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OPM Proposed Rule - Upholding Civil Service Protections and Merit System Principles
OPM Proposed Rule - Upholding Civil Service Protections and Merit System Principles
5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
RIN: 3206-AO56
SUMMARY: The Office of Personnel Management (OPM) is proposing a rule to reinforce and
clarify longstanding civil service protections and merit system principles, codified in law, as they
relate to the movement of Federal employees and positions from the competitive service to the
excepted service, or from one excepted service schedule to another. First, it clarifies that, upon
such a move, an employee retains the status and civil service protections they had already
accrued by law, unless the employee relinquishes such rights or status by voluntarily
encumbering a position that explicitly results in a loss of, or different, rights. Second, it interprets
accordance with statutory text, legislative history for that text, and congressional intent, to
reinforce the interpretation that this term was intended to mean noncareer, political
appointments. Third, it provides specific additional procedures that apply when moving positions
from the competitive service to the excepted service, or from one excepted service schedule to
another, for the purposes of good administration, to add transparency, and to provide employees
with a right of appeal to the Merit Systems Protection Board (MSPB or Board) to the extent any
such move purportedly strips employees of their civil service status and protections.
DATES: Comments must be received on or before [INSERT DATE 60 DAYS AFTER DATE
Identifier Number (RIN) for this proposed rulemaking, by the following method:
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.
longstanding civil service protections and merit system principles, which started with the passage
of the Pendleton Act of 1883. The Act ended the patronage, or “spoils,” system for Federal
employment and created the competitive civil service. For the past 140 years, Congress has
enacted statutes, and agencies have promulgated rules, that govern actions by Federal agencies
and employees, beginning with laws that limited political influence in employment decisions and
growing over the years to establish comprehensive laws regulating many areas of Federal
employment. These changes were designed to further good government. Subsequent statutes,
including, among others, the Veterans’ Preference Act of 1944, as amended, and the Civil
Service Reform Act of 1978 (CSRA), extended and updated these civil service provisions.
The CSRA, as discussed throughout this rulemaking, was monumental. It “overhauled the
civil service system,”1 creating an elaborate “new framework”2 of the modern civil service,
protecting career Federal employees from undue partisan political influence so that the business
of government can be carried out efficiently and effectively, in compliance with the law.
The 2.2 million career civil servants active today are the backbone of the Federal
workforce. They are dedicated and talented professionals who provide the continuity of expertise
and experience necessary for the Federal Government to function optimally across Presidents
and their administrations. These employees take an oath to uphold the Constitution and are
accountable to agency leaders and managers who, in turn, are accountable to the President,
Congress, and the American people for their agency’s performance. At the same time, these civil
servants must carry out critical tasks requiring that their expertise be applied objectively
(performing data analysis, conducting scientific research, implementing existing laws, etc.).
If a Federal employee refuses to implement lawful direction from leadership, there are
appropriate vehicles for agencies to respond through discipline and, ultimately, removal under
chapter 75 or, alternatively, if performance related, chapter 43 of title 5, U.S. Code, and other
authorities. Under the law, however, mere disagreement with leadership—without defiance of
implicate the efficiency of the service in a manner that would warrant an adverse action.
Career civil servants generally have a level of institutional experience, subject matter
expertise, and technical knowledge that incoming political appointees may lack. Their ability to
offer their objective analyses and views in carrying out their duties, without fear of reprisal or
loss of employment, contribute to the reasoned consideration of policy options and thus the
successful functioning of incoming administrations and our democracy. These rights and abilities
must continue to be protected and preserved, as envisioned by Congress when it enacted the
The OPM Director is generally charged with executing, administering, and enforcing the
laws governing the civil service.4 In chapter 75, Congress provided Federal employees with
certain procedural rights and provided OPM with broad authority to prescribe regulations to
carry out the chapter’s purposes.5 Moreover, OPM regulations, promulgated via delegated
authority from the President, govern the movement of positions from the competitive service to
the excepted service, or from one excepted service schedule to another.6 Accordingly, OPM
proposes this rule to clarify and reinforce longstanding civil service protections and merit system
principles as codified in the CSRA. OPM proposes amending its regulations in 5 CFR chapter I,
subchapter B, as follows:
1. Amending 5 CFR part 752 (Adverse Actions) to clarify that employees who are
moved from the competitive service to a position in the excepted service, or from one
excepted service schedule to another, retain the status and civil service protections they
had already accrued unless the employee relinquishes such rights or status by voluntarily
encumbering a position that explicitly results in a loss of, or different, rights.7 The
proposed regulation also conforms part 752 to Federal Circuit precedent regarding the
employees eligible for appeal and grievance rights for removal actions and suspensions.
2. Amending 5 CFR part 210 (Basic Concepts and Definitions (General)) to define
3 Pub. L. 101-376, 104 Stat. 461, H.R. 3086 (Aug. 17, 1990); see also H.R. Rep. 101-328 (Nov. 3. 1989).
4 See 5 U.S.C. 1103(a)(5)(A).
5 See 5 U.S.C. 7504, 7514.
6 See, e.g., 5 CFR part 212.
7 As explained further infra, an individual can voluntarily relinquish rights when moving to a position that explicitly
results int the loss of, or different, rights. An agency’s failure to inform an employee of the consequences of a
voluntary transfer cannot confer appeal rights to an employee in a position which has no appeal rights by statute.
This is distinguishable from situations where the individual was coerced or deceived into taking the new position
different rights. See Williams v. Merit Systems Protection Board, 892 F.3d 1156 (Fed. Cir. 2018).
8 See 5 CFR 213.3301, 302.101, 432.102, 451.302, 752.202, 752.401.
OPM’s Civil Service Regulations in 5 CFR chapter I, subchapter B9—to describe
positions generally excepted from chapter 75’s protections to reinforce the longstanding
3. Amending 5 CFR part 302, for the purposes of good administration and transparency,
to provide specific additional procedures that apply when moving positions from the
competitive service to the excepted service, or from one excepted service schedule to
another, and to provide employees encumbering such positions with a right of appeal to
the MSPB to the extent any such move purportedly strips employees of their civil service
status and protections. The proposed regulation also amends 5 CFR part 212
employee’s status in the event the employee’s position is moved to the excepted service.
As further detailed infra, this rulemaking will enhance the efficiency of the Federal civil
service and promote good administration and systematic application of merit system principles.11
OPM requests comments on this proposed rule, including on its potential impacts and
implementation, to better understand the potential effects of these proposed regulations and to be
9 The relevant regulatory language currently varies slightly. For instance, 5 CFR part 752 describes them as
positions “of a confidential, policy-determining, policy making, or policy advocating character.” But 5 CFR part 213
describes these positions as being “of a confidential or policy-determining character,” 5 CFR part 302 uses “of a
confidential, policy-determining, or policy-advocating nature,” and 5 CFR part 451 uses “of a confidential or policy-
making character.” In this proposed rule, OPM adopts “confidential, policy-determining, policy making, or policy
advocating” and “confidential or policy-determining” as two, interchangeable alternatives to describe these
positions.
10 The term “career employee,” as used here, refers to appointees to competitive service permanent or excepted
service permanent positions. The terms “noncareer, political appointee” and “political appointee,” as used here, refer
to individuals appointed by the President or his appointees pursuant to Schedule C (or similar authorities) who serve
at the pleasure of the current President or his political appointees and who have no expectation of continuing into a
new administration.
11 OPM’s authorities to issue regulations only extend to title 5, U.S. Code. A position may be placed in the excepted
service by presidential action, under 5 U.S.C. 3302, by OPM action, under authority delegated by the President
pursuant to 5 U.S.C. 1104, or by Congress. These proposed regulations apply to any situation where an agency
moves positions from the competitive service to the excepted service, or between excepted services, whether
pursuant to statute, Executive order, or an OPM issuance, to the extent that these provisions are not inconsistent with
applicable statutory provisions. For example, to the extent that a position is placed in the excepted service by an act
of Congress, an OPM regulation will not supersede a statutory provision to the contrary. Similarly, these provisions
also apply where positions previously governed by title 5 will be governed by another title going forward, unless the
statute governing the exception provides otherwise.
in a position to consider any possible modifications. OPM may set forth policies, procedures,
standards, and supplementary guidance for the implementation of any final rule.
I. Background
A. The Career Civil Service, Merit System Principles, and Civil Service Protections
Prior to the Pendleton Act of 1883,12 Federal employees were generally appointed,
retained, and terminated or removed based on their political affiliations and support for the
political party in power rather than their capabilities or competence.13 A change in administration
often triggered the widespread removal of Federal employees to provide jobs for the supporters
of the new President, his party, and party leaders.14 This patronage, or “spoils,” system often
resulted in party managers “pass[ing] over educated, qualified candidates and distribut[ing]
offices to ‘hacks’ and ward-heelers who had done their bidding during campaigns and would
continue to serve them in government.”15 Theodore Roosevelt, who served as a Civil Service
Commissioner before his presidency, described the spoils system as “more fruitful of
degradation in our political life than any other that could possibly have been invented. The
spoilsmonger, the man who peddled patronage, inevitably bred the vote-buyer, the vote-seller,
and the man guilty of misfeasance in office.”16 George William Curtis, a proponent of a merit-
based civil service, described that, under the spoils system, “[t]he country seethe[d] with intrigue
and corruption. Economy, patriotism, honesty, honor, seem[ed] to have become words of no
meaning.”17 Ethical standards for Federal employees were at a low ebb under this system. “Not
only incompetence, but also graft, corruption, and outright theft were common.”18
12 Pub. L. 16; Civil Service Act of 1883, (Jan. 16, 1883) (22 Stat. 403).
13 U.S. Merit System Protections Board, “What is Due Process in Federal Civil Service,” p. 4. (May 2015),
https://www.mspb.gov/studies/studies/What_is_Due_Process_in_Federal_Civil_Service_Employment_1166935.pdf
14 U.S. Office of Personnel Management, “Biography of an Ideal,” p. 83 (2003), OPM-Biography-of-an-Ideal-
History-of-Civil-Service-2003.pdf (armywarcollege.edu).
15 See Anthony J. Gaughan, “Chester Arthur’s Ghost: A Cautionary Tale of Campaign Finance Reform,” 71 Mercer
nonpartisan career civil service that would be selected based on merit rather than political
affiliation.19 Such a workforce would reinvigorate government, making it more efficient and
competent.20 This reform movement came to a head in 1881 when President James Garfield was
shot by a disappointed office seeker who believed he was entitled to a Federal job based on the
The Pendleton Act of 1883 reformed the patronage system by requiring agencies to
appoint Federal employees covered by the Act based on competency and merit.22 The Act also
established the Civil Service Commission (CSC) to help implement and enforce the
While the Pendleton Act focused on hiring, bases for removals continued to vary
depending on the preferences of the President in office.24 In 1897, President William McKinley
addressed removals by issuing Executive Order 101, which mandated that “[n]o removal shall be
made from any position subject to competitive examination except for just cause and upon
written charges filed with the head of the Department, or other appointing officer, and of which
the accused shall have full notice and an opportunity to make defense.”25 Congress later codified
these requirements in the Lloyd-La Follette Act of 191226 to establish that covered Federal
employees were to be both hired and removed based on merit. Specifically, section 6 of the Act
provided
that no person in the classified civil service[27] of the United States shall be removed
therefrom except for such cause as will promote the efficiency of said service and for
19 See Gaughan, supra note 15 at p. 787; U.S. Merit System Protections Board, supra note 13 at pp. 3-5.
20 See Gaughan, supra note 15 at p. 787.
21 See U.S. Merit System Protections Board, supra note 13 at pp. 4-5; U.S. Office of Personnel Management, supra
“relative capacity and fitness . . . to discharge the duties of the service into which they seek to be appointed.”).
23 Id. at 403.
24 The Act does specify that “no person in the public service is … under any obligations to contribute to any political
fund, or to render any political service, and that he will not be removed or otherwise prejudiced for refusing to do
so.” Id at 404.
25 U.S. Merit System Protections Board, supra note 13 at p. 5.
26 37 Stat. 555 (1912).
27 The “classified civil service” refers to the competitive service. See 5 U.S.C. 2102.
reasons given in writing, and the person whose removal is sought shall have notice of the
same and of any charges [proffered] against him, and be furnished with a copy thereof,
and also be allowed a reasonable time for personally answering the same in writing; and
affidavits in support thereof.
enacted the Veterans’ Preference Act,28 which, among other things, granted federally-employed
veterans extensive rights to challenge adverse employment actions, including the right to file an
appeal with the CSC and provide the CSC with documentation to support the appeal. Based on
the evidence presented, the CSC would issue findings and recommendations regarding the
adverse employment action. In short, the Veterans’ Preference Act provided eligible veterans
with adverse action protections and access to an appeals process.29 Then, in 1962, President John
F. Kennedy issued Executive Order 10988 to extend adverse action rights to the broader civil
service.30
B. Conduct and Performance under the Civil Service Reform Act of 1978
To synthesize, expand upon, and further codify the patchwork of processes that had
developed over almost a century, and to protect civil servants and govern personnel actions,
Congress passed the Civil Service Reform Act (CSRA) of 197831—the most comprehensive
adjudications, and oversight. It abolished the CSC and divided its duties among OPM32 and the
MSPB, which initially encompassed the Office of Special Counsel (OSC). OSC later became a
order and regulations prescribed by the Civil Service Commission, shall extend to all employees in the competitive
civil service rights identical in adverse action cases to those provided preference eligibles under section 14 of the
Veterans’ Preference Act of 1944, as amended.”) (Emphasis added).
31 92 Stat. 1111 (1978); see. Fausto, 484 U.S. at 455 (“The CSRA established a comprehensive system for reviewing
Presidential policy advisor, . . . promulgate regulations, set policy, run research and development programs,
implement rules and regulations, and would manage a centralized, innovative Federal personnel program.” 124
Cong. Rec. S27538 (daily ed. Aug. 24, 1978) (bill summary of the CSRA of 1978, S. 2540).
separate agency to which specific duties were assigned.33 OPM inherited the CSC’s policy,
managerial, and administrative duties, including the obligation to establish standards, oversee
compliance, and conduct examinations as required or requested.34 OPM was also obligated to,
among other things, advise the President regarding appropriate changes to the civil service rules,
administer retirement benefits, adjudicate employees’ entitlement to these benefits, and defend
adjudications at the Board.35 MSPB adjudicates challenges to personnel actions taken under the
civil service laws,36 among other things, and OSC investigates and prosecutes prohibited
personnel practices.37 Other, more specific enactments confer upon these entities the obligations
The CSRA codified fundamental merit system principles, which had developed since
1. Recruit, select, and advance on merit after fair and open competition.
3. Provide equal pay for equal work and reward excellent performance.
4. Maintain high standards of integrity, conduct, and concern for the public interest.
performance.
33 U.S. Government Accountability Office, “Civil Service Reform – Where it Stands Today,” at p. 2 (May 13, 1980),
https://www.gao.gov/assets/fpcd-80-38.pdf. The Equal Employment Opportunity Commission and Office of
Government Ethics also handle duties previously covered by the CSC.
34 See 5 U.S.C. 1103(a)(5), (a)(7).
35 Id.; see 5 U.S.C. 8461.
36 See 5 U.S.C. 1204.
37 See 5 U.S.C. 1212.
38 See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 403.
39 See 5 U.S.C. 2301.
9. Protect employees against reprisal for the lawful disclosure of illegality and other
covered wrongdoing.
actions, appealable adverse actions, and “prohibited personnel practices” are channeled into
separate procedural tracks.40 The procedures an agency must follow in taking an adverse action
and whether the agency’s action is appealable to MSPB depend on the action the agency seeks to
impose.
Suspensions of 14 days or less are not directly appealable to MSPB.41 But an employee
More rigorous procedures apply before agencies may pursue removals, demotions, suspensions
for more than 14 days, reductions in grade and pay, and furloughs for 30 days or less, assuming
the subject of the contemplated action meets the definition of an “employee” under 5 U.S.C.
7511.43 Incumbents, other than those who are statutorily excepted from chapter 75’s protections,
receive the full panoply of civil service protections in 5 U.S.C. 7513 after they satisfy the length
individual who falls within one of three groups: (1) an individual in the competitive service who
either (a) is not serving a probationary or trial period45 under an initial appointment; or (b) has
40 See Fausto, 484 U.S. at 443, 445-47; see 5 U.S.C. 1212, 1214, 2301, 2302, 7502, 7503, 7512, 7513; see also 5
U.S.C. 4303 (review of actions based on unacceptable performance).
41 5 U.S.C. 7503; Fausto, 484 U.S. at 446.
42 5 U.S.C. 7503(b)(1)-(4); 5 CFR part 752, subpart B.
43 See 5 CFR 752.401, 404, 1201.3; see also 5 U.S.C. 7504, 7512(1)-(5); Fausto, 484 U.S. at 446-47.
44 5 U.S.C. 7513(d), 7701(a).
45 The term “probationary period” generally applies to employees in the competitive service. “Trial period” applies
to employees in the excepted service and some appointments in the competitive service, such as term appointments,
which have a 1-year trial period set by OPM. A fundamental difference between the two is the duration in which
employees must serve. The probationary period is set by law to last 1 year. When the trial period is set by individual
agencies, it can last up to 2 years. See 5 CFR 315.801 through 806; see also U.S. Merit System Protections Board,
Navigating the Probationary Period After Van Wersch and McCormick, (Sept. 2006),
https://www.mspb.gov/studies/studies/Navigating_the_Probationary_Period_After_Van_Wersch_and_McCormick_
276106.pdf.
completed 1 year of current continuous service under other than a temporary appointment limited
to 1 year or less; (2) a preference eligible46 in the excepted service who has completed 1 year of
current continuous service in the same or similar positions in an Executive agency; or in the
United States Postal Service or Postal Rate Commission; or (3) an individual in the excepted
service (other than a preference eligible) who either (a) is not serving a probationary or trial
period under an initial appointment pending conversion to the competitive service; or (b) has
completed 2 years of current continuous service in the same or similar positions in an Executive
In the event of a final MSPB decision adverse to the employee, employees may petition
the United States Court of Appeals for the Federal Circuit or another appropriate judicial forum
Excepted from these procedural entitlements and rights to appeal conferred on other
employees under chapter 75 are employees “whose position has been determined to be of a
regardless of veterans’ preference or length of service in the position. As detailed further infra, it
is evident that Congress, in using this and similar language in various parts of title 5, U.S. Code,
intended this exception to apply only to noncareer, political appointments that carry no
expectation of continued employment beyond the presidential administration during which the
appointment occurred.50 The unique responsibilities of political appointees, typically listed under
46 The term “preference eligible” refers to specified military veterans and family members with derived preference
pursuant to statute, such as an unmarried widow, and the wife or husband of a service-connected disabled veteran.
See 5 U.S.C. 2108(3) for additional explanation.
47 5 U.S.C. 7511(a)(1). Under Federal Circuit case law, as explained further infra, whether an employee has
completed a probationary or trial period is immaterial to this analysis if in fact the employee has completed the
requisite period of continuous employment under subparagraphs (A)(ii) and (C)(ii).
48 5 U.S.C. 7503, 7513, 7701-7703, 7703(a)(1), (b)(1)(A).
49 5 U.S.C. 7511(b)(2)(b).
50 See infra, Sec. II. Proposed Amendments; 5 CFR 6.2 (“Positions of a confidential or policy-determining character
shall be listed in Schedule C”); 213.3301 Schedule C (“positions which are policy-determining or which involve a
close and confidential working relationship with the head of an agency or other key appointed officials”). Political
appointees serve at the pleasure of the President or other appointing official and may be asked to resign or be
dismissed at any time. They are not covered by civil service removal procedures, have no adverse action rights, and
generally have no right to appeal terminations. See e.g. 5 U.S.C. 7511(b)(2) (excluding noncareer, political
excepted service Schedule C, allow hiring and termination to be done purely at the discretion of
the President or the President’s political appointees. This is a narrow, specific exception from the
competitive service, and each position listed in Schedule C is revoked immediately upon the
position becoming vacant.51 Agencies may terminate political appointees at any time, often
whenever the relationship between the incumbent and the political appointee to whom the
incumbent reports ends. This also means that, absent any unique circumstance provided in law or
presidential transition.
Prior to the CSRA, agencies relied only on provisions codified at chapter 75 to remove
Federal employees or to change an employee to a lower grade, even if the reason for removal
was for unacceptable performance. The CSRA created chapter 43 as an additional, and, in
performance concerns.52 Accordingly, in addition to using the provisions of chapter 75, agencies
can now address performance concerns under chapter 43 of title 5, U.S. Code.
Through various enactments now reflected in chapters 43 and 75, Congress has created
conditions under which certain employees (i.e., those with the requisite tenure in continued
employment) may gain a property interest in continued employment. Congress has mandated that
removal and the other actions described in subchapter II of chapter 75 may be taken only “for
such cause as will promote the efficiency of the service.”53 This property interest in continued
employment has been a feature of the Federal civil service since at least 1912, when the Lloyd-
La Follette Act required just cause to remove a Federal employee. The Supreme Court in Board
appointees from definition of “employees” eligible for adverse action protections); 5 CFR 317.605 (“An agency may
terminate a noncareer or limited appointment at any time, unless a limited appointee is covered under 5 CFR
752.601(c)(2).”); 734.104 (listing employees who are appointed by the President, noncareer SES members, and
Schedule C employees as “employees who serve at the pleasure of the President.”); 752.401(d)(2) (excluding
noncareer, political appointees under Schedule C from adverse action protections).
51 See 5 CFR 213.3301.
52 U.S. Merit System Protections Board, “Addressing Poor Performers and the Law,” p. 4. (Sept. 2009),
https://www.mspb.gov/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf.
53 See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a), 752.202(a).
of Regents of State Colleges v. Roth, recognized that restrictions on loss of employment, such as
tenure, can create a property right.54 In Cleveland Board of Education v. Loudermill,55 the Court
also held:
Property cannot be defined by the procedures provided for its deprivation any more than
can life or liberty. The right to due process is conferred, not by legislative grace, but by
constitutional guarantee. While the legislature may elect not to confer a property interest
in public employment, it may not constitutionally authorize the deprivation of such an
interest once conferred, without appropriate procedural safeguards.56
In short, once a government requires cause for removals, constitutional due process
protection will attach to that property interest and determine the minimum procedures by which a
removal may be carried out. Any new law addressing the removal of a Federal employee with a
vested property interest in the employee’s continued employment must, at a minimum, comport
with the constitutional concept of due process. This obligation drives some of the procedures in
both chapters 43 and 75, while others have been developed in accordance with Congress’s
assessments of what is good policy.57 As a matter of law, agencies must follow the procedures
chapters.
adverse actions and performance-based actions, the CSRA includes a mechanism for employees
practice” because it has been taken for a prohibited reason.58 “Covered position” means any
position in the competitive service, a career appointee in the Senior Executive Service, or a
position in the excepted service unless “conditions of good administration warrant” a necessary
54 408 U.S. 564, 576-77 (1972). The Court described three earlier decisions – Slochower v. Board of Education, 350
U.S. 551 (1956), Wieman v. Updegraff, 344 U.S. 183 (1952), and Connell v. Higginbotham, 403 U.S. 207 (1971) –
where the Court held that due process rights applied to public employment.
55 470 U.S. 532 (1985).
56 Id. at 541.
57 The exact procedures required will turn on the factual situation and may be different from instance to instance.
58 5 U.S.C. 2302(a)(1), (a)(2), (b).
exception on the basis that the position is of a “confidential, policy-determining, policy-making,
or policy-advocating character.”59
At 5 U.S.C. 2302(a)(2)(A), Congress lists twelve types of personnel actions that can form
the basis of a prohibited personnel practice under 5 U.S.C. 2302(b). Generally, these personnel
actions include (1) an appointment; (2) a promotion; (3) an adverse personnel action for
reinstatement; (6) a restoration; (7) a reemployment; (8) a performance evaluation; (9) a decision
evaluation; (10) a decision to order psychiatric testing or examination; (11) the implementation
or enforcement of any nondisclosure policy, form, or agreement; and (12) any other significant
here:
1. Illegally discriminate for or against any employee or applicant, including on the basis
3. Coerce political activity or take action against an employee or applicant for any
10. Discriminate on the basis of conduct that does not affect performance.
12. Take or fail to take a personnel action where the action or omission violates any law,
rule, or regulation that implements or directly concerns the merit system principles.
and may investigate in the absence of such an allegation to determine if corrective action is
warranted.62 If OSC concludes that corrective action is, in fact, warranted, and if OSC is unable
to obtain a satisfactory correction of the practice from the corresponding agency, it may petition
MSPB to grant corrective action, and, if OSC proves its claim, MSPB may order the corrective
The Federal civil service consists of three services: the competitive service, the excepted
service, and Senior Executive Service.64 In the competitive service, individuals must complete a
competitive hiring process before being appointed. This process may include a written test or an
Executive Service).
equivalent evaluation of the individual’s relative level of knowledge, skills, and abilities
While most government employees are in the competitive service, about one-third are in
the excepted service.66 The excepted service includes all positions in the Executive Branch that
are specifically excepted from the competitive service by statute, Executive order, or by OPM
regulation.67 For positions excepted from the competitive service by statute, selection must be
made pursuant to the provisions Congress enacted. Applicants for excepted service positions
under title 5, U.S. Code, like applicants for the competitive service, are to be selected “solely on
the basis of relative ability, knowledge, and skills, after fair and open competition which assures
that all receive equal opportunity.”68 Agencies filling positions in the excepted service “shall
select … from the qualified applicants in the same manner and under the same conditions
required for the competitive service.”69 This means that agencies should generally afford
preference in the same manner they would have for the competitive service, though, in a few
situations70 where the reason for the exception makes this essentially impossible, OPM (or the
President) has exempted the position from regulatory requirements and imposed a less stringent
standard.71
from the competitive service” when warranted by “conditions of good administration.”72 The
President has delegated to OPM—and, before that, to its predecessor, the CSC—concurrent
authority to except positions from the competitive service when it determines that appointments
65 See 5 U.S.C. 3304 (“An individual may be appointed in the competitive service only if he has passed an
examination or is specifically excepted from examination under section 3302 of this title.”); see also U.S. Office of
Personnel Management, “Competitive Hiring,” https://www.opm.gov/policy-data-oversight/hiring-
information/competitive-hiring/.
66 See Congressional Research Service, “Categories of Federal Civil Service Employment; A Snapshot,” at p. 4
delegated authority to OPM to “decide whether the duties of any particular position are such that
OPM has exercised its delegated authority, and implemented exercises of presidential
authority, by prescribing five schedules for positions in the excepted service, which are currently
for which it is not practicable to examine applicants, such as attorneys, chaplains, and short-
for which it is not practicable to examine applicants. Unlike Schedule A positions, Schedule
for the relevant occupation and grade level. Schedule B positions engage in a variety of
• Schedule C—Includes positions that are policy-determining or which involve a close and
confidential working relationship with the head of an agency or other key appointed officials.
These positions include most political appointees below the cabinet and subcabinet levels.
for which competitive examination makes it difficult to recruit certain students or recent
standards established by OPM for the relevant occupation and grade level. Positions include
73 E.O. 10577, sec. 6.1(a) (1954); 5 CFR 6.1(a) (1988) (“The Commission is authorized to except positions for the
competitive service whenever it determines that appointments thereto through competitive examination are not
practicable” and that “[u]pon the recommendation of the agency concerned, it may also except positions which are
of a confidential or policy-determining character.”).
74 E.O. 10577 sec. 6.1(b); 5 CFR 6.1(b); see 28 FR 10025 (Sept. 14, 1963) (reorganizing the civil service rules).
• Schedule E—Includes positions of administrative law judges.75
Schedule C, become “employees” for purpose of civil service protections after they satisfy the
length of service conditions in 5 U.S.C. 7511. Excepted service employees, except those in
Schedule C and some employees in certain Federal agencies excepted by statute, maintain the
same notice and appeal rights for adverse actions and performance-based actions as competitive
service employees.76 However, and as noted here, excepted service employees must satisfy
different durational requirements before these rights become available. So-called “preference
eligibles”—specified military veterans and family members with derived preference pursuant to
statute77—in an executive agency, the Postal Service, or the Postal Rate Commission must
complete one year of current continuous service to avail themselves of the relevant notice and
appeal rights.78 Employees in the excepted service who are not preference eligibles and (1) are
not serving a probationary or trial period under an initial appointment pending conversion to the
competitive service, or (2) have completed two years of current or continuous service in the same
or similar position, have the same notice and appeal rights as qualifying employees in the
competitive service.79
Likewise, any employee who is (1) a preference eligible; (2) in the competitive service;
or (3) in the excepted service and covered by subchapter II of chapter 75, and who has been
75 5 CFR 6.2.
76 See 5 U.S.C. 4303, 7513(d). There are, however, some notable differences between non-removal protections
afforded to competitive service and excepted service employees, such as assignment rights in the event of a
reduction in force. See 5 CFR 351.501 and 502. Employees who are reached for release from the competitive service
during a reduction in force are entitled to an offer of assignment if they have “bump” or “retreat” rights to an
available position in the same competitive area. “Bumping” means displacement of an employee in a lower tenure
group or a lower subgroup within the same tenure group. “Retreating” means displacement of an employee in the
same tenure group and subgroup. Meaning, they are entitled to the positions of employees with fewer assignment
rights. Employees in excepted service positions have no assignment rights to other positions unless their agency, at
the agency’s discretion, chooses to offer these rights to positions. Even with these differences, merit system
principles are at the core of civil service protections relating to hiring, conduct, and performance matters as applied
to both career competitive and excepted service employees.
77 See 5 U.S.C. 2108(3).
78 See 5 U.S.C. 7511(a)(1)(B).
79 See 5 U.S.C. 7511(a)(1)(C).
reduced in grade or removed under chapter 43, is entitled to appeal the action to MSPB.80
However, these appeal rights do not apply to (1) the reduction to the grade previously held of a
supervisor or manager who has not completed the probationary period under 5 U.S.C 3321(a)(2);
(2) the reduction in grade or removal of an employee in the competitive service who is serving a
probationary or trial period under an initial appointment or who has not completed one year of
current continuous employment under other than a temporary appointment limited to one year or
less; or (3) the reduction in grade or removal of an employee in the excepted service who has not
completed one year of current continuous employment in the same or similar positions.81
On October 21, 2020, President Donald Trump, through Executive Order 13957,
“Creating Schedule F in the Excepted Service,” sought to alter the carefully crafted legislative
balance that Congress struck in the CSRA.82 That Executive order, if fully implemented, could
have transformed the civil service by purportedly stripping adverse action rights under chapter
75, performance-based action rights under chapter 43, and appeal rights from large swaths of the
requirements built into the Federal hiring process intended to promote the objective of merit-
based hiring decisions. It would have upended the longstanding principle that a career Federal
employee’s tenure should be linked to their performance, rather than to the nature of the position
that the employee encumbers. It also could have reversed longstanding requirements that, among
other things, prevent political appointees from “burrowing in” to career civil service jobs in
violation of merit system principles. Executive Order 13957 was revoked, and Schedule F was
abolished, by President Joseph Biden through Executive Order 14003, “Protecting the Federal
Workforce.”83
Section 5 of Executive Order 13957 directed agency heads to review their entire
workforces to identify any employees covered by chapter 75’s adverse action rules (which apply
broadly to employees in the competitive and excepted service) who occupied positions of a
positions the agency assessed, for the first time, to arguably include these characteristics—and to
petition OPM for its approval to place them in Schedule F, a newly-created category of positions
excepted from the competitive service. If these positions had, in fact, been placed in Schedule F,
the employees encumbering them would purportedly have been stripped of the adverse action
procedural rights under chapter 75 and MSPB appeal rights discussed supra, thus allowing them
to be terminated at will, by virtue of the placement of the positions they occupied in this new
An express rationale of this action was to make it easier for agencies to “expeditiously
remove poorly performing employees from these positions without facing extensive delays or
litigation.”85 This new sweeping authority was purportedly necessary for the President to have
“appropriate management oversight regarding” the career civil servants working in positions
sound judgment,” in light of the importance of these functions.86 Executive Order 13957 did not
84 Since performance-based actions under 5 U.S.C. 4303 are tied, in part, to subchapter II of chapter 75, employees
would purportedly have also been stripped of performance-based action procedural rights and MSPB appeal rights,
had an agency chosen to proceed with an action under chapter 43.
85 E.O. 13957, sec. 1.
86 The Executive order provided that “[c]onditions of good administration . . . make necessary excepting such
positions from the adverse action procedures set forth in chapter 75 of title 5, United States Code.” E.O. 13957, sec.
1. We note that the “conditions of good administration” language appears in 5 U.S.C. 3302. Section 3302 relates
only to exclusions of positions from the competitive service when conditions of good administration warrant and
does not purport to confer authority on the President to except positions from the provisions of chapter 75. Similarly,
chapter 75 itself does not itself purport to confer authority on the President to except positions from the scope of
chapter 75. President Trump appeared to be attempting to effectuate the exception by requiring agencies to identify
career positions in the competitive or excepted service that are “not normally subject to change as a result of a
acknowledge existing mechanisms to provide “appropriate management oversight,” such as
chapter 43 and chapter 75 procedures, or the multiple management controls that agencies have in
Executive Order 13957 instructed agency heads to review existing positions to determine
which, if any, should be placed into Schedule F. The Executive order also instructed that, after
agency heads conducted their initial review, they were to move quickly and petition OPM by
January 19, 2021—the day before Inauguration Day—to place positions within Schedule F. After
that, agency heads had another 120 days to petition OPM to place additional positions in
Schedule F. In contrast to past excepted service schedules designed to address unique hiring
needs upon a determination that appointments through the competitive service was “not
practicable,”88 movement into Schedule F was designed to be broad and numerically unlimited,
potentially affecting a substantial number of jobs across all Federal agencies. For example,
according to the Government Accountability Office, the Office of Management and Budget
petitioned to place 68 percent of its workforce, more than 400 employees, within Schedule F.89
2. Hiring
that are not normally subject to change as a result of a presidential transition shall be made under
Schedule F.”90 The stated rationale for removing these positions from the competitive hiring
process (or from other excepted service schedules in which some of these positions were
Presidential transition” (and thus not encompassed by Schedule C) but that are nevertheless of a “confidential,
policy-determining, policy-making, or policy advocating character,” to facilitate the movement of such positions to a
new Schedule F. In essence, President Trump thought to separate this phrase from its historical context, which was
to describe positions normally placed in Schedule C, which positions normally are subject to change as a result of a
presidential transition.
87 Matters of importance can be raised to agency administrators in various ways, such as by filing a complaint with
an agency’s Inspector General, raising concerns with an agency’s human resources office, and filing a grievance.
88 See infra notes 137-141.
89 Government Accountability Office, “Civil Service – Agency Responses and Perspectives on Former Executive
Order to Create a New Schedule F Category for Federal Positions,” (Sept. 2022), https://www.gao.gov/assets/gao-
22-105504.pdf.
90 85 FR 67632.
previously placed) was, again, said to be because of the importance of their corresponding duties,
and the need to have employees in these positions that display “appropriate temperament,
acumen, impartiality, and sound judgment.”91 The stated purpose was to “provide agency heads
with additional flexibility to assess prospective appointees without the limitations imposed by
competitive service selection procedures”92 or, presumably, for positions already in the excepted
service, without the constraints imposed by 5 CFR part 302. Executive Order 13957 indicated
that this change was intended to “mitigate undue limitations on their selection” and relieve
agencies of “complicated and elaborate competitive service processes or rating procedures that
do not necessarily reflect their particular needs.” 93 These changes were to give agencies “greater
ability and discretion to assess critical qualities in applicants to fill these positions, such as work
ethic, judgment, and ability to meet the particular needs of the agency.”94
Executive Order 13957 failed to address the fact that the competitive hiring process
permits agencies to assess all competencies that are related to successful performance of the job,
including appropriate temperament, acumen, impartiality, and sound judgment and fulfill the
congressional policy to confer a preference on eligible veterans or their family members entitled
and other assessment methodologies available to hiring managers facilitate an agency’s ability to
identify the best candidate. Executive Order 13957 also failed to address the existence of
longstanding rules, grounded in the need to establish lack of unlawful bias in proceedings under
Federal anti-discrimination statutes, that require assessment of any such competencies.95 The
summary imposition of new competencies without validating them would be contrary to existing
91 85 FR 67631.
92 85 FR 67631.
93 85 FR 67632. The procedures Congress has adopted for hiring in the competitive service were designed, in part, to
implement the stated congressional policy of veterans’ preference. See 5 U.S.C. 1302. How this congressional
mandate would be realized in these circumstances was not addressed.
94 85 FR 67632.
95 See 5 CFR part 300. Validation generally requires that the criteria and methods by which job applicants are
An additional concern relating to Executive Order 13957 was that it could have
facilitated burrowing. “Burrowing” occurs when a current (or recently departed) political
appointee is hired into a permanent competitive service, nonpolitical excepted service, or career
Senior Executive Service position without having to compete for that position or having been
appropriately selected in accordance with merit system principles and the normal competitive or
excepted service procedures applicable to the position under civil service law. OPM has long
required that “politics play no role when agencies hire political appointees for career Federal
jobs.”96 Indeed, OPM adopted procedures to review appointments of such individuals for
compliance, and Congress has now essentially codified that procedure by requiring OPM to
submit periodic reports of its findings.97 Executive Order 13957 potentially would have allowed
agency heads to move current political appointees into new Schedule F positions, or vacancies in
existing positions transferred to Schedule F, without competition and in a manner not based on
who would normally expect to depart upon a presidential transition, to “burrow” into permanent
Ultimately, Executive Order 13957 was rescinded before any positions could be placed
into Schedule F. As noted above, on January 22, 2021, President Joseph Biden issued Executive
Order 14003, “Protecting the Federal Workforce,” stating that “it is the policy of the United
States to protect, empower, and rebuild the career Federal workforce,” and that the Schedule F
96 OPM, “Guidelines on Processing Certain Appointments and Awards During the 2020 Election Period,”
https://chcoc.gov/sites/default/files/2020%20Appointments%20and%20Awards%20Guidance%20Attachments_508.
pdf.
97 See The Edward “Ted” Kaufman and Michael Leavitt Presidential Transitions Improvement Act of 2015. Pub. L.
114-136 (Mar. 18, 2016), which requires OPM to submit these reports to Congress.
policy “undermined the foundations of the civil service and its merit system principles.”98
Executive Order 14003 rescinded Executive Order 13957 and abolished Schedule F.99
The OPM Director has direct statutory authority to execute, administer, and enforce all
civil service rules and regulations as well as the laws governing the civil service. 100 The Director
also has authorities Presidents have conferred on OPM pursuant to the President’s statutory
authority.101
As explained here, in enacting the CSRA, Congress conveyed broad regulatory authority
over Federal employment directly to OPM throughout title 5.102 In addition, many of these
specific statutory enactments, including chapter 75, expressly confer on OPM authority to
regulate. Pursuant to 5 U.S.C. 7514, OPM may issue regulations to carry out the purpose of
subchapter II of chapter 75, and pursuant to 5 U.S.C. 7504, OPM may issue regulations to carry
The same is true with respect to chapter 43. Pursuant to 5 U.S.C. 4305, OPM may issue
Prior to the reorganization proposal103 approved by Congress that created OPM, the CSC
exercised its broad authorities, in part, to establish rules and procedures concerning the terms of
being appointed in the competitive or excepted service and of moving between the competitive
and excepted service. Since its inception in 1978, OPM has leveraged that same authority—
section 102 that “Except as otherwise specified in this Plan, all functions vested by statute in the United States Civil
Service Commission, or the Chairman of said Commission, or the Boards of Examiners established by 5 U.S.C.
1105 are hereby transferred to the Director of the Office of Personnel Management.”
including from Executive Order 10577,104 as amended, as well as from statutory authorities such
as 5 U.S.C. 1103(a)(5) and 5 U.S.C. 1302—to establish rules and procedures concerning the
effects on an employee of being appointed in the competitive or excepted service and of moving
between the competitive and excepted service. OPM has used these authorities to create
government-wide rules for Federal employees regarding a wide range of topics, such as hiring,
promotion, performance assessment, pay, leave, political activity, retirement, and health
• 5 CFR part 6 requires OPM to publish in the Federal Register on a regular basis the list of
• 5 CFR 212.401(b), promulgated in 1968,107 well before the CSRA, provides that “[a]n
employee in the competitive service at the time his position is first listed under Schedule A,
B, or C remains in the competitive service while he occupies that position.” This regulation
was intended to preserve competitive service status and rights for employees who were
initially appointed to positions in the competitive service and whose positions were
subsequently moved into the excepted service (such as administrative law judges).108
• 5 CFR 302.102, promulgated in part to implement 5 U.S.C. 3320, provides that when an
agency wishes to move an employee from a position in the competitive service to one in the
excepted service, the agency must: “(1) Inform the employee that, because the position is in
the excepted service, it may not be filled by a competitive appointment, and that acceptance
of the proposed appointment will take him/her out of the competitive service while he/she
occupies the position; and (2) Obtain from the employee a written statement that he/she
10, 1978); E.O. 13562, 75 FR 82587 (Dec. 30, 2010); see also E.O. 14029, 86 FR 27025 (May 19, 2021).
107 See 33 FR 12408 (Sept. 4, 1968).
108 Id.
understands he/she is leaving the competitive service voluntarily to accept an appointment in
• 5 CFR part 432 sets forth the procedures to be followed, if an agency opts to pursue a
with the adverse action rules in part 752, the rules applicable to performance-based actions
apply broadly to employees in the competitive and excepted service, with narrowly defined
• 5 CFR part 752 implements chapter 75 of title 5, U.S. Code and establishes the procedural
rights that apply when an agency commences the process for taking an adverse action against
the competitive and excepted service meeting the section 7511 criteria.111
Moreover, the President, pursuant to his own authorities under the CSRA, as codified at 5
U.S.C. 3301 and 3302, has explicitly delegated a variety of these authorities to OPM concerning
execution, administration, and enforcement of the competitive and excepted services. For
example, under Civil Service Rule 6.1(a), “OPM may except positions from the competitive
service when it determines that . . . appointments thereto through competitive examination are
not practicable.”112 And under Civil Service Rule 6.1(b), “OPM shall decide whether the duties
of any particular position are such that it may be filled as an excepted position under the
appropriate schedule.”113
OPM has other regulatory authority, for example, under 5 CFR parts 5 and 10, to oversee
the Federal personnel system and agency compliance with merit system principles and
supporting laws, rules, regulations, Executive orders, and OPM standards. OPM also administers
109 See 55 FR 9407 (Mar. 14, 1990), as amended at 58 FR 58261 (Nov. 1, 1993).
110 See 54 FR 26179 (June 21, 1989), redesignated and amended at 54 FR 49076 (Nov. 29, 1989), redesignated and
amended at 58 FR 65534 (Dec. 15, 1993); 85 FR 65982 (Oct. 16, 2020); 87 FR 67782 (Nov. 10, 2022).
111 See 74 FR 63532 (Dec. 4, 2009), as amended at 85 FR 65985 (Oct. 16, 2020); 87 FR 67782 (Nov. 10, 2022).
112 5 CFR 6.1(a).
113 5 CFR 6.1(b).
the statutory provisions governing the rights of Federal employees in connection to adverse
agency actions.114
below to clarify and reinforce longstanding civil service protections and merit system principles.
Adverse action protections and related eligibility and procedures are covered in 5 U.S.C.
chapter 75. subchapter I covers suspensions for 14 days or less and 5 U.S.C. 7501 defines
“employee” for the purposes of adverse action procedures for suspensions of this duration. Under
5 U.S.C. 7504, OPM may prescribe regulations to carry out the purpose of subchapter I.
Subchapter II covers removals, suspensions for more than 14 days, reductions in grade or pay, or
furloughs for 30 days or less. In this subchapter, 5 U.S.C. 7511 defines “employee” for the
purposes of entitlement to adverse action procedures. Under 5 U.S.C. 7514, OPM may prescribe
regulations to carry out the purposes of subchapter II except as it concerns any matter where
OPM proposes amending 5 CFR part 752 (Adverse Actions) to reflect OPM’s
longstanding interpretation of 5 U.S.C. 7501 and 5 U.S.C 7511 and the congressional intent
underlying the statutes, including exceptions to civil service protections outlined in 5 U.S.C.
7511(b). OPM proposes to clarify that employees who are moved from the competitive to the
excepted service, or from one excepted service schedule to another, retain the status and civil
service protections they had already accrued. On the other hand, an employee may relinquish
such rights or status by voluntarily applying for, accepting, and then encumbering a position that
114 See 5 U.S.C. 7514 (granting OPM the authority to “prescribe regulations to carry out the purpose of” subchapter
II of chapter 75 of title 5); see also 5 U.S.C. 7511(c), 7513(a), see also infra, Sec. II.A.
OPM also proposes revising its regulations at subpart B of 5 CFR part 752 (Regulatory
Requirements for Suspension for 14 Days or Less) to conform this subpart with statutory
language in 5 U.S.C. 7501. The proposed revisions are intended to reinforce which employees
are covered by subpart B when an agency decides to take an action under this subpart for such
OPM proposes revising subpart D of 5 CFR part 752 (Regulatory Requirements for
Removal, Suspension for More Than 14 Days, Reduction in Grade or Pay, or Furlough for 30
Days or Less) to clarify that employees in the competitive and excepted services (except for
positions in Schedule C) who have fulfilled their probationary or trial period requirement or the
durational requirements under 5 U.S.C. 7511 will retain the rights conferred by subchapter II if
moved from the competitive service to the excepted service or from within excepted service to a
new excepted service schedule, except in the case where an employee relinquishes such rights or
status by voluntarily seeking, accepting, and encumbering a position that explicitly results in a
Performance-based actions under chapter 43 and related eligibility and processes are
covered in 5 U.S.C. 4303. Section 4303(e) defines when an employee is entitled to appeal rights
to MSPB. Notably, chapter 43 cross-references chapter 75, providing that any employee who is a
preference eligible, in the competitive service, or covered by subchapter II of chapter 75, and
who has been reduced in grade or removed under section 4303 is entitled to appeal the action to
MSPB under 5 U.S.C. 7701. Under 5 U.S.C. 4305, OPM may issue regulations to carry out
As a preliminary matter, subpart B of part 752 applies to suspensions for 14 days or less.
Chapter 75 of title 5, U.S. Code, provides a straightforward process for agencies to use in
adverse actions involving suspensions of this duration. The proposed changes conform this
subpart with statutory language to clarify which employees are covered by subpart B when an
agency decides to take an action under this subpart for such cause as will promote the efficiency
of the service.
proposing to modify the language in § 752.201(b) to further clarify when an employee has or
OPM proposes to revise subpart B of part 752 to conform to the decisions of the Federal
Circuit in Van Wersch v. Department of Health & Human Services, 197 F.3d 1144 (Fed. Cir.
1999), and McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002). These
cases now guide the way MSPB applies 5 U.S.C. 7511(a)(1), which defines employees who have
the right to appeal major adverse actions, such as removals, to MSPB. Van Wersch addressed the
definition of “employee” for purposes of nonpreference eligibles in the excepted service and, a
few years later, McCormick addressed the meaning of “employee” for purposes of the
competitive service. As explained supra, section 7511(a)(1) states that “employees” include
individuals who meet specified conditions relating to the duration of their service or, for
nonpreference eligibles, relating to their probationary or trial period status. The Federal Circuit
explained that the word “or,” here, refers to alternatives: some individuals who traditionally had
been considered probationers with limited rights are actually entitled to the same appeal rights
afforded to non-probationers if the individuals meet the other requirements of section 7511(a)(1),
namely (1) their prior service is “current continuous service,” (2) the current continuous service
is in the “same or similar positions” for purposes of nonpreference eligibles in the excepted
service, and (3) the total amount of such service meets a one or two-year requirement, and was
not in a temporary appointment limited to one or two years, depending on the service.115
115 See McCormick, 307 F.3d at 1341-43; Van Wersch, 197 F.3d at 1151-52.
In a prior rulemaking,116 OPM modified its regulations for appealable adverse actions in
5 CFR part 752, subpart D, to align with Van Wersch and McCormick and statutory language.
OPM has consistently advised agencies regarding 5 U.S.C. 7501 in light of the Federal Circuit’s
interpretation of similar statutory language in 5 U.S.C. 7511. In this rule, OPM proposes to
modify language in 5 CFR 752.201(b)(1) to conform with the statutory language in 5 U.S.C.
7501. OPM’s proposed revision to § 752.201(b)(1) prescribes that, even if an employee in the
competitive service who has been suspended for 14 days or less is serving a probationary or trial
period, the employee retains the procedural rights provided under 5 U.S.C. 7503 if the individual
has completed one year of current continuous employment in the same or similar position under
OPM also proposes to amend § 752.201(b)(1) through (b)(6) to clarify that individuals
retain their status as covered employees if they are moved involuntarily from the competitive
Finally, OPM proposes to add a new 5 CFR 752.201(c)(7) to further clarify that
policy-advocating character as defined in 5 CFR 210.102 are excluded from coverage under
subpart B of part 752 because, as explained infra, Congress intended these positions to mean
Subpart D of part 752 applies to removal, suspension for more than 14 days, reduction in
grade or pay, or furlough for 30 days or less. This includes, but is not limited to, adverse actions
reinforce the civil service protections that apply when an agency pursues certain adverse actions
116 OPM, “Career and Career-Conditional Employment and Adverse Actions,” 73 FR 7187 (Feb. 7, 2008).
Section 752.401(c) outlines which employees are covered by subpart D. OPM is
proposing to modify the language in § 752.401(c) to further clarify when an employee has or
The proposed changes add language to provide that an employee who occupies a position
that is moved from the competitive service into the excepted service, or from one excepted
service schedule to another, is covered by the regulatory requirements for removal, suspension
for more than 14 days, reduction in grade or pay, or furlough for 30 days or less.
that once an employee meets certain conditions, the individual gains certain statutory procedural
rights and civil service protections which cannot be taken away from the individual by simply
moving the employee’s position into the excepted service, or within the excepted service, as long
as the employee continues to occupy the same or similar position. These proposed regulatory
changes are consistent with how similar statutory rights have been interpreted by Federal courts
and MSPB when employees change jobs by moving to a different Federal agency.117
1599e, effected December 31, 2022.118 Prior to the repeal, certain individuals hired at the
Department of Defense were subject to a two-year probationary period. The repeal restores a
Finally, OPM proposes to modify 5 CFR 752.401(d)(2) to further clarify that political
policy-advocating character, as defined in § 210.102, are excluded from coverage under subpart
D of part 752.
Advocating Character
117 See, e.g., McCormick, 307 F.3d at 1341-43; Greene v. Def. Intel. Agency, 100 M.S.P.R. 447 (2005).
118 See Pub. L. 117-81, Sec. 1106(a)(1).
OPM proposes to amend 5 CFR part 210 (Basic Concepts and Definitions (General)), to
advocating” and “confidential or policy-determining.” Positions of this nature are excepted from
the chapter 75 protections described above. OPM proposes to define these terms to make explicit
OPM’s interpretation of this exception in 5 U.S.C. 7511(b), which is that Congress intended to
except from chapter 75’s civil service protections individuals in positions of a character
exclusively associated with a noncareer, political appointment that is both (a) identified by its
close working relationship with the President, head of an agency, or other key appointed officials
who are responsible for furthering the goals and policies of the President and the Administration,
and (b) that carries no expectation of continued employment beyond the presidential
210.102, which applies throughout OPM’s Civil Service Regulations in 5 CFR chapter I,
subchapter B. OPM is proposing to define these terms as descriptors for the positions held by
noncareer, political employees because the terms are currently used in the regulations to
describe, among other things, a “position” or the “character” of a position. OPM is also
proposing conforming changes to 5 CFR 213.3301, 302.101, 432.101, 451.302, 752.201, and
As explained more fully later in this section, Congress has been careful to strike a balance
between career employees—who are covered by civil service protections under chapter 75
because of the need for a professional civil service no matter whether they are in the competitive
or excepted service—and political appointees who serve as confidential assistants and advisors to
the President and to key appointed officials who have direct responsibility for carrying out the
Administration’s political objectives. These political appointees are not required to compete for
their positions in the same manner as career employees, serve at the pleasure of their superiors,
and have no expectation of continued employment beyond the presidential administration during
When Congress created the adverse action protections under chapter 75, it excluded
employees appointed by the President, with or without Senate confirmation, and employees in
the excepted service “whose position has been determined to be of a confidential, policy-
excluded from the positions safeguarded against prohibited personnel practices under 5 U.S.C.
2302(a)(2)(B)(i) any position that is “excepted from the competitive service because of its
As explained infra, these narrow exceptions have long been interpreted to apply to
noncareer, political appointees typically listed in Schedule C. Political appointees have long been
considered a powerful, but narrow, cross section of Executive Branch leadership. These positions
“are relatively few in number” and consist “of only the highest positions,”120 and, in practice, a
limited number of confidential staff to support the work of the individuals in such positions.
The context in which the CSRA was enacted bolsters the interpretation that “confidential,
civil service protections, refers to political appointees and not career civil servants. Congress
revised parts of the CSRA immediately following the Supreme Court’s decision in Elrod v.
Burns,121 where the Court addressed the constitutionality of political patronage-based dismissals
from government employment under the First Amendment. The Court explained that “a
beliefs.”122
Consistent with this background, the CSRA’s legislative history explains the exclusion
section 7511 as “an extension of the exception for appointments confirmed by the Senate” and
covering political appointee positions, i.e., those currently placed in Schedule C (positions at GS-
15 and below) or filled by Non-career Executive Assignment (GS-16, -17, and -18).123 It states
that “[t]he concept of tenure and protection against dismissal is contrary to the confidential
relationship of incumbent and supervising official, and the commitment to Administration policy
Congress made significant amendments to section 7511 through the Civil Service Due
Process Amendments Act of 1990, which expanded MSPB jurisdiction to excepted service
employees who historically were not entitled to adverse action rights. The legislative history of
the 1990 Act confirms that the intent was to expand appeal rights for excepted service employees
The bill generally extends procedural rights to attorneys, teachers, chaplains, and
scientists, but not to presidential appointees. … [T]he key to the distinction between
those to whom appeal rights are extended and those to whom such rights are not extended
is the expectation of continuing employment with the Federal Government. Lawyers,
teachers, chaplains, and scientists have such expectations; presidential appointees and
temporary workers do not.
…
Schedule C, positions of a confidential or policy-determining character. … are political
appointees who are specifically excluded from coverage under section 7511(b) of title 5.
H.R. 3086 does not change the fact that these individuals do not have appeal rights.
The bill explicitly denies procedural protections to presidential appointees, individuals in
Schedule C positions and individuals appointed by the President and confirmed by the
Senate. Employees in each of these categories have little expectation of continuing
employment beyond the administration during which they were appointed. They
122 Id. at 375 (1975) (Stewart and Blackmun, JJ., concurring in the judgment); see, e.g., Carver v. Dennis, 104 F.3d
847, 850 n.5 (6th Cir. 1997) (explaining that “[t]he three-justice plurality opinion and two-justice concurrence in
Elrod” so held).
123 S. Rep. No. 95-969, at 48 (1978), reprinted in 1978 U.S.C.C.A.N. 2723, 2770.
124 Legislative History of the Civil Service Reform Act of 1978, Committee on Post Office and Civil Service, House
of Representatives, Volume No. II, Committee Print No. 96-2, 96th Congress, 1st Session (Mar. 17, 1979).
explicitly serve at the pleasure of the President or the presidential appointee who
appointed them.125
personnel practices), which also contains an exception for positions of a “confidential, policy-
history to indicate that the exclusion of civil service protections at section 2302(a)(2)(B)(i) was
intended to cover “political appointees,” as is the case with section 7511(b)(2). In O’Brien v.
Further support for the notion that the terms of the exception found at 5 U.S.C.
§ 2302(a)(2)(B)(i) are a shorthand way of describing “political appointee” positions can
be found in the legislative history of the 1990 Civil Service Due Process Amendments to
the CSRA, which extended adverse action appeal rights to a broader class of excepted
service employees than had previously been covered. 5 U.S.C. § 7511. The Act retained
the exclusions found at 5 U.S.C. § 7511(b), however, and the legislative history describes
excepted service employees as those in either Schedule A, Schedule B, or Schedule C and
states that Schedule C positions of a confidential or policy-determining character are
“political appointees who are specifically excluded from coverage under 5 U.S.C.
§ 7511(b).” H.R.Rep. No. 328, 101st Cong., 2d Sess. 4–5 (1989), reprinted in 1990
U.S.C.C.A.N. 698–99. Although the Board in certain cases has considered the question of
who is excluded under 5 U.S.C. § 7511(b) as a “confidential, policy-determining, policy-
making or policy-advocating” employee, it did not resolve those cases on that issue. See
Thompson v. Department of Justice, 61 M.S.P.R. 364, 368 (1994); Briggs v. National
Council on Disability, 60 M.S.P.R. 331, 333–36 (1994). Both 5 U.S.C. § 2302(a)(2)(B)(i)
and 5 U.S.C. § 7511(b) use the phrase “confidential, policy-determining, policy-making,
or policy-advocating” to exclude certain positions. We know of no reason why Congress
would intend that it be interpreted differently in each of the two parts of Title 5.126
125 H.R. Rep. No. 101-328, 4-5 (1989), reprinted in 1990 U.S.C.C.A.N. 695, 698-99.
126 74 M.S.P.R. at 207-08.
Improperly applying the term “of a confidential, policy-determining, policy-making, or
expectation of continuing employment beyond the presidential administration during which they
were appointed, and to strip them of civil service protections, would be contrary to congressional
intent and decades of applicable case law and practice. Congress carefully balanced the need for
long-term employees who have knowledge of the history, mission, and operations of their
agencies with the need of the President for individuals in positions who will ensure that the
specific policies of the Administration will be pursued. An “excessive preoccupation with the
meaning of [this] term in isolation distorts the purpose of the exception.”127 The term has long
head when there are “indications that the appointment was intended to be, or in fact was, made
In this proposed rule, therefore, OPM is making explicit this longtime, consistent
or policy-advocating” and “Confidential or policy determining” as they are used through the
Civil Service Regulations in 5 CFR chapter I, subchapter B, to describe positions that are: “of a
character exclusively associated with a noncareer, political appointment that is identified by its
close working relationship with the President, head of an agency, or other key appointed officials
who are responsible for furthering the goals and policies of the President and the Administration,
and that carries no expectation of continued employment beyond the presidential administration
OPM proposes revising 5 CFR part 302 (Employment in the Excepted Service) to require
that Federal agencies follow specific procedures upon moving positions from the competitive
service to the excepted service or, if the position is already in the excepted service, to a different
excepted service schedule following a direction from the President, Congress, OPM, or their
designees.129 This proposed rule describes the procedures an agency must follow before taking
these actions and outlines the notice requirements that apply when the positions are encumbered.
Further, and consistent with the civil service protections outlined supra, OPM proposes to
modify 5 CFR part 212 (Competitive Service and Competitive Status) regarding the effect of an
employee’s competitive service status when the employee’s position is moved to the excepted
service.
In enacting the CSRA, Congress made certain findings relevant to the proposed changes
discussed here. It noted that the merit system principles, many of which have existed since
1883,130 “shall govern in the competitive service” and that these principles, and the prohibited
performed by the CSC among OPM, MSPB, and OSC. It found that the function of filling
positions in the Executive Branch should be delegated to agencies “in appropriate cases” but that
OPM should maintain control and oversight “to protect against prohibited personnel practices
129 There are only three possible sources of a direction to move a position from the competitive service to the
excepted service or from one schedule of the excepted service to another. The direction may come from the
President, 5 U.S.C. 3302; from OPM, id.; see 5 CFR part 6.1(a); or from Congress, via an enactment that creates an
exception to the default rules established under 5 U.S.C. 3301 and 3302. If an agency purported to act at its own
initiative, that effort would be unauthorized and thus contrary to law.
130 See supra note 38.
131 Pub. L. 95-454, sec. 3.2.
132 Id. at sec. 3.5
As noted in section I.E., the CSRA, as codified, imposed upon OPM both authority and
an obligation to, among other things, “execut[e], administer[], and enforce[]…the civil service
rules and regulations of the President and the Office and the laws governing the civil service.”133
The President, pursuant to his own authorities under the CSRA, as codified at 5 U.S.C. 3301 and
3302, has also delegated a variety of these authorities to OPM concerning execution,
administration, and enforcement of the competitive and excepted services. Among other things,
the President has authorized OPM to “promulgate and enforce regulations necessary to carry out
the provisions of the Civil Service Act and the Veterans’ Preference Act, as reenacted in title 5,
United States Code, the Civil Service Rules, and all other statutes and Executive orders imposing
responsibilities on the Office,”134 and to collect information and records regarding matters falling
OPM has concluded that imposing additional safeguards when agencies move positions
from one service to another, or one excepted service schedule to another, will help OPM
determine whether appointments to the competitive service are “not practicable,”136 protect
against prohibited personnel practices, secure appropriate enforcement of the law governing the
civil service, and avoid unsound management practices with respect to the civil service. It is
important to the effective administration of the civil service that exceptions from the competitive
service norm be enforced within the terms of the specific authority creating them and that
employees who are said to have voluntarily accepted positions that affect their rights both
understand that the move is, in fact, voluntary and that they are aware of the potential
Some background demonstrates why these proposed changes are important. Positions in
the Federal Government are, by default, placed in the competitive service. As noted by the D.C.
than the exception.’”137 The President, however, is authorized by Congress to provide for
“conditions of good administration.”138 The President, in turn, has delegated to OPM the
authority to except positions from the competitive service, which means either the President or
OPM may except positions, as situations warrant.139 It has been a long-standing practice under
these authorities for the President, and for OPM exercising its delegated authority, to permit
positions that would otherwise be in the competitive service to be filled through excepted service
examining procedures (e.g., for people with disabilities and students). In some cases, positions
have been placed in the excepted service because it is not practicable to examine in light of the
position itself. For example, a perennial rider to OPM appropriations prohibits OPM—and before
that, its predecessor CSC—from examining for attorney positions.140 This appropriations bar
makes examinations not practicable, and attorney positions have been placed in Schedule A of
the excepted service since at least 1947.141 In all these cases, OPM is subject to the standard that
any departure from the competitive norm must be warranted by conditions of good
administration.
137 Nat’l Treasury Employees Union v. Horner, 854 F.2d 490, 493 (D.C. Cir. 1988); accord, Dean v. Off. of
Personnel Mgmt., 115 M.S.P.R. 157, ¶15 (2010).
138 5 U.S.C. 3302.
139 5 CFR 6.1(a).
140 See e.g., Treasury, Postal Service and General Appropriation Act, 1982, H.R. 4121, 97th Cong., 1st Sess. (1981);
Fiorentino v. United States, 607 F.2d 963, 965-66 (Ct. Cl. 1979) (“It has long been known . . . that the Congress has
been always opposed to Civil Service Commission (CSC) testing and examining of attorney positions in the
Executive branch under the competitive system. … Defendant cites as the enacted expression of this [opposition] the
annual prohibition against appropriated funds of the CSC being used for the Commission’s Legal Examining Unit.
An unbroken series of such clauses runs from the Act of June 26, 1943, Pub. L. No. 90, 57 Stat. 169, 173, to the Act
of October 10, 1978, Pub. L. No. 95—429, 92 Stat. 1001, 1007. The President had set up a Board of Legal
Examiners (Legal Examining Unit), by E.O. 9358, July 1, 1943. By E.O. 9830, 12 Fed. Reg. 1259 (1947), the
President in s 6.1 provided that positions in Schedule A and B should be excepted from the competitive service.
Section 6.4 is Schedule A. Item IV therein is ‘attorneys.’ Whether the legislative intent is obvious to ‘outsiders,’ it
certainly has been to the Executive branch, which has never, since May 1, 1947, put attorney positions anywhere but
in the excepted service.”).
141 Fiorentino, 607 F.2d at 965-66.
Traditionally, the President has exercised this authority through Executive order.142 OPM
has also authorized excepted service hiring to address urgent needs of agencies,143 such as the
need to bring on staff quickly to respond to the COVID-19 pandemic.144 When OPM exercises
such authority, it determines the characteristics of the position make it impracticable to use the
qualification requirements established for competitive service positions cannot be used because
the series has been newly created. In other instances, OPM determines a full-blown open
competition is not conducive to filling certain positions because the applicant pool is very
narrow.
Sometimes, excepted service determinations are prescriptive, and agencies need only
execute the operational tasks necessary to implement the direction of the President or OPM (for
example, Schedule A attorneys, Schedule E administrative law judges, or any number of other
positions specifically identified for excepted service status, such as through Executive Orders
5560 and 6655). In other circumstances, either the President or OPM establishes standards and
conditions for agencies to apply in deciding which positions should be moved into the excepted
service (for example, Schedule D appointments for students and recent graduates and Schedule A
appointments related to the COVID-19 pandemic). In the latter category, the determination of
whether to place a position in the excepted service has typically occurred prior to the position
being filled. In other words, with the notable exceptions of Schedule E, established by Executive
Order 13843,146 and of the prior Schedule F established by the now revoked Executive Order
13957, these are intended to be used as hiring authorities. It is notable that, in the case of the
142 See, e.g., E.O. 13562, 75 FR 82583 (Dec. 30, 2010) (establishing Schedule D for the Pathways program); E.O.
13843, 83 FR 32755 (July 10, 2018) (establishing Schedule E for administrative law judges).
143 5 CFR part 213.
144 See OPM Memorandum, “Coronavirus (COVID-19) Schedule A Hiring Authority,” (March 20, 2020).
145 Even in those cases, however, OPM has provided that “the principle of veteran preference” must be followed “as
far as administratively feasible.” 5 CFR 302.101(c). In practice, this standard has been held to be satisfied by using
veterans’ preference as a plus factor, and thus a tie-breaker, in comparing candidates at similar levels of knowledge,
skills, and abilities. See Patterson v. Dep’t of Interior, 424 F.3d 1151 (Fed. Cir. 2005).
146 83 FR 32755 (July 10, 2018).
creation of Schedule E, the President noted the exigency presented by pending litigation as one
of the motivations, and expressly provided that incumbents who were in the competitive service
When the President or OPM has chosen to establish standards for agencies to apply in
creating new positions or moving existing positions into the excepted service (rather than
specifically directing that certain positions be excepted service positions), they have also
routinely required agencies to follow certain procedures subject to OPM oversight. With respect
to the now-revoked Schedule F, Executive Order 13957 required agencies to petition OPM to
move positions into Schedule F, and provided for the petition to “include a written explanation
documenting the basis for the agency head’s determination that such position should be placed in
Schedule F.”148 Section 6 of that Executive order directed agencies to “establish rules to prohibit
the same personnel practices prohibited by section 2302(b) of title 5, United States Code, with
respect to any employee or applicant for employment in Schedule F of the excepted service.”149
The rules for the Pathways programs,150 established by President Barack Obama in
Executive Order 13562, are more prescriptive. For example, under 5 CFR part 362, agencies
seeking to use the Pathways programs to hire students and recent graduates into excepted service
positions must adhere to various policies and procedures. Among other things, agencies must
enter into a memorandum of understanding with OPM that addresses several obligations and
procedures that are conditions of the agency’s authority to use the programs. There are rules
governing how agencies must use the Pathways programs as part of a larger workforce planning
effort, the procedures that are conditions of the agency’s use of the programs, how Pathways
positions are to be announced, and various other rules applying to eligibility for the program.151
147 83 FR 32755-56.
148 85 FR 67633.
149 85 FR 67634
150 OPM has proposed revisions to the rules governing the Pathways programs. 88 FR 55586 (Aug. 16, 2023).
151 See 5 CFR 362.105.
OPM has the authority to cap Pathways hiring152 and can even shut down an agency’s ability to
discretion to move any position or positions from the competitive service to the excepted service,
or from one excepted service schedule to another, under authority executed by the President or
OPM. In each instance, the agency would have to adhere to the following procedures:
1. Identify the types, numbers, and locations of positions that the agency proposes to
2. Document the basis for its determination that movement of the position or positions is
consistent with the standards set forth by the President, Congress, OPM, or their
designees, as applicable;
3. Obtain certification from the agency’s Chief Human Capital Officer (CHCO)154 that
consistent with the standards set forth by the President, Congress, OPM, or their
4. Submit the CHCO certification and supporting documentation to OPM (to include the
types, numbers, and locations of positions) in advance of using the excepted service
authority;
established the role of the CHCO in the Federal Government. CHCOs advise and assist in carrying out agencies’
responsibilities for selecting, developing, training, and managing a high-quality, productive workforce in accordance
with merit system principles. See 5 U.S.C. 1401-02. They are also responsible for “implement[ing] the rules and
regulations of the President, the Office of Personnel Management (OPM), and the laws governing the civil service
within an agency.” 5 CFR 250.202. OPM has delegated various responsibilities directly to CHCOs. See e.g., OPM,
“Personnel Management in Agencies” 81 FR 89357 (Dec. 12, 2016) (tasking CHCOs with developing a Human
Capital Operating Plan); OPM, “Human Resources Management in Agencies,” 73 FR 23012 (Apr. 28, 2008)
(implementing regulations for agencies and CHCOs regarding the strategic management of the Federal workforce);
5 CFR 337.201 (giving CHCOs the ability to request direct-hire authority when OPM determines there is a hiring
need).
5. Use the excepted service authority only after obtaining written approval from the OPM
6. Initiate any hiring actions under the excepted service authority only after OPM
publishes any such authorizations in the Federal Register, to include the types, numbers,
Specifically, OPM proposes the following regulatory changes to 5 CFR parts 212 and
302:
OPM is proposing a new subpart F titled, “Moving Positions into and Within the
Excepted Service.” In the event of a direction by the President, Congress, OPM, or their
designees, to move a position from the competitive service to the excepted service, or from one
excepted service schedule to the same or similar position in another, this new subpart would
describe the processes and procedures an agency must follow to carry out such a move.
Proposed 5 CFR 302.601 Scope would describe the scope of the positions that would be
Proposed 5 CFR 302.602(a) Basic Requirements would require an agency to take certain
steps after a direction from the President, Congress, OPM or their designees (hereafter “the
directive”) to move a position from the competitive service to the excepted service, or from one
Proposed § 302.602(a)(1) states that, if the directive explicitly delineates the specific
positions that are covered, the agency need only list the positions moved in accordance with that
Proposed § 302.602(a)(2) states that, if the directive requires the agency to select the
positions to be moved pursuant to criteria articulated in the directive, then the agency must, upon
OPM’s request, provide a list of the positions to be moved in accordance with those criteria,
those positions’ location in the organization, and an explanation of how these criteria are
relevant.
Proposed § 302.602(a)(3) states that, if the directive confers discretion on the agency to
establish objective criteria for identifying the positions to be covered, or which specific slots of a
particular type of position the agency intends to move, then the agency, in addition to supplying
a list and the locations in the organization, must supply the objective criteria to be used and an
Proposed § 302.602(b) describes the steps agency management must take, independent of
locations of positions that the agency proposes to move into the excepted service.
Proposed § 302.602(b)(2) requires the agency to document the basis for its determination
that movement of the position or positions is consistent with the standards set forth by the
Proposed § 302.602(b)(3) requires the agency to obtain certification from the agency’s
CHCO that the documentation is sufficient and movement of the position or positions is both
consistent with the standards set forth by the President, Congress, OPM, or their designees as
Proposed § 302.602(b)(4) requires the agency to submit the CHCO certification and
supporting documentation to OPM (to include the types, numbers, and locations of positions) in
Proposed § 302.602(b)(5) specifies that OPM shall then review the CHCO certification
and supporting documentation, and the agency shall be able to use the excepted service authority
only after obtaining written approval from the OPM Director to do so.
Proposed § 302.602(b)(6) specifies that OPM shall publish any such authorizations in the
Federal Register, to include the types, numbers, and locations of the positions moved to the
excepted service and that the agency is not permitted to initiate any hiring actions under the
OPM is proposing that additional rules would apply when one or more of the positions
the agency wishes to move from the competitive service to the excepted service, or from one
excepted service schedule to another, is encumbered by an employee. In that case, no less than
30 days prior to moving the position, the agency must provide written notification to the
employee of the intent to move the position. The notice must provide the employee with the
following information: (1) the authority for moving the position; (2) the rationale for moving the
position; (3) the proposed timing of moving the position; and (4) a representation that the
employee maintains their civil service status and any accrued protections notwithstanding the
have with an employee whose position is being moved from the competitive service and placed
in the excepted service, other than in Schedules D or E, or with an excepted service employee
whose position is moved to another excepted service schedule, other than Schedules D or E.155
155OPM is omitting Schedules D and E from this proposed regulatory change because these schedules, for the
Pathways programs participants and Administrative Law Judges (ALJs), see 5 CFR 6.2, respectively, have specific
and unique requirements regarding eligibility and entrance into these positions. In particular, the Pathways
programs, which were created by the President, not OPM, already have highly reticulated schemes for conversion of
the appointee from the excepted service to the competitive service following the successful conclusion of the initial
excepted service appointment. It is unlikely that the initial time-limited appointments to the excepted service would
be appropriate vehicles for conversion to a different excepted service position, and, in any event, the incumbent
would likely not yet have accrued adverse action rights in the excepted service positions they encumbered. Even if
such rights had accrued, these appointees would enjoy such rights only for the balance of the original time-limited
appointment. ALJ appointments were changed in light of ALJs’ significant responsibilities in “taking testimony,”
“conducting trials,” “enforcing compliance with their orders,” and in some cases issuing “the final word [for] the
agencies they serve.” See E.O. 13843. Those specific duties, carried out with “significant discretion,” combined with
a desire to eliminate any constitutional concerns regarding the method of ALJ appointments, were the reasons that
ALJs were placed in the excepted service by the President as a matter of “sound policy,” which allowed agencies to
“assess critical qualities in ALJs candidates” to “meet the particular needs of the agency,” such as subject matter
expertise relevant to the agency’s work. Id. In addition, special chapter 75 procedures apply to incumbent ALJs, and
they can be removed from ALJ positions only by the employing agency at the conclusion of a specified proceeding
at MSPB.
Proposed § 302.602(c)(1) requires that, 30 days prior to the effective date an agency
intends to move a position, the agency must provide written notification to the employee of the
§ 302.602(c)(1) inform the employee that the employee maintains their civil service status and
Of course, employees who are in the competitive service—and who the agency is not
planning to move—may wish to apply for a new position in the excepted service and potentially
relinquish accrued rights (such as a voluntary move from a competitive service position to a
position as a Schedule C political appointee). In that situation, agencies must continue to comply
notice that they are leaving the competitive service and requiring that employees provide
acknowledgment that they understand that they are voluntarily leaving the competitive service to
OPM proposes further amending 5 CFR part 302 to establish that a competitive service
employee whose position is moved into the excepted service, or an excepted service employee
whose position is moved into a different schedule of the excepted service, may directly appeal to
MSPB if the entity perpetuating the move purports, contrary to these regulations, to strip the
employee of the status and civil service protections they had already accrued. This rulemaking
would not apply to situations where the employee applies for, and is selected for the new
position, knowing that acceptance of the position voluntarily relinquishes such rights.
156Under 5 CFR 302.102(b), when an employee serving under a temporary appointment in the competitive service is
selected for an excepted appointment, the agency must:
1. Inform the employee that, because the position is in the excepted service, it may not be filled by a
competitive appointment, and that acceptance of the proposed appointment will take him/her out of the
competitive service while he/she occupies the position; and
2. Obtain from the employee a written statement that he/she understands he/she is leaving the competitive
service voluntarily to accept an appointment in the excepted service.
As explained previously in section I.E., under 5 U.S.C. 1103(a)(5), OPM has broad
authority to execute, administer, and enforce civil service rules and regulations. Pursuant to its
statutory authority, including under 5 U.S.C. 7701, 7511(c), and the President’s delegation of
authority, OPM is authorized to create a right of appeal to MSPB by regulation. MSPB, in turn,
has the responsibility to “hear, adjudicate, or provide for the hearing or adjudication, of all
matters within the jurisdiction of the Board under … law, rule or regulation,” and an employee
may appeal to the Board “from any action which is appealable to the Board under any law, rule,
or regulation.”157 Both the Federal Circuit and MSPB have consistently affirmed the principle
that MSPB’s enabling statute gives it appellate jurisdiction over actions that are made appealable
to the Board by OPM regulation and that where an appeal is solely by regulation, the regulation
OPM, pursuant to its authority, has long conferred MSPB appeal rights via regulations
1. Section 300.104—A job candidate who believes that an employment practice which
was applied to the candidate by OPM violates a basic requirement in § 300.103 is entitled
priority consideration under 5 CFR part 302 may appeal a violation of the individual’s
restoration rights to MSPB under the provisions of the Board’s regulations by presenting
factual information that the individual was denied restoration rights because of the
to terminate the employee during their probationary period, if the employee alleges the
termination was based on partisan political reasons, marital status, or improper procedure.
employee for not satisfactorily completing their supervisory probationary period may
appeal to MSPB if the employee alleges the agency action was based on partisan political
5. Section 351.901—An employee who has been furloughed for more than 30 days,
reemployment rights under subpart B of part 352, the agency shall inform the person of
that denial by a written notice. In the same notice, the agency shall inform the person of
the right to appeal to MSPB under the provisions of the Board’s regulations.
7. Section 352.313—An employee may submit an appeal to MSPB alleging the agency
8. Section 352.508—An employee may submit an appeal to MSPB alleging the agency
reemployment rights under subpart I of part 352, the agency shall inform the individual
of that denial and of the reasons therefor by a written notice. In the same notice, the
agency shall inform the employee of the right to appeal to MSPB under the provisions of
10. Section 352.807—An employee may appeal to MSPB, under the provisions of the
alleging the agency has not complied with certain reemployment rights under subpart I of
part 352.
12. Section 731.501—When OPM or an agency acting under delegated authority under
part 731 takes a suitability action against a person, that person may appeal the action to
MSPB. Upon appeal, the Board may review the suitability determination itself, but may
In these proposed regulations, OPM is prescribing an MSPB appeal right for an employee
whose position in the competitive service is moved to the excepted service, or whose position in
the excepted service is moved into a different schedule of the excepted service, and when any
such move, contrary to these regulations, purportedly strips the employee of the status and civil
service protections they had already accrued. This proposed provision would not apply when the
employee voluntarily relinquishes such rights by applying for and accepting a new position with
different rights. Such an appeal right would, however, cover the allegation that an agency
coerced the employee to voluntarily move to a new position that would require the employee to
relinquish their competitive status or civil service protections. The employee may file an appeal
with MSPB to have their competitive status and civil service protections reinstated, as
applicable. OPM notes that an employee may choose to assert in any appeal to MSPB that the
agency committed procedural error, if applicable, by failing to act in accordance with the
procedural requirements of § 302.602 while effecting any placement from the competitive
service into the excepted service or from the excepted service to a different schedule of the
excepted service. In cases where an employee asserts procedural error by the agency, MSPB
typically will determine whether the procedural error was harmful as a pre-requisite for any
record shows that it was likely to have caused the agency to reach a different conclusion.160
OPM is also proposing to revise the regulations in 5 CFR part 212, subpart D,
position. As described throughout this proposed rule, OPM’s longstanding view is that Federal
employees maintain the civil service status and protections that they have accrued. Indeed, since
1968, OPM has provided by rule that an employee with competitive service status (i.e., in the
competitive service), at the time the employee’s position is first listed (i.e., moved) under
Schedule A, B, or C of the excepted service, remains in the competitive service as long as the
employee continues to occupy the position.161 OPM is proposing to update 5 CFR 212.401(b)
consistent with this proposed rule, to establish that a competitive service employee whose
position is first listed under any future excepted service schedule remains in the competitive
service as long as the employee continues to occupy the position. OPM is proposing this update
to account for the possibility of new excepted service schedules which may be established after
promulgation of this rule or other efforts to move positions from the competitive service or
A. Statement of Need
160 See 5 CFR 1201.3 (Appellate Jurisdiction); 1201.4(r) (Definitions, MSPB Practices and Procedures), 1205
(Powers and functions of the Merit Systems Protection Board); Ramey v. U.S. Postal Service, 70 M.S.P.R. 463, 467
(1996) (“An [MSPB] administrative judge’s adjudication of an action not only embraces the provisions of law
giving the Board jurisdiction over the action, but includes review of any other relevant provision of law, regulation
or negotiated procedures as circumstances warrant.”); Adakai v. Dep’t of Interior, 20 M.S.P.R. 196, 201 (1984)
(“There is no question that an agency is obligated to conform to procedures and regulations it adopts, and the Board
is required to enforce such procedures.”).
161 33 FR 12402, 12408 (Sept. 4, 1968).
On December 12, 2022, OPM received a petition from the National Treasury Employees
Union (NTEU), which represents Federal workers in 34 agencies and departments,162 to amend
OPM regulations in a manner that would ensure compliance with civil service protections and
merit system principles for competitive service positions moved to the excepted service.163
NTEU contends in its petition that Congress has established protections for “employees” under
chapter 75 in the competitive service and these protections create a constitutionally protected
property interest in continued Federal employment. NTEU argues that no President can take
On May 23, 2023, the Federal Workers Alliance, a coalition of 13 labor unions
representing over 550,000 Federal and postal workers, wrote OPM in support of the rulemaking
changes proposed by NTEU. On May 26, 2023, the American Federation of Government
Employees, AFL-CIO, the largest union of Federal employees representing more than 750,000
As discussed throughout this proposed rule, by operation of law, certain tenured Federal
employees accrue a property interest in their continued employment and are entitled to adverse
action rights under chapter 75 before they may be removed from career positions. Agencies are
employees as defined in 5 U.S.C. 7511. OPM does not interpret chapter 75 as allowing the
President, OPM, or an agency to waive these statutory requirements and OPM notes that it
interprets section 7511 to preclude noncareer, political appointees under Schedule C and other
statutorily specified categories of employees from accruing these procedural rights. These rules
when “necessary” and warranted by “conditions of good administration.”164 The rationale for
creating positions in the excepted service is driven largely by specific hiring needs and a
determination that appointment through the competitive service is “not practicable,”165 i.e., not
introduced a new conception of the scope of the phrase “confidential, policy-determining, policy-
making, or policy-advocating character,” and sought to employ that conception to expand the
category of employees excluded from adverse action procedural rights under section 7511.166
This language was derived from the description of Schedule C of the excepted service, and using
that language in the way Executive Order 13957 did departed from the long-standing
understanding that this exception applied only to noncareer, political appointees under Schedule
C. OPM has therefore determined that a regulation interpreting this provision is warranted.
The CSRA and merit system principles have informed OPM’s regulations regarding the
competitive and excepted service, and employee movement between them. One of those
principles is that the creation of new positions in—and movement of existing positions into—the
excepted service is meant to be an exception to the normal procedure for filling positions through
the procedures prescribed for the competitive service and maintaining the positions in that
service thereafter. Accordingly, OPM has maintained for decades several safeguards and
transparency measures associated with any such movements. These safeguards and measures
may include agency reporting to OPM,167 such as in situations where positions are placed
necessary to carry out the provisions of the Civil Service Act and the Veterans' Preference Act, as reenacted in title
5, United States Code, the Civil Service Rules, and all other statutes and Executive orders imposing responsibilities
on the Office.”); id. 5.4 (“When required by the Office, the Merit Systems Protection Board, or the Special Counsel
of the Merit Systems Protection Board, or by authorized representatives of these bodies, agencies shall make
available to them, or to their authorized representatives, employees to testify in regard to matters inquired of under
temporarily in the excepted service for the purpose of a trial period leading to a permanent
appointment in the competitive service;168 OPM authorization of the creation of certain new
positions in—or moving of certain existing positions into—the excepted service;169 publication
in the Federal Register;170 and an acknowledgment of the consent of affected employees when
an existing employee obtains a different position in another service or schedule.171 The now-
revoked directions to agencies contained in Executive Order 13957, for implementing the now-
principles with respect to employees who had accrued adverse action appeal rights. We seek to
Finally, these proposed revisions would also further the objectives of Executive Order
14003. In the findings underpinning that Executive order, President Biden observed that the
foundations of the civil service and its merit system principles were essential to the Pendleton
Civil Service Reform Act of 1883’s repudiation of the spoils system.172 The President further
noted that revoking Schedule F was necessary “to enhance the efficiency of the civil service and
to promote good administration and systematic application of merit system principles.”173 The
changes proposed here would support the civil service and merit system principles for career
Federal employees by clarifying and reinforcing the rights that accrue to tenured employees.
B. Regulatory Alternatives
An alternative to this rulemaking is to not issue a regulation. OPM has determined this is
not a viable option. The risks of not issuing this proposed rulemaking are many and include both
fiscal as well as non-fiscal consequences. As noted in the preamble, this rulemaking is needed to
the civil service laws, rules, and regulations, and records pertinent to these matters”); id. 10.2 (OPM authority to set
up accountability systems); id. 10.3 (OPM authority to review agency personnel management programs and
practices).
168 See, e.g., 5 CFR part 362.
169 5 CFR 6.1.
170 Id.
171 5 CFR 302.102(b).
172 E.O 14003, sec. 2.
173 Id.
preserve the integrity of the Federal career workforce as an independent entity free of political
influence or personal loyalties to political leaders, consistent with merit system principles.
Preserving the integrity of the Federal career workforce ensures career employees keep the status
and rights they have attained and to which they are therefore entitled by law. This in turn
agencies’ ability to meet mission requirements. Finally, these changes will promote compliance
enhancing agencies’ ability to fulfill important merit system principles—that recruitment should
from all segments of society—and that selection and advancement should be determined solely
on the basis of relative ability, knowledge, and skills, after fair and open competition which
assures that all receive equal opportunity,174 and also promotes compliance with the
congressional policy to confer a preference on eligible veterans or family members with entitled
protections from entire categories of career employees would destabilize the civil service—
competitive advantage Federal agencies have long enjoyed when competing with other sectors
Failure to protect adverse action rights and other civil service protections risks a loss of
experienced staff, leading to a disruption, if not interruption, of agency mission operations. This
is an especially important consideration given the many challenges facing our nation and
requiring a response by the Executive branch. These challenges include threats to our nation’s
economy (writ large as well as those impacting small businesses and emerging markets and
droughts, floods, wildfires, etc.), data security, and emerging foreign powers on the international
The option of not regulating in this area carries with it fiscal costs as well. These costs
include that of recruiting and replacing staff who separate before or after their positions are
moved to the excepted service in a manner that purportedly strips them of their civil service
protections, as well as the loss of or delay in services, benefits, and entitlements owed to many of
our nation’s citizens. Many of the citizens receiving these entitlements depend on them to meet
Regarding 5 CFR part 752, OPM’s proposed changes to the implementing regulations for
adverse actions are consistent with statute and cannot be further simplified. OPM proposes to
conform part 752 with Federal Circuit precedent175 and statutory language.176 In addition, OPM
proposes to make plain that an employee who is moved from the competitive service to a
position in the excepted service, or from one excepted service schedule to the same or similar
position in another excepted service schedule, retains the status and civil service protections the
One regulatory alternative to conforming part 752 is to forgo changes to the regulation
and allow Federal agencies to continue relying upon 5 U.S.C. 7511 for a more complete
understanding of eligibility for procedural and appeal rights. However, as MSPB observed in
175 See Van Wersch, 197 F.3d at 1151-52; McCormick, 307 F.3d at 1341-43.
176 See 5 U.S.C. 7501.
177 U.S. Merit Systems Protection Board, supra note Error! Bookmark not defined..
Given that agency practitioners are more likely to turn first to regulations rather than
statute or case law for guidance on performance-based and adverse actions, OPM’s current
OPM’s preferred option is to amend the coverage-related provisions in part 752 to close
the unnecessary gap between current regulations and relevant precedent by adding clarity and
specific guidance to implement the statute. Having regulations that are congruent to statute may
employee. In turn, this promotes efficiency in removing or disciplining employees and addresses
complaints that the Federal removal process is too cumbersome. Through this rulemaking, OPM
is providing essential statutory requirements that have not been previously reflected in OPM’s
regulations.
Fundamentally, the amendments to part 752 do not impose any requirements on agencies that are
not already in place through statute or case law. This includes the provisions that an employee
retains accrued rights when the employee is moved from the competitive service to the excepted
With respect to 5 CFR part 210, OPM considered not defining “confidential, policy-
positions but, as stated supra, believes that doing so adds important clarity. To alleviate any
ambiguity as to the scope of the exception in 5 U.S.C. 7511, including any confusion that may
have been introduced by the promulgation of the now-revoked Executive Order 13957, this rule
proposes to more explicitly define the employees and positions that are excluded from civil
service protections to align with congressional intent as expressed in H.R. Rep. 101-328.
noncareer, political appointment that is identified by its close working relationship with the
President, head of an agency, or other key appointed officials who are directly responsible for
furthering the goals and policies of the President and the Administration, and that carries no
expectation of continued employment beyond the presidential administration during which the
appointment occurred. This definition is consistent with legislative history and codifies
longstanding practice.
for moving employees and positions into and within the excepted service necessitates the
creation of a new guardrail to reinforce merit system principles. Therefore, OPM proposes to
confer in § 302.603 a narrow MSPB appeal right to an employee whose position is placed into
the excepted service or an excepted service employee whose position is placed into a different
schedule of the excepted service and when any such move, in violation of these regulations,
purportedly strips the employee of the status and civil service protections they had already
accrued.
OPM weighed the alternative of not conferring a right of appeal to MSPB. As stated in 5
CFR 1201.3, MSPB’s “appellate jurisdiction is limited to those matters over which it has been
given jurisdiction by law, rule, or regulation.” Currently, for personnel actions for which there is
no MSPB appellate coverage, an aggrieved Federal employee may have multiple other options
for contesting a personnel decision, including filing an Equal Employment Opportunity (EEO)
procedure. However, with regard to an allegation that a move purportedly strips the employee of
the status and civil service protections the employee has already accrued, or that an agency
coerced the employee to voluntarily move to a new position that would require the employee to
relinquish their competitive status or civil service protections, OPM concluded that the current
scheme of avenues for redress is less preferable to safeguard against actions brought against
employees for reasons stated above. Such actions would have an adverse impact on employee
morale across Federal agencies and a corrosive effect on the American public’s confidence in
OPM also considered not conferring a right of appeal directly to MSPB. The omission of
§ 302.603 would leave open the possibility that an agency could move an employee in a manner
that is unlawful, arbitrary, or capricious without any accountability. Alternatively, OPM could
have broadened § 302.603 to cover an appeal based on the underlying reasons for the movement.
However, if an agency follows the robust procedures in § 302.602 for movement, MSPB’s
review of an appeal brought under § 302.603 should be limited to paragraphs (b) and (c) as an
agency should be given deference in determining the appropriate placement of its workforce.
practice, the employee can file a complaint with OSC, or if the employee is contesting an
otherwise appealable action, the employee can file an MSPB appeal of the appealable personnel
action and claim as an affirmative defense that the agency committed a prohibited personnel
affected employees are deserving of fair and equitable treatment in all aspects of their
C. Impact
OPM is proposing these revisions to clarify and reinforce existing protections that exist
for many Federal employees and to add procedures that agencies must follow to further advance
merit system principles. Congress enacted procedural rules to provide an adequate opportunity to
hear from the tenured employee and appropriately explore the underlying facts and law before
adverse actions are taken and thus help ensure that such actions are taken for proper cause.178
The procedural protections enacted by Congress are for all tenured employees, not only for the
few employees who will inevitably present problems in a workforce of more than two million
individuals. And procedural protections exist for the whistleblower, the employee who belongs
superiors, the scapegoat, and the person who has been misjudged based on faulty information.
As explained above, where Congress has created a property interest in a position for
deprivation of that interest. The procedural protections enacted by Congress are a small price to
pay to deliver to the American people a merit-based civil service rather than a system based on
political patronage.180
Therefore, to the extent these rules as finalized will reinforce procedural requirements
that exist already for most Federal employees, OPM believes that those portions of the rules will
not change any existing requirements for agencies covered by the rules and the impact on
The procedural requirements for moving an employee from the competitive service to the
excepted service or within the excepted service are no more rigorous than the many other
regulations promulgated by OPM for the administration of the civil service, especially those
reticulated regulations related to the excepted service under Schedules D and E (as described
above). The reporting requirements relating to excepted service positions align with those with
D. Costs
If finalized, the proposed rule would require agencies to update internal policies and
302.603, 451.302 and with the regulatory amendments to parts 432 and 752 as well as resolve
any appeals that may arise from contested moves covered by part 302. Regarding the procedural
requirements for moving positions, the rule would affect the operations of more than 80 Federal
agencies, ranging from cabinet-level departments to small independent agencies. OPM cannot
The cost analysis to update policies and procedures and resolve appeals assumes an
average salary rate of Federal employees performing this work at the 2023 rate for a GS-14, step
5, from the Washington, DC, locality pay table ($150,016 annual locality rate and $71.88 hourly
locality rate). We assume the total dollar value of labor, which includes wages, benefits, and
overhead, is equal to 200 percent of the wage rate, resulting in an assumed labor cost of $143.76
per hour.
We estimate that the cost to comply with updating policies and procedures in the first
year would require an average of 40 hours of work by employees with an average hourly cost of
$143.76 per hour. Upon publication of the final rule, this would result in first-year estimated
costs of about $5,750 per agency, and about $460,000 governmentwide. There are ongoing costs
associated with routinely reviewing and updating internal policies and procedures, but not
To comply with the regulatory requirements in this proposed rule, affected agencies
would need to resolve any appeals that may arise pursuant to § 302.603. We estimate that, in the
first year following publication of a final rule, this would require an average of 120 hours of
work by employees with an average hourly cost of $143.76 per hour. This would result in
estimated costs in that first year of implementation of about $17,250 per agency, and about $1.38
million governmentwide. In subsequent years, we assume a decreased need for appeal resolution
as agencies further refine their processes under § 302.603, resulting in less staff time.
with an average hourly cost of $143.76 per hour. This would result in estimated costs of about
$11,500 per agency annually, and about $920,000 governmentwide annually in the years after
about $1.84 million governmentwide. For subsequent years, we estimate annual costs to be
E. Benefits
OPM is proposing to clarify the Federal civil service protections that are critical to
balancing an effective, experienced, and objective bureaucracy with Executive branch control.
These regulations benefit the American people not only by shoring up civil service protections,
but also, by so doing, strengthening our republican form of government, and thus promoting
“protect, empower, and rebuild the career Federal workforce.” This rulemaking benefits the
career Federal workforce by reinforcing that it is deserving of the trust and confidence of the
American people.
OPM stated in its Fiscal Year 2019 Human Capital Review Summary Report that
“Agencies face different challenges depending on their mission and the current state of their
organizations; but there is little debate that effectively managing human capital is at the forefront
of leadership’s greatest priorities.”181 Among the top trends that surfaced during OPM’s review
were (1) identifying and closing skills gaps and (2) recruiting and retaining employees. For
example, agencies raised concerns around attrition rates for scientific and technical positions as
well as an inability to hire fast enough to meet demands. The ongoing challenge with recruitment
and retention for IT and cyber positions is due to the ever-changing landscape, competition with
the private sector and other Federal agencies, and difficulty retaining talent.
This proposed rule has several important benefits. First, it supports the retention of
Federal career professionals who provide the continuity of institutional knowledge and subject-
181U.S. Office of Personnel Management, “Fiscal Year 2019 Human Capital Reviews Report,” p. 1 (Mar. 2020),
https://www.chcoc.gov/sites/default/files/2019%20Human%20Capital%20Review%20Summary%20Report.pdf.
matter expertise necessary for the critical functioning of the Federal Government. 182 “A vast
body of research” shows “public service motivation as a central factor in public employment”
and that civil servants “invest effort and develop expertise precisely because a stable public job
provides an environment where they can pursue their motivation to make a difference.”183 The
rights and protections afforded to career Federal employees offer a more stable alternative to
comparable private and non-government sector positions.184 These professionals play an integral
role in transferring knowledge, not just as part of their official duties, but also by training and
mentoring newer and less experienced Federal employees, interns, contractors, etc.
A related benefit of this rulemaking is that it will mitigate costs associated with
recruitment of personnel needed to replace staff who leave or are subsequently removed
following placement in the excepted service. “Instability and politization makes public service
less attractive, leading to higher turnover of experienced civil servants and giving public officials
less reason to develop expertise.”185 OPM cannot estimate the exact value of this benefit to
taxpayers because it would depend on the specific number of positions moved by an agency.
Nevertheless, the proposed rule will protect agencies’ abilities to meet mission requirements by
mitigating disruptions caused by upheavals within an agency’s workforce, the result of which
could have a negative impact on an agency’s ability to meet mission requirements and use its
There is little evidence to support the notion that a more politicized civil service, or that
allowing for the firing of career civil servants without appropriate process that permits such
employees to probe the agency’s reasons and provide a response, will increase governmental
performance.186 This proposed rule will reduce the risks associated with misapplying the CSRA,
182 Donald P. Moynihan, “Public Management for Populists: Trump’s Schedule F Executive Order and the Future of
the Civil Service,” Public Administration Review, p. 174, 177 (Jan.-Feb. 2022).
183 Id.
184 Id.
185 Id.
186 See id.; see also Donald P. Moynihan, “Populism and the Deep State: the Attack on Public Service under
Finally, agency counsel and employee relations practitioners will benefit from the
clarifications in this proposed rule that address current inconsistencies between OPM regulations
and statute. After MSPB recommended that OPM update its regulations to reflect the Federal
Circuit’s decisions in Van Wersch and McCormick,187 OPM revised 5 CFR part 752, subpart D to
removals, and furloughs. However, OPM elected at that time not to update subpart B of part 752
for suspensions of 14 days or less. In addition to closing regulatory gaps in part 752 by
conforming the regulations to case law and statute, OPM proposes to clarify that an employee
moved to or within the excepted service retains accrued procedural and appeal rights. The
cumulative effect of these changes will be a comprehensive and robust regulatory framework on
which agency practitioners can rely for understanding and applying the protections available to
Federal employees.
OPM requests comments on the implementation and impacts of this proposed rule in
general. Such information will be useful for better understanding the effect of these proposed
revisions on civil service protections, merit system principles, and the effective and efficient
business of government, in compliance with the law. The type of information in which OPM is
Pendleton Act of 1883. OPM seeks comment on whether more examples would be helpful and, if
• Whether the regulatory changes proposed under part 752 are sufficiently protective of
• Whether the proposed definition for the terms “confidential, policy-determining, policy-
whether it should be expanded or limited with the understanding that it should satisfy the aims of
the CSRA (including congressional intent), civil service protections, and merit system principles.
• Whether the procedures for moving positions from the competitive service to the
excepted service or from one excepted service schedule to another are appropriate or whether
they should be expanded or limited with the understanding that they should satisfy the aims of
the CSRA (including congressional intent), civil service protections, and merit system principles.
• Whether the proposed MSPB appeal rights under part 302 are needed and, if so, whether
• Whether this rulemaking should include additional mechanisms for enforcing the
protections set forth in this proposal, and if so, what those mechanisms should be.
• Comments on the initial cost and benefit analysis, including the identification of data and
• Comments on whether discrete provisions of this proposal could be severed from the
proposed rule in the event a provision was held to be invalid or unenforceable by its terms.
A. Severability
OPM proposes that, if any of the provisions of this proposed rule as finalized is held to be
severable from its respective section(s) and shall not affect the remainder thereof or the
application of the provision to other persons not similarly situated or to other dissimilar
circumstances. For example, if a court were to invalidate any portions of this proposed rule as
finalized imposing procedural requirements on agencies before moving positions from the
competitive service to the excepted service, the other portions of the rule—including the portions
providing that employees in the competitive service maintain their protections even if their
positions are moved to the excepted service—would independently remain workable and
valuable. Similarly, the portions of this proposed rule defining “confidential, policy-determining,
and would function independently of any of the other portions of this proposed rule. In enforcing
civil service protections and merit system principles, OPM will comply with all applicable legal
requirements.
The Director of the Office of Personnel Management certifies that this rulemaking will
not have a significant economic impact on a substantial number of small entities because the rule
C. Regulatory Review
OPM has examined the impact of this rulemaking as required by Executive Orders 12866
(Sept. 30, 1993), 13563 (Jan. 18, 2011), and 14094 (Apr. 6, 2023), which direct agencies to
assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to
select regulatory approaches that maximize net benefits (including potential economic,
environmental, public, health, and safety effects, distributive impacts, and equity). A regulatory
impact analysis must be prepared for major rules with effects of $200 million or more in any one
year. This rulemaking does not reach that threshold but has otherwise been designated as a
“significant regulatory action” under section 3(f) of Executive Order 12866, as supplemented by
between the National Government and the States, or on distribution of power and responsibilities
among the various levels of government. Therefore, in accordance with Executive Order 13132
(Aug. 10, 1999), it is determined that this proposed rule does not have sufficient federalism
This regulation meets the applicable standards set forth in section 3(a) and (b)(2) of
This rulemaking will not result in the expenditure by State, local, or tribal governments,
in the aggregate, or by the private sector, of more than $100 million annually. Thus, no written
This regulatory action will not impose any reporting or recordkeeping requirements under
List of Subjects
Government employees.
Government employees.
Government employees.
Office of Personnel Management.
Kayyonne Marston,
Accordingly, OPM is proposing to amend 5 CFR parts 210, 212, 213, 302, 432, 451, and
752 as follows:
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218.
a. Redesignating paragraphs (b)(3) through (18) as paragraphs (b)(5) through (20); and
§ 210.102 Definitions
*****
(b) * * *
character exclusively associated with a noncareer, political appointment that is identified by its
close working relationship with the President, head of an agency, or other key appointed officials
who are responsible for furthering the goals and policies of the President and the Administration,
and that carries no expectation of continued employment beyond the presidential administration
noncareer, political appointment that is identified by its close working relationship with the
President, head of an agency, or other key appointed officials who are responsible for furthering
the goals and policies of the President and the Administration, and that carries no expectation of
continued employment beyond the presidential administration during which the appointment
occurred.
*****
Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 10577, 3 CFR, 1954–1958 Comp., p. 218.
*****
(b) An employee in the competitive service at the time his position is first listed under
Schedule A, B, or C, or whose position is otherwise moved from the competitive service and
listed under a schedule created subsequent to [effective date of final rule], remains in the
Authority: 5 U.S.C. 3161, 3301 and 3302; E.O. 10577, 3 CFR 1954–1958 Comp., p.
218; Sec. 213.101 also issued under 5 U.S.C. 2103. Sec. 213.3102 also issued under 5 U.S.C.
3301, 3302, 3307, 8337(h), and 8456; E.O. 13318, 3 CFR 1982 Comp., p. 185; 38 U.S.C. 4301
et seq.; Pub. L. 105–339, 112 Stat 3182–83; E.O. 13162; E.O. 12125, 3 CFR 1979 Comp., p.
16879; and E.O. 13124, 3 CFR 1999 Comp., p. 31103; and Presidential Memorandum—
Improving the Federal Recruitment and Hiring Process (May 11, 2010).
Sec. 213.3102 also issued under 5 U.S.C. 3301, 3302, 3307, 8337(h), and 8456; 38 U.S.C. 4301
follows:
(a) Upon specific authorization by OPM, agencies may make appointments under this
210.102 of this chapter. Positions filled under this authority are excepted from the competitive
service and constitute Schedule C. Each position will be assigned a number from §§ 213.3302
*****
Authority: 5 U.S.C. 1302, 3301, 3302, 8151, E.O. 10577 (3 CFR 1954–1958 Comp., p.
218); § 302.105 also issued under 5 U.S.C. 1104, Pub. L. 95–454, sec. 3(5); § 302.501 also
*****
(c) * * *
(7) Positions included in Schedule C (see subpart C of part 213 of this chapter) and
policy-advocating nature;
*****
Subpart F—Moving Employees and Positions into and Within the Excepted Service
Sec.
302.601 Scope.
302.603 Appeals.
§ 302.601 Scope.
This subpart applies to any situation where an agency moves a position from the
competitive service to the excepted service, or between excepted services, whether pursuant to
statute, Executive order, or an OPM issuance, to the extent that this subpart is not inconsistent
with applicable statutory provisions. This subpart also applies in situations where a position
previously governed by title 5 of the U.S. Code will be governed by another title of the U.S.
Code going forward, unless the statute governing the exception provides otherwise.
(a) In the event the President, Congress, OPM, or their designees direct agencies to move
positions from the competitive service for placement in the excepted service under Schedule A,
B, or C, or any Schedule in the excepted service created after [effective date of final rule], or to
move positions from a schedule in the excepted service to a different schedule in the excepted
(1) If the directive explicitly delineates the specific positions that are covered, the agency
need only list the positions moved in accordance with that list, and their location within the
organization.
(2) If the directive requires the agency to select the positions to be moved pursuant to
criteria articulated in the directive, then the agency must provide a list of the positions to be
moved in accordance with those criteria, denote their location in the organization, and explain,
upon request from OPM, why the agency believes the positions met those criteria.
(3) If the directive confers discretion on the agency to establish objective criteria for
identifying the positions to be covered, or which specific slots of a particular type of position the
agency intends to move, then the agency must, in addition to supplying a list and the locations in
the organization, supply the objective criteria to be used and an explanation of how these criteria
are relevant.
(1) Identify the types, numbers, and locations of positions that the agency proposes to
(2) Document the basis for its determination that movement of the position or positions is
consistent with the standards set forth by the President, Congress, OPM, or their designees as
applicable.
(3) Obtain certification from the agency’s Chief Human Capital Officer (CHCO) that the
documentation is sufficient and movement of the position or positions is both consistent with the
standards set forth by the directive, as applicable, and with merit system principles.
(4) Submit the CHCO certification and supporting documentation to OPM (to include the
types, numbers, and locations of positions) in advance of using the excepted service authority,
(5) For exceptions effectuated by the President or OPM, list positions to the appropriate
schedule of the excepted service only after obtaining written approval from the OPM Director to
do so. For exceptions effectuated by Congress, inform OPM of the positions excepted either
before the effective date of the provision, if the statutory provisions are not immediately
(6) For exceptions created by the President or OPM, initiate any hiring actions under the
excepted service authority only after OPM publishes any such authorizations in the Federal
Register, to include the types, numbers, and locations of the positions moved to the excepted
service.
(c) In accordance with the requirements provided in paragraphs (a) and (b) of this
section—
(1) An agency that seeks to move an encumbered position from the competitive service to
the excepted service, or from one excepted service schedule to another, must provide written
notification to the employee of the intent to move the position 30 days prior to the effective date
(2) The written notification required by paragraph (c)(1) of this section must inform the
employee that the employee maintains their civil service status and protections notwithstanding
§ 302.603 Appeals.
(a) A competitive service employee whose position is placed into the excepted service or
who is otherwise moved to the excepted service, or an excepted service employee whose position
is placed into a different schedule of the excepted service or who is otherwise moved to a
different schedule of the excepted service, may directly appeal to the Merit Systems Protection
Board, as provided in paragraphs (b) and (c) of this section, to have their competitive status and
(b) An employee whose position is moved into the excepted service or into a different
schedule of the excepted service may appeal to the extent that such move purportedly strips the
employee of the status and civil service protections the employee has already accrued.
(c) An employee whose move to a new position that would require the employee to
relinquish their competitive status or civil service protections is facially voluntary may appeal if
ACTIONS
10. The authority citation for part 432 continues to read as follows:
§ 432.102 Coverage.
*****
(f) * * *
chapter by—
(i) The President for a position that the President has excepted from the competitive
service;
(ii) The Office of Personnel Management for a position that the Office has excepted from
(iii) The President or the head of an agency for a position excepted from the competitive
service by statute.
*****
PART 451—AWARDS
12. The authority citation for part 451 continues to read as follows:
*****
(b) * * *
(3) * * *
(ii) To positions that are excepted from the competitive service because of their
*****
Authority: 5 U.S.C. 7504, 7514, and 7543, Pub. L. 115–91, 131 Stat. 1283, and Pub. L.
15. Amend § 752.201 by revising paragraphs (b)(1) through (6) and (c)(5) and (6) and
§ 752.201 Coverage.
*****
(b) * * *
(1) An employee in the competitive service who has completed a probationary or trial
period, or who has completed 1 year of current continuous employment in the same or similar
positions under other than a temporary appointment limited to 1 year or less, including such an
employee who is moved involuntarily into the excepted service and still occupies that position or
a similar position;
probationary or trial period, and who has completed 1 year of current continuous employment in
the same or similar positions under other than a temporary appointment limited to 1 year or less,
including such an employee who is moved involuntarily into the excepted service and still
(3) An employee with competitive status who occupies a position under Schedule B of
part 213 of this chapter, including such an employee who is moved involuntarily into a different
(4) An employee who was in the competitive service and had competitive status as
defined in § 212.301 of this chapter at the time the employee’s position was first listed under any
7401(3), including such an employee who is moved involuntarily into a different schedule of the
(6) An employee of the Government Publishing Office, including such an employee who
is moved involuntarily into the excepted service and still occupies that position or a similar
position.
(c) * * *
subchapter by—
(i) The President for a position that the President has excepted from the competitive
service;
(ii) The Office of Personnel Management for a position that the Office has excepted from
(iii) The President or the head of an agency for a position excepted from the competitive
service by statute.
*****
Subpart D—Regulatory Requirements for Removal, Suspension for More Than 14 Days,
16. Amend § 752.401 by revising paragraphs (c)(1), (c)(2)(i) and (ii), (c)(3) through (9),
§ 752.401 Coverage.
*****
(c) * * *
(1) A career or career conditional employee in the competitive service who is not serving
a probationary or trial period, including such an employee who is moved involuntarily into the
excepted service;
(2) * * *
(i) Who is not serving a probationary or trial period under an initial appointment,
including such an employee who is moved involuntarily into the excepted service; or
(ii) Except as provided under section 1105 of Public Law 114-92 (as repealed by section
1106(a)(1) of Public Law 117-81), who has completed 1 year of current continuous service under
other than a temporary appointment limited to 1 year or less, including such an employee who is
agency as defined at section 105, United States Code, the U.S. Postal Service, or the Postal
Regulatory Commission and who has completed 1 year of current continuous service in the same
or similar positions, including such an employee who is moved involuntarily into a different
schedule of the excepted service and still occupies that position or a similar position;
(4) A Postal Service employee covered by Public Law 100-90 who has completed 1 year
of current continuous service in the same or similar positions and who is either a supervisory or
nonconfidential clerical capacity, including such an employee who is moved involuntarily into a
different schedule of the excepted service and still occupies that position or a similar position;
agency as defined at 5 U.S.C. 105, and who has completed 2 years of current continuous service
in the same or similar positions under other than a temporary appointment limited to 2 years or
less, including such an employee who is moved involuntarily into a different schedule of the
213 of this chapter, including such an employee whose position is moved involuntarily into a
different schedule of the excepted service and still occupies that position;
(7) An employee who was in the competitive service and had competitive status as
defined in § 212.301 of this chapter at the time the employee’s position was first listed under any
schedule of the excepted service and who still occupies that position;
7401(3), including such an employee who is moved involuntarily into a different schedule of the
excepted service and still occupies that position or a similar position; and
(9) An employee of the Government Publishing Office, including such an employee who
(d) * * *
chapter by—
(i) The President for a position that the President has excepted from the competitive
service;
(ii) The Office of Personnel Management for a position that the Office has excepted from
(iii) The President or the head of an agency for a position excepted from the competitive
service by statute.
*****
[FR Doc. 2023-19806 Filed: 9/15/2023 8:45 am; Publication Date: 9/18/2023]