Reduction in Force Appeals

Federal RegisterAug 3, 2026

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OFFICE OF PERSONNEL MANAGEMENT

5 CFR Part 351

[Docket ID: OPM-2025-0239]

RIN 3206-AO99

Reduction in Force Appeals

AGENCY:

Office of Personnel Management.

ACTION:

Final rule.

SUMMARY:

The Office of Personnel Management (OPM) is issuing final regulations to revise how an employee may appeal a furlough of more than 30 days, separation, or demotion by a reduction-in-force (RIF) action. OPM will replace the Merit Systems Protection Board (MSPB) as the adjudicative agency for such appeals. The rule establishes a uniform, record-based OPM appeal process; clarifies the appellant's burden; requires production of the complete agency record; preserves collateral statutory remedies; and applies prospectively to improve timeliness, consistency, and cost-effectiveness while maintaining administrative review.

DATES:

Effective September 2, 2026. This final rule applies only to a RIF action for which an agency issues the employee a specific RIF notice under 5 CFR 351.802 on or after September 2, 2026.

FOR FURTHER INFORMATION CONTACT:

Aaron Gottesman, Senior Advisor to the Director, by email at

employeeaccountability@opm.gov

or by phone at (202) 606-7400.

SUPPLEMENTARY INFORMATION:

OPM is issuing this final rule to modernize the administrative process for appeals by employees who are furloughed for more than 30 days, separated, or demoted by a reduction-in-force action under 5 CFR part 351. Congress charged OPM with prescribing regulations governing the release of competing employees in a RIF, and OPM has historically implemented RIF appeal procedures through regulation. This final rule revises that regulatory framework by replacing the prior MSPB forum for future non-SES RIF appeals with a uniform OPM-administered process. The rule does not alter agencies' responsibility to determine their workforce needs or whether a RIF is necessary. By requiring a complete RIF-specific agency record, permitting an appellant reply, authorizing additional information, audits, investigations, and hearings when necessary and efficient, and preserving collateral statutory remedies, the final rule provides meaningful administrative review while reducing delay, fragmentation, and unnecessary litigation burden.

I. Digest of Public Comments and Summary of Changes From the Proposed Rule

In response to the proposed rule, OPM received 1,252 comments during the 30-day public comment period from a variety of individuals, including current and former civil servants, members of Congress, as well as organizations, including local and national unions and Federal agencies. Of the 1,252 comments, 1,251 were posted on

www.regulations.gov,

and one was not posted because it contained vulgar language unrelated to the rulemaking in question. At the conclusion of the public comment period, OPM reviewed and analyzed the comments. In general, the comments ranged from ardent support of the proposed regulation to categorical rejection of it. Less than 1 percent of the overall comments were supportive, neutral, or mixed, and 99 percent opposed the proposed regulation.

OPM found many of the comments helpful. OPM has revised the final rule to clarify, narrow, or supplement the proposed RIF appeal procedures in response to comments, including comments concerning burden of proof, access to the agency record, information asymmetry, due process, neutrality, hearings, protective orders, collective bargaining, and public disclosure. In response to those comments, the final rule adds more precise appeal standards, a detailed RIF-specific agency-record requirement, disclosure and privilege protections, stronger adjudicator-separation and

ex parte

safeguards, narrower e-filing sanctions, more flexible reply rules, and more carefully tailored protective order and public posting provisions. The revisions are summarized below.

Clarifying appealable actions.

The final text clarifies the appealable actions set forth in § 351.901(a). The proposal allowed an employee “who has been the subject of a reduction-in-force action” to appeal an action taken under part 351. The final text specifies that only an employee furloughed for more than 30 days, separated, or demoted by a RIF action taken under part 351 may appeal that action to OPM.

Revising the merits standard.

The final text replaces the proposed “would not have suffered the same or another RIF action” standard in § 351.901(b) with a more precise two-part merits showing: the appellant must prove that the agency failed to comply with an applicable statute or OPM regulation governing RIF actions under part 351, and the failure prejudiced the appellant by causing the appealed action or the loss of a materially more favorable outcome. This is clearer and better focused on prejudicial RIF-compliance error.

Revising exclusivity language.

The final text continues to provide that part 351 procedures are the sole and exclusive means of appealing a RIF action, and adds that RIFs and matters related to the appeals of RIFs cannot be raised in grievance procedures or challenged through grievance arbitration, while expressly preserving collateral matters within the independent jurisdiction of Equal Employment Opportunity Commission (EEOC), Inspectors General, MSPB, Department of Labor Veterans' Employment and Training Service (DOL VETS), and the Office of Special Counsel (OSC). The final text also retains the no-judicial-review provision.

Updating filing-system language.

The final text replaces the proposed placeholder for the electronic filing system with a reference to the system identified on OPM's website. It also replaces “statements, evidence, or documents” with “pleadings, evidence, or documents,” better aligning the filing provision with adjudicatory terminology.

Clarifying filing deadlines.

The final text changes the filing deadline from 11:59 p.m. Eastern Standard Time to 11:59 p.m. Eastern Time, avoiding confusion during daylight saving time. It also consolidates the untimely-filing rule in § 351.902(b)(2) and provides that good-cause determinations are within OPM's sole and exclusive discretion.

Adding a limited tolling rule for collateral matters.

The final text adds § 351.902(b)(3), which permits an employee who timely filed a collateral matter within the independent jurisdiction of an entity identified in § 351.901(c) to file a RIF appeal within 30 calendar days after the final decision on that matter, where that decision materially affects the employee's retention standing, order of release, assignment rights, or other rights under part 351. The final text provides that a decision is final for this purpose when it is no longer subject to further administrative review and that OPM determines, in its sole and exclusive discretion, whether the decision materially affects the employee's rights.

Requiring filing-information detail in the RIF notice.

The final text amends § 351.802(a)(6) to require the specific RIF notice to state, in addition to the employee's right to appeal to OPM, the

time limit for filing an appeal under § 351.902(b) and the electronic filing system through which an appeal must be filed.

Narrowing e-filing enforcement.

The final text narrows the proposed e-filing enforcement provisions. Rather than authorizing broader orders regulating filing methods, sanctions, misuse, or termination of e-filer participation, the final text provides that OPM may strike a document when an e-filer repeatedly fails to follow filing instructions after a show-cause order. The final text also removes the proposed statement that withdrawal from e-filing may preclude future re-registration and clarifies that withdrawal of e-filing registration is not good cause for staying a case.

Simplifying initial-appeal information.

The final text simplifies the contact-information requirements in § 351.903(a) by replacing “legal name, best address” with “name, address.” The core requirement remains unchanged: the appeal must be written, state the basis for the appeal, identify the appellant and any representative, and include supporting documentation.

Defining the agency record.

The final text adds a RIF-specific minimum agency-record requirement to § 351.903(b). The proposal required the agency response to include the agency record but did not define its contents. The final text specifies that the agency record includes, at a minimum, the RIF notice and effective-date documents, documents supporting the RIF reason, coverage and appointment records, competitive-area and competitive-level records, retention-register and retention-standing records, order-of-release records, assignment-rights records, special RIF-circumstance records, and a certification that the complete agency record has been produced.

Distinguishing production to OPM from service on the appellant.

The final text requires the agency to produce the complete agency record to OPM while serving the appellant with the agency record subject to legally required limits. The agency may redact or withhold information from the appellant's copy only to the extent necessary to comply with the Privacy Act, applicable legal privileges, classified-information or national-security requirements, OPM protective orders, or other disclosure limits required by law.

Allowing limited new matters in reply.

The final text revises § 351.903(c) to permit an appellant's reply to raise a new allegation of error if the basis for that allegation rests on information first disclosed in the agency response or if OPM grants leave for good cause.

Adding disclosure limits for inspection and service.

The final text makes inspection of OPM's appellate record and service of documents subject to the Privacy Act, applicable legal privileges, classified-information or national-security requirements, OPM protective orders, and other applicable disclosure limits required by law. The proposal allowed inspection and required service but did not include the same express disclosure limitations.

Reorganizing representative provisions.

The final text reorganizes § 351.904 into separate paragraphs addressing designation of a representative, Federal employee representatives and restrictions on official time and reimbursement, and disallowance of representatives. The final text also narrows the grounds for disallowing a representative. Because a Federal employee representative may not perform representational functions while in a duty status, the final text does not adopt the proposed additional grounds for disallowance based on the priority needs of the Government or unreasonable costs to the Government; OPM or the responsible agency may disallow an employee's choice of representative only where the representative is an employee of the responsible agency or OPM and the representative's activities would cause a conflict of interest or position. The remaining changes are primarily organizational and clarifying.

Adding adjudicator-separation and ex parte safeguards.

The final text adds safeguards in § 351.905(a) requiring OPM adjudicators to be insulated from officials who participated personally and substantially in the challenged action or provided case-specific advice. It also prohibits adjudicators from considering material

ex parte

communications on the merits and requires any such communication to be summarized in the record with an opportunity for party response, unless disclosure is prohibited by law.

Clarifying OPM employee appeals.

The final text clarifies that an administrative law judge (ALJ) assigned to adjudicate an OPM employee's appeal will issue an initial decision. It also adds material factual error affecting the outcome as a ground on which OPM may disturb the ALJ's decision and clarifies that assigning an ALJ does not make 5 U.S.C. 554, 556, or 557 applicable unless independently required by law or expressly incorporated.

Tightening audits and investigations.

The final text narrows the standard for OPM audits or investigations. The proposal allowed OPM to conduct an audit or investigation when the “interest of justice” would be served. The final text requires OPM to determine that the existing record is insufficient to resolve a material issue within OPM's jurisdiction and that the audit or investigation is reasonably likely to produce material information. The final text also provides that representatives may not participate in an audit or investigation unless OPM specifically requests it.

Removing a separate ascertainment sanction.

The final text removes the proposed separate paragraph authorizing sanctions for failure to participate in ascertainment of facts and renumbers the initial-decision and remedies provisions.

Refining protective-order authority.

The final text revises § 351.906(a). The proposal focused on harassing communications and use of appeal information for unrelated purposes. The final text authorizes protective orders or cease-and-desist directives to protect the integrity of the adjudicatory process and to prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information, or misuse of nonpublic information obtained through the appeal. It also requires protective orders to be no broader than reasonably necessary and not to restrict lawful communications protected by law.

Clarifying OPM-initiated reconsideration.

The final text clarifies in § 351.907(a) that OPM may reopen and reconsider an initial decision either upon request of a party or on its own initiative. The proposal allowed party-requested reconsideration, while Director sua sponte review was addressed separately.

Clarifying Director review.

The final text revises § 351.908 to preserve the Director's sua sponte authority to reopen and reconsider a nonfinal initial decision or reopened and reconsidered decision, while identifying nonexclusive considerations that may guide that review. The proposal gave the Director broad discretion to reopen and reconsider any nonfinal decision. The final text clarifies that the Director may consider whether the decision contains clear legal error, rests on an erroneous material factual finding, involves an issue of exceptional importance, affects governmentwide civil service administration, conflicts with another OPM decision, or otherwise warrants review. It also clarifies that § 351.908 does not create a party right to request Director review and that, upon reopening, the Director may take any action available under § 351.907(c).

Revising finality of initial decisions.

The final text revises § 351.909 so that an initial decision becomes final 30 calendar days after issuance unless, before that time, a party timely requests reopening and reconsideration under § 351.907 or the Director reopens the decision under § 351.908. A timely request suspends finality: if OPM denies or dismisses the request without reopening the initial decision, the initial decision becomes final 30 calendar days after issuance of the denial or dismissal unless the Director reopens it before that time, and if OPM grants the request, the reopened and reconsidered decision becomes final 30 calendar days after issuance unless the Director reopens that decision before that time. An untimely request does not suspend or otherwise affect finality. The final text also clarifies that a decision by the Director that disposes of the appeal is final and effective upon issuance and that, if the Director remands the appeal or directs further proceedings, any resulting decision becomes final under § 351.909. These changes conform finality to the reconsideration and Director-review provisions of the final rule.

Adding public-posting disclosure limits.

The final text adds express legal limits on public posting of final merits decisions, including requirements protecting privacy, privileged information, protected personnel information, law-enforcement-sensitive information, and other information that may not lawfully be disclosed. It also clarifies that final merits decisions not publicly posted because of such legal limits must be made available upon request to the Federal employee or former Federal employee involved in a proceeding under this subpart, his or her representative selected pursuant to § 351.904, or a representative of the Federal agency or office involved in the proceeding who has a need to know.

OPM is finalizing the RIF appeals rule as amended. After considering the comments, OPM concludes that the final rule, as amended, better balances timely adjudication, governmentwide consistency, employee access to meaningful administrative review, and agencies' need for finality in workforce restructuring than the current MSPB appeal process for non-SES RIFs.

II. Background

When agencies face workforce restructuring, RIF procedures provide a mechanism for realigning staff through objective criteria. These procedures are governed by 5 U.S.C. 3501-3504 and are implemented through OPM regulations at 5 CFR 351. These regulations provided employees subject to a RIF action with an avenue to appeal to the MSPB. Under the previous 5 CFR 351.901, replaced by this rule, employees furloughed for more than 30 days, separated, or demoted by a RIF action were able to appeal to the MSPB.

Federal RIF procedures govern the release of competing employees when a release is required because of lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or the exercise of reemployment or restoration rights. Congress has directed OPM to prescribe regulations governing the release of competing employees in a RIF, giving due effect to the statutory retention factors specified in 5 U.S.C. 3502. OPM implements those requirements in 5 CFR part 351.

Part 351 does not determine whether an agency should conduct a RIF in the first instance. Each agency remains responsible for determining the categories of positions required, where positions are to be located, and when positions are to be filled, abolished, or vacated. The RIF regulations govern how an agency must apply retention, notice, assignment, and related requirements once the agency determines that a RIF action is required.

RIF appeal procedures have historically been established through civil service regulation. Early RIF procedures were administered by the Civil Service Commission and its predecessors. The first uniform RIF regulations were issued in 1925 by the Personnel Classification Board, which was subsumed by the Commission.

Those regulations were bolstered again in 1929, when President Calvin Coolidge issued E.O. 5068, prescribing how veterans were to be treated “when reductions are being made in the force.”

President Roosevelt similarly invoked presidential authority to institute the regulatory procedures by which RIFs may be executed.

U.S. Merit Sys. Prot. Bd.,

Reduction-in-Force in the Federal Government, 1981: What Happened and Opportunities for Improvement

(June 1983),

available at https://babel.hathitrust.org/cgi/pt?id=uc1.31210024942615&seq=31.

E.O. 5068,

Amendment of Civil Service Rule VI

(Mar. 2, 1929),

available at https://www.presidency.ucsb.edu/documents/executive-order-5068-amendment-civil-service-rule-vi.

E.O. 6175,

Separation Ratings of Departmental Employees

(June 16, 1933),

available at https://www.presidency.ucsb.edu/documents/executive-order-6175-separation-ratings-departmental-employees.

Following enactment of the Veterans' Preference Act of 1944,

Commission regulations provided administrative appeal procedures for employees who believed RIF regulations had not been correctly applied.

Those procedures were revised over time, including in 1963, when the Commission provided that an employee who received a notice of specific RIF action and believed the regulations had not been correctly applied could appeal to the Commission.

Act of June 27, 1944, ch. 287, sec. 12, 58 Stat. 390 (codified as amended at 5 U.S.C. 861).

S. Comm. on Post Office & Civ. Serv.,

Reduction-in-Force System in the Federal Government

89 (July 4, 1952),

available at https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005567177&seq=67&q1=rule.

28 FR 10021 (Sept. 14, 1963).

Central to this regulatory framework was the understanding that there was no right of judicial review of Commission decisions. “Employees sought to appeal the decisions of [the Commission] through the various forms of action traditionally used for so-called nonstatutory review of agency action, including suits for mandamus . . . injunction . . . and declaratory judgment.”

United States

Fausto,

484 U.S. 439, 444 (1988). But “so long as there was substantial compliance with applicable procedures and statutes, the administrative determination was not reviewable.”

Hargett

Summerfield,

243 F.2d 29, 32 (D.C. Cir. 1957). It was long understood that RIFs “are matters peculiarly within the province of those who are in charge of and superintending the departments, and, until Congress by some special and direct legislation makes provision to the contrary, we are clear that they must be settled by those administrative officers.”

Keim

United States,

177 U.S. 290, 296 (1900).

In 1978, Congress enacted the CSRA, which reorganized the civil service system and established a comprehensive remedial structure for Federal personnel matters.

Congress excluded RIF actions under 5 U.S.C. 3502 from the adverse action provisions in chapter 75. Congress also did not create an express statutory right for non-Senior Executive Service (SES) employees to appeal RIF actions to MSPB. OPM therefore continued to implement RIF appeal procedures through regulation.

See Grosdidier

Broad. Bd. of Govs.,

560 F.3d 495, 497 (D.C. Cir. 2009);

Filebark

Dep't of Transp.,

555 F.3d 1009, 1010 (D.C. Cir. 2009);

Graham

Ashcroft,

358 F.3d 931, 935 (D.C. Cir. 2004);

Lindahl

Office of Personnel Management,

470 U.S. 768, 773 (1985).

In 1983, OPM revised part 351 to provide for MSPB adjudication of non-SES RIF appeals. 48 FR 49462 (Oct. 25, 1983). That provision reflected OPM's regulatory choice to use MSPB as the adjudicative forum. OPM now revises that regulatory framework and establishes OPM as the forum for appeals under subpart I of part 351.

Under the final rule, an employee who is furloughed for more than 30

days, separated, or demoted by a RIF action for which the agency issued a specific RIF notice under 5 CFR 351.802 on or after the effective date of the final rule under RIN 3206-AO86 may appeal that action to OPM. A RIF action for which the agency issued that notice before the effective date of the RIN 3206-AO86 final rule remains subject to adjudication by the MSPB under the procedures applicable to that action. The final rule also establishes filing procedures, agency-record requirements, adjudication procedures, reconsideration, Director review, and finality provisions for OPM RIF appeals. The appellant bears the burden to prove timely and proper filing, OPM jurisdiction, a failure to comply with an applicable statute or OPM regulation governing RIF actions under part 351, and prejudice caused by that failure.

The rule also preserves collateral statutory avenues administered by other entities. Employees may continue to file matters within the jurisdiction of EEOC, an Inspector General, MSPB where it has independent statutory jurisdiction, DOL VETS, or OSC. Finally, the rule applies to a RIF action for which the agency issued a specific RIF notice under 5 CFR 351.802 on or after September 2, 2026, the effective date of the final rule under RIN 3206-AO86; an appeal of a RIF action for which the agency issued that notice before that date, including an appeal pending before the MSPB, remains subject to adjudication by the MSPB under the procedures applicable when the action was taken.

III. Responses to Major Issues Raised by Commenters

A. OPM's Authority To Transfer RIF Appeals From MSPB to OPM

Commenters 0370, 0928, 1025, 1092, 1099, 1165, 1217, and 1252 argued that OPM lacks authority to transfer RIF appeals from MSPB to OPM. These commenters asserted that Congress created MSPB as the independent adjudicatory body for Federal personnel appeals, that RIF appeals are part of MSPB's statutory role, and that any removal of MSPB jurisdiction must be accomplished by Congress rather than by regulation. Commenters 1252, 1223, 1219, 1206, and 1119 argued that returning RIF appeal authority to OPM from MSPB violates a requirement, whether express or implied, that the CSRA mandates that personnel policymaking and personnel claims adjudication functions maintain structural separation. In support, commenters cite the legislative history of the CSRA to support the proposition that the CSRA was designed to decouple the adjudication function from the policymaking function under the Civil Service Commission. Commenter 1099 further argued that the proposed rule rested on an overbroad conception of Presidential and agency RIF authority.

OPM disagrees that congressional action is required to revise the forum for non-SES RIF appeals. Pursuant to 5 U.S.C. 1301, “[t]he Office of Personnel Management shall aid the President, as he may request, in preparing the rules he prescribes under this title for the administration of the competitive service.” Under 5 U.S.C. 1104(a)(1), “the President may delegate, in whole or in part, authority for personnel management functions, including authority for competitive examinations, to the Director of the Office of Personnel Management.” Further, OPM “shall establish standards which shall apply to the activities of the Office or any other agency under authority delegated under subsection (a) of this section.” 5 U.S.C. 1104(b)(1). And the OPM Director has the responsibility “to prescribe regulations and to ensure compliance with the civil service laws, rules, and regulations,” and “execut[e], administer[], and enforc[e] . . . the civil service rules and regulations of the President and the Office and the laws governing the civil service.” 5 U.S.C. 1104(b)(3), 1103(a)(5).

With respect to RIFs, Congress gave broad authority to OPM to “prescribe regulations for the release of competing employees in a reduction in force.” 5 U.S.C. 3502. That authority, together with OPM's related regulatory authority under 5 U.S.C. 1302(b) and (c) to administer veterans' preference in retention, reasonably encompasses regulations governing how an employee may challenge whether an agency complied with those RIF requirements.

In passing the CSRA, Congress carefully created the MSPB review scheme and determined that there should be no RIF appeal right to MSPB. In 5 U.S.C. 7512(B), Congress expressly excluded “a reduction-in-force action under § 3502 of this title” from the list of adverse actions covered under Chapter 75. 5 U.S.C. 7512(B). The MSPB appeal right in chapter 75 applies to actions covered by that subchapter, see 5 U.S.C. 7513(d), and chapter 77 provides procedures only for actions otherwise “appealable to the Board under any law, rule, or regulation.” 5 U.S.C. 7701(a). Thus, chapter 77 does not itself create an independent statutory MSPB appeal right for non-SES RIF actions;

The MSPB has long acknowledged that it derives its authority to review agency RIF actions from OPM regulations at 5 CFR 351.901, not from the CSRA itself. See

Kohfield

Dep't of the Navy,

75 M.S.P.R. 1, 4 (1997) (citing

Grubb

Dep't of the Interior,

73 M.S.P.R. 296, 299 (1997));

Gaxiola

U.S. Dep't of the Air Force,

6 M.S.P.R. 515, 519 (1981).

By carving out RIFs conducted under 5 U.S.C. 3502 from the MSPB's jurisdiction, Congress distinguished this type of reorganization activity from the individually targeted personnel actions for which employees have traditionally been accorded formal procedural protections. In the CSRA, Congress did not direct that the MSPB have jurisdiction over RIF appeals. Instead of altering the existing statutory scheme, the CSRA affirmed 5 U.S.C. 3502 as the governing statute on the issue of RIF appeal procedure for non-SES employees. In the nearly 50 years since its original enactment, Congress has not amended the statute to provide for such a right, nor has it provided for an appeal process for RIFs that includes judicial review.

At the time the CSRA was passed, RIF appeals were housed within the Civil Service Commission. Nothing in the CSRA altered that arrangement. Indeed, the D.C. Circuit has stated that “

if OPM chooses to use the MSPB for dispute resolutions,

it must take that statutory device as it finds it.”

American Federation of Government Employees

Office of Personnel Management

(

AFGE

OPM

), 821 F.2d 761, 769 (D.C. Cir. 1987) (emphasis added). This declaration assumes that OPM may, in fact, choose not to use the MSPB for dispute resolution and can create its own RIF appeal process.

OPM is not persuaded that the general CSRA structure or legislative history cited by commenters displaces the specific statutory text governing RIFs. Under general principles of statutory construction, the CSRA's plain and unambiguous language controls. Courts “assum[e] that the ordinary meaning of that language accurately expresses the legislative purpose.”

See CSX Transp., Inc.

Ala. Dep't of Revenue,

562 U.S. 277, 296 (2011);

Gross

FBL Fin. Servs., Inc.,

557 U.S. 167, 175-76 (2009) (quoting

Engine Mfrs. Ass'n

S. Coast Air Quality Mgmt. Dist.,

541 U.S. 246, 252 (2004)) (internal quotation marks omitted);

Christiana Tr.

Riddle,

911 F.3d 799, 806 (5th Cir. 2018) (“If a statute's text is `plain and unambiguous, it must be given effect.' ” (quoting

BMC Software, Inc.

Comm'r,

780 F.3d 669, 674 (5th Cir. 2015)));

see also Trump

Slaughter,

No. 25-332 (June 29, 2026).

The relevant question is whether the adjudicatory structure creates a constitutionally intolerable risk of actual bias or prejudgment—not whether the agency head is politically accountable. Administrative adjudicators are presumed to act with honesty and integrity, and the combination of investigative, policymaking, and adjudicative functions in an agency does not, without more, violate due process.

Withrow

Larkin,

421 U.S. 35, 47, 58 (1975). The Supreme Court has also rejected the proposition that agency decisionmakers are disqualified merely because they previously investigated, reported on, or expressed policy views concerning related issues.

FTC

Cement Inst.,

333 U.S. 683, 700-03 (1948). Due process concerns arise from more concrete circumstances, such as a direct pecuniary interest, personal involvement, personal animus, or an objectively intolerable probability of actual bias.

See Tumey

Ohio,

273 U.S. 510, 523, 532 (1927);

Withrow,

421 U.S. at 47;

Caperton

A.T. Massey Coal Co.,

556 U.S. 868, 884-87 (2009).

The APA itself reflects the same principle. It permits agency review of initial decisions by presiding employees and provides that, on review, the agency has the powers it would have had in

making the initial decision, subject to any limits imposed by rule or notice. 5 U.S.C. 557(b). The APA's separation-of-functions provision also expressly does not apply to “the agency or a member or members of the body comprising the agency.” 5 U.S.C. 554(d)(2)(C). Federal administrative law therefore does not treat agency-head accountability as equivalent to bias; it looks instead to whether the process includes appropriate safeguards against prejudgment, improper influence, or conflicts of interest.

Ultimately, OPM must determine whether the rule provides a fair and reasoned adjudicatory process for RIF appeals. OPM concludes that it does. Here, the final rule provides a defined administrative process, requires decisions to be based on the record, preserves administrative review of whether the agency complied with applicable RIF statutes and OPM regulations and whether any failure prejudiced the appellant, and includes safeguards against arbitrary or predetermined decision-making.

Those safeguards are substantial. The final rule includes separation-of-functions safeguards tailored to the RIF appeal context. Under § 351.905(a), OPM personnel assigned to adjudicate appeals by non-OPM employees must be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action. OPM adjudicators may not consider material

ex parte

communications concerning the merits of an appeal. If such a communication occurs, OPM will place a summary of the communication in the record and provide the parties a reasonable opportunity to respond, unless disclosure is prohibited by law.

The final rule also restricts adjudicator assignments. No OPM employee may be assigned to adjudicate an appeal if the employee has a relationship with the appellant or, during the preceding two years, was an employee of the agency that is a party to the action or was subject to an action covered by part 351. When necessary, OPM may assign an administrative law judge to preside over an appeal. Appeals by OPM employees receive additional protection: under § 351.905(b), OPM will assign an administrative law judge to adjudicate the appeal and issue an initial decision, and OPM will not disturb that decision except on specified grounds.

OPM further disagrees that its review of certain competitive-area matters prejudges later appeals. OPM's regulatory review of a competitive area, where required, is not approval of an individual RIF action, not approval of an agency's decision to conduct a RIF, and not a determination that any later action against any employee is lawful. If a competitive area issue is raised in an appeal, the agency must produce the relevant record, including competitive area and competitive level documentation, and OPM will adjudicate the appeal based on the record and applicable legal standards.

Commenter 1252 asserted that “OPM has not demonstrated that it possesses the adjudicatory capacity necessary to replace MSPB's established system,” and that effectuating this transfer “without evidence of readiness would risk inconsistent determinations, procedural delays, and diminished confidence in outcomes.”

OPM respectfully disagrees. OPM currently serves as the appellate venue for classification, Fair Labor Standards Act, compensation and leave, and declination of reasonable offers, which are conducted by its MSAC office under the supervision of the Director of OPM. MSAC is an external-facing organization within OPM with longstanding responsibility for oversight of agency compliance with civil service laws, merit-system principles, and related regulations.

MSAC also has substantial experience adjudicating Federal personnel matters, including classification appeals, Fair Labor Standards Act claims, compensation and leave claims, and declination-of-reasonable-offer claims.

In those matters, MSAC provides employees with administrative review of agency personnel determinations and issues OPM's final administrative decision.

U.S. Off. of Pers. Mgmt., Off. of Inspector Gen.,

Final Evaluation Report: Evaluation of the Merit System Accountability and Compliance Office,

Rep. No. 2021-OEI-001 (Dec. 12, 2022),

available at https://www.oversight.gov/sites/default/files/documents/reports/2022-12/Final-Report-2021-OEI-001.pdf.

U.S. Off. of Pers. Mgmt.,

Adjudications, available at

https://www.opm.gov/compliance/adjudications/.

RIF appeals are well suited to MSAC's existing institutional role. A RIF appeal generally turns on whether the agency properly applied OPM's governmentwide RIF regulations to the appellant, including requirements concerning coverage, competitive area, competitive level, retention standing, order of release, assignment rights, notice, and related part 351 requirements. MSAC's mission and experience place it in a strong position to evaluate whether agencies complied with OPM regulations and whether any failure prejudiced the appellant. Locating RIF appeals in MSAC also allows OPM to bring its subject-matter expertise in part 351 directly to bear while maintaining an adjudicatory process separate from the employing agency that took the RIF action. Housing RIF appeals within MSAC would additionally separate the RIF adjudicative function within OPM from OPM's RIF policymaking function, which is housed in its Workforce Policy & Innovation (WPI) office.

U.S. Off. of Pers. Mgmt.,

FY 2026 Congressional Budget Justification and Annual Performance Plan

26,

available at https://www.opm.gov/about-us/fy-2026-congressional-budget-justification/fy-2026-congressional-budget-justification.pdf.

Commenters 0442, 0714, 0975, and 1147 asserted that assigning RIF appeals to MSAC would overwhelm that office, particularly if RIF appeal volume increases. OPM considered those comments but does not agree that they warrant retaining MSPB as the forum for RIF appeals. OPM expects MSAC to administer the appeal process through the streamlined, record-based procedures established in this final rule. Those procedures are designed to avoid unnecessary litigation burden while preserving the tools needed to resolve material issues. MSAC may require additional information, conduct an audit or investigation where the existing record is insufficient to resolve a material issue within OPM's jurisdiction, and hold a hearing when necessary and efficient. This structure permits MSAC to focus resources on appeals that require additional development, rather than applying the same litigation model to every case.

OPM also does not agree that a temporary or anomalous increase in RIF activity provides a reason to retain a fragmented appeal structure indefinitely.

This rule applies only to appeals of RIF actions for which the agency issued a specific RIF notice under 5 CFR 351.802 on or after September 2, 2026, the effective date of the final rule under RIN 3206-AO86, and OPM will administer the process prospectively. OPM will monitor appeal volume, staffing needs, processing times, and operational requirements as implementation proceeds. Because MSAC already performs external adjudicatory and compliance functions, OPM expects that MSAC can incorporate RIF appeals into its existing adjudicatory framework more efficiently than creating a new office or continuing

to rely on an external forum whose procedures OPM cannot control.

There have only been 141 separations resulting from a RIF from January to April 2026, a far slower pace than 2025. (Source: OPM FWD (June 3, 2026)).

Commenters 0483, 0303, 0308, 0332, and others argued that transferring the appeal forum to OPM will deny appellants meaningful review because, in their view, it would consolidate the conception, execution, and adjudication of RIFs within a single agency. OPM disagrees. The final rule does not give OPM authority to decide whether another agency should conduct a RIF, what positions that agency should abolish, or which organizational components should be restructured. Those workforce management decisions remain with the employing agency. Consistent with § 351.201, each agency remains responsible for determining the categories of positions required, where positions are located, and when positions are filled, abolished, or vacated. OPM's role is different: OPM prescribes governmentwide RIF regulations, provides general regulatory guidance and technical assistance, and, where the regulations require it, reviews discrete matters such as certain competitive-area determinations or shortened notice requests. Those functions do not make OPM the proponent or executing agency for an individual RIF action, nor do they prejudge whether the employing agency complied with part 351 as applied to a particular appellant.

The final rule also reinforces this distinction procedurally. OPM's adjudicatory role is limited to determining whether the agency failed to comply with an applicable statute or OPM regulation governing RIF actions under part 351 and whether that failure prejudiced the appellant. The agency must produce the complete agency record to OPM, including RIF-specific documentation such as the RIF notice, effective-date materials, records supporting the reason for the RIF, competitive-area and competitive-level documentation, retention-register materials, order-of-release records, assignment-rights records, and documentation concerning any special RIF circumstance. In addition, OPM adjudicators must be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action, and they may not consider material

ex parte

communications concerning the merits of an appeal. Thus, commenters' characterization of the rule as placing “conception, execution, and appeal” of RIFs entirely within OPM conflates OPM's governmentwide regulatory and advisory responsibilities with the employing agency's independent decision to conduct and implement a RIF, and it overlooks the final rule's record-production, separation-of-functions, and

ex parte

safeguards.

C. Due Process, Neutrality, and Impartiality

Commenters 0343 and 1219 argued that the relocation of the RIF appellate venue as provided for in this rule violates the constitutional due process principles articulated in

Cleveland Board of Education

Loudermill

(

Loudermill

), 470 U.S. 532 (1985). As a matter of constitutional due process, public sector employees can have a property interest in their continued employment which may not be terminated without certain pretermination procedures. Pursuant to

Loudermill,

public sector employees are entitled to written or oral notice of charges or rationale underlying their dismissal, an explanation of the evidence supporting that rationale or charges, and an opportunity to present their side of the issues.

Id.

The right to “some kind of hearing,” consistent with the three

Loudermill

protections, attaches only when the employee faces a deprivation of a protected property interest. Since

Loudermill,

several courts have recognized that RIFs present different due-process considerations than disciplinary removals, and some have held that post-deprivation procedures may satisfy due process in bona fide RIF or reorganization contexts.

See, e.g., Wash. Tchrs.' Union Loc. No. 6, Am. Fed'n of Tchrs., AFL-CIO

Bd. of Educ. of DC,

109 F.3d 774, 789-91 (D.C. Cir. 1997);

Duffy

Sarault,

892 F.2d 139, 147 (1st Cir. 1989);

Dwyer

Regan,

793 F.2d 457 (2d Cir. 1986), modifying 777 F.2d 825 (2d Cir. 1985);

Misek

City of Chi.,

783 F.2d 98, 100-01 (7th Cir. 1986).

Further, as opposed to adverse actions taken for disciplinary or performance reasons, RIFs target positions, not individuals, and do not stigmatize affected employees in light of the considerable differences in the treatment of employees subject to a RIF and those subject to an adverse action.

Also weighing in favor of the “reorganization exception” to

Loudermill

is the significant practical challenge of conducting pretermination hearings when a RIF involves a large number of employees. Consistent with these principles, both the Fifth and Federal Circuits have concluded that employees do not have a right to due process under the Constitution where a RIF initiated under 5 U.S.C. 3502 is concerned.

See West

Grand Cnty.,

967 F.2d 362, 367 (10th Cir. 1992);

Am. Fed'n of Gov't Emps., AFL-CIO

Off. of Pers. Mgmt.,

821 F.2d 761, 767-68 (D.C. Cir. 1987).

See, e.g., Grier

Dep't of Health & Hum. Servs.,

750 F.2d 944, 947 (Fed. Cir. 1984);

Am. Fed'n of Gov't Emps., AFL-CIO

Stetson,

640 F.2d 642, 645 (5th Cir. 1981).

OPM also notes that some courts have found an employee can be entitled to

Loudermill

protections when they assert a RIF was pretextual rather than “bona fide.”

In recognition of that possibility, the revised 5 CFR 351.901 does not restrict employees from pursuing claims that an agency's RIF was pretext for improper retaliation, discrimination, or other unlawful rationales. However, those claims must be pursued in alternative forums where employees and agencies will most benefit from the specialized knowledge housed within such venues. As these claims are collateral to whether an agency's RIF action was executed in compliance with the statutory and regulatory requirements governing RIFs, they are outside the scope of an appeal under the regulations promulgated pursuant to this rule.

See, e.g.,

West,

967 F.2d at 367-68;

Misek,

783 F.2d at 101.

Commenter 0370 argued that transferring RIF appeals from MSPB to OPM would violate due process by eliminating independent adjudication and judicial review and create a constitutionally unacceptable risk of structural bias under cases such as

Caperton

A.T. Massey Coal Co.,

556 U.S. 868 (2009), and

Gibson

Berryhill,

411 U.S. 564 (1973). The commenter also asserted that OPM's involvement in reviewing competitive areas would make subsequent OPM adjudication improper, and that agencies may exercise less care if RIF actions are reviewed by OPM adjudicators rather than MSPB administrative judges. OPM disagrees.

First,

OPM disagrees that the final rule violates due process by locating RIF appeal adjudication within OPM. The Supreme Court has recognized a presumption of honesty and integrity in administrative adjudicators, and the mere combination of policymaking, investigative, supervisory, or adjudicative functions within an agency does not, without more, establish unconstitutional bias.

Withrow,

421 U.S. at 47, 58. The cases cited by the commenter involved materially different circumstances, such as a judge's extraordinary personal campaign-related relationship to a litigant in

Caperton

or an adjudicatory body composed of market participants with a direct pecuniary interest in the outcome in

Gibson.

OPM adjudicators will not have a personal financial interest in RIF

appeal outcomes, and a generalized governmentwide interest in efficient personnel administration is not the type of personal, direct, or pecuniary interest that due process treats as disqualifying.

The final rule also includes safeguards to ensure record-based and impartial adjudication. OPM personnel assigned to adjudicate RIF appeals must be insulated from officials who participated personally and substantially in the challenged personnel action or provided case-specific advice concerning that action. OPM adjudicators may not consider material

ex parte

communications concerning the merits of an appeal. If such a communication occurs, OPM must place a summary in the record and provide the parties a reasonable opportunity to respond, unless disclosure is prohibited by law. The rule also provides assignment restrictions, written decisions, reconsideration procedures, Director review before finality, and public availability of final merits decisions subject to privacy and other legal limits. For appeals by OPM employees, the rule provides for adjudication by an administrative law judge.

Second,

OPM disagrees that its role in reviewing certain competitive-area matters makes OPM an improper adjudicator of later RIF appeals. Agencies, not OPM, remain responsible for determining their workforce needs, including what positions are required, where positions are located, and when positions are to be filled, abolished, or vacated. OPM's review of a competitive area, where required by regulation, is a regulatory safeguard concerning the competitive area used in the RIF; it is not approval of the agency's decision to conduct a RIF, approval of any individual RIF action, or prejudgment of any future appeal. If a competitive-area determination is relevant to an appeal, the agency must produce the pertinent agency record, and OPM will adjudicate the appellant's claim on the appeal record under the standards in part 351.

Commenter 0370 asserted that OPM approved certain competitive areas in less than an hour. OPM does not adjudicate in this rulemaking the validity of any particular competitive-area approval or any particular agency RIF. Nor does an alleged processing time, standing alone, establish that OPM's review was inadequate or that OPM cannot fairly adjudicate future appeals. Some requests may present straightforward issues or be supported by complete organizational documentation. In an appeal, an appellant may challenge whether the agency failed to comply with applicable statutes or OPM regulations governing RIF actions, including requirements concerning competitive areas, and the agency must produce the complete agency record to OPM.

Third,

OPM disagrees that RIF appeals necessarily require MSPB administrative judges or MSPB-style procedures to provide meaningful review consistent with due process. Due process is flexible and calls for procedures appropriate to the nature of the governmental action and the interests at stake. RIF appeals generally concern whether the agency complied with statutory and regulatory requirements governing the conduct of a RIF, including coverage, competitive area, competitive level, retention standing, order of release, assignment rights, notice, and related requirements. Those issues are ordinarily well suited to review on the written agency record, supplemented where necessary by party submissions, requests for additional information, audits, investigations, or hearings when OPM determines that such procedures are necessary and efficient. Requiring discovery and hearings in all RIF appeals would impose significant cost and delay on employees, agencies, witnesses, and OPM, even in cases resolvable on the record.

The D.C. Circuit has instructed OPM that “if OPM chooses to use the MSPB for dispute resolutions, it must take that statutory device as it finds it.”

OPM cannot tailor MSPB procedures to the nature of the action at issue. In light of that legal requirement, OPM has chosen to provide RIF appeals in an alternative forum better suited to efficiently adjudicate the relevant matters. The final rule provides targeted fact-development tools where needed without importing the full MSPB litigation model into every RIF appeal.

AFGE

OPM,

821 F.2d 761, 769 (D.C. Cir. 1987).

D. Claims of Politicization, Merit-System Harm, and Retaliatory RIFs

Commenters 0370, 0962, 0976, 1025, 1092, 1099, 1165, 1217, and 1252 asserted that the rule would politicize the civil service, weaken merit-system protections, enable politically motivated mass firings, or allow agencies to use sham RIFs to evade MSPB review of adverse actions. Commenter 0370 specifically raised concern that agencies could conduct one-person RIFs or rescind pending RIF actions and reissue them after the effective date to avoid MSPB review.

OPM rejects the assertion that the final rule authorizes politicized or retaliatory RIFs. The final rule does not change the basic requirement that a RIF be a position-based action taken for reasons recognized under part 351, such as lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or the exercise of reemployment or restoration rights. The final rule also does not authorize agencies to use RIF procedures to accomplish a disciplinary, retaliatory, discriminatory, or otherwise unlawful personnel action.

The final rule's revised merits standard directly addresses these concerns. An appellant may obtain relief by proving that the agency failed to comply with an applicable statute or OPM regulation governing RIF actions under part 351 and that the failure prejudiced the appellant by causing the appealed action or the loss of a materially more favorable outcome. If an agency labels an action a RIF but fails to satisfy the requirements of part 351, that issue falls within OPM's RIF-compliance review.

The final rule's agency-record requirements also reduce the risk of rubber-stamp review. The agency must produce documents supporting the reason for the RIF; documents establishing the appellant's coverage, position, appointment, tenure subgroup, veterans' preference status, service computation date, competitive area, and competitive level; retention registers; order-of-release records; assignment-rights records; and records concerning special circumstances such as abolishment of an entire competitive area, transfer of function, exclusion from RIF competition, or restoration protection. These requirements give OPM and the appellant a concrete record against which to test the agency's compliance with part 351.

OPM also notes that collateral protections remain available. Allegations of discrimination, whistleblower reprisal, prohibited personnel practices, veterans' rights violations, or other unlawful conduct may be pursued in the forums Congress or applicable law has designated, including EEOC, OSC, DOL VETS, Inspectors General, or MSPB where it has independent jurisdiction. The final rule channels direct RIF-compliance appeals to OPM; it does not immunize unlawful conduct.

Commenter 0370 expressed concern that an agency could rescind RIF actions pending before MSPB and later reissue them after the final rule's effective date to avoid MSPB review. OPM declines to adopt a special rule prohibiting agencies from rescinding pending RIF actions and later taking new RIF actions.

Agencies must be able to rescind, correct, and reissue personnel actions where appropriate. Any new RIF action taken after the effective date must comply with the statutes and regulations then in effect. If an employee believes the new action is unlawful, pretextual, discriminatory, retaliatory, or otherwise improper, the employee may pursue the OPM RIF appeal and any collateral statutory remedies preserved by the final rule.

Commenter 0370 also contended that the rule permits agencies to use sham RIFs to evade MSPB review of removals. OPM disagrees. The rule does not alter the basic distinction between a bona fide RIF and an adverse action. A RIF remains a position-based action taken for reasons recognized under part 351, such as lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or the exercise of reemployment or restoration rights. An agency may not convert a disciplinary or performance-based removal into a RIF merely by labeling it as such. If an appellant contends that the agency failed to comply with applicable RIF statutes or OPM regulations, including by using RIF procedures where the action did not satisfy the requirements of part 351, OPM may consider that claim within the scope of the RIF appeal and order corrective action. If the employee alleges that the agency acted for discriminatory, retaliatory, or otherwise prohibited reasons, the employee may also pursue any collateral statutory claims that are within the jurisdiction of the EEOC, OSC, MSPB, an Inspector General, or another authorized forum.

E. Procedural Protections in OPM Appeals

Several commenters urged OPM to provide RIF appellants with procedures similar to those available to employees appealing adverse actions before MSPB, including broader discovery and a hearing as of right. OPM declines to adopt that approach. RIF appeals and chapter 75 adverse-action appeals involve materially different actions and different issues. An adverse-action appeal generally concerns an agency action directed at an individual employee for conduct or performance reasons. A RIF action, by contrast, is a position-based workforce action governed by part 351 and focused on whether the agency properly applied the statutory and regulatory RIF requirements governing matters such as coverage, competitive area, competitive level, retention standing, order of release, assignment rights, and notice. Those issues ordinarily can be resolved through the agency record, party submissions, and targeted supplementation where necessary.

OPM has therefore determined that the final rule should not replicate MSPB's adverse-action procedures. The final rule provides a RIF-specific appeal process tailored to the issues presented in part 351 appeals. It requires the agency to produce the complete agency record to OPM, requires service of the agency record on the appellant subject only to legally required disclosure limitations, permits the appellant to file a reply, authorizes OPM to require additional information, and permits audits, investigations, or hearings when the record requires further development. This structure balances the employee's interest in meaningful review with the interests of employees, agencies, and the Government in timely, efficient, and accurate resolution of RIF appeals. The commenters' preference for MSPB-style procedures does not establish that OPM is legally required to apply MSPB's chapter 75 or part 1201 procedures to RIF appeals adjudicated by OPM under part 351.

Commenters 0408, 0483, 0709, and 1119, among others, argued that employees are entitled to a hearing in a RIF appeal as a matter of law. OPM disagrees. The final rule does not bar hearings; it provides for hearings when they are necessary and efficient to resolve the appeal. Revised § 351.905(c) expressly authorizes OPM to conduct a hearing where the written record is insufficiently developed to determine one or more facts material to the outcome of the appeal, or where a disputed issue of witness credibility is material to the outcome. Thus, the final rule addresses the concern that some appeals may present material factual disputes requiring more than written submissions, while avoiding the delay and expense of requiring a hearing in every appeal regardless of whether one would assist the decisionmaker.

OPM also disagrees with commenters' suggestion that a hearing should be required whenever a party characterizes a fact as disputed. Not every factual disagreement is material, and not every material issue requires live testimony. In many RIF appeals, the dispositive questions will be resolved by applying part 351 to records the agency is required to create and produce, including the RIF notice, competitive-area and competitive-level documentation, retention register, records supporting retention standing, order-of-release materials, assignment-rights documentation, and records concerning any special RIF circumstance. Requiring a hearing absent a particularized need would impose unnecessary costs on appellants, agencies, witnesses, representatives, and OPM, while delaying final resolution for employees who need prompt certainty regarding their employment status and any available remedy.

In the unusual case in which the written record is insufficient, the final rule provides multiple tools for further development. OPM may require either party to provide additional information, audit or investigate an agency action when the existing record is insufficient to resolve a material issue within OPM's jurisdiction and the audit or investigation is reasonably likely to produce material information, and conduct a hearing when necessary and efficient. Where OPM conducts an audit or investigation, the final rule requires OPM to inform the employee, the employee's representative, and the agency; provide them with the results; and give them a reasonable opportunity to submit arguments or additional information. These procedures provide meaningful fact development without importing a full MSPB litigation model into every RIF appeal.

Commenter 0113 supported placing the burden of proof on the initiating party, noting that this approach is consistent with administrative and civil litigation standards. OPM agrees. The appellant is the party invoking OPM's appellate jurisdiction and challenging the agency's RIF action, and it is appropriate for the appellant to bear the burden of proving timely and proper filing, OPM jurisdiction, a violation of an applicable statute or OPM regulation governing RIF actions under part 351, and prejudice. At the same time, the final rule does not leave the appellant without access to the information needed to pursue the appeal. The agency must produce the complete agency record to OPM and serve the appellant with the agency record, subject only to applicable disclosure limitations. That requirement ensures that the appellant's burden of proof operates within a record-based process in which the relevant RIF documentation is before OPM and available to the appellant to the extent permitted by law.

Commenters 0370, 0386, 0928, 0962, 1089, 1092, 1099, 1165, 1217, and 1252 raised numerous procedural concerns, including burden of proof, access to records, discovery, hearings, written-record adjudication, e-filing, reconsideration, Director review, protective orders, and remedies. For example, Commenter 1089 asserted that the documents necessary to challenge a RIF—including retention registers,

competitive-area definitions, scoring and ranking decisions, internal planning documents, communications leading to the RIF, and records showing how the agency applied OPM's rules—are generally in the agency's possession. The commenter argued that it would be unfair to require employees to prove RIF error while limiting access to the records needed to test the agency's action. OPM has revised the final regulatory text in several respects that address many of the procedural concerns raised by commenters.

First,

OPM revised the merits standard in § 351.901(b). The proposal required an appellant to prove that the employee would not have suffered the same or another RIF action if the RIF had been properly conducted. Commenters 1089, 1099, and 1165 argued that this standard was too demanding and required employees to disprove hypothetical RIF actions. OPM revised the final rule to require the appellant to prove that the agency failed to comply with an applicable statute or OPM regulation governing RIF actions under part 351 and that the failure prejudiced the appellant by causing the appealed action or the loss of a materially more favorable outcome. This revised formulation focuses on prejudicial RIF-compliance error and avoids the concern that the proposed standard could be read to require proof about every possible alternative RIF.

Second,

OPM revised § 351.903(b) to specify the minimum contents of the agency record in a RIF appeal. Commenters 1089, 1099, and 1165 argued that appellants would bear the burden of proof while the agency controlled most relevant evidence. The final rule requires the agency response to include the agency record of the action, and the regulation now identifies RIF-specific categories of documents that must be included, as applicable. These include the appellant's specific written RIF notice, any amended notice, proof of service or receipt, and documents showing the effective date of the action; documents supporting the reason for the RIF; documents establishing the appellant's coverage, position, appointment, tenure group and subgroup, veterans' preference status, service computation date, work schedule, competitive area, competitive level, and status as a competing employee; documents establishing the competitive area and competitive level used for the RIF; the retention register applicable to the appellant and related retention records affecting retention standing, order of release, or assignment rights; documents showing application of the order of release; documents concerning assignment rights; documents concerning special RIF circumstances such as abolishment of an entire competitive area, transfer of function, exclusion from RIF competition, or restoration protection; and a certification that the agency has produced the complete agency record.

This revision directly addresses Commenter 1089's concern that employees may lack access to the information needed to evaluate a RIF action. The final rule requires the agency to produce the complete agency record to OPM and to serve the appellant with the agency record, subject only to redaction or withholding necessary to comply with the Privacy Act, applicable legal privileges, classified-information or national-security requirements, OPM protective orders, or other legally required disclosure limits. OPM also revised § 351.903(d) and (e) to make inspection of OPM's appellate record and service of documents subject to those same legal limitations. These provisions are intended to ensure that OPM adjudicates the appeal on the complete record while protecting information that may not lawfully be disclosed in full to the appellant or the public.

Third,

OPM revised the appellant's reply right. Under final § 351.903(c), an employee may file a reply within 15 calendar days of the agency response. Although the reply generally may address only factual and legal issues raised by the agency response, the final rule permits the appellant to raise a new allegation of error when the basis rests on information first disclosed in the agency response or when OPM grants leave for good cause. This revision addresses the concern that an appellant may not know the basis for a RIF-compliance challenge until after receiving the agency's record and explanation.

Fourth,

the final rule preserves fact development where needed. Section 351.905(c) authorizes OPM to require either party to provide additional information. OPM may audit or investigate an agency action where the existing record is insufficient to resolve a material issue within OPM's jurisdiction and the audit or investigation is reasonably likely to produce material information. If OPM conducts an audit or investigation, OPM must inform the employee, the employee's representative, and the agency; provide them the results; and give them a reasonable opportunity to submit arguments or additional information.

Fifth,

the final rule permits hearings when necessary and efficient. Commenters 0408, 0483, 0709, 1119, 0928, 1092, 1089, and 1217 argued that hearings should be available as of right or whenever material facts are disputed. OPM disagrees that a hearing is required in every case, but the final rule authorizes hearings where the written record is insufficiently developed to determine material facts or where witness credibility is material to the outcome. Commenter 0386 requested further definition of “necessary and efficient”; OPM has addressed that concern by defining the standard in the regulatory text and declines to adopt an exhaustive list that could either require unnecessary hearings or preclude useful ones.

Sixth,

the final rule adds adjudicator-separation and

ex parte

protections. Section 351.905(a) requires OPM adjudicators to be insulated from officials who participated personally and substantially in the challenged action or provided case-specific advice. It also prohibits material

ex parte

communications concerning the merits and requires any such communication to be summarized in the record with an opportunity for party response, unless disclosure is prohibited by law. The final rule also restricts assignment of adjudicators with specified relationships to the appellant or the agency and permits OPM to assign an administrative law judge when necessary. For appeals by OPM employees, § 351.905(b) requires ALJ adjudication and limits OPM's ability to disturb the ALJ's initial decision.

Seventh,

OPM narrowed and clarified the protective order provision. Commenters 0928 and 1165 argued that the proposed protective-order language was vague and could restrict protected speech. Final § 351.906 now authorizes protective orders or cease-and-desist directives to protect the integrity of the adjudicatory process and prevent threats, intimidation, targeted harassment, improper witness contact, disclosure of protected personal information, or misuse of nonpublic information obtained through the appeal. The final rule further provides that any protective order must be no broader than reasonably necessary and must not restrict lawful communications protected by law.

Eighth,

OPM retained reconsideration. Section 351.907 permits either party to request reconsideration within 30 calendar days and permits OPM to reopen and reconsider an initial decision on its own initiative. Reconsideration may be granted for material factual error, legal error affecting the outcome, new and material evidence or legal argument unavailable

despite due diligence, or other good cause. OPM may require additional argument or evidence and may take any action necessary for final disposition.

OPM disagrees with Commenter 1089's assertion that reconsideration is not meaningful under the final rule. Section 351.907 permits either party to request reconsideration within 30 calendar days from issuance of the initial decision and authorizes OPM to reopen and reconsider an initial decision on its own initiative. The final rule identifies several grounds for reconsideration, including erroneous findings of material fact sufficient to warrant a different outcome, legal error affecting the outcome, new and material evidence or legal argument that was unavailable despite due diligence when the record closed, or other good cause. OPM may require the parties to submit argument and evidence and may take any other action necessary for final disposition of the case.

F. Recruitment, Retention, and Workforce Concerns

Commenters 0962, 0976, 1089, 1092, 1099, and 1252 asserted that the rule would harm recruitment and retention, reduce confidence in Federal service, damage institutional knowledge, chill public servants, and undermine agency missions or public services. Commenters argued that Federal employees accept the obligations of public service in reliance on a merit-based system with independent review, and that reducing procedural protections could deter qualified individuals from joining or remaining in Federal employment.

OPM considered these concerns but concludes that the final rule will not undermine the merit system or Federal recruitment and retention. The final rule preserves a meaningful administrative appeal process for employees who are furloughed for more than 30 days, separated, or demoted by a RIF action. It does not eliminate appeal rights. It revises the forum and procedures for future RIF appeals and establishes safeguards to ensure that OPM adjudicates those appeals on a complete record.

OPM also concludes that timely resolution of RIF appeals benefits employees as well as agencies. When an agency commits a prejudicial error, faster adjudication allows corrective relief to be ordered sooner, reducing uncertainty and potential back-pay exposure. When the agency action is sustained, employees and agencies receive finality sooner, allowing employees to make informed decisions about future employment and allowing agencies to plan staffing and operations.

OPM further concludes that a consistent, record-based process administered by the agency responsible for governmentwide RIF regulations will support agency missions and reduce uncertainty. RIFs may arise in response to budgetary, technological, mission, or organizational changes. When they do, agencies and employees benefit from clear rules, a complete record, prompt adjudication, and consistent interpretation of part 351. All core merit-system protections—including safeguards against retaliation and politicized personnel decisions—remain intact under the final rule. OPM expects the improved clarity and efficiency of the appeals process to reinforce, not erode, employee trust.

OPM does not rely solely on agency efficiency. The final rule balances efficiency with procedural protections, including detailed agency-record requirements, employee replies, inspection of the appellate record, additional information requests, audits, investigations, hearings when necessary and efficient, written decisions, reconsideration, and corrective relief. OPM therefore concludes that the final rule supports, rather than undermines, the effective and merit-based operation of the civil service.

Indeed, the final rule preserves protections against unlawful or arbitrary layoffs that substantially exceed the baseline protections generally available to private-sector workers. Federal employees affected by a RIF remain protected by governmentwide retention rules, notice requirements, assignment-right provisions where applicable, an administrative appeal to OPM, production of the complete agency record, an opportunity to reply, corrective relief where warranted, and collateral statutory remedies in the appropriate forums.

In addition, employees separated or facing separation by RIF receive priority consideration for continued Federal employment through OPM's reemployment and career-transition regulations. The Reemployment Priority List is a required agency placement program for competitive service employees who will be or were separated by RIF, and agencies must give RPL registrants placement priority for most competitive service vacancies before hiring from outside their permanent competitive service workforce. 5 CFR part 330, subpart B; 5 CFR 330.201. Eligible surplus or displaced employees may also receive CTAP and ICTAP selection priority under 5 CFR part 330, subparts F and G. These protections—objective retention criteria, notice, assignment consideration, administrative review, record production, corrective relief, and priority reemployment consideration—go well beyond the ordinary Federal law baseline in the private sector, where WARN generally provides advance notice only for covered plant closings and mass layoffs and does not create a comparable Federal right to retention standing, assignment rights, administrative appeal, or priority reemployment. The streamlined OPM appeal process therefore does not place Federal employees in a private-sector layoff regime; it preserves a more protective civil-service framework while providing faster finality. Faster adjudication benefits employees as well as agencies: if the RIF action is unlawful, corrective relief can be ordered sooner; if the action is sustained, the employee receives prompt certainty for financial planning.

Commenters 0447, 0424, 0455, and others asserted that the rule would contribute to disruptions in government services, including emergency response, veterans' healthcare, national security, scientific integrity, long-term projects, and foreign affairs. Commenters 0858, 0829, 1201, 1200, and others similarly argued that RIFs may reduce workforce continuity, slow operations, diminish institutional expertise, and impair agencies' ability to fulfill statutory missions.

OPM has considered these comments but concludes that they do not warrant changes to the final rule. To the extent commenters challenge whether agencies should conduct RIFs, how many employees agencies should retain, or how agencies should balance mission needs, expertise, staffing levels, and service delivery when restructuring, those issues are outside the scope of this rulemaking. This rule governs the forum and procedures for appeals after an agency has taken a covered RIF action. It does not direct any agency to conduct a RIF, determine which agency functions should be reduced or preserved, or substitute OPM's judgment for the employing agency's determination of the positions, skills, locations, or organizational structures needed to carry out its mission.

Agencies remain responsible for managing their own workforces consistent with applicable law. That responsibility includes determining whether conditions exist that warrant a RIF, evaluating mission needs, maintaining continuity of operations, and deciding how to structure the workforce before and after a reduction. The final rule does not alter those

responsibilities. Nor does it diminish the substantive requirements that apply when an agency conducts a RIF, including requirements governing coverage, competitive area, competitive level, retention standing, order of release, assignment rights, notice, and other protections under part 351.

To the extent commenters argue that a more efficient appeal process may make agencies more willing to use RIF procedures where lawful and appropriate, OPM does not view that as a defect in the rule. Congress and OPM's regulations contemplate that agencies may need to conduct RIFs in response to lack of work, shortage of funds, insufficient personnel ceiling, reorganization, or the exercise of reemployment or restoration rights. When those circumstances arise, agencies and employees alike benefit from an appeal process that resolves RIF-compliance disputes accurately and promptly. Prolonged uncertainty can itself disrupt agency operations, delay corrective relief where an error occurred, and leave affected employees without timely clarity as to reinstatement, reemployment, or future career planning.

G. Judicial Review and CSRA Exclusivity

Many commenters, including but not limited to 0033, 0046, 0114, 0308, 0386, and others, criticized the proposed rule's foreclosure of judicial review for RIF appeals adjudicated under the amended 5 CFR part 351. Commenters 0033, 0908, and 1114 asserted that the APA requires OPM to maintain judicial review of RIF appeals, while Commenter 0343 argued that OPM barring judicial review would be an

ultra vires

action. Commenters 0370, 0928, 1025, 1089, 1092, 1099, and 1165 argued that OPM cannot eliminate judicial review by regulation, that judicial review is constitutionally required, that APA review should remain available, and that Federal Circuit review of MSPB decisions has long served as an important external check on RIF adjudication.

OPM disagrees that the final rule eliminates judicial review that Congress provided. The prior Federal Circuit review path for non-SES RIF appeals depended on two things: OPM's regulation making RIF actions appealable to MSPB and the statutory provisions governing judicial review of MSPB decisions. Once OPM revises its regulation and no longer provides MSPB as the forum for non-SES RIF appeals, the MSPB-to-Federal-Circuit review path no longer applies.

Congress did not provide a separate statutory judicial-review route for non-SES RIF appeals under 5 U.S.C. 3502. The CSRA and related title 5 provisions establish a comprehensive remedial scheme for Federal personnel matters, “prescrib[ing] in great detail the protections and remedies applicable to such action[s], including the availability of judicial review.”

Fausto,

484 U.S. at 443;