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Upholding Civil Service Protections and Merit System Principles rule (2024)

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The Upholding Civil Service Protections and Merit System Principles rule is a significant rule issued by the Office of Personnel Management (OPM) effective May 9, 2024, that affords federal employees in the competitive service the right to retain job protection and due process rights— unless voluntarily relinquished— in the event their position changes from the competitive service to the excepted service, among other provisions.[1]

HIGHLIGHTS
  • Name: Upholding Civil Service Protections and Merit System Principles
  • Code of Federal Regulations: 5 CFR Parts 210, 212, 213, 302, 432, 451, and 752
  • Agency: Office of Personnel Management
  • Action: Final rule
  • Type of significant rule: Other significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    • May 9, 2024: The final rule took effect.[1]
    • April 9, 2024: The final rule was published.[1]
    • November 17, 2023: The comment period closed.[1]
    • September 18, 2023: The DOE issued a notice of proposed rulemaking and opened the comment period.[1]

    Background

    President Donald Trump (R) issued Executive Order 13957: Creating Schedule F in the Excepted Service on October 21, 2020, that directed agencies to reclassify federal civil service employees in the competitive service who serve in policy-related roles as members of the excepted service. Employees in the excepted service are not guaranteed certain workplace protections, such as procedural protections against removal and discrimination, that competitive service employees are. Trump argued that "agencies should be able to assess candidates without proceeding through complicated and elaborate competitive service processes," and that, "[a]gencies need the flexibility to expeditiously remove poorly performing employees from these positions without facing extensive delays or litigation," according to the text of the rule implementing the executive order.[2][3]

    President Joe Biden (D) issued Executive Order 14003 on January 22, 2021, that repealed Executive Order 13957. E.O. 14003 argued that E.O. 13957 "undermined the foundations of the civil service and its merit system principles, which were essential to the Pendleton Civil Service Reform Act of 1883’s repudiation of the spoils system," according to the text of the order.[4]

    Trump, while campaigning for a second presidential term that he won on November 5, 2024, named "re-[issuing] the 2020 executive order restoring the president’s authority to fire rogue bureaucrats" a priority for his administration, according to a campaign agenda published on March 21, 2023.[5]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:[1]

    “ The Office of Personnel Management (OPM) is issuing final regulations to reinforce and clarify longstanding civil service protections and merit system principles, codified in law, as they relate to the involuntary movement of Federal employees and positions from the competitive service to the excepted service, or from one excepted service schedule to another. In this final rule, OPM adopts many of the provisions from the proposed rule with some modifications and clarifications based on comments received from the public. The final regulations will better align OPM regulations with relevant statutory text, congressional intent, legislative history, legal precedent, and OPM's longstanding practice.[6] ”

    Summary of provisions

    The following is a summary of the provisions from the rule's entry in the Federal Register:[1]

    “

    First, the rule amends 5 CFR part 752 (Adverse Actions) to clarify that civil servants in the competitive service or excepted service who qualify as “employees” under 5 U.S.C. 7501, 7511(a)—meaning they have fulfilled their probationary or trial period requirement or durational requirement and are not excluded from the definition of “employee” by 5 U.S.C. 7511(b)—will retain the rights previously accrued upon an involuntary move from the competitive service to the excepted service, or from one excepted service schedule to another, or any subsequent involuntary move, unless the employee relinquishes such rights or status by voluntarily encumbering a position that explicitly results in a loss of, or different, rights. The rule also conforms the regulation for non-appealable adverse actions with statutory language in 5 U.S.C. 7501 and Federal Circuit precedent to clarify which employees are covered. The rule amends 5 CFR part 212 (Competitive Service and Competitive Status) to further clarify a competitive service employee's status in the event the employee and/or their position is moved involuntarily to an excepted service schedule. OPM also updates the regulations to reflect the repeal of 10 U.S.C. 1599e, effective December 31, 2022, and restores a one-year probationary period for covered Department of Defense employees appointed to permanent positions within the competitive service in the Department of Defense on or after December 31, 2022.

    Second, the rule amends 5 CFR part 210 (Basic Concepts and Definitions (General)) to interpret the phrases “confidential, policy-determining, policy-making, or policy-advocating” and “confidential or policy-determining” in 5 CFR 210.102. These terms of art—which would apply throughout OPM's Civil Service Regulations in 5 CFR chapter I, subchapter B—describe positions of the character generally excepted from chapter 75's protections. OPM reinforces the longstanding interpretation that, in creating this exception in 5 U.S.C. 7511(b)(2), Congress intended to except noncareer political appointees from civil service protections.

    Third, the rule amends 5 CFR part 302 to provide specific procedures that apply when moving individuals or 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 a right of appeal to the Merit Systems Protection Board (MSPB or Board) to the extent any such move is involuntary and characterized as stripping individuals of any previously accrued civil service status and protections.[6]

    		”

    Significant impact

    See also: Significant regulatory action

    Executive Order 12866, issued by President Bill Clinton (D) in 1993, directed the Office of Management and Budget (OMB) to determine which agency rules qualify as significant rules and thus are subject to OMB review.

    Significant rules have had or might have a large impact on the economy, environment, public health, or state or local governments. These actions may also conflict with other rules or presidential priorities. Executive Order 12866 further defined an economically significant rule as a significant rule with an associated economic impact of $100 million or more. Executive Order 14094, issued by President Joe Biden (D) on April 6, 2023, made changes to Executive Order 12866, including referring to economically significant rules as section 3(f)(1) significant rules and raising the monetary threshold for economic significance to $200 million or more.[1]


    The text of the rule states that OMB deemed this rule significant, but not economically significant under section 3(f) of Executive Order 12866, as supplemented by Executive Orders 13563 and 14094:

    “ A regulatory impact analysis must be prepared for certain 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 Executive Orders 13563 and 14094.[6] ”

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Federal Register, "Upholding Civil Service Protections and Merit System Principles," November 20, 2024
    2. ↑ Federal Register, "Creating Schedule F in the Excepted Service," November 20, 2024
    3. ↑ White House, "Executive Order on Creating Schedule F In The Excepted Service," October 21, 2020
    4. ↑ The White House, "Executive Order on Protecting the Federal Workforce," November 20, 2024
    5. ↑ Donald Trump, "Agenda47: President Trump’s Plan to Dismantle the Deep State and Return Power to the American People," November 20, 2024
    6. ↑ 6.0 6.1 6.2 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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