# Upholding Civil Service Protections and Merit System Principles

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2023-19806

## Record

- **Collection:** Federal Register
- **Document type:** Proposed Rule
- **Published:** September 18, 2023
- **Citation:** 88 FR 63862

## Text

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.

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
employeeaccountability@opm.gov
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.

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).

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

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

3
Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17, 1990);
see also
H.R. Rep. 101-328 (Nov. 3. 1989).

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:

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.

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.

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).

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.

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.

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.

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.

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,

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

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.

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

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.

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

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.

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:

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.

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

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).

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.

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.”).

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.

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.

The CSRA codified fundamental merit system principles, which had developed since 1883.
38

These principles are summarized here:

38

See
47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.

Merit System Principles
39

39

See
5 U.S.C. 2301.

1. Recruit, select, and advance on merit after fair and open competition.

2. Treat employees and applicants fairly and equitably.

3. Provide equal pay for equal work and reward excellent performance.

4. Maintain high standards of integrity, conduct, and concern for the public interest.

5. Manage employees efficiently and effectively.

6. Retain or separate employees on the basis of their performance.

7. Educate and train employees if it will result in better organizational or individual performance.

8. Protect employees from improper political influence.

9. Protect employees against reprisal for the lawful disclosure of illegality and other covered wrongdoing.

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.

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).

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

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.

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

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).

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

48
5 U.S.C. 7503, 7513, 7701-7703, 7703(a)(1), (b)(1)(A).

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.

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.

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.

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.

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

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:

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

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.

57
The exact procedures required will turn on the factual situation and may be different from instance to instance.

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

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

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).

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

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/.

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

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

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).

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

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).

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

80

See
5 U.S.C. 4303(e).

81

See
5 U.S.C. 4303(f).

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

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).

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

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.

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

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

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.

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,

and ability to meet the particular needs of the agency.”
94

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.

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

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.

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:

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.

• 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

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).

• 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

107

See
33 FR 12408 (Sept. 4, 1968).

108

Id.

• 5 CFR 302.102, promulgated in part to implement 5 U.S.C. 3320, provides that when an agency wishes to move an employee from a position in the competitive service to one in the excepted service, the agency must: “(1) Inform the employee that, because the position is in the excepted service, it may not be filled by a competitive appointment, and that acceptance of the proposed appointment will take him/her out of the competitive service while he/she occupies the position; and (2) Obtain from the employee a written statement that he/she understands he/she is leaving the competitive service voluntarily to accept an appointment in the excepted service.”
109

109

See
55 FR 9407 (Mar. 14, 1990), as amended at 58 FR 58261 (Nov. 1, 1993).

• 5 CFR part 432 sets forth the procedures to be followed, if an agency opts to pursue a performance-based action against an employee under chapter 43 of title 5, U.S. Code. As with the adverse action rules in part 752, the rules applicable to performance-based actions apply broadly to employees in the competitive and excepted service, with narrowly defined exceptions that include political appointees.
110

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).

• 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

111

See
74 FR 63532 (Dec. 4, 2009), as amended at 85 FR 65985 (Oct. 16, 2020); 87 FR 67782 (Nov. 10, 2022).

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

112
5 CFR 6.1(a).

113
5 CFR 6.1(b).

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

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.

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 § 752.201(b) to further clarify when an employee has or retains

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

115

See McCormick,
307 F.3d at 1341-43;
Van Wersch,
197 F.3d at 1151-52.

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 § 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.

116
OPM, “Career and Career-Conditional Employment and Adverse Actions,” 73 FR 7187 (Feb. 7, 2008).

OPM also proposes to amend § 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 § 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 § 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

117

See, e.g., McCormick,
307 F.3d at 1341-43;
Greene
v.
Def. Intel. Agency,
100 M.S.P.R. 447 (2005).

In addition, OPM proposes to update § 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.

118

See
Public Law 117-81, Sec. 1106(a)(1).

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 § 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

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.”

119

See
5 U.S.C. 7511(b)(2).

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.

120

See
“Report of the President's Committee, Administrative Management in the Government of the United States,” p. 8 (Jan. 1937).

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

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

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

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

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

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

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).

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.

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.

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

130

See supra
note 38.

131
Public Law 95-454, sec. 3.2.

132

Id.
at sec. 3.5

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

133
5 U.S.C. 1103(a)(5).

134
5 CFR 5.1, 6.1, 6.2.

135
5 CFR 5.4.

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

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.

136
5 CFR 6.1.

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.

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.

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.

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).

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

146
83 FR 32755 (July 10, 2018).

147
83 FR 32755-56.

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

148
85 FR 67633.

149
85 FR 67634

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

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

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).

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;

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 § 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 § 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 § 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 § 302.602(b) describes the steps agency management must take, independent of the impacted employees, with respect to such moves.

Proposed § 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 § 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 § 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 § 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 § 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 § 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

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 § 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.
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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.

Proposed § 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 § 302.602(c)(2) requires that the written notification required by § 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.
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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.

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

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 § 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.

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

159

See
part 731, subpart E.

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 § 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

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2023-19806. Public record. Not legal advice.