Improving Performance, Accountability and Responsiveness in the Civil Service

Federal RegisterApr 23, 2025

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Parts 210, 212, 213, 302, 432, 451, and 752

[Docket ID: OPM-2025-0004]

RIN 3206-AO80

Improving Performance, Accountability and Responsiveness in the Civil Service

AGENCY:

Office of Personnel Management.

ACTION:

Proposed rule.

SUMMARY:

The Office of Personnel Management (OPM) is proposing a rule to increase career employee accountability. Agency supervisors report great difficulty removing employees for poor performance or misconduct. The proposed rule lets policy-influencing positions be moved into Schedule Policy/Career. These positions will remain career jobs filled on a nonpartisan basis. Yet they will be at-will positions excepted from adverse action procedures or appeals. This will allow agencies to quickly remove employees from critical positions who engage in misconduct, perform poorly, or undermine the democratic process by intentionally subverting Presidential directives.

DATES:

Comments must be received on or before May 23, 2025.

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.

As required by 5 U.S.C. 553(b)(4), a summary of this rule may be found in the docket for this rulemaking at

www.regulations.gov.

FOR FURTHER INFORMATION CONTACT:

Noah Peters, Senior Advisor to the Director, by email at

employeeaccountability@opm.gov

or by phone at (202) 606-2930.

SUPPLEMENTARY INFORMATION:

OPM proposes this rule to strengthen employee accountability and the democratic responsiveness of American government, while addressing longstanding performance management challenges in the Federal workforce. Chapter 75 of title 5, United States Code (chapter 75) requires most agencies

to follow specific procedures to take “adverse actions” against employees for misconduct or poor performance—these actions include principally removals, suspensions, or reductions in pay or grade.

Most agencies take performance-based adverse actions following procedures set forth in chapter 43 of title 5 (chapter 43).

Whether taken under chapter 75 or chapter 43 procedures, employees can appeal such adverse or performance-based actions to the Merit Systems Protection Board (MSPB) and, if unsuccessful, to the Federal Circuit Court of Appeals.

Chapter 75 does not apply to all employees or all agencies. See 5 U.S.C. 7511(b).

See

5 U.S.C. 7512, 7513.

5 U.S.C. 4303. Chapter 43 does not apply to all employees or all agencies. See 5 U.S.C. 4301.

See

5 U.S.C. 7701, 7703.

As described below, decades of experience have shown that chapter 43 and 75 procedures make it very difficult for agencies to hold employees accountable for their performance or conduct. The processes are time-consuming and difficult, and removals are not infrequently subject to a protracted appeal process with an uncertain outcome. Surveys show few agency supervisors believe they could dismiss subordinates for serious misconduct or unacceptable performance. This dynamic undermines Federal merit system principles, which call for employees to maintain high standards of conduct and for agencies to separate employees who cannot or will not improve their performance to meet required standards.

5 U.S.C. 2301(b).

The adverse action procedures and appeals that make it difficult for agency leadership to hold employees accountable also empower career employees to insert partisan or personal preferences into their official duties. While most Federal employees nonetheless faithfully perform their jobs, some do not. As discussed in greater detail later in this proposed rulemaking, it is well documented that many career federal employees use their positions to advance their personal political or policy preferences instead of implementing the elected President's agenda. Such behavior undermines democracy, as it enables government power to be wielded without accountability to the voters or their elected representatives.

On October 21, 2020, President Donald J. Trump addressed these challenges with Executive Order 13957, “Creating Schedule F in the Excepted Service.”

Title 5 generally authorizes the President or OPM to exclude employees in excepted service positions of a “confidential, policy-determining, policy-making, or policy-advocating character” (hereafter “policy-influencing positions”) from chapter 75 procedural requirements and MSPB appeals.

Chapter 43 also authorizes OPM to exclude excepted service positions from its procedural requirements and concomitant MSPB appeals.

Executive Order 13957 used this authority to create a new Schedule F in the excepted service for policy-influencing career employees. The order required nonpartisan appointments to and removals from Schedule F; these positions remained career appointments filled based on merit and not political affiliation.

However, chapter 43 and 75 procedural requirements and appeals would no longer apply. This would enable agencies to expeditiously remove career employees in policy-influencing positions for poor performance or misconduct, such as corruption or for injecting partisanship into the performance of their official duties.

85 FR 67631 (Oct. 26, 2020).

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

5 U.S.C. 4301(2)(G).

E.O. 13957, sec. 6.

Executive Order 13957 recognized the value of a nonpartisan merit service that develops and maintains institutional knowledge and experience. It strengthened the merit service by giving agencies the tools necessary to hold policy-influencing employees accountable when they fail to uphold high standards of conduct and performance.

On January 22, 2021, President Joseph Biden issued Executive Order 14003, which abolished Schedule F before any positions were transferred into it.

In April 2024 OPM issued a final rule (hereinafter the “April 2024 final rule”) amending the civil service regulations to (1) define policy-influencing positions to encompass only political appointments and have no applicability

to career Federal positions; (2) establish comprehensive procedures, including MSPB appeals, governing the transfer of positions to policy-influencing schedules in the excepted service; and (3) provide that any career incumbents moved into such policy-influencing excepted service schedules would remain subject to adverse actions procedural requirements and retain adverse action appeals.

86 FR 7231 (Jan. 27, 2021).

See

89 FR 24982 (Apr. 9, 2024).

On the first day of his second term President Trump signed Executive Order 14171 on “Restoring Accountability to Policy-Influencing Positions within the Federal Workforce.”

As described below, until the 1960s the general Federal workforce could not appeal adverse actions. Executive Order 14171 used an express grant of statutory authority to return policy-influencing positions to this historical baseline. To this end, Executive Order 14171 created a new Schedule Policy/Career in the excepted service for policy-influencing positions and made several related modifications to the civil service rules. Under the order Schedule Policy/Career positions remain career positions, filled on a nonpartisan basis using standard career employee hiring procedures. At the same time, employees in such positions will serve at-will and will not be covered by chapter 43 or 75 procedures. This will enable the President and his appointed agency heads to hold Schedule Policy/Career employees meaningfully accountable for their performance and conduct.

90 FR 8625 (Jan. 31, 2025).

The OPM Director is generally charged with executing, administering, and enforcing the civil service rules and regulations of the President and the laws governing the civil service. Accordingly, OPM proposes this rule to strengthen employee accountability and implement Executive Order 14171. OPM proposes amending its regulations in 5 CFR chapter I, subchapter B, as follows:

1. Amending 5 CFR part 213 (Excepted Service) to include Schedule Policy/Career as an excepted service schedule for policy-influencing career positions, while clarifying that Schedule C appointments are exclusively for noncareer (

i.e.,

political) appointments with policy responsibilities. The proposed regulations further clarify that employees filling excepted service positions are in the excepted service, regardless of whether they retain competitive status, and lists increasing accountability to the President as grounds for excepting positions from the competitive service.

2. Amending 5 CFR part 212 (Competitive Service and Competitive Status) to provide that employees with competitive status whose positions are subsequently listed in the excepted service or who are involuntarily transferred into an excepted service position retain competitive status but do not remain in the competitive service while in the excepted position.

3. Amending 5 CFR part 752 (Adverse Actions) to remove the amendments made by the April 2024 final rule and provide that individuals whose positions are reclassified into or who are otherwise transferred into Schedule Policy/Career are not covered by chapter 75 procedural requirements or adverse actions appeals. Additionally, OPM proposes to amend 5 CFR part 752 to remove language pertaining to 10 U.S.C. 1599e, which provided for a 2-year probationary period in the Department of Defense. This language has become obsolete as section 1599e was repealed, effective December 31, 2022, by Public Law 117-81, Sec. 1106(a)(1). The proposed rule further amends 5 CFR part 432 (Performance Based Reduction in Grade and Removal Actions) to remove the amendments made by the April 2024 final rule and to exclude all policy-influencing positions in the excepted service from chapter 43 procedural requirements for performance-based removals.

4. Amending 5 CFR part 210 (Basic Concepts and Definitions (General)) to remove the amendments made by the April 2024 final rule stating that policy-influencing positions are exclusively associated with noncareer political appointments. The proposed rule also amends 5 CFR 213.3301 and 451.302 to conform to the rescission of these definitions.

5. Amending 5 CFR part 302 to remove the amendments made by the April 2024 final rule imposing procedural requirements on movements of positions or employees into policy-influencing excepted service positions (including subsequent MSPB appeals). The proposed regulations also provide that moving or transferring positions into Schedule Policy/Career will not change how appointments to those positions are made. Positions moved from the competitive service will be filled using competitive hiring procedures and employees so appointed may acquire competitive status. Positions moved from the excepted service will continue to be filled using the procedures that applied to their prior excepted service schedule.

As further detailed below, this rulemaking will promote Federal employee accountability and strengthen American democracy while addressing performance management challenges and issues with misconduct within the Federal workforce. It will give agencies the practical ability to separate employees who insert partisanship into their official duties, engage in corruption, or otherwise fail to uphold merit principles. OPM may set forth policies, procedures, standards, and supplementary guidance for the implementation of any final rule.

I. Background

A. History of the Civil Service and Removal Restrictions

Beginning with the Administration of George Washington, the appointment—subject to the advice and consent of the Senate where appropriate—and removal of federal officers occurred at the President's discretion by virtue of Article II of the Constitution. Washington appointed Federalists friendly to the new form of government. Subsequent presidents made appointments and removals to advance their agendas.

However, over the course of the Nineteenth Century, presidents began to lose control of the appointment and removal process due to the rise of the patronage system. By the 1880s appointments to positions in the executive branch were predominantly made based on political connections, typically as a reward for loyal supporters of the party in power. Members of Congress and local party machines would use their influence with the President to get their preferred candidate's Federal appointments. The patronage system began showing strain as the Federal Government expanded rapidly after the Civil War. The Federal civilian workforce nearly doubled in size between 1871 and 1881, from 51,000 to 100,000 employees.

The expanded scale made monitoring and managing patronage employees harder for both the President and his Congressional allies. Elected officials spent a significant proportion of their time arranging patronage appointments; future President James Garfield estimated a third of Congress members' waking hours were spent on such tasks. At the same time, the President spent an inordinate amount of time as a “position broker,” handing out many jobs under great political pressure.

Ronald N. Johnson and Gary D. Libecap, “The Federal Civil Service and the Problem of Bureaucracy,” University of Chicago Press, (1994), p. 17.

https://www.nber.org/system/files/chapters/c8633/c8633.pdf.

Id.

at 18.

These time demands also meant that patronage appointees became subject to little scrutiny once in office. They often provided poor services that frustrated the President, members of Congress, and the voting public. For example, in the increasingly commercialized U.S. economy of the late 19th Century, businesses needed a well-functioning postal system for shipments and customhouses for imports. They saw how the spoils system often prevented the Government from providing these services reliably; perhaps unsurprisingly a majority of civil service reform association members came from business organizations.

Patronage also focused Federal appointees' attention on the local concerns of party machines instead of the national concerns of the President and Congress.

By the 1880s, the President and Congress had concluded that the costs of the spoils system outweighed its benefits, and that in many cases patronage appointments made advancing their agendas harder.

The final straw was the assassination of President James Garfield by a disappointed office seeker.

Id.

at 19.

Id.

at 22-24.

Id.

at 25-41.

This dynamic led Congress to pass, and President Chester A. Arthur to sign, the Pendleton Act of 1883.

The Pendleton Act established the classified service—what is today known as the competitive service. Appointments to classified positions were to be made based on merit, assessed through competitive examinations. Executive branch officials could not consider campaign contributions or “political service” in appointments to or removals from classified positions.

The Pendleton Act also established the Civil Service Commission (CSC) to help implement and enforce its requirements.

Public Law 16; Civil Service Act of 1883, (Jan. 16, 1883) (22 Stat. 403).

Id.

at sec. 2, fifth.

When the Pendleton Act became law, President Arthur placed approximately one-tenth of the Federal workforce into the classified service, including half of positions in the postal service and three-quarters of positions in customhouses.

The civil service expanded rapidly under subsequent administrations, covering just under half of the Federal workforce by 1896.

George F. Howe, “Chester A. Arthur, A Quarter-Century of Machine Politics,” F. Ungar Publishing Co. (1966) [1935], pp. 209-210.

See

Gerald E. Frug, “Does the Constitution Prevent the Discharge of Civil Service Employees,” U. Pa. L. Rev., 124, at 955-966.

https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=4997&context=penn_law_review.

Though the Pendleton Act extensively regulated the process of filling classified positions, employees in the new civil service remained at-will. While the law prohibited executive branch officials from dismissing classified employees because they declined to render political services, they otherwise served at the pleasure of the President.

Civil service employees also had no right to appeal or otherwise contest removals. Instead, the Pendleton Act was enforced through penalties on officials who violated its requirements.

Classified employees' status under the Pendleton Act was similar to most private sector workers today. Businesses today cannot fire workers for certain discriminatory reasons, such as race or religion, but employees otherwise serve at the pleasure of their employer.

The reformers who created the Pendleton Act made a conscious decision to keep the civil service at-will. They wanted to create a merit system that would provide high-quality services; they feared that cumbersome removal protections would entrench poor performers. Civil service reformers saw little risk of patronage-based dismissals as long as civil service hiring forbid rewarding campaign supporters with new appointments.

George William Curtis, the president of the National Civil Service Reform League who helped draft the Pendleton Act and secure its passage, explained:

P.P. Van Riper, “History of the United States Civil Service,” Row, Peterson & Co. (1958), p. 102.

[I]t is better to take the risk of occasional injustice from passion and prejudice, which no law or regulation can control, than to seal up incompetency, negligence, insubordination, insolence, and every other mischief in the service, by requiring a virtual trial at law before an unfit or incapable clerk can be removed.

See

Frug,

supra

note 21, at 955.

In other words, “if the front door [is] properly tended, the back door [will] take care of itself.”

Reflecting this contemporaneous understanding of the law, President Benjamin Harrison's CSC “refused to construe the Civil Service Act of 1883 as imposing any limits on the president's removal power and disclaimed any authority to investigate removals aside from those for failure to pay political assessments.”

See

P.P. Van Riper,

supra

note 25, at 102.

S. Calabresi & C. Yoo, The Unitary Executive: Presidential Power from Washington to Bush (2008), p. 221 (citing 9 U.S. Civ. Serv. Comm'n Ann. Rep. 77 (1892)).

The CSC requested an Executive Order requiring officials to formally memorialize the reasons for dismissing civil service employees. The CSC believed this would further discourage covert patronage-based removals. President William McKinley subsequently issued Executive Order 101 on July 27, 1897. This order provided that “No 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.”

The CSC became concerned that some were construing Executive Order 101's “just cause” requirement to mandate the equivalent of a trial to dismiss civil service employees. The Commission believed this “would give a performance of tenure in the public service quite inconsistent with the efficiency of that service.”

The CSC therefore asked President Theodore Roosevelt to issue an executive order clarifying that “just cause” meant any legitimate, non-political reason, and that trials were unnecessary.

President Roosevelt did so on May 29, 1902, by issuing Executive Order 173. That order provided that “just cause” means any cause, other than political or religious, that promotes the efficiency of the service, and trials or hearings were not required to dismiss an employee.

E.O. 101, July 27, 1897.

U.S. Civil Service Commission Annual Report (1902), p. 18.

Id.

at 19.

President William Howard Taft issued Executive Order 1471 in February 1912 reaffirming and restating the prior McKinley and Roosevelt orders. Congress subsequently codified Executive Order 1471 as the Lloyd-La Follette Act of 1912.

The Lloyd-La Follette Act mandated that “no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal.”

The next year the CSC explained the policy governing civil service dismissals:

37 Stat. 555 (1912).

Id.

The rules are not framed on a theory of life tenure, fixed permanence, nor vested right in office. It is recognized that subordination and discipline are essential, and that therefore dismissal for just cause shall be not unduly hampered. The rules have at all times left the power of removal as free as possible, providing restraints only to ensure its proper exercise . . . Appointing officers, therefore, are entirely free to make removals for any reasons relating to the interests of good administration, and they are made the final judges of the sufficiency of the reasons. No examination of witnesses or any trial or hearing is required . . . The rule is merely intended to prevent removals upon secret charges and to stop political pressure for removals . . . . No tenure of office is created

except that based upon efficiency and good behavior.

U.S. Civil Service Commission Annual Report (1913), pp. 21-22.

The Lloyd-La Follette Act and its predecessor executive orders did not give classified civil service employees tenure. They instead imposed procedural requirements to prevent merely political or religiously-motivated removals. Agencies remained the sole judge of employee conduct and performance.

For the first six decades of the merit service employees could not appeal removals. That only began to change during the Second World War. The Veterans Preference Act (VPA) of 1944 gave veterans significant hiring preferences for Federal jobs.

It also provided that veterans—including those in the excepted service—could be dismissed only to promote the efficiency of the service and allowed veterans to appeal adverse actions to the CSC. The congressional record on this provision is scarce, but commentors have suggested it was motivated by concerns that agencies would honor veteran hiring procedures on the front end, only to pretextually dismiss veterans on the back end.

In 1948, Congress amended the law to make CSC appeals binding on agencies.

These amendments gave preference-eligible veterans the ability to appeal removals outside their agency.

58 Stat. 387 (1944).

Frug,

supra

note 21, at 959-960.

62 Stat. 575 (1948).

Until the 1950s, courts would entertain procedural challenges to civil service removals, overturning them where agencies did not follow Lloyd-La Follette procedures. But courts generally avoided examining the substance of removal actions.

A significant precedent was established in 1954 when the D.C. Circuit Court of Appeals decided

Roth

Brownell.

The plaintiff, Roth, had been hired into a competitive service position in the Department of Justice (DOJ). President Truman subsequently moved his position into Schedule A of the excepted service. In 1953 President Eisenhower moved Roth's position into the then-newly created Schedule C and shortly thereafter dismissed him. Roth was not a veteran and could not appeal to the CSC. He instead filed suit in federal court, arguing that DOJ had failed to follow Lloyd-La Follette procedures before removing him.

Frug,

supra

note 21, at 70, n. 134.

215 F.2d 500 (D.C. Cir. 1954),

cert. denied sub nom, Brownell

Roth,

348 U.S. 863 (1954).

Analyzing the text of the Lloyd-La Follette Act, the D.C. Circuit agreed. The law provided that “[n]o person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing.”

The court explained that Roth was either removed from the civil service in 1947—when his position was moved into Schedule A—or in 1953, when he was dismissed. Without deciding which action removed him from the civil service, the court ordered his discharge reversed because Lloyd-La Follette procedures had not been followed in either case.

Roth

thus held that Lloyd-La Follette procedures must be followed to take employees out of the competitive service—either through a discharge or through moving the position into the excepted service.

37 Stat. 555 (1912).

Roth

Brownell,

215 F.2d 500, 502 (D.C. Cir. 1954).

Notably,

Roth

did not allow employees to contest the substance of removals—only whether proper procedures were followed. The D.C. Circuit subsequently clarified that agencies could dismiss employees from confidential or policy-making positions based purely on loss of confidence. In

Leonard

Douglas

(1963) the D.C. Circuit concluded that removing an employee from a policy-making position because his superiors did not find him suitable to advance their policies promoted “the efficiency of the service” and was therefore lawful.

While the Lloyd-La Follette Act and Veterans Preference Act imposed procedural requirements on removals, agencies generally retained broad authority to dismiss employees for non-discriminatory reasons. Those reasons included removing employees from policy-influencing positions based purely on the belief they would not effectively advance the President's policies.

Leonard

Douglas,

321 F.2d 749, 751-753 (D.C. Cir. 1963).

In the 1950s the courts began to permit limited judicial examination of the substance of removals. In a series of cases, the Supreme Court held that the Due Process clause of the 14th Amendment prohibited the government from dismissing employees for exercising constitutionally protected rights when those activities were unrelated to their job duties.

See Wieman

Updegraff,

344 U.S. 183 (1952) (overturning Oklahoma law forbidding state employees from associating with certain organizations);

Slochower

Board of Education,

350 U.S. 551 (1956) (overturning New York City law requiring termination of employees who invoke the 5th Amendment right to avoid self-incrimination);

Pickering

Board of Education,

391 U.S. 563 (1968) (School board cannot terminate a teacher for writing a letter to the editor critical of Board policies). OPM notes that none of these cases examined federal employees or considered Article II's vesting of the executive power in the President.

Consequently, until the 1960s agencies had to follow statutory procedures to dismiss employees, but they could broadly remove employees for any work-related grounds. These grounds included loss of confidence in an employee in a policy-making position. The procedural requirements—notice and an opportunity to respond, followed by a written explanation of the reason for removal—were also modest. For the general Federal workforce, agencies were also the final judge of whether cause existed for dismissal. The Lloyd-La Follette Act was neither interpreted nor applied to give employees a right to their jobs. Courts would rarely evaluate the substance of adverse actions, except if they occurred in response to employees exercising their constitutional rights.

This changed in the 1960s and 1970s. In 1962 President Kennedy's Executive Order 10987 required agencies to create internal procedures for non-veterans to appeal adverse actions.

President Richard Nixon's Executive Orders 11491 and 11787 transferred these internal appeals to the CSC, aligning the process for veterans and non-veterans.

The Supreme Court also dramatically changed the legal landscape in

Arnett

Kennedy

(1974).

In that case the Supreme Court held that a federal employee has a constitutional due process interest in continued federal employment.

Arnett

made constitutional due process challenges generally applicable to civil service removals, not just when employees were fired for exercising constitutional rights.

27 FR 550 (Jan. 17, 1962).

34 FR 17605 (Oct. 29, 1969), 39 FR 20675 (June 13, 1974).

416 U.S. 134.

Congress legislated against this backdrop when it passed the Civil Service Reform Act of 1978 (CSRA).

The CSRA replaced the Lloyd-La Follette Act, VPA, executive orders, and private rights of action in Federal court with a new unified framework governing adverse actions and subsequent appeals. President Jimmy Carter explained the law was meant “to bring efficiency and accountability to the Federal Government.”

92 Stat. 1111; Public Law 95-454 (Oct. 13, 1978).

James Carter, “Statement on Signing S. 2640 Into Law,” Oct. 13, 1978.

https://www.presidency.ucsb.edu/documents/civil-service-reform-act-1978-statement-signing-s-2640-into-law.

The CSRA maintained prohibitions on patronage and restricted adverse actions in some respects. For example, the CSRA gave non-preference eligible employees in the competitive service the same right to appeal demotions that preference eligible employees possessed.

47 48

The CSRA also expanded preference-eligible employees' ability to appeal suspensions. Under the VPA preference-eligible employees could appeal suspensions of greater than 30 days. The CSRA allowed appeals of suspensions of more than 14 days.

5 U.S.C. 7512.

The Veterans Preference Act required agencies to follow adverse action procedures before reducing a preference-eligible veteran's pay or grade, whether the veteran was in the competitive or excepted service. This requirement did not apply to non-preference eligibles.

5 U.S.C. 7512.

In other ways, the CSRA made taking adverse actions easier. It created chapter 43, intended to be a faster process for removing poor performers.

It further prevented Federal employees from directly challenging removals in Federal district court. The CSRA instead channeled adverse action appeals to the MSPB, with judicial review of the MSPB rulings. Congress subsequently transferred most appeals of MSPB decisions to the Federal Circuit Court of Appeals when it created that court in 1982.

This was intended to create a uniform body of procedures and case law governing the Federal workforce. The CSRA also repealed Lloyd-La Follette provisions governing removal from the competitive service, replacing it with a new unified framework of adverse action appeals for both competitive service employees and excepted service preference-eligibles. The CSRA thus removed from Federal law the language the D.C. Circuit interpreted in

Roth.

See

5 U.S.C. ch. 43.

See

5 U.S.C. ch. 77.

The CSRA originally excluded from chapter 75 adverse action procedures excepted service employees who were not preference eligibles. Chapter 75 also excluded any excepted service employees—preference eligible or not—whose positions the President, OPM, or an agency head, as applicable, determined had a policy-influencing character.

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

United States

Fausto

(1988), the Supreme Court held that employees statutorily excluded from chapter 75 could not contest removals in Federal district court.

The Court explained that the CSRA created a comprehensive review system for adverse actions; exclusion from CSRA coverage meant employees could not appeal adverse actions elsewhere. Shortly thereafter, Congress passed the Civil Service Due Process Amendments Act of 1990.

This law, which remains in effect, amended the CSRA by extending chapter 75 to generally cover excepted service employees—preference eligible or not—after an initial trial period. At the same time, Congress retained the exclusion for excepted service employees in policy-influencing positions.

484 U.S. 439.

Public Law 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17, 1990).

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

To summarize, the Pendleton Act of 1883 did not substantively limit the ability of agencies to remove employees for non-political reasons. Nor did subsequent executive orders or the Lloyd-La Follette Act. They instead required agencies to follow procedural steps and document the basis for their actions, but agencies remained the final judge of the reasons for dismissal. For the first six decades of the merit service employees could not appeal removals outside their agency.

Adverse action appeals began in the 1940s and were initially limited to preference eligible employees. Only in the 1960s did executive orders extend dismissal appeals to the broader Federal workforce. In the 1970s, the Supreme Court construed the Lloyd-La Follette Act to give civil service employees a property interest in their jobs, thus requiring constitutional due process before removals. The Civil Service Reform Act of 1978 reorganized and codified these procedures, creating the civil service framework that remains in effect today. The CSRA and the subsequent Due Process Amendments Act also authorized OPM and the President to exempt employees in policy-influencing positions from chapter 75 adverse action procedures and appeals.

B. Executive Orders 13957, 14003, 14171, and the Prior OPM Rulemaking

President Donald Trump issued Executive Order 13957 creating “Schedule F” in October 2020. As previously discussed, chapter 75 adverse action procedures do not cover employees in excepted service positions that the President, OPM, or an agency head have determined are policy-influencing.

Prior administrations had only applied this exemption only to political appointments, principally positions in Schedule C of the excepted service.

Executive Order 13957 created a new Schedule F (following the pre-existing schedules A through E) for career employees in policy-influencing positions.

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

5 CFR 6.2.

Executive Order 13957, 85 FR 67631 (Oct. 26, 2020).

Schedule F applied to policy-influencing positions “not normally subject to changes as a result of a Presidential transition.”

Executive Order 13957 set up a process for agencies to review their workforce, identify such policy-influencing career positions, and ask OPM to move them into Schedule F. The order provided guideposts for that analysis, identifying positions such as regulation writers or officials in agency policy offices as likely belonging in Schedule F.

Under 5 U.S.C. 7511(b)(2), any career positions moved into Schedule F would be excluded from chapter 75 adverse action procedures and their associated MSPB appeals.

E.O. 13957, sec. 3.

Id.

sec. 5.

At the same time, Schedule F positions remained career jobs filled based on merit, not political connections. Any positions filled with the involvement of the White House Office of Presidential Personnel—the White House office responsible for selecting political appointees—could not go in Schedule F.

Executive Order 13957 also prohibited hiring or firing Schedule F employees based on their political affiliation or for other discriminatory reasons. It further required agencies to establish internal procedures to ensure compliance with this directive.

Executive Order 13957 put policy-influencing career Federal employees in the same position as most private sector workers, generally serving at-will but protected from discriminatory removals.

Id.

sec. 2.

Id.

sec. 6.

The order explained that these changes were necessary to enable agencies to more effectively address poor performance. It cited findings from the MSPB's Merit Principles Survey that less than a quarter of Federal employees believe their agency addresses poor performers effectively. Executive Order 13957 explained that poor performance in policy-influencing positions is especially problematic, as it can affect the performance of the entire agency.

The order also explained that competitive hiring procedures do not provide enough flexibility to select applicants with the necessary intangible qualities for these important positions,

such as sound judgment, acumen, or impartiality.

Id.

sec. 1.

Id.

Schedule F also came in the context of widespread reports of career staff “resistance” to Trump Administration policies.

While Schedule F employees would not be dismissed based on their personal beliefs, agencies could swiftly dismiss any who did not perform their duties in a nonpartisan manner. However, no agencies moved positions into Schedule F before President Trump left office.

See, e.g.,

Juliet Eilperin, Lisa Rein, and Marc Fisher, “Resistance from within: Federal workers push back against Trump,” the Washington Post, January 31, 2017,

https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-back-against-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.html.

Gov't Accountability Off., “Civil Service—Agency Responses and Perspectives on Former Executive Order to Create a New Schedule F Category for Federal Positions,” (Sept. 2022),

https://www.gao.gov/assets/gao-22-105504.pdf.

1. Executive Order 14003 and OPM Rulemaking

Shortly after taking office President Biden issued Executive Order 14003 revoking Executive Order 13957 and abolishing Schedule F.

Executive Order 14003 described Schedule F as “undermin[ing] the foundations of the civil service and its merit system principles, which were essential to the Pendleton Civil Service Reform Act of 1883's repudiation of the spoils system” and that it was necessary to “rebuild the career Federal workforce.”

E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021).

Id.

sections 1 and 2.

This analysis ignored the fact that Schedule F gave employees stronger removal protections than the Pendleton Act did.

It also ignored the fact that the Federal Employee Viewpoint Survey (FEVS) showed career Federal employee job satisfaction rising throughout the first Trump Administration, reaching a record high of 72 percent in 2020.

Based on their survey responses, Federal employees did not feel their workforces needed rebuilding.

The Pendleton Act merely prohibited hiring or dismissing classified employees based on their politics or failure to make political contributions. Section 6 of E.O. 13957 forbid taking any personnel actions prohibited by 5 U.S.C. 2302(b). In addition to political discrimination, this generally forbids any discrimination based on protected characteristics (such as race, sex, or religion) or retaliation against whistleblowers.

U.S. Off. of Pers. Mgmt., 2020 Federal Employee Viewpoint Survey, at 11,

https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf.

During the 2024 election cycle President Trump announced plans to reissue Executive Order 13957 if re-elected.

Under the Biden Administration, OPM proposed, and in April 2024 finalized, new regulations related to the order.

The April 2024 final regulations had three principal components. First, OPM used presidential authority delegated under 5 U.S.C. 3301, 3302, and Executive Order 10577 to regulatorily define the phrases “confidential, policy-determining, policy-making or policy-advocating” and “confidential or policy-determining” to refer exclusively to political appointments, with no application to career employees.

See, e.g.,

Agenda47, “President Trump's Plan to Dismantle the Deep State and Return Power to the American People,” March 21, 2023,

https://www.donaldjtrump.com/agenda47/agenda47-president-trumps-plan-to-dismantle-the-deep-state-and-return-power-to-the-american-people.

89 FR 24982 (April 9, 2024).

Second, OPM used those same delegated presidential authorities to add a new subpart F to 5 CFR part 302. Subpart F prescribed mandatory procedures for transferring positions into the excepted service, or into a new excepted service schedule. Subpart F also required agencies notify employees that involuntary movements or transfers into a policy-influencing position would not affect their competitive status or civil service appeals and would allow employees to appeal to MSPB to the extent that an agency committed procedural error or indicated that the transfer would terminate adverse action appeals.

Third, OPM used its own statutory authority under 5 U.S.C. 7514 to provide that, notwithstanding 5 U.S.C. 7511(b)(2), any tenured civil service employees whose positions were moved, or who were otherwise involuntarily transferred into policy-influencing excepted service positions, would remain covered by chapter 75 procedures.

Under the April 2024 final rule, a re-issued Schedule F could not cover career positions, MSPB adjudicators could overturn transfers into Schedule F, and incumbent employees could keep MSPB appeal rights even if their positions were transferred into Schedule F.

The rulemaking responded to a National Treasury Employees Union petition for regulations to prevent the reinstatement of Schedule F.

The final rule candidly acknowledged disagreement with Executive Order 13957, but explained that “OPM does not and cannot prevent a President from creating excepted service schedules or from moving employees.”

See

Nat'l Treasury Employees Union, Petition for Regulations to Ensure Compliance with Civil Service Protections and Merit System Principles for Excepted Service Positions, (Dec. 12. 2022),

https://www.nteu.org/~/media/Files/nteu/docs/public/opm/nteu-petition.pdf?la=en.

See

89 FR 25009.

2. Executive Order 14171

Donald Trump won the 2024 Presidential election and promptly fulfilled his commitment, issuing Executive Order 14171 on January 20, 2025. The new order reinstated Executive Order 13957, while amending it in several ways. The order redesignates “Schedule F” as “Schedule Policy/Career.” This change in nomenclature emphasizes that covered positions remain career positions and are not being converted into political appointments—a common misperception of the original order. The order emphasizes that patronage remains prohibited by defining Schedule Policy/Career to only cover “career positions.”

It also expressly describes what is and is not required of Schedule Policy/Career employees. They “are not required to personally or politically support the current President or the policies of the current administration. They are required to faithfully implement administration policies to the best of their ability, consistent with their constitutional oath and the vesting of executive authority solely in the President. Failure to do so is grounds for dismissal.”

E.O. 13957, sec. 4(a)(i).

Id.,

sec. 6(b).

Executive Order 14171 also requires OPM to apply Civil Service Rule 6.3(a) to Schedule Policy/Career positions.

This rule authorizes OPM to prescribe by regulation conditions under which excepted positions may be filled in the same manner as competitive positions are filled and conditions under which persons so appointed may acquire a competitive status in accordance with the Civil Service Rules and Regulations. This directive requires OPM to generally provide for competitive hiring procedures for Schedule Policy/Career positions.

E.O. 14171, sec. 3(d).

Executive Order 14171 also overrode significant parts of the April 2024 final rule. That rule used delegated presidential authority to amend parts 210 and 302 of the civil service regulations.

President Trump used his executive authority to directly render those amendments inoperative. Executive Order 14171 requires that OPM rescind the amendments made by the April 2024 final rule. It further

provides that “[u]ntil such rescissions are effectuated (including the resolution of any judicial review) 5 CFR part 302, subpart F, 5 CFR 210.102(b)(3), and 5 CFR 210.102(b)(4) shall be held inoperative and without effect.”

Consequently, both the April 2024 final rule's definition of ” “confidential, policy-determining, policy-making, or policy-advocating” as a term of art that refers exclusively to political appointees and its procedural requirements for moving employees into such policy-influencing positions are no longer in effect.

OPM relied on delegated Presidential authority under 5 U.S.C. 3301 and 3302 to make these changes.

E.O. 14171, sec. 4.

In a structural difference with the original Executive Order 13957, the President—not OPM—will now move positions into Schedule Policy/Career. Pursuant to that Executive Order, agencies will review their workforces and petition OPM to recommend that the President move specific positions into Schedule Policy/Career. OPM will review these petitions and make the recommendations it deems appropriate.

However, the President will make the final decision about which positions go into Schedule Policy/Career. That decision will be effectuated by a new executive order issued under Presidential—not OPM—authority.

E.O. 13957, sec. 5.

Executive Order 14171 also added new guideposts about positions that may belong in Schedule Policy/Career. Under the order agencies will consider recommending both immediate and higher-level supervisors of Schedule Policy/Career employees for inclusion.

If a subordinate employee is in a policy-influencing role, superior officials with authority to tell that employee what to do are also likely policy-influencing. The order further required agencies to consider positions with duties that the OPM Director indicates may be appropriate for inclusion in Schedule Policy/Career.

E.O. 13957, sec. 5(c)(vi).

Id.,

sec. 5(c)(vii).

OPM has issued guidance about positions agencies should consider in their Schedule Policy/Career positions.

These additional guideposts consist of:

OPM, Guidance on Implementing President Trump's Executive Order titled, “Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce” (January 27, 2025), available at

https://www.chcoc.gov/content/guidance-implementing-president-trump%E2%80%99s-executive-order-titled-restoring-accountability.

• Delegated or subdelegated authority to make decisions committed by law to the discretion of the agency head. This identifies a specific subcategory of employees with “substantial discretion to determine the manner in which the agency exercises functions committed to the agency by law,” which was one of the categories originally flagged for potential inclusion.

E.O. 13957, sec. 5(c)(iii).

• Authority to bind an agency to a position, policy, or course of action without higher level review or with only limited higher-level review. If an employee has authority to bind their agency without higher-level review they are straightforwardly policy-determining. Such officials are largely—but not exclusively—political appointees out of scope for Schedule Policy/Career.

• Positions statutorily described as exercising important policy-determining or policy-making functions: directing the work of an organizational unit, being held accountable for the success of one or more specific programs or projects, or monitoring progress towards organizational goals and periodically evaluating and making appropriate adjustments to such goals.

See

5 U.S.C. 3132(a)(2)), which defines the Senior Executive Service as positions classified above GS-15 that perform various important policy-making or policy-determining functions. Positions classified at or below grade 15 of the General Schedule that perform those same functions are consequently policy-determining or policy-making and appropriate for consideration for inclusion in Schedule Policy/Career.

• Substantive participation and discretionary authority in agency grantmaking, such as the substantive exercise of discretion in the drafting of funding opportunity announcements, evaluation of grant applications, or recommending or selecting grant recipients. Grantmaking is an important form of policymaking, so employees with a substantive discretionary role in how federal funding gets allocated may occupy policymaking positions.

OPM notes that employees involved in administering formula or block grant programs will rarely, if ever, have substantive discretionary authority over how those grants are allocated. This guidepost will be primarily applicable to employees with involvement in discretionary grants.

• Advocacy for administration policy, either in public or before other governmental entities, such as Congress or state governments.

• Positions otherwise described in the applicable position description as entailing policy-making, policy-determining, or policy-advocating duties.

Executive Order 14171 rescinded Executive Order 14003 and directed agencies to reverse any changes to discipline or unacceptable performance policies that followed from it. This requires agencies to restore changes to disciplinary and performance policies from the first Trump Administration that the Biden Administration reversed.

President Trump also explained why he issued this order. Executive Order 14171 cited MSPB research showing only a 41 percent of supervisors are confident they could remove a subordinate for serious misconduct, and just 26 percent are confident they could remove one for poor performance.

The order explained that accountability is essential for all Federal employees, but it is especially important for those who are in policy-influencing positions. These personnel are entrusted to shape and implement actions that have a significant impact on all Americans. Under Article II, they must be accountable to the President, who is the only member of the executive branch, other than the Vice President, elected and directly accountable to the American people. Recently, however, there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership.

President Trump concluded that conditions of good administration necessitated issuing the order to restore accountability to the career civil service.

U.S. Merit Sys. Prot. Bd., “Remedying Unacceptable Employee Performance in the Federal Civil Service,” p. 15 (June 18, 2019), available at

https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.

See

section I(C)(2)(ii).

E.O. 14171, Sec. 1.

C. Reasons for New Rulemaking

OPM now proposes regulations to rescind the changes made by the April 2024 final rule, implement E.O. 14171, and establish Schedule Policy/Career for policy-influencing career positions. Schedule Policy/Career posts will be filled using standard career hiring procedures, while those who encumber such positions will be excepted from chapter 43 and 75 procedures for adverse actions and performance-based actions. Schedule Policy/Career employees will remain career employees, while being subject to elevated accountability for their performance and conduct. OPM proposes these changes for the reasons set forth below.

1. Change in Administration Policy and Operative Legal Standards

The Constitution gives the President authority to set federal workforce policy, vesting executive power exclusively in the President.

Congress

has further tasked OPM with helping the President manage the Federal workforce.

President Trump believes Schedule Policy/Career—the successor to Schedule F—is necessary to effectively supervise the executive branch. He was elected on a platform of doing just that and reinstated Executive Order 13957 within hours of taking office. OPM is now proposing to modify its civil service regulations to support the new President's policies. Executive Order 14171 also expressly instructed OPM to rescind the relevant portions of the April 2024 final rule.

U.S. Constitution, Article II, section 1, clause 1.

see also

James Sherk, “Tales from the Swamp: How Federal Bureaucrats Resisted President Trump,” Am. First Pol. Inst., (Jan. 8, 2025),

https://americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf.

Reports now indicate that some career employees intend to undermine the policy agenda of the second Trump Administration. Some Federal employees have openly acknowledged these plans. The Washington Post recently covered an EPA career employee explaining that “she and her co-workers are focused on how to make sure the new administration does not walk back environmental regulations achieved under Biden.”

143

An undercover journalist documented an employee in the White House Office of Pandemic Preparedness and Response Policy explaining that if he was given an order he opposed he “would either try to block it or resign” and explaining that career employees “slow-walk” initiatives they dislike or “pretend to work really hard on something when they're not.”

144

143

Emily Davies, Lisa Rein, Emma Uber, and Aaron Wiener, “Federal workers prepare for cuts, forced relocations in Trump's second term,” Wash. Post (Nov 7, 2024),

https://www.washingtonpost.com/dc-md-va/2024/11/07/trump-dc-federal-workforce-cuts/.

144

O'Keefe Media Group, “the Deep State is Real,” Jan. 23, 2025,

https://x.com/JamesOKeefeIII/status/1882431381097119797.

An Equal Employment Opportunity Commission (EEOC) employee broadcast her resistance plans to the entire agency. Soon after taking office a second time, President Trump signed executive orders directing the EEOC to prioritize investigations into employers that engage in unlawful DEIA discrimination and to rescind guidance that required employers to give male employees who self-identify as female access to women's bathrooms and other sex-segregated facilities.

145

The President also designated Andrea Lucas as the new EEOC chairwoman. An EEOC administrative judge subsequently addressed an email to Chairwoman Lucas and sent it to all EEOC employees. The administrative judge stated that “You are not fit to be our chair much less hold a license to practice law. I will not participate in attempts to target private citizens and colleagues through the recent illegal executive orders. I swore an oath to the Constitution of the United States, and the Commission serves the people of the United States. If you want to continue following the illegal and unethical orders of our president and the unelected leader of `D***' that's on you . . . If upon reflection, you feel like now would be a good time to take a vacation and resign from your position, please ‘reply all' to this email and put `I'd Like to Occupy Mars!' in the subject

line. We will take this as notification that you are resigning your position as acting chair.”

146

This employee openly professed her intention to refuse presidential directives based purely on her personal views.

145

See executive orders 14168 and 14173.

146

This email was reported in multiple sources online. OPM contacted the EEOC and obtained verification both that the email was accurate and that it was sent by an administrative judge.

OPM is also aware of recent cases of senior career employees not just professing plans to insert their personal politics into their official duties, but actually doing so. Multiple FLRA decisions chastised a career regional director for “willful noncompliance” with an earlier Authority order.

147

The regional director refused for 18 months to decertify a bargaining unit the FLRA determined was statutorily excluded from collective bargaining. Trump Administration officials also reported that career employees in the Education Department would not constructively assist in drafting important regulations, such as the department's Title IX regulations. As a result, those regulations had to be primarily drafted by political appointees.

148

147

See U.S. Department of Justice, Executive Office for Immigration Review and National Association of Immigration Judges,

72 FLRA 622 (2022);

U.S. Department of Justice, Executive Office for Immigration Review and National Association of Immigration Judges,

72 FLRA 733 (2022).

148

Sherk,

supra

note 142.

Trump Administration officials also reported that career attorneys in the Educational Opportunities Section (EOS) of the DOJ Civil Rights Division (CRT) would not assist in litigation charging Yale University with racially discriminating against Asian and Caucasian applicants.

149

EOS is the CRT subcomponent dedicated to combatting educational discrimination and would normally litigate such discrimination cases. However, winning that lawsuit had significant policy implications. A victory would have effectively prohibited racial preferences in higher education, as the Supreme Court's decision in

Students for Fair Admissions

Harvard

subsequently did.

150

The appointees reported that EOS recalcitrance required DOJ leadership to assign attorneys from other CRT and DOJ components to work on the case. It is a publicly verifiable fact—and OPM has so verified—that none of the DOJ attorneys listed on the complaint against Yale or who represented the Government in the subsequent legal proceedings were EOS career attorneys. OPM has received no indication that these examples are incorrect.

151

149

Id.

150

600 U.S. 181 (2023).

151

Two of these examples appear in

Tales from the Swamp, supra

note 142. An earlier version of that report provided examples of career staff resistance to Trump Administration policies and was submitted into the record during the 2024 rulemaking.

See

Comment 4097. Comment 2822 critiqued some of the examples provided in

Tales from the Swamp,

and in the April 2024 final rule OPM accepted those criticisms.

See

89 FR 24996. Even accepting that critique at face value, however, Comment 2822 did not contest the accuracy of these examples. Moreover, upon further review OPM has concluded that many of Comment 2822's criticisms of

Tales from the Swamp

are misplaced. For example, the report documented that a career General Service Administration employee leaked a draft Trump executive order promoting classical and traditional architectural styles in Federal construction (President Trump recently reissued a similar directive). The report provided this as an example of a career employee leaking a draft policy in order to create controversy and pressure political appointees to drop the initiative. Comment 2822 did not contest that this happened. The comment instead argued that promoting classical architecture is bad policy and appropriately controversial. The wisdom or folly of a particular policy is beside the point—the question is whether career employees serve as nonpartisan and impartial experts, or whether some instead advance their personal political views. Nothing in Comment 2822 suggests that GSA career staff were impartial in how they approached their duties regarding Federal building design.

Public polling also indicates that a plurality of senior Federal employees would resist directives from President Trump they disliked. A survey asked Federal employees making more than $75,000 in the Washington DC region what they would do if President Trump gave them an order that was legal, but they believed was bad policy. Forty-five percent said they would follow the order. Forty-six percent said they would do what they thought was best. Only 17 percent of senior Federal employees who voted for Kamala Harris said they would follow President Trump's directive.

152

Many career Federal employees say they would insert their politics into their official duties.

152

“Federal Managers Are Evenly Divided As To Whether They Would Follow A Legal Order From President Trump,” Napolitan News Service (Jan. 21, 2025),

https://napolitannews.org/posts/federal-managers-are-evenly-divided-as-to-whether-they-would-follow-a-legal-order-from-president-trump.

These points were raised in the prior rulemaking. Upon further analysis OPM has concluded it gave a cursory and inadequate response to these concerns. The April 2024 final rule ignored the news reports documenting career employee resistance.

153

The rule gave no response to the argument these reports showed putatively impartial career employees acting as political partisans. The rule also largely sidestepped the vast academic literature analyzing the principal-agent problem in the Federal government. For example, the final rule ignored the analysis showing that EPA career employees moved policy in the opposite direction than what principals sought under the Reagan Administration, or the studies concluding that bureaucratic resistance exists and is a positive force.

154

153

See, e.g.,

Comment 4097.

154

These studies were cited by commenters.

See

Comment 4097.

OPM instead responded to a handful of studies commenters cited, arguing that they presented a nuanced and measured picture that did not support claims of widespread bureaucratic resistance.

155

For example, OPM observed that Nou (2019) did not empirically verify whether policy resistance increased under Trump, and found that some degree of resistance is inevitable. OPM reasoned this study did not show it is universally understood career employees advance their own agendas.

156

OPM now recognizes this analysis was too shallow. It is difficult to empirically document the scope of policy resistance because it primarily occurs behind closed doors. But Nou (2019) broadly catalogued academic literature discussing bureaucratic resistance as a widespread phenomenon, while providing specific examples of what she termed “civil service disobedience.”

157

It is one part of the academic literature documenting the principal-agent problem in public service. Moreover, the public polling described above suggests policy resistance is widespread. And while OPM contested the interpretation of a handful of studies, it did not respond to the larger point that the principal-agent model is the basic framework many academics use to examine bureaucratic operations.

155

See

89 FR 25001.

156

See

Jennifer Nou, “Civil Servant Disobedience,” Univ. of Chicago Law Sch., Public Law and Legal Theory Working Papers (2019),

https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2247&context=public_law_and_legal_theory.

157

Id.

OPM also accepted criticism of some of the reports of the bureaucratic partisanship provided by commenters who supported the rule.

158

Some of those individual critiques are debatable and OPM is no longer convinced of their validity.

159

Regardless, these commenters took issue with only a few cases of policy resistance. They did not contest the veracity of many other examples, such as the DOJ CRT employees' unwillingness to participate in litigation challenging racial preferences in higher education.

158

See

89 FR 24996, 25002, citing Comment 2822.

159

See

note 151,

supra.

The April 2024 final rule did not grapple with the broader weight of

evidence showing some career employees insert partisanship into the performance of their official duties. Based on further review, and the evidence discussed above, OPM now concludes that this is a widespread phenomenon, albeit one that many federal employees do not engage in. Researchers widely report such behavior occurs, with well documented case studies. Many Trump Administration officials reported it occurred, career employees told reporters they were doing it, and they advised their colleagues about how to do it openly through the press. As mentioned above, an EEOC administrative judge even broadcast her intention to resist presidential directives to the entire agency. Beyond these case studies, polling shows a plurality of senior Federal employees would subvert directives they personally opposed. There is overwhelming evidence that a significant number of career employees bring their personal politics into their official duties.

OPM now also believes that career employee partisanship and policy resistance is a serious problem because it undermines democracy. If the American people do not like the policies elected officials advance, they can vote for new leadership. This often happens; partisan control of the White House or a chamber of Congress switched in nine of the past ten general elections. But Americans have little recourse when career employees advance their personal agendas or undermine elected officials' policies. They are electorally unaccountable. America was founded on the principle of government by consent of the governed. Career employees who resist elected officials' policy choices attack the foundations of American democracy.

OPM recognizes the value in having many perspectives present in an agency, and in career civil servants who disagree or see problems with a policy presenting their objections. Diverse perspectives frequently improve decision making. But, when a career employee goes from voicing disagreement to resisting policy decisions, they undermine democracy and the Constitution.

OPM also recognizes that a meaningful number of career employees insert their personal politics into their official duties, and that such behavior undermines American democracy. OPM has concluded that these challenges make Schedule Policy/Career necessary to increase policy-influencing officials' accountability to the President and effectively discipline employees who engage in such behavior.

Even if this evidence were not enough to persuade OPM—and it is—the President has determined bureaucratic partisanship undermines his ability to execute the law and Schedule Policy/Career is necessary to combat this behavior. Executive Order 14171 explained Schedule Policy/Career is necessary because “there have been numerous and well-documented cases of career Federal employees resisting and undermining the policies and directives of their executive leadership.”

160

The President is the official constitutionally charged with taking care the law is faithfully executed, and statutorily authorized to determine when exceptions to the competitive service default are necessary. Congress tasked OPM with helping the President carry out these responsibilities, not with supplanting his judgment.

161

So even if OPM had not independently concluded career employee partisanship is a pressing concern—and it has—OPM would defer to the presidential determination that it was.

160

E.O. 14171, sec. 1.

161

See

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

iii. The Policy-Influencing Terms Are Not a Term of Art

The CSRA authorizes the President or OPM to exclude employees in excepted service positions of a “confidential, policy-determining, policy-making, or policy-advocating character” from chapter 75 procedural requirements and MSPB appeals. The April 2024 final rule amended 5 CFR 210.102 to define the phrases “confidential, policy-determining, policy-making, or policy-advocating” and “confidential or policy-determining” to refer exclusively to noncareer political appointments. OPM cited what it asserted was longstanding usage and legislative history to conclude that these phrases are terms of art with that specific meaning.

162

Under this interpretation, the 5 U.S.C. 7511(b)(2) exceptions can be applied only to political appointees (

e.g.,

Schedule C positions) and have no application to career employees.

162

See

89 FR 25020

et seq.

Upon further review, OPM has determined that its prior conclusion was erroneous and, while the “policy-influencing” terms do encompass political appointments, they are not exclusively limited to them. Rather, these terms have the natural, plain English meaning of describing positions involved in determining, making, or advocating for government policy, or positions of a confidential nature. Such positions include, but are not restricted to, political appointments.

Textual Analysis

The problem with OPM's prior construction is that the CSRA's text refutes it. In 5 U.S.C. 3132(a)(2)—also part of the CSRA—Congress defined Senior Executive Service (SES) positions as those graded above GS-15 that direct the work of an organizational unit, are held accountable for the success of one or more specific programs or projects, monitor progress toward organizational goals and periodically evaluates and makes adjustments to such goals, or “otherwise exercise[ ] important policy-making, policy-determining, or other executive functions.” In 5 U.S.C. 3134(b) Congress prohibited more than 10 percent of SES positions from being filled by noncareer (

e.g.,

political) appointees. Consequently, at least nine-tenths of SES positions—which are definitionally policy-making or policy-determining—must be held by career officials.

This usage is incompatible with the terms “policy-determining” or “policy-making” being terms of art that refer only to political appointments. Congress expressly used these terms to describe and define thousands of career positions in 5 U.S.C. 3132. That usage sheds light on the terms' meaning in 5 U.S.C. 7511(b)(2). As the Supreme Court has often explained, the “normal rule of statutory construction [is] that identical words used in different parts of the same act are intended to have the same meaning.”

163

Moreover, the presumption of consistent usage most commonly applies to terms appearing in the same enactment, as these did.

164

Congress's use of the terms “policy-making” and “policy-determining” to describe career positions in one part of the CSRA shows these terms can describe career positions in another section of the law.

163

Gustafson

Alloyd Co.,

513 U.S. 561, 570 (1995) (citing

Dep't of Revenue of Oregon

ACF Indus.,

Inc., 510 U.S. 332, 342 (1994).

164

See United States

Castleman,

134 S. Ct. 1405, 1417 (2014) (“[T]he presumption of consistent usage [is] the rule of thumb that a term generally means the same thing each time it is used [and] most commonly applie[s] to terms appearing in the same enactment.”) (Scalia, J., concurring).

Further, the CSRA uses different terms to expressly differentiate political and civil service positions: “noncareer” and “career” appointments, respectively.

165

OPM is mindful of the Supreme Court's directive that “when the legislature uses certain language in one part of the statute and different

language in another, the court assumes different meanings were intended.”

166

165

See

5 U.S.C. 3132, 3134.

166

See Sosa

Alvarez-Machain,

542 U.S. 692, 711 n. 9 (2004); Grand Trunk W. R.R. Co. v. U.S. Dep't of Labor, 875 F.3d 821, 825 (2017) (concluding statutory context overcomes presumption of “so-called

Russello

structural canon”—that “ `[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion' ” (alteration in original) (quoting Russello v. United States, 464 U.S. 16, 23 (1983))).

Congress used the terms “career” and “noncareer” to specifically distinguish career civil service positions from political appointments. The CSRA separately used the terms “policy-making” and “policy-determining” to describe General Schedule positions that could be exempted from adverse action procedures, and also used these terms to describe all SES positions. It is a “cardinal doctrine” that this shift in language implies a shift in meaning; “policy-determining” and “policy-making” are not synonymous with “noncareer.”

Congress also knew how to extend adverse action procedures to all career employees. Subchapter V of chapter 75 gives adverse action procedures to any SES “career appointee” who passes their probationary period.

167

But Congress worded subchapter II—which covers the competitive and excepted services—differently: “[t]his subchapter does not apply to an employee . . . whose position has been determined to be of a confidential, policy-determining, policy-making or policy-advocating character . . . .”

168

It is another basic canon of statutory construction that if “Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”

169

Congress knew how to categorically give all career employees adverse action procedures in chapter 75—but used quite different language in subchapter II. This change in structure and language suggests a change in meaning: the policy-influencing exclusion from subchapter II is not limited to political appointees.

167

5 U.S.C. 7541(1).

168

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

169

INS

Cardoza-Fonseca,

480 U.S. 421, 432 (1987).

Accepting OPM's prior reading of the policy-influencing phrases would mean believing the terms “policy-determining” and “policy-making” were well known terms of art that referred exclusively to political appointees, and Congress used them in that way in 5 U.S.C. 7511(b)(2), but that Congress used these terms to convey a different meaning when defining SES positions in section 3132. That interpretation would also mean that Congress introduced an entirely different term into title 5—“noncareer”—to describe political appointments instead of using the well-established term of art used elsewhere in the CSRA. And that interpretation would also require one to conclude that the differences in language in subchapters II and V—with the latter explicitly giving all career SES members adverse action procedures and the former using very different terminology to define adverse action coverage—convey no substantive difference in meaning.

OPM concludes that such an interpretation makes little sense and does not reflect proper statutory interpretation. The best reading of 5 U.S.C. 7511(b)(2) is that the terms “confidential, policy-determining, policy-making, or policy-advocating” have their ordinary, plain English meaning and describe positions involved in determining, making, or advocating for policy, or confidential positions. Such positions include but are not limited to political appointments. This construction gives the same meaning to the terms “policy-making” and “policy-determining” throughout the CSRA while recognizing that the terms “career” and “noncareer” have a different meaning, referring to civil service and political appointments respectively. This interpretation also recognizes that Congress specifically gave adverse action procedures to career SES members and denied them to noncareer SES appointees, while using very different language in the section of chapter 75 governing the competitive and excepted services.

OPM previously gave two reasons for rejecting these textualist arguments. First, OPM argued that this construction would give career SES members greater protection from removal than lower-ranking subordinates. OPM concluded “it does not follow” that, if Congress intended to allow at-will removals of employees with policy responsibilities, Congress would give the executive branch greater authority to remove employees with fewer such responsibilities and less ability to remove those with greater responsibilities.

170

However, this reasoning ignored statutory SES management flexibilities. Agency heads can reassign SES members at-will or unilaterally demote them from the SES for poor performance.

171

The President and OPM can also take agencies out of the SES and create alternative senior executive management systems.

172

Section 7511(b)(2) of 5 U.S.C. would then allow the President to exclude employees in those alternative systems from chapter 75. Congress could have easily seen the need for a greater authority to remove employees below the SES precisely because agencies do not have the same degree of management flexibility with them, or drafted section 7511(b)(2) more expansively to ensure the President could make senior executives at-will if he takes their agencies out of the SES.

173

170

89 FR 25025.

171

See

5 U.S.C. 3395, 4312(d), 4314(b)(3).

172

5 U.S.C. 3132(c).

173

For example, unlike SES members, competitive and excepted service employees can appeal removals based on unacceptable performance to the Merit Systems Protection Board.

See

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

Second, OPM previously argued that the phrase “positions of a confidential, policy-determining, policy-making, or policy-advocating character” in section 7511(b)(2) is a term of art with clear history and consistent usage, while Congress wrote on a clean slate when it created the SES and used different structure and language in section 3132.

174

OPM now recognizes this construction is untenable. OPM's prior argument requires the phrase “positions of a confidential, policy-determining, policy-making, or policy-advocating character” to in fact be an established term of art with a meaning independent of its constituent terms. However, this is not the case. This phrase was first introduced in the CSRA; it existed in no legal source prior to 1978. Consequently, there is no history of Congress or the executive branch using the phrase “positions of a confidential, policy-determining, policy-making, or policy-advocating character” as a term of art divorced from the meaning of its constituent components.

174

89 FR 25024.

The history that OPM and commenters pointed to instead used 7511(b)(2)'s constituent terms as separate descriptors. For example, the Brownlow Report spoke of “policy-determining posts.”

175

The First and Second Hoover Commissions used the terms “policy-making” and “policy-determining” respectively.

176

Executive Order 10440, which created Schedule C, used the phrase “positions of a confidential or policy-determining character.”

175

See

“Report of the President's Committee, Administrative Management in the Government of the United States,” p. 3 (Jan. 1937).

176

89 FR 25021, 25022.

The CSRA, by contrast, did not use any of these pre-existing terms or phrases. It instead used a broader and more expansive formulation, “confidential, policy-determining, policy-making, or policy-advocating.”

If OPM's prior reading were correct, and the phrase “confidential or policy-determining” used in Executive Order 10440 was a term of art that referred exclusively to political appointees, there would be no reason to add the terms “policy-making” or “policy-advocating” to it. Under that reading those additions would be mere surplusage. Congress's deliberate decision to add additional new terms to the prior formulation suggests each term is meant to have independent meaning.

If anything was arguably a term of art it was the terms “policy-determining” or “policy-making”—not the CSRA's expansive new phrase “positions of a confidential, policy-determining, policy-making, policy-advocating character”.

177

But 5 U.S.C. 3132 used those terms to describe thousands of career SES positions. The CSRA did not treat them as terms of art for political appointees. And if Congress did not use the pre-existing terms “policy-making” and “policy-determining” as terms of art for political appointees, it makes little sense to construe section 7511(b)(2)'s completely new and longer formulation as a term of art either.

177

See

OPM's discussion of the use of these terms by the Brownlow Committee and Hoover Commission, 89 FR 25021-25022.

The fact that Congress was writing on a clean slate in creating the SES makes little difference. Congress often uses terms of art when writing new statutes, precisely so that courts and the public need not guess at their meaning. If the terms policy-making and policy-advocating were terms of art that exclusively described political appointments, they would carry that meaning into 5 U.S.C. 3132. The fact that Congress instead described career SES positions as exercising policy-making and policy-determining functions shows Congress did not use those terms in that manner.

Policymaking Roles Are Not Limited to Political Appointees

Construing the terms policy-determining and policy-making to refer exclusively to a small number of political appointments is also theoretically and practically unsound. Policy-making authority is not cabined to few political leaders. Early public administration scholars believed otherwise, drawing a theoretical division between policy-determining political positions and line administrative employees. In the 1880s future President Woodrow Wilson argued giving career bureaucrats power over technical details of policy implementation was unproblematic because those details were separate from policy making.

178

However, it soon became apparent to many public administration scholars, including Wilson, that the lines between policy and administration did not have such clear boundaries.

179

By the early 1900s city managers—who were not elected or short-term political appointees—clearly understood that they had important policy discretion.

180

178

Woodrow Wilson, “The Study of Administration,”

Political Science Quarterly

2:2 (1887), 197-222, available at

https://www.jstor.org/stable/2139277.

179

Calabresi & Yoo,

supra

note 28, at 254-255.

180

Kimberly L. Nelson and James H. Svara, “The Role of Local Government Managers in Theory and Practice: A Centennial Perspective,”

Public Administration Review

75:1 (2014), 49-61, available at

https://www.jstor.org/stable/24758024.

Many scholars now recognize that it is not feasible to draw a bright line between politics and administration. As one prominent scholar explains: “Administrators help to shape policy, and they give it specific content and meaning in the process of implementation.”

181

Administration necessarily entails a degree of policy-making. Contemporary practice recognizes this reality; career officials routinely perform policy functions vested by law in agency heads. Indeed, over the past four decades most Federal officials who exercise delegated agency-head authority have been career employees.

182

181

James H. Svara, “The Myth of the Dichotomy: Complementarity of Politics and Administration in the Past and Future of Public Administration,”

Public Administration Review

61:2 (2001), 176-183, available at

https://www.jstor.org/stable/977451.

182

Brian D. Feinstein and Jennifer Nou, “Submerged Independent Agencies,”

University of Pennsylvania Law Review

171:4 (April 2023), 945-1022. See p. 973.

The histories of Schedules A and C bear out the fact that policy-making is not cleanly divisible from administration. As OPM noted in the April 2024 final rule, the Roosevelt Administration's Brownlow Committee originally proposed that policy-determining exceptions from the civil service should be “relatively few in number,” consisting mainly of “the heads of executive departments, undersecretaries and assistant secretaries, the members of the regulatory commissions, the heads of a few of the large bureaus engaged in activities with important policy implications, the chief diplomatic posts, and a limited number of other key positions.”

183

89 FR 25021.

However, when President Franklin Roosevelt placed “policy-determining” positions in Schedule A, and President Dwight Eisenhower subsequently put them in Schedule C, they swept much more broadly to lower levels of the bureaucracy. Saying that only policy-determining positions went into Schedule C did not provide clear guidelines. The Second Hoover Commission noted “[t]he term ‘policy-determining’ has continued to be employed without much refinement . . . This criterion is all right as far as it goes, but it is so great an oversimplification that it does not give adequate guidance.”

184

The Commission explained that when “the departments began to apply [the Schedule C criteria] in 1938, some decided that only the secretary and assistant secretaries determined policy. Others avowed that minor officials at the subbureau level were policy determiners. In departmental recommendations in 1953 and 1954 regarding schedule C, there has been an even greater diversity . . . No decision was made as to where the lines between the political high command and the permanent civil service of the Government should be drawn.”

185

184

Citing Task Force on Pers. and Civil Serv., Report on Personnel and Civil service, p. 6 (1955),

https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC.

185

Id.

at 6-7, 35.

The history of the executive branch demonstrates that “policy-determining” positions are not restricted to senior positions like assistant secretaries but encompass positions far lower in the bureaucracy as well. While the Second Hoover Commission recommended narrowing eligibility for Schedule C, this recommendation was never acted upon. Congress then used the broad and indefinite terms “policy-determining” and “policy-making” in the CSRA.

Many career Federal employees exercise a degree of policy-determining authority or substantively participate in policy-making. The CSRA and the subsequent Civil Service Due Process Amendments Act gave the President and OPM discretion to determine what positions should be excepted from adverse action appeals on account of their policy responsibilities. It is theoretically and practically untenable to interpret the terms “policy-making” and “policy-determining” to describe only a small number of purely political positions.

Reconsidering OPM's Prior Justifications

Upon further review, OPM has determined that the additional reasons it previously gave for interpreting the phrase “positions of a confidential, policy-determining, policy-making, or policy-advocating character” as a term of art do not withstand scrutiny.

OPM cited to legislative history, such as the conference report for the Civil Service Due Process Amendments Act.

186

But legislative history is not the law. Statements of individual members of Congress reflect their views alone. Committee reports are typically written by committee staffers, not voted on by the whole Congress, and may not reflect the sentiments of members of Congress who passed the law or negotiated key provisions. The Supreme Court has accordingly made it clear that legislative history has limited value in interpreting statutory text. Courts “do not resort to legislative history to cloud a statutory text that is clear.”

187

186

89 FR 25022-25023.

187

Ratzlaf

United States,

510 U.S. 135, 147-148 (1994).

OPM also explained that it was construing the policy-influencing terms to refer exclusively to political appointees to honor Congressional intent.

188

However, Congressional intent is determined by text of the law Congress passes. Post-enactment statements or amicus briefs filed by members of Congress do not determine Congressional intent. They show the desires of individual legislators, not Congress acting in its institutional capacity to enact legislation.

188

89 FR 25012, 25026-25027.

Congressional intent must be gleaned from the text because members of Congress could have different reasons for passing the same language. It is possible that some members of Congress did not anticipate that the policy-influencing terms could be applied to career positions and intended them to apply to only political appointments. The April 2024 final rule embraced that interpretation. But it could also be the case that other members of Congress recognized that the terms could apply to career positions and wanted to retain that flexibility if necessary. Other members of Congress might have preferred to limit the exception to political appointees but recognized, as discussed in section III(C)(4) below, that giving policymaking career employees strong tenure protections would create serious constitutional issues. Those members may have preferred language that encompassed career positions to avoid a potential constitutional conflict. The members of Congress who voted for the CSRA and the subsequent Due Process Amendments Act likely separately held all three positions. OPM previously failed to appreciate that Congressional intent must be discerned from the text of the laws passed. That text shows Congress used the terms “policy-making” and “policy-determining” to describe both career positions and political appointments.

Further, the legislative history to which OPM previously referred consisted of a general description of Schedule A, Schedule B and Schedule C that was intended to provide an explanation of why Schedule C employees were not being granted MSPB appeal rights: because they “have little expectation of continuing employment beyond the administration during which they were appointed.”

189

It did not attempt to define what the term “confidential or policy-determining character” meant, nor did it purport to define the term to include only political appointees. Instead, it merely used the term in passing.

189

H.R. Rep. 101-328, 5, 1990 U.S.C.C.A.N. 695, 699.

OPM and a commenter also noted that a number of statutes enacted after the CSRA expressly describe policy-influencing positions as “political appointments.”

190

However, the CSRA expressly described thousands of senior career positions as having “important policy-making, policy-determining, and other executive functions.”

191

These other statutes do not purport to define political appointments for all of title 5, or for CSRA purposes. Instead, they universally state that their definitions apply only for purposes of that particular law or section of the U.S. Code. Construing these limited definitions to govern the interpretation of the CSRA would ignore these statutory directives.

192

190

See

5 U.S.C. 9803(c), 6 U.S.C. 349(d)(3), 7 U.S.C. 6992(e)(2), 38 U.S.C. 725.

191

5 U.S.C. 3132(a)(2).

192

89 FR 25021.

These limited statutory definitions likely reflect the fact that until Executive Order 13957 successive administrations had only used the policy-influencing exceptions for political appointments. These new laws were passed against that backdrop. Congress likely assumed only political appointees would fill policy-influencing positions for purposes of those laws because, at the time they were passed, those were the only officials who did. But those laws did not contain any provisions cabining the President's discretion to apply section 7511(b)(2) more broadly in the future, nor did they contain any provisions modifying the definition of “policy-making” or “policy-determining” for CSRA purposes. OPM accordingly now believes that this post-enactment history should not be interpreted to restrict the President's authority to exempt positions under section 7511(b)(2).

OPM also argued that defining policy-influencing positions as political appointments was necessary for consistency with MSPB interpretations because Congress used the same policy-influencing terms in 5 U.S.C. 2302(a)(2)(B)(i) to define positions covered by Prohibited Personnel Practices (PPP).

193

The MSPB has occasionally applied these terms in that context. However, the CSRA gave primary responsibility for determining which positions are policy-influencing to the President and OPM.

194

The MSPB must apply their determinations. Congress did not give MSPB authority to cabin presidential or OPM discretion over which positions are policy-influencing.

193

Under the CSRA, policy-influencing positions are excluded from the scope of 5 U.S.C. 2302(b), which specifies the PPPs, and from Office of Special Counsel and MSPB enforcement of the same. Section 6(a) of E.O. 13957 requires agencies to establish and enforce internal policies prohibiting PPPs.

194

The CSRA also gave agency heads responsibility for determining if positions statutorily placed in the excepted service are policy-influencing.

For these reasons OPM has concluded that the policy-influencing terms are not a term of art that refer only to political appointees in Schedule C, and that they can encompass career positions with confidential or policy responsibilities as well. OPM therefore proposes to rescind its prior restrictive definition.

The President Can Treat Political Appointments as Career Positions Regardless

While OPM believes the policy-influencing terms have their plain English meaning and are not a term of art, OPM further notes that, even if those terms were a term of art, that would not make a practical difference. Assuming arguendo that the policy-influencing terms should be construed as a term of art for political appointees, that would simply mean that all positions the President determines are policy-influencing are technically political positions. Even this construction would not, however, prevent the President from exempting any career positions with substantive policy-influencing responsibilities from chapter 75 procedures pursuant to 5 U.S.C. 3302, regardless of the number of

positions so affected.

195

It would simply mean such positions would be formally designated political positions.

195

Civil Service Rule 1.3(d) provides that if tenured competitive service employees' positions are listed in excepted service schedules A, B, or C, the employees encumbering such positions will remain in the competitive service as long as they remain in those positions. This rule implemented the Lloyd-LaFollette Act provisions that required this result. As discussed in greater detail below, however, the CSRA of 1978 repealed those applicable statutory provisions. Civil Service Rule 1.3(d) now rests on its foundation in the Civil Service Act of January 16, 1883, which includes the President's authority to prescribe rules governing the competitive service and to exempt positions from it.

See

22 Stat. 403, 406 at ch. 27 (codified as amended in 5 U.S.C. 2102, 3302,

et al.

); 5 CFR 213.101-104. OPM believes that hypothetically, a President who wished to do so could waive the application of Rule 1.3(d) and directly move tenured competitive service employees from such positions into Schedule C excepted service positions. In such event, under 5 U.S.C. 7511(b)(2), such employees would become excluded from adverse action appeals.

As discussed in greater detail below, OPM now believes that title 5 does not require an adverse action appeals process for career employees in the excepted service whose positions are determined to be policy-influencing. Under E.O. 13957, as amended, and the proposed rule, a presidential determination that a position is policy-influencing terminates chapter 75's applicability to such position regardless of whether it is subsequently designated as political (

e.g.,

Schedule C) or remains career (Schedule Policy/Career). All that removing the April 2024 final rule's restrictive definition of the policy-influencing terms does is allow the relevant positions to remain formally designated as career positions instead of political appointments.

Further, under the Constitution, the President has discretion to use his Article II executive power to require his subordinates to treat technically political positions as though they were career positions. The Constitution vests the executive power in the President alone.

196

If the President believes as a constitutional matter that disregarding political affiliation best helps him carry out his constitutional duties, he can order his subordinates to do so. At most, the CSRA authorizes the President to consider political or policy views in policy-influencing positions,

e.g.,

for existing Schedule C positions—but it does not require it.

196

Seila Law

Consumer Finance Protection Bureau,

140 S. Ct. 2183, 2191 (2020).

Presidents have often treated formally political appointments as career positions. Ambassadors, for example, are one of the few offices expressly provided for in the Appointments Clause. The Constitution requires they be appointed by the President with Senate consent; no law could make them career positions. Nonetheless there is a longstanding practice of appointing career members of the Foreign Service as ambassadors, especially to less prominent postings. Prior to the 2025 Presidential transition most U.S. ambassadors or nominees for vacant posts were career Foreign Service officers. Congress could not and did not require this. Presidents of both parties have instead chosen to fill these posts apolitically because it helps advance their foreign policy agendas. Similarly, nothing in title 5 prevents the President from treating nominally political appointments as career positions.

President Trump has decided to put policy-influencing career positions into Schedule Policy/Career. OPM now believes the best reading of the statute is that the policy-influencing terms encompass both career and political positions. But if that reading of the statute is incorrect the President can still determine that positions with substantive policy responsibilities are policy-influencing, exempting incumbents in those positions from chapter 75, while directing his subordinates to continue to treat those incumbents like career employees.

Additional Considerations

Executive Order 14171 used presidential authority to prohibit agencies from giving effect to the April 2024 final rule's restrictive definition of policy-influencing positions.

197

This directive is binding on OPM and all agencies. Congress tasked OPM with executing, enforcing, and administering the civil service rules and regulations of the President.

198

OPM will not maintain regulations that conflict with presidential directives and cannot be given legal force or effect. Even if OPM did not find the factors discussed above independently persuasive—and it does—OPM would nonetheless propose removing the April 2024 final rule's restrictive definition of the policy-influencing terms to comport with Executive Order 14171's invalidation of 5 CFR 210.102(b)(3) and 210.102(b)(4).

199

In addition, OPM would independently propose changing the April 2024 final rule to advance the policies described in this proposed rule.

197

See

5 U.S.C. 3301, 3302.

198

See

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

199

OPM would independently propose changing the final rule to advance the policies described in this proposed rule, even if Executive Order 14171 had not been issued and modified the Civil Service Rules.

3. OPM Has No Authority To Extend Chapter 75 Procedures to Policy-Influencing Positions

Further review has convinced OPM that the April 2024 final rule's amendments to subpart D of 5 CFR part 752, which extended adverse action procedures and appeals to incumbent employees whose positions were declared policy-influencing or who were involuntarily transferred into policy-influencing positions, exceeded OPM's statutory authority. Accordingly, OPM now believes it is necessary to rescind these amendments.

Chapter 75's statutory text determines its scope. Section 7511(b)(2)(A) of 5 U.S.C. provides that subchapter II (covering adverse actions in the competitive and excepted services) does not apply to an employee whose position has been determined to be policy-influencing by the President for a position the President has excepted from the competitive service. Under this statutory directive, employees whose positions the President has excepted from the competitive service based on their policy-influencing character are categorically exempt from chapter 75 procedures and subsequent MSPB appeals. The language is clear and unambiguous.

The April 2024 final rule nonetheless purported to extend chapter 75 procedures and MSPB appeals to employees in policy-influencing excepted service positions if their positions were so designated after they were initially hired or if they were involuntarily transferred into that position. OPM now recognizes that it had no authority to extend subchapter II's coverage like this. Section 7511(b)(2) categorically excludes policy-influencing excepted service positions, irrespective of whether incumbents filling those positions were previously covered by chapter 75. While the final rule repeatedly described Federal employees' as possessing “accrued rights” to adverse action procedures and appeals, it did not point to any statutory provisions conveying such personal rights.

200

Such language appears nowhere in the text of subchapter II. Rather, section 7511(b)(2)'s exclusions are tied to the nature of a position, irrespective of who occupies it. Some section 7511 exclusions are tied to an employee's personal history and status, such the 7511(b)(4) exclusion of reemployed annuitants and the 7511(a)(1) exclusion of probationary employees. However, Congress included

no such criteria for the 7511(b)(2) exclusion.

200

See, e.g.,

89 FR 24982, 25009, 25018.

Section 7514 of 5 U.S.C. allows OPM to issue regulations carrying the out purposes of subchapter II. Such authority does not include extending its coverage to positions Congress has specifically excluded.

OPM justified the amendments to subpart D by appealing to the D.C. Circuit's decision in

Roth

Brownell

(1954), a case interpreting the Lloyd-La Follette Act.

201

As discussed above, the Lloyd-La Follette Act provided that “[n]o person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing.” The D.C. Circuit concluded that this language meant employees remained covered by Lloyd-La Follette procedures if they were involuntarily moved into the excepted service. OPM subsequently issued regulations in the 1960s codifying this precedent and providing that employees whose positions were involuntarily moved into the excepted service personally remained in the competitive service.

202

The April 2024 final rule discussed this precedent at length.

203

201

215 F.2d 500 (D.C. Cir. 1954), cert. denied sub nom,

Brownell

Roth,

348 U.S. 863 (1954).

202

These regulations were codified at 5 CFR 212.401 and were not substantively modified until the April 2024 final rule.

203

89 FR 25010.

However, OPM's analysis of

Roth

and its implementing regulations ignored the fact that the Lloyd-La Follette Act is not in effect and has not been for nearly half a century. The CSRA superseded the Lloyd-LaFollette Act, repealing and replacing subchapter I of chapter 75 (where the relevant Lloyd-La Follette requirements had been codified). The legal basis for holding that employees moved into the excepted service remain personally in the competitive service no longer exists.

Modern adverse action procedures for most Federal employees are now found in subchapter II of chapter 75. They are derived from language contained in the Veterans Preference Act, not the Lloyd-La Follette Act. Subchapter II requires adverse action procedures for “a removal,” “a suspension for more than 14 days,” “a reduction in grade,” “a reduction in pay”, and “a furlough of 30 days or less.”

204

While the Lloyd-La Follette Act applied to removals from the classified (

i.e.,

competitive) service, the CSRA only requires adverse action procedures for “a removal.” The change in language indicates a change in meaning.

204

See

5 U.S.C. 7512.

Further inquiry into the history of the CSRA's statutory language demonstrates that “a removal” means a “discharge” and does not cover reclassifications or transfers into the excepted service. The VPA gave procedural protections and CSC appeals to any preference eligible veteran—including those in the excepted service—who was “discharged, suspended for more than thirty days, furloughed without pay, reduced in rank or compensation, or debarred for future appointment.”

205

The VPA did not discuss removals from the competitive service as such, likely because its provisions applied to veterans in both the excepted and competitive services. Subsequent 1948 legislation gave backpay to employees returned to duty under either Lloyd-La Follette or VPA procedures.

206

That legislation maintained the distinction between the Lloyd-La Follette Act's scope (being removed or suspended from the classified civil service) and the VPA's.

205

58 Stat. 387 (1944).

206

62 Stat. 355 (1948).

Congress then recodified title 5 in the 1960s. That legislation codified VPA adverse action procedures in subchapter II of chapter 75 and applied to “a removal.”

207

The historical and revision notes explain that this language was supplied on the authority of the VPA and that “the word `removal' is coextensive with and substituted for `discharge.' ” The CSRA used this statutory language as the basis for its adverse action procedures, also codified in subchapter II. While it modified subchapter II's scope in some respects, the CSRA used identical language to cover “a removal”—previously defined to mean “a discharge.”

208

Congress did not carry over the Lloyd-La Follette Act's application to any movement out of the competitive service as such.

207

Public Law 89-554, 80 Stat. 378 (1966).

208

See

5 U.S.C. 7512(1).

Ordinary English and this statutory history indicate that the term “removal” in the CSRA means a discharge from the Federal service and does not encompass moves into the excepted service. Transfers into the excepted service are not adverse actions covered by subchapter II. Unlike the Lloyd-La Follette Act, nothing in the CSRA gives employees an accrued personal right to adverse action procedures or appeals before they can be moved into the excepted service.

The April 2024 final rule ignored these facts. The rule instead pointed to a 1988 OPM transition memo advising agencies that civil service employees involuntarily moved into Schedule C positions retained adverse action procedures.

209

That sub-regulatory guidance cited

Roth

for this proposition without further analysis. OPM did not then consider how the CSRA's revisions to chapter 75 may have affected the underlying legal framework. Upon further consideration, OPM now recognizes that the CSRA eliminated the statutory basis for extending chapter 75 procedures to cover employees reclassified or transferred into Schedule C or Policy/Career.

209

89 FR 25011.

In the notice of proposed rulemaking OPM pointed to 5 U.S.C. 7511(c) as another source of authority for extending chapter 75 procedures to cover employees reclassified into a policy-influencing excepted service schedule.

210

That section allows OPM to “provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office which is not otherwise covered by this subchapter.” OPM now recognizes this language does not authorize its subpart D regulations. Policy-influencing positions are “otherwise covered” by subchapter II—and expressly excluded. Further, section 7511(c) only applies to positions that OPM excepts from the competitive service; it does not apply to exceptions made by the President. Executive Order 14171 provides for the President to place positions in Schedule Policy/Career. Section 7511(c) has no application to such positions.

210

88 FR 63876.

The April 2024 final rule also cited several cases in which the MSPB held a determination that a position is policy-influencing does not except that position from adverse action procedures unless it occurs before the employee is appointed.

211

These cases either directly

cited the MSPB's decision in

Briggs

National Council on Disability

212

for this proposition, or cited cases that in turn cited

Briggs.

Analysis of

Briggs

shows these MSPB decisions do not support this holding.

Briggs

dealt with a case where the National Council on Disability dismissed its executive director, Ethel Briggs, from her position that was excepted from the competitive service by an agency-specific statute. The Council argued in response that MSPB appeals were unavailable because this position was policy-influencing. Upon appeal the MSPB found that there was no evidence the executive director position had ever been declared policy-influencing, and at the bare minimum the employee was never informed of this fact. The Board stated, without further analysis, that “fairness and due process considerations require that any determination as to the character of the position at issue here have been made in such a manner as to put the appellant on notice of the nature of the position she was considering accepting.”

213

The MSPB concluded that a jurisdictional hearing was necessary to determine if her position had ever been designated policy-influencing. The MSPB subsequently ordered Briggs reinstated because the Council had not designated her positions as policy-influencing. The Federal Circuit affirmed without considering the question of when a position must be declared policy-influencing.

214

211

See

89 FR 25011, citing

Thompson

Dep't of Justice,

61 M.S.P.R. 364 (Mar. 30, 1994) (No. DE-1221-92-0182-W-1),

Chambers

Dep't of the Interior,

No. DC-0752-004-0642-M-2, 2011 WL 81797 (M.S.P.B. Jan. 11, 2011) (Member Rose concurring) (inadvertently citing paragraph (b)(8) instead of (b)(2): “For the section 7511(b)(8) exclusion to be effective as to a particular individual, the appropriate official must designate the position in question as confidential, policy-determining, policy-making, or policy-advocating before the individual is appointed.”);

Owens

Dep't of Health & Human Servs.,

2017 WL 3400172 (July 31, 2017) (No. AT-0752-17-0516-I-1) (citing

Briggs

for the proposition that “a determination under 5 U.S.C. 751l(b)(2) is not adequate unless it is made before the employee is appointed to the position”);

Vergos

Dep't of Justice,

2003 WL 21417091 (June 6, 2003) (No. AT-0752-03-0372-I-1) (citing

Thompson

for the proposition that a “determination under the 5 U.S.C. 7511(b)(2) is not adequate unless it is made before the employee is appointed to the position.”).

212

See Briggs

Nat'l Council on Disability,

No. DC-0432930150-I-1 (M.S.P.B. Jan. 7, 1994),

aff'd King

Briggs,

83 F.3d 1384, 1389 (Fed. Cir. 1996).