Administration Releases Proposed Rules Sharply Limiting Appeals of RIFs and Suitability Determinations

Yesterday, the Office of Personnel Management (OPM) released two proposed rules, under which OPM would take over adjudication of suitability determinations and all reduction-in-force (RIF) appeals from the Merit Systems Protection Board (MSPB). Both of these proposed rules, the latest in OPM’s efforts to restructure the makeup and protections provided to the civil workforce, would remove any option for independent review of the agency’s actions. 

Background 

Suitability determinations: A suitability determination examines whether an applicant or employee is suitable for federal employment based on their character or conduct. To make this determination, OPM or the employing agency consider factors including criminal conduct, dishonest conduct, and false statements during the application process. If OPM or the employing agency finds that an applicant is not suitable for employment, the individual has the right to appeal that finding to the MSPB, which will conduct an independent review. 

RIF appeals: Employees who are demoted, furloughed, or separated through a RIF currently have the right to appeal that employment action to the MSPB. The MSPB conducts an independent review, ensuring that the RIF is consistent with statutory law, case law, and regulation. Once the MSPB has issued its decision, the individual can appeal to the federal courts for judicial review. 

Proposed Changes 

Both rules replace the MSPB with OPM as the reviewer and adjudicator of suitability determinations and RIFs. In other words, OPM will be responsible for reviewing the very suitability actions and RIFs it helped implement. OPM is of course subject to Executive Order 14215, which prohibits any executive branch employee from taking a legal position that contradicts the administration’s interpretation of that law, which means this is quite the fox to guard this particular henhouse. The proposed rule regarding RIFs, however, goes much further. 

Limited Grounds: The proposed rule strictly limits the arguments employees can make when challenging their RIF to whether the RIF was implemented consistent with the Civil Service Reform Act (CSRA) or OPM’s RIF regulations. Employees cannot allege, for example, discrimination, violations of the Privacy Act, or political targeting—those claims must be brought in separate challenges before separate forums.  

Burden Shifting: Under the current rules, the burden is on the agency to demonstrate by a preponderance of the evidence that their actions were justified. Under the proposed rule, the burden would be on the employee to demonstrate—again by a preponderance of evidence—that the RIF was conducted inconsistent with the CSRA or OPM regulations such that the employee would not have suffered the same or another reduction-in-force action. 

This is a stunning burden to place on employees: as written, employees would be required to prove that they would’ve avoided not only the RIF at issue, but all other RIFs that the agency could have brought. RIF appeals—and indeed all adverse action appeals—have always been limited to the specific action at issue and have not required employees to speculate as to the infinite possible actions the agency could have taken, much less prove that those speculative actions would be legally insufficient. 

Discretionary reconsideration: Under the current rules, employees can appeal the MSPB’s initial decision to the Board of the MSPB. Under the proposed rule, employees can request reconsideration of OPM’s initial decision, but OPM is not required to reconsider, even if the request meets all of the requirements for reconsideration. 

Judicial review: Unlike the current rules, which allow employees to appeal the MSPB’s final decision to federal court, the current rules eliminate the right to judicial review. 

OPM Director intervention: The OPM Director—a political appointee—may intervene and reconsider any OPM RIF appeal decision within 30 days from the date of OPM’s decision. There are no established grounds, standards, or procedures for this intervention; it is solely at the discretion of the OPM Director. 

Connecting the Dots 

This would be a huge sea change on its own, but the full picture emerges when you consider these proposed rules with the steps this administration has already taken and the steps they plan to take. OPM has already pulled probationary terminations entirely under their purview and implemented sweeping and unprecedented RIFs, directing thousands of appeals to the MSPB and effectively rendering it inoperable given the scope of its backlog.  

At the same time, the administration is planning to strip down the RIF process even further. During a RIF, agencies retain employees based on their position, length of service, veterans’ preference, and recent performance. The administration plans to base retention exclusively on employee performance, despite the fact that OPM’s recent guidance requires that agencies distribute individual performance ratings consistent with the performance of the agency as a whole, such that performance ratings no longer reflect employee performance. The administration also intends to exclude additional categories of employees from any RIF protections and procedures, including those employees who were downgraded through no fault of their own. 

What we’re seeing here is a multi-level effort to bring all executive branch employment decisions—hiring, performance standards, performance appraisals, adverse actions, and removals—under the purview of political appointees. The administration is eliminating any independent review of agency employment actions and making review actions subject to the involvement and approval of the OPM and the agency’s political leadership, undoing the CSRA’s protections and requirements without any legislative authority.

There is no longer a question of whether the administration is pushing the unitary executive theory: they are, and they are doing so aggressively and at speed. The question is to what extent they will succeed and what will be left when they do. 

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