\ and, in practice, a limited number of
confidential staff to support the work of the individuals in such
positions.
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\120\ See ``Report of the President's Committee, Administrative
Management in the Government of the United States,'' p. 8 (Jan.
1937).
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The context in which the CSRA was enacted bolsters the
interpretation that ``confidential, policy-determining, policy-making,
or policy-advocating'' positions, and their exclusion from civil
service protections, refers to political appointees and not career
civil servants. Congress revised parts of the CSRA immediately
following the Supreme Court's decision in Elrod v. Burns,\121\ where
the Court addressed the constitutionality of political patronage-based
dismissals from government employment under the First Amendment. The
Court explained that ``a nonpolicymaking, nonconfidential government
employee'' cannot be ``discharged or threatened with discharge from a
job that he is satisfactorily performing upon the sole ground of his
political beliefs.'' \122\
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\121\ 427 U.S. 347, 354 (1976) (explaining that ``strong
discontent with the corruption and inefficiency of the patronage
system of public employment eventuated in the Pendleton Act'').
\122\ Id. at 375 (1975) (Stewart and Blackmun, JJ., concurring
in the judgment); see, e.g., Carver v. Dennis, 104 F.3d 847, 850 n.5
(6th Cir. 1997) (explaining that ``[t]he three-justice plurality
opinion and two-justice concurrence in Elrod'' so held).
---------------------------------------------------------------------------
Consistent with this background, the CSRA's legislative history
explains the exclusion for ``confidential, policy-determining, policy-
making, or policy-advocating'' employees from section 7511 as ``an
extension of the exception for appointments confirmed by the Senate''
and covering political appointee positions, i.e., those currently
placed in Schedule C (positions at GS-15 and below) or filled by Non-
career Executive Assignment (GS-16, -17, and -18).\123\ It states that
``[t]he concept of tenure and protection against dismissal is contrary
to the confidential relationship of incumbent and supervising official,
and the commitment to Administration policy objectives required by
those filling such positions.'' \124\
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\123\ S. Rep. No. 95-969, at 48 (1978), reprinted in 1978
U.S.C.C.A.N. 2723, 2770.
\124\ Legislative History of the Civil Service Reform Act of
1978, Committee on Post Office and Civil Service, House of
Representatives, Volume No. II, Committee Print No. 96-2, 96th
Congress, 1st Session (Mar. 17, 1979).
---------------------------------------------------------------------------
Congress made significant amendments to section 7511 through the
Civil Service Due Process Amendments Act of 1990, which expanded MSPB
jurisdiction to excepted service employees who historically were not
entitled to adverse action rights. The legislative history of the 1990
Act confirms that the intent was to expand appeal rights for excepted
service employees but retain the exclusion for political appointees. It
states:
The bill generally extends procedural rights to attorneys,
teachers, chaplains, and scientists, but not to presidential
appointees. . . . [T]he 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. Lawyers, teachers, chaplains, and scientists
have such expectations; presidential appointees and temporary
workers do not.
. . .
Schedule C, positions of a confidential or policy-determining
character. . . . 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.
The bill explicitly denies procedural protections to
presidential appointees, individuals in Schedule C positions and
individuals appointed by the President and confirmed by the Senate.
Employees in each of these categories have little expectation of
continuing employment beyond the administration during which they
were appointed. They explicitly serve at the pleasure of the
President or the presidential appointee who appointed them.\125\
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\125\ H.R. Rep. No. 101-328, 4-5 (1989), reprinted in 1990
U.S.C.C.A.N. 695, 698-99.
In a case concerning the application of 5 U.S.C. 2302(a)(2)(B)(i)
(related to prohibited personnel practices), which also contains an
exception for positions of a ``confidential, policy-determining,
policy-making, or policy-advocating character,'' MSPB interpreted this
legislative history to indicate that the exclusion of civil service
protections at section 2302(a)(2)(B)(i) was intended to cover
``political appointees,'' as is the case with section 7511(b)(2). In
O'Brien v. Office of Independent Counsel, 74 M.S.P.R. 192 (1997), the
---------------------------------------------------------------------------
Board stated:
Schedule C, the only category to include positions of a
confidential or policy-determining character, authorizes
appointments to positions ``which are policy-determining or which
involve a close and confidential working relationship with the head
of the agency or other key appointed officials.'' 5 CFR 213.3301.
This regulation, while using the same language as 5 U.S.C.
2302(a)(2)(B), adopts a narrow definition of a position of ``a
confidential or policy-determining nature,'' i.e., involving ``a
close and confidential working relationship with the head of an
agency or other key appointed officials.'' 5 CFR 213.3301(a). The
word ``confidential'' in that regulation does not necessarily refer
to matters that are to be kept secret but instead to the nature of
the relationship between the employee and the head of the agency or
other key appointed officials.
Further support for the notion that the terms of the exception
found at 5 U.S.C. 2302(a)(2)(B)(i) are a shorthand way of describing
``political appointee'' positions can be found in the legislative
history of the 1990 Civil Service Due Process Amendments
[[Page 63873]]
to the CSRA, which extended adverse action appeal rights to a
broader class of excepted service employees than had previously been
covered. 5 U.S.C. 7511. The Act retained the exclusions found at 5
U.S.C. 7511(b), however, and the legislative history describes
excepted service employees as those in either Schedule A, Schedule
B, or Schedule C and states that Schedule C positions of a
confidential or policy-determining character are ``political
appointees who are specifically excluded from coverage under 5
U.S.C. 7511(b).'' H.R.Rep. No. 328, 101st Cong., 2d Sess. 4-5
(1989), reprinted in 1990 U.S.C.C.A.N. 698-99. Although the Board in
certain cases has considered the question of who is excluded under 5
U.S.C. 7511(b) as a ``confidential, policy-determining, policy-
making or policy-advocating'' employee, it did not resolve those
cases on that issue. See Thompson v. Department of Justice, 61
M.S.P.R. 364, 368 (1994); Briggs v. National Council on Disability,
60 M.S.P.R. 331, 333-36 (1994). Both 5 U.S.C. 2302(a)(2)(B)(i) and 5
U.S.C. 7511(b) use the phrase ``confidential, policy-determining,
policy-making, or policy-advocating'' to exclude certain positions.
We know of no reason why Congress would intend that it be
interpreted differently in each of the two parts of Title 5.\126\
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\126\ 74 M.S.P.R. at 207-08.
Improperly applying the term ``of a confidential, policy-
determining, policy-making, or policy-advocating character'' 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, would be contrary to congressional intent 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 positions who will ensure that the specific policies of
the Administration will be pursued. An ``excessive preoccupation with
the meaning of [this] term in isolation distorts the purpose of the
exception.'' \127\ The term 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.'' \128\
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\127\ Special Counsel v. Peace Corps, 31 M.S.P.R. 225, 231-32
(1986).
\128\ O'Brien v. Off. of Indep. Counsel, 74 M.S.P.R. 192, 206
(1997) (quoting Special Counsel, 31 M.S.P.R. at 231).
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In this proposed rule, therefore, OPM is making explicit this
longtime, consistent understanding that positions of a ``confidential,
policy-determining, policy-making, or policy-advocating character''
refer to noncareer, political appointments. Specifically, OPM is
proposing to modify 5 CFR 210.102 to define the terms ``Confidential,
policy-determining, policy-making, or policy-advocating'' and
``Confidential or policy determining'' as they are used through the
Civil Service Regulations in 5 CFR chapter I, subchapter B, to describe
positions that are: ``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.''
C. Agency Procedures for Moving Employees
OPM proposes revising 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.\129\ This proposed rule
describes the procedures an agency must follow before taking these
actions and outlines the notice requirements that apply when the
positions are encumbered. Further, and consistent with the civil
service protections outlined supra, OPM proposes to modify 5 CFR part
212 (Competitive Service and Competitive Status) regarding the effect
of an employee's competitive service status when the employee's
position is moved to the excepted service.
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\129\ 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 proposed changes discussed here. It noted that the merit system
principles, many of which have existed since 1883,\130\ ``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.'' \131\ As explained
previously, it then proceeded to divide functions previously performed
by the CSC among OPM, 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.'' \132\
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\130\ See supra note 38.
\131\ Public Law 95-454, sec. 3.2.
\132\ Id. at sec. 3.5
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As noted in section I.E., 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.'' \133\ 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,'' \134\ and to collect information and records regarding
matters falling within the civil service laws, rules, and
regulations.\135\
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\133\ 5 U.S.C. 1103(a)(5).
\134\ 5 CFR 5.1, 6.1, 6.2.
\135\ 5 CFR 5.4.
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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,'' \136\ 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. It is important to the effective
administration of the civil service that exceptions from the
competitive service norm be
[[Page 63874]]
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 both understand that the move is, in fact,
voluntary and that they are aware of the potential consequences of
those moves.
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\136\ 5 CFR 6.1.
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Some background demonstrates why these proposed 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.' '' \137\ 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.'' \138\ 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.\139\ It has been a long-standing
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 in
light of the position itself. For example, a perennial rider to OPM
appropriations prohibits OPM--and before that, its predecessor CSC--
from examining for attorney positions.\140\ This appropriations bar
makes examinations not practicable, and attorney positions have been
placed in Schedule A of the excepted service since at least 1947.\141\
In all these cases, OPM is subject to the standard that any departure
from the competitive norm must be warranted by conditions of good
administration.
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\137\ Nat'l Treasury Employees Union v. Horner, 854 F.2d 490,
493 (D.C. Cir. 1988); accord, Dean v. Off. of Personnel Mgmt., 115
M.S.P.R. 157, ] 15 (2010).
\138\ 5 U.S.C. 3302.
\139\ 5 CFR 6.1(a).
\140\ 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.'').
\141\ Fiorentino, 607 F.2d at 965-66.
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Traditionally, the President has exercised this authority through
Executive order.\142\ OPM has also authorized excepted service hiring
to address urgent needs of agencies,\143\ such as the need to bring on
staff quickly to respond to the COVID-19 pandemic.\144\ When OPM
exercises such authority, it determines the characteristics of the
position make it impracticable to use the processes associated with
conducting a competitive examination.\145\ For example, the
qualification requirements established for competitive service
positions cannot be used because the series has been newly created. In
other instances, OPM determines a full-blown open competition is not
conducive to filling certain positions because the applicant pool is
very narrow.
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\142\ See, e.g., E.O. 13562, 75 FR 82583 (Dec. 30, 2010)
(establishing Schedule D for the Pathways program); E.O. 13843, 83
FR 32755 (July 10, 2018) (establishing Schedule E for administrative
law judges).
\143\ 5 CFR part 213.
\144\ See OPM Memorandum, ``Coronavirus (COVID-19) Schedule A
Hiring Authority,'' (March 20, 2020).
\145\ 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 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,\146\
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
noted the exigency presented by pending litigation as one of the
motivations, and expressly provided that incumbents who were in the
competitive service as of the date of enactment, would remain in their
current positions.\147\
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\146\ 83 FR 32755 (July 10, 2018).
\147\ 83 FR 32755-56.
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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. With respect to the now-revoked Schedule F, Executive Order
13957 required agencies to petition OPM to move positions into Schedule
F, and provided for the petition to ``include a written explanation
documenting the basis for the agency head's determination that such
position should be placed in Schedule F.'' \148\ Section 6 of that
Executive order directed agencies to ``establish rules to prohibit the
same personnel practices prohibited by section 2302(b) of title 5,
United States Code, with respect to any employee or applicant for
employment in Schedule F of the excepted service.'' \149\
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\148\ 85 FR 67633.
\149\ 85 FR 67634
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The rules for the Pathways programs,\150\ established by President
Barack Obama in Executive Order 13562, are more prescriptive. For
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. Among other
things, agencies must enter into a memorandum of understanding with OPM
that addresses several obligations and procedures that are conditions
of the agency's authority to use the
[[Page 63875]]
programs. There are rules governing how agencies must use the Pathways
programs as part of a larger workforce planning effort, the procedures
that are conditions of the agency's use of the programs, how Pathways
positions are to be announced, and various other rules applying to
eligibility for the program.\151\ OPM has the authority to cap Pathways
hiring \152\ and can even shut down an agency's ability to use Pathways
altogether.\153\
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\150\ OPM has proposed revisions to the rules governing the
Pathways programs. 88 FR 55586 (Aug. 16, 2023).
\151\ See 5 CFR 362.105.
\152\ See 5 CFR 362.108.
\153\ See 5 CFR 362.104(b).
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Based on this history and experience, OPM is proposing to establish
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 executed by
the President or OPM. In each instance, the agency would have to adhere
to the following procedures:
1. Identify the types, numbers, and locations of positions that the
agency proposes to move into or within the excepted service;
2. Document the basis for its determination that movement of the
position or 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) \154\ that the documentation is sufficient and movement
of the position or positions 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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\154\ 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. 1401-02. 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., OPM, ``Personnel Management in Agencies'' 81 FR 89357 (Dec.
12, 2016) (tasking CHCOs with developing a Human Capital Operating
Plan); OPM, ``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 positions) 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
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.
Specifically, OPM proposes the following regulatory changes to 5
CFR parts 212 and 302:
Part 302--Employment in the Excepted Service, Subpart F
OPM is proposing a new subpart F titled, ``Moving Positions into
and Within the Excepted Service.'' In the event of a direction by the
President, Congress, OPM, or their designees, to move a position from
the competitive service to the excepted service, or from one excepted
service schedule to the same or similar position in another, this new
subpart would describe the processes and procedures an agency must
follow to carry out such a move.
Section 302.601 ``Scope.''
Proposed 5 CFR 302.601 Scope would describe the scope of the
positions that would be subject to the new procedures in subpart F.
Section 302.602(a) ``Basic Requirements.''
Proposed 5 CFR 302.602(a) Basic Requirements would require an
agency to take certain steps after a direction from the President,
Congress, OPM or their designees (hereafter ``the directive'') to move
a position from the competitive service to the excepted service, or
from one excepted service schedule to the same or similar position in
another.
Proposed Sec. 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 list,
and their location within the organization.
Proposed Sec. 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, upon OPM's request,
provide a list of the positions to be moved in accordance with those
criteria, those positions' location in the organization, and an
explanation of how these criteria are relevant.
Proposed Sec. 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, in addition to supplying a list and the locations in the
organization, must supply the objective criteria to be used and an
explanation of how they were developed.
Proposed Sec. 302.602(b) describes the steps agency management
must take, independent of the impacted employees, with respect to such
moves.
Proposed Sec. 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.
Proposed Sec. 302.602(b)(2) requires the agency to document the
basis for its determination that movement of the position or positions
is consistent with the standards set forth by the President, Congress,
OPM, or their designees as applicable.
Proposed Sec. 302.602(b)(3) requires the agency to obtain
certification from the agency's CHCO that the documentation is
sufficient and movement of the position or positions is both consistent
with the standards set forth by the President, Congress, OPM, or their
designees as applicable, and with merit system principles.
Proposed Sec. 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.
Proposed Sec. 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.
Proposed Sec. 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.
2. Notice Rights for Encumbered Positions
OPM is proposing that additional rules would apply when one or more
of the positions the agency wishes to move from the competitive service
to the excepted service, or from one excepted service schedule to
another, is encumbered by an employee. In that case, 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. The
notice must provide the
[[Page 63876]]
employee with the following information: (1) the authority for moving
the position; (2) the rationale for moving the position; (3) the
proposed timing of moving the position; and (4) a representation that
the employee maintains their civil service status and any accrued
protections notwithstanding the movement of the position.
Proposed Sec. 302.602(c) describes the interactions and
communication an agency must have with 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.\155\
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\155\ OPM is omitting Schedules D and E from this proposed
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 MSPB.
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Proposed Sec. 302.602(c)(1) requires that, 30 days prior to the
effective date an agency intends to move a position, the agency must
provide written notification to the employee of the intent to move the
position.
Proposed Sec. 302.602(c)(2) requires that the written notification
required by Sec. 302.602(c)(1) inform the employee that the employee
maintains their civil service status and any accrued protections
notwithstanding the movement of the position.
Of course, 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 for employees to be given notice that they
are leaving the competitive service and requiring that employees
provide acknowledgment that they understand that they are voluntarily
leaving the competitive service to accept an appointment in the
excepted service.\156\
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\156\ 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.
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3. Appeal Rights for Encumbered Positions
OPM proposes further amending 5 CFR part 302 to establish that a
competitive service employee whose position is moved into the excepted
service, or an excepted service employee whose position is moved into a
different schedule of the excepted service, may directly appeal to MSPB
if the entity perpetuating the move purports, contrary to these
regulations, to strip the employee of the status and civil service
protections they had already accrued. This rulemaking would not apply
to situations where the employee applies for, and is selected for the
new position, knowing that acceptance of the position voluntarily
relinquishes such rights.
As explained previously in section I.E., under 5 U.S.C. 1103(a)(5),
OPM has broad authority to execute, administer, and enforce civil
service rules and regulations. Pursuant to its statutory authority,
including under 5 U.S.C. 7701, 7511(c), and the President's delegation
of authority, OPM is authorized to create a right of appeal to MSPB by
regulation. 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,'' and an employee may appeal to the Board ``from any action
which is appealable to the Board under any law, rule, or regulation.''
\157\ Both the Federal Circuit and MSPB have consistently affirmed the
principle that MSPB's enabling statute gives it appellate jurisdiction
over actions that are made appealable to the Board by OPM regulation
and that where an appeal is solely by regulation, the regulation
circumscribes the scope of the appeal.\158\
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\157\ 5 U.S.C. 1204(a)(1), 7701(a).
\158\ 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); Gaxiola v. Dep't of the Air Force, 6 M.S.P.R. 515,
519 (1981).
---------------------------------------------------------------------------
OPM, pursuant to its authority, has long conferred MSPB appeal
rights via regulations under title 5, Code of Federal Regulations. For
instance:
1. Section 300.104--A job candidate who believes that an employment
practice which was applied to the candidate by OPM violates a basic
requirement in Sec. 300.103 is entitled to appeal to MSPB under the
provisions of the Board's regulations.
2. Section 302.501--An individual who is covered by 5 U.S.C.
8101(1) and is entitled to priority consideration under 5 CFR part 302
may appeal a violation of the individual's restoration rights to MSPB
under the provisions of the Board's regulations by presenting factual
information that the individual was denied restoration rights because
of the employment of another person.
3. Section 315.806--An employee may appeal to MSPB in writing an
agency's decision to terminate the employee during their probationary
period, if the employee alleges the termination was based on partisan
political reasons, marital status, or improper procedure.
4. Section 315.908--An employee who alleges that an agency action
demoting an employee for not satisfactorily completing their
supervisory probationary period may appeal to MSPB if the employee
alleges the agency action was based on partisan political affiliation
or marital status.
5. Section 351.901--An employee who has been furloughed for more
than 30 days, separated, or demoted by a reduction in force action may
appeal to MSPB.
6. Section 352.209--When an agency denies reemployment to a person
claiming reemployment rights under subpart B of part 352, the agency
shall inform the person of that denial by a written notice. In the same
notice, the agency shall inform the person of the right to appeal to
MSPB under the provisions of the Board's regulations.
[[Page 63877]]
7. Section 352.313--An employee may submit an appeal to MSPB
alleging the agency has failed to comply with certain reemployment
rights.
8. Section 352.508--An employee may submit an appeal to MSPB
alleging the agency has failed to comply with certain reinstatement
rights.
9. Section 352.707--If an agency denies reemployment to a person
claiming reemployment rights under subpart I of part 352, the agency
shall inform the individual of that denial and of the reasons therefor
by a written notice. In the same notice, the agency shall inform the
employee of the right to appeal to MSPB under the provisions of the
Board's regulations.
10. Section 352.807--An employee may appeal to MSPB, under the
provisions of the Board's regulations, an agency's decision on the
employee's request for reemployment which the employee believes is in
violation of subpart H of part 352.
11. Section 352.909--An applicant or an employee may submit an
appeal to MSPB alleging the agency has not complied with certain
reemployment rights under subpart I of part 352.
12. Section 731.501--When OPM or an agency acting under delegated
authority under part 731 takes a suitability action against a person,
that person may appeal the action to MSPB. Upon appeal, the Board may
review the suitability determination itself, but may not review the
suitability action specified as a result of that determination.\159\
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\159\ See part 731, subpart E.
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Section 302.603 ``Appeals.''
In these proposed regulations, OPM is prescribing an MSPB appeal
right for an employee whose position in the competitive service is
moved to the excepted service, or whose position in the excepted
service is moved into a different schedule of the excepted service, and
when any such move, contrary to these regulations, purportedly strips
the employee of the status and civil service protections they had
already accrued. This proposed 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 the 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 civil service
protections. The employee may file an appeal with MSPB to have their
competitive status and civil service protections reinstated, as
applicable. OPM notes that an employee may choose to assert in any
appeal to MSPB that the agency committed procedural error, if
applicable, by failing to act in accordance with the procedural
requirements of Sec. 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 employee asserts procedural error by the agency, MSPB typically will
determine whether the procedural error was harmful as a pre-requisite
for any reversal of the agency's action. MSPB will find that an agency
error is harmful only when the record shows that it was likely to have
caused the agency to reach a different conclusion.\160\
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\160\ 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 Service, 70 M.S.P.R. 463, 467 (1996) (``An [MSPB]
administrative judge's adjudication of an action not only embraces
the provisions of law giving the Board jurisdiction over the action,
but includes review of any other relevant provision of law,
regulation or negotiated procedures as circumstances warrant.'');
Adakai v. Dep't of Interior, 20 M.S.P.R. 196, 201 (1984) (``There is
no question that an agency is obligated to conform to procedures and
regulations it adopts, and the Board is required to enforce such
procedures.'').
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Part 212--Competitive Service and Competitive Status, Subpart D
Section 212.401 Effect of competitive status on position.
OPM is also proposing to revise the regulations in 5 CFR part 212,
subpart D, Sec. 212.401(b) regarding the effect of an employee's
competitive status on the employee's position. As described throughout
this proposed rule, OPM's longstanding view is that Federal employees
maintain the civil service status and protections that they have
accrued. Indeed, since 1968, OPM has provided by rule that an employee
with competitive service 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.\161\
OPM is proposing to update 5 CFR 212.401(b) consistent with this
proposed 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. OPM is proposing this update to account for the
possibility of new excepted service schedules which may be established
after promulgation of this rule or other efforts to move positions from
the competitive service or within the excepted service.
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\161\ 33 FR 12402, 12408 (Sept. 4, 1968).
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III. Regulatory Analysis
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,\162\ 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.\163\ 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
argues that no President can take away these rights, once accrued,
without due process.
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\162\ See NTEU, ``Our Agencies,'' https://www.nteu.org/who-we-are/our-agencies.
\163\ See NTEU, 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.
As discussed throughout this proposed rule, by operation of law,
certain tenured 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
does not interpret chapter 75 as allowing the President, OPM, or an
agency to waive these statutory requirements and OPM notes that it
interprets section 7511 to preclude noncareer, political appointees
under Schedule C and other statutorily specified categories of
employees from accruing these procedural rights. These rules are
proposed to clarify and reinforce that point.
OPM has the delegated authority to exempt employees from the
competitive
[[Page 63878]]
service only when ``necessary'' and warranted by ``conditions of good
administration.'' \164\ The rationale for creating positions in the
excepted service is driven largely by specific hiring needs and a
determination that appointment through the competitive service is ``not
practicable,'' \165\ i.e., not by considerations of stripping career
employees of civil service rights.
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\164\ 5 U.S.C. 3302; 5 CFR 6.1.
\165\ See 5 CFR 6.1.
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As stated above, President Trump, in the now-revoked Executive
Order 13957, introduced a new conception of the scope of the phrase
``confidential, policy-determining, policy-making, or policy-advocating
character,'' and sought to employ that conception to expand the
category of employees excluded from adverse action procedural rights
under section 7511.\166\ This language was derived from the description
of Schedule C of the excepted service, and using that language in the
way Executive Order 13957 did departed from the long-standing
understanding that this exception applied only to noncareer, political
appointees under Schedule C. OPM has therefore determined that a
regulation interpreting this provision is warranted.
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\166\ 85 FR 67361-62.
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The CSRA and merit system principles have informed OPM's
regulations regarding the competitive and excepted service, 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 positions through the procedures prescribed for
the competitive service 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,\167\ such as in situations where positions are placed
temporarily in the excepted service for the purpose of a trial period
leading to a permanent appointment in the competitive service; \168\
OPM authorization of the creation of certain new positions in--or
moving of certain existing positions into--the excepted service; \169\
publication in the Federal Register; \170\ and an acknowledgment of the
consent of affected employees when an existing employee obtains a
different position in another service or schedule.\171\ The now-revoked
directions to agencies contained in Executive Order 13957, for
implementing the now-defunct Schedule F, created ambiguity as to the
continued vitality of these longstanding principles with respect to
employees who had accrued adverse action appeal rights. We seek to
confirm these principles through the proposed modifications to the
regulations.
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\167\ 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.''); id. 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''); id. 10.2 (OPM authority to set up accountability
systems); id. 10.3 (OPM authority to review agency personnel
management programs and practices).
\168\ See, e.g., 5 CFR part 362.
\169\ 5 CFR 6.1.
\170\ Id.
\171\ 5 CFR 302.102(b).
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Finally, these proposed revisions would also further 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
Civil Service Reform Act of 1883's repudiation of the spoils
system.\172\ 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.'' \173\ The changes proposed here would support the civil
service and merit system principles for career Federal employees by
clarifying and reinforcing the rights that accrue to tenured employees.
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\172\ E.O 14003, sec. 2.
\173\ Id.
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B. Regulatory Alternatives
An alternative to this rulemaking is to not issue a regulation. OPM
has determined this is not a viable option. The risks of not issuing
this proposed rulemaking are many and include both fiscal as well as
non-fiscal consequences. As noted in the preamble, this rulemaking is
needed to preserve the integrity of the Federal career workforce as an
independent entity free of political influence or personal loyalties to
political leaders, consistent with merit system principles. Preserving
the integrity of the Federal career workforce ensures career employees
keep the status and rights they have attained and to which they are
therefore entitled by law. This in turn preserves if not promotes
employee morale, 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, these changes will promote compliance with statutory
enactments.
This rulemaking is expected to create an incentive for agency
recruitment efforts, enhancing agencies' ability to fulfill important
merit system principles--that recruitment should be from qualified
individuals from appropriate sources 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,\174\ and also promotes
compliance with the congressional policy to confer a preference on
eligible veterans or family members with 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.
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\174\ See 5 U.S.C. 2301(b)(1).
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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 and requiring a response by the Executive branch. These
challenges include threats to our nation's economy (writ large as well
as those impacting small businesses and emerging markets and
technologies), public health, climate (both the private property and
businesses impacted by droughts, floods, wildfires, etc.), data
security, and emerging foreign powers on the international geo-
political landscape, among others.
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
[[Page 63879]]
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.
Regarding 5 CFR part 752, OPM's proposed changes to the
implementing regulations for adverse actions are consistent with
statute and cannot be further simplified. OPM proposes to conform part
752 with Federal Circuit precedent \175\ and statutory language.\176\
In addition, OPM proposes to make plain that an employee who is moved
from the competitive service to a position in the excepted service, or
from one excepted service schedule to the same or similar position in
another excepted service schedule, retains the status and civil service
protections the employee had already accrued.
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\175\ See Van Wersch, 197 F.3d at 1151-52; McCormick, 307 F.3d
at 1341-43.
\176\ See 5 U.S.C. 7501.
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One regulatory alternative to conforming part 752 is to forgo
changes to the regulation and allow Federal agencies to continue
relying upon 5 U.S.C. 7511 for a more complete understanding of
eligibility for procedural and appeal rights. However, as 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.\177\
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\177\ U.S. Merit Systems Protection Board, supra note #45.
Given that agency practitioners are more likely to turn first to
regulations rather than statute or case law for guidance on
performance-based and adverse actions, OPM's current regulations need
updating.
OPM's preferred option is to amend the coverage-related provisions
in part 752 to close the unnecessary gap between current regulations
and relevant precedent by adding clarity and specific guidance to
implement the statute. Having regulations that are congruent to statute
may mitigate cases in which an agency is unclear on whether to provide
procedural rights to an employee. In turn, this promotes efficiency in
removing or disciplining employees and addresses complaints that the
Federal removal process is too cumbersome. Through this rulemaking, OPM
is providing essential statutory requirements that have not been
previously reflected in OPM's regulations.
OPM is proposing these regulations in the least burdensome way
possible. Fundamentally, the amendments to part 752 do not impose any
requirements on agencies that are not already in place through statute
or case law. This includes the provisions that an employee retains
accrued rights when the employee is moved 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, policy-advocating''
and ``confidential or policy-determining'' positions but, as stated
supra, believes that doing so adds important clarity. To alleviate any
ambiguity as to the scope of the exception in 5 U.S.C. 7511, including
any confusion that may have been introduced by the promulgation of the
now-revoked Executive Order 13957, this rule proposes to more
explicitly define the employees and positions that are excluded from
civil service protections to align with congressional intent as
expressed in H.R. Rep. 101-328. Accordingly, OPM proposes to add a
definition for ``Confidential, policy-determining, policy-making, or
policy-advocating'' and ``confidential or policy-determining'' to
clarify that it means 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. This definition is consistent with legislative
history and codifies longstanding practice.
Finally, OPM's proposed addition of 5 CFR 302.602 to establish
minimum requirements for moving employees and positions into and within
the excepted service necessitates the creation of a new guardrail to
reinforce merit system principles. Therefore, OPM proposes to confer in
Sec. 302.603 a narrow MSPB appeal right to an employee whose position
is placed into the excepted service or an excepted service employee
whose position is placed into a different schedule of the excepted
service and when any such move, in violation of these regulations,
purportedly strips the employee of the status and civil service
protections they had already accrued.
OPM weighed the alternative of not conferring a right of appeal to
MSPB. As stated in 5 CFR 1201.3, 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, OSC
complaint, administrative grievance, or if applicable, a negotiated
grievance procedure. However, with regard to an allegation that a move
purportedly strips the employee of the status and civil service
protections the employee has already accrued, or that an agency coerced
the employee to voluntarily move to a new position that would require
the employee to relinquish their competitive status or civil service
protections, OPM concluded that the current scheme of avenues for
redress is less 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.
OPM also considered not conferring a right of appeal directly to
MSPB. The omission of Sec. 302.603 would leave open the possibility
that an agency could move an employee in a manner that is unlawful,
arbitrary, or capricious without any accountability. Alternatively, OPM
could have broadened Sec. 302.603 to cover an appeal based on the
underlying reasons for the movement. However, if an agency follows the
robust procedures in Sec. 302.602 for movement, MSPB's review of an
appeal brought under Sec. 302.603 should be limited to paragraphs (b)
and (c) as an agency should be given deference in determining the
appropriate placement of its workforce.
Currently, if an employee alleges that an agency has taken 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 appealable personnel action
and claim as an affirmative defense that the agency committed a
prohibited personnel practice. OPM's preferred option--the addition of
Sec. 302.603 as proposed--reinforces that affected employees are
deserving of fair and equitable treatment in all aspects of their
employment as it
[[Page 63880]]
relates to movement to and within the excepted service.
C. Impact
OPM is proposing these revisions to clarify and reinforce existing
protections that exist for many Federal employees and to 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.\178\ 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.
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\178\ U.S. Merit System Protections Board, supra note 13 at p.
ii.
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As explained above, where Congress has created a property interest
in a position for tenured employees,\179\ due process considerations
protect employees from an unlawful deprivation of that interest. The
procedural protections enacted by Congress 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.\180\
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\179\ See supra, Sec. I.B.; Loudermill, 470 U.S. at 541.
\180\ U.S. Merit System Protections Board, supra note 13 at pp.
ii-iii.
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Therefore, to the extent these rules as finalized will reinforce
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
If finalized, the proposed rule would require agencies to update
internal policies and procedures to ensure compliance with proposed
Sec. Sec. 210.102(b), 212.401, 213.3301, 302.101, 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
would affect the operations of more than 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 2023 rate for a GS-14, step 5, from the Washington,
DC, locality pay table ($150,016 annual locality rate and $71.88 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 $143.76 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 $143.76 per hour. Upon
publication of the final rule, this would result in first-year
estimated costs of about $5,750 per agency, and about $460,000
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 proposed rule,
affected agencies would need to resolve any appeals that may arise
pursuant to Sec. 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 $143.76
per hour. This would result in estimated costs in that first year of
implementation of about $17,250 per agency, and about $1.38 million
governmentwide. In subsequent years, we assume a decreased need for
appeal resolution as agencies further refine their processes under
Sec. 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 $143.76 per hour. This would result in estimated
costs of about $11,500 per agency annually, and about $920,000
governmentwide annually in the years after the first year of
implementation.
In sum, OPM estimates the first-year cost to be approximately
$23,000 per agency, and about $1.84 million governmentwide. For
subsequent years, we estimate annual costs to be $11,500 for agencies,
and about $920,000 governmentwide.
E. Benefits
OPM is proposing to 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 civil service protections,
but also, by so doing, strengthening our republican form of government,
and thus 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.'' \181\ 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.
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\181\ U.S. Office of Personnel Management, ``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 proposed rule has several important benefits. First, it
supports the retention of Federal career professionals who provide the
continuity of institutional knowledge and subject-
[[Page 63881]]
matter expertise necessary for the critical functioning of the Federal
Government.\182\ ``A vast body of research'' shows ``public service
motivation as a central factor in public 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.'' \183\ The rights and protections
afforded to career Federal employees offer a more stable alternative to
comparable private and non-government sector positions.\184\ 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.
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\182\ Donald P. Moynihan, ``Public Management for Populists:
Trump's Schedule F Executive Order and the Future of the Civil
Service,'' Public Administration Review, p. 174, 177 (Jan.-Feb.
2022).
\183\ Id.
\184\ Id.
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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. ``Instability and politization makes public service less
attractive, leading to higher turnover of experienced civil servants
and giving public officials less reason to develop expertise.'' \185\
OPM cannot estimate the exact value of this benefit to taxpayers
because it would depend on the specific number of positions moved by an
agency. Nevertheless, the proposed 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-funded
resources) in a timely and efficient manner.
---------------------------------------------------------------------------
\185\ Id.
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There is little evidence to support the notion that a more
politicized civil service, or that allowing for the firing of career
civil servants without appropriate process that permits such employees
to probe the agency's reasons and provide a response, will increase
governmental performance.\186\ This proposed 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.
---------------------------------------------------------------------------
\186\ See id.; see also Donald P. Moynihan, ``Populism and the
Deep State: the Attack on Public Service under Trump,'' Liberal-
Democratic Backsliding and Public Administration, (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 Politics, 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.'').
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Finally, agency counsel and employee relations practitioners will
benefit from the clarifications in this proposed rule that address
current inconsistencies between OPM regulations and statute. After MSPB
recommended that OPM update its regulations to reflect the Federal
Circuit's decisions in Van Wersch and McCormick,\187\ 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 proposes to clarify 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.
---------------------------------------------------------------------------
\187\ U.S. Merit Systems Protection Board, supra note 45.
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IV. Request for Comments
OPM requests comments on the implementation and impacts of this
proposed rule in general. Such information will be useful for better
understanding the effect of these proposed revisions on civil service
protections, merit system principles, and the effective and efficient
business of government, in compliance with the law. The type of
information in which OPM is interested includes, but is not limited to,
the following:
Throughout the preamble, OPM provides examples of civil
service protections since the Pendleton Act of 1883. OPM seeks comment
on whether more examples would be helpful and, if so, the authority for
those protections.
Whether the regulatory changes proposed under part 752 are
sufficiently protective of employees' rights in their continued
employment.
Whether the proposed definition for the terms
``confidential, policy-determining, policy-marking, or policy-
advocating'' and ``confidential or policy-determining'' is appropriate
or whether it should be expanded or limited with the understanding that
it should satisfy the aims of the CSRA (including congressional
intent), civil service protections, and merit system principles.
Whether the procedures for moving positions from the
competitive service to the excepted service or from one excepted
service schedule to another are appropriate or whether they should be
expanded or limited with the understanding that they should satisfy the
aims of the CSRA (including congressional intent), civil service
protections, and merit system principles.
Whether the proposed MSPB appeal rights under part 302 are
needed and, if so, whether they are is sufficiently protective of
employees' rights.
Whether this rulemaking should include additional
mechanisms for enforcing the protections set forth in this proposal,
and if so, what those mechanisms should be.
Comments on the initial cost and benefit analysis,
including the identification of data and studies that would inform
OPM's analysis.
Comments on whether discrete provisions of this proposal
could be severed from the proposed rule in the event a provision was
held to be invalid or unenforceable by its terms.
V. Procedural Issues and Regulatory Review
A. Severability
OPM proposes that, if any of the provisions of this proposed rule
as finalized 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 proposed rule as finalized 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
[[Page 63882]]
employees in the competitive service maintain their protections even if
their positions are moved to the excepted service--would independently
remain workable and valuable. Similarly, the portions of this proposed
rule defining ``confidential, policy-determining, policy-making, or
policy-advocating position'' and ``confidential and policy-
determining'' can and would function independently of any of the other
portions of this proposed 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 major 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 proposed 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. 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.
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.
Kayyonne Marston,
Federal Register Liaison.
Accordingly, OPM is proposing to amend 5 CFR parts 210, 212, 213,
302, 432, 451, and 752 as follows:
PART 210--BASIC CONCEPTS AND DEFINITIONS (GENERAL)
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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
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2. Amend Sec. 210.102 by:
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a. Redesignating paragraphs (b)(3) through (18) as paragraphs (b)(5)
through (20); and
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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
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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.
Subpart D--Effect of Competitive Status on Promotion
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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 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 [effective date of final rule], remains
in the competitive service while he occupies that position.
PART 213--EXCEPTED SERVICE
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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).
[[Page 63883]]
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 Public Law 105-339,
112 Stat. 3182-83.
Subpart C--Excepted Schedules
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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
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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.
Subpart A--General Provisions
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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
nature;
* * * * *
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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.
This subpart applies to any situation where an agency moves 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. This subpart also
applies in situations where a position previously governed by title 5
of the U.S. Code will be governed by another title of the U.S. 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 for
placement in the excepted service under Schedule A, B, or C, or any
Schedule in the excepted service created after [effective date of final
rule], 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 list, and their location within the organization.
(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 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
and the locations in the organization, supply 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
position or 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
position or 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 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 provide written notification to the
employee of the intent to move the position 30 days prior to the
effective date of the position being moved.
(2) The written notification required by paragraph (c)(1) of this
section must inform the employee that the employee maintains their
civil service status and protections notwithstanding the movement of
the position.
Sec. 302.603 Appeals.
(a) A competitive service employee whose position is placed into
the excepted service or who is otherwise moved 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 moved to
a different schedule of the excepted service, may directly appeal to
the Merit Systems Protection Board, as provided in paragraphs (b) and
(c) of this section, to have their competitive status and civil service
protections reinstated, as applicable.
(b) An employee whose position is moved into the excepted service
or into a different schedule of the excepted
[[Page 63884]]
service may appeal to the extent that such move purportedly strips the
employee of the status and civil service protections the employee has
already accrued.
(c) An employee whose move to a new position that would require the
employee to relinquish their competitive status or civil service
protections is facially voluntary may appeal if the employee believes
that such move was coerced.
PART 432--PERFORMANCE BASED REDUCTION IN GRADE AND REMOVAL ACTIONS
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10. The authority citation for part 432 continues to read as follows:
Authority: 5 U.S.C. 4303, 4305.
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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.
* * * * *
PART 451--AWARDS
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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
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13. Amend Sec. 451.302 by revising paragraph (b)(3)(ii) to read as
follows:
Sec. 451.302 Ranks for senior career employees.
* * * * *
(b) * * *
(3) * * *
(ii) To positions that are excepted from the competitive service
because of their confidential or policy-determining character.
* * * * *
PART 752--ADVERSE ACTIONS
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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
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15. Amend Sec. 752.201 by revising paragraphs (b)(1) through (6) and
(c)(5) and (6) and adding paragraph (c)(7) to read as follows:
Sec. 752.201 Coverage.
* * * * *
(b) * * *
(1) An employee in the competitive service who has completed a
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 a similar position;
(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 a similar
position;
(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;
(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 under any schedule of the
excepted service and still occupies that position;
(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; 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 a similar position.
(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;
(ii) The Office of Personnel Management for a position that the
Office has excepted from the competitive service; or
(iii) The President or the head of an agency for a position
excepted from the competitive service by statute.
* * * * *
Subpart D--Regulatory Requirements for Removal, Suspension for More
Than 14 Days, Reduction in Grade or Pay, or Furlough for 30 Days or
Less
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16. Amend Sec. 752.401 by revising paragraphs (c)(1), (c)(2)(i) and
(ii), (c)(3) through (9), and (d)(2) to read as follows:
Sec. 752.401 Coverage.
* * * * *
(c) * * *
(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) * * *
(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 under section 1105 of Public Law 114-92 (as
repealed by section 1106(a)(1) of Public Law 117-81), 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, 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 a similar position;
(4) A Postal Service employee covered by Public Law 100-90 who has
[[Page 63885]]
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 a similar position;
(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 a similar position;
(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;
(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 under any schedule of the
excepted service and who still occupies that position;
(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 a similar position; 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--
(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; or
(iii) The President or the head of an agency for a position
excepted from the competitive service by statute.
* * * * *
[FR Doc. 2023-19806 Filed 9-15-23; 8:45 am]
BILLING CODE 6325-39-P
