This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

63862 

Vol. 88, No. 179 

Monday, September 18, 2023 

1See Lindahl v. OPM, 470 U.S. 768, 773 (1985). 

2 Id. at 774; see United States v. Fausto, 484 U.S. 

439, 443 (1988). 

OFFICE OF PERSONNEL 

MANAGEMENT 

5 CFR Parts 210, 212, 213, 302, 432, 

451, and 752 

[Docket ID: OPM–2023–0013] 

RIN 3206–AO56 

Upholding Civil Service Protections 

and Merit System Principles 

AGENCY: Office of Personnel 

Management. 

ACTION: Proposed rule. 

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 ‘‘confidential, 

policy-determining, policy-making, or 

policy-advocating’’ and ‘‘confidential or 

policy-determining’’ to describe 

positions, generally excepted from civil 

service protections, in 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 November 17, 2023. 

ADDRESSES: You may submit comments, 

identified by the docket number or 

Regulation Identifier Number (RIN) for 

this proposed rulemaking, by the 

following method: 

Federal eRulemaking Portal: https://

www.regulations.gov. Follow the 

instructions for sending comments. 

All submissions must include the 

agency name and docket number or RIN 

for this rulemaking. Please arrange and 

identify your comments on the 

regulatory text by subpart and section 

number; if your comments relate to the 

supplementary information, please refer 

to the heading and page number. All 

comments received will be posted 

without change, including any personal 

information provided. To ensure that 

your comments will be considered, you 

must submit them within the specified 

open comment period. Before finalizing 

this rule, OPM will consider all 

comments within the scope of the 

regulations received on or before the 

closing date for comments. OPM may 

make changes to the final rule after 

considering the comments received. 

FOR FURTHER INFORMATION CONTACT: 

Timothy Curry by email at 

employeeaccountability@opm.gov or by 

phone at (202) 606–2930. 

SUPPLEMENTARY INFORMATION: OPM 

proposes this rule to clarify and 

reinforce 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 lawful orders—does not 

qualify as misconduct or unacceptable 

performance or otherwise 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 


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Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 63863 

3Public Law 101–376, 104 Stat. 461, H.R. 3086 

(Aug. 17, 1990); see also H.R. Rep. 101–328 (Nov. 

3. 1989). 

4See 5 U.S.C. 1103(a)(5)(A). 

5See 5 U.S.C. 7504, 7514. 

6See, e.g., 5 CFR part 212. 

7As 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). 

8See 5 CFR 213.3301, 302.101, 432.102, 451.302, 

752.202, 752.401. 

9The 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 policydetermining character,’’ 5 CFR part 302 uses ‘‘of a 

confidential, policy-determining, or policyadvocating nature,’’ and 5 CFR part 451 uses ‘‘of a 

confidential or policy-making character.’’ In this 

proposed rule, OPM adopts ‘‘confidential, policydetermining, policy making, or policy advocating’’ 

and ‘‘confidential or policy-determining’’ as two, 

interchangeable alternatives to describe these 

positions. 

10The 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. 

11OPM’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. 

12Public Law 16; Civil Service Act of 1883, (Jan. 

16, 1883) (22 Stat. 403). 

13U.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. 

14U.S. Office of Personnel Management, 

‘‘Biography of an Ideal,’’ p. 83 (2003), OPMBiography-of-an-Ideal-History-of-Civil-Service2003.pdf (armywarcollege.edu). 

15See Anthony J. Gaughan, ‘‘Chester Arthur’s 

Ghost: A Cautionary Tale of Campaign Finance 

Reform,’’ 71 Mercer L. Rev. 779, at pp. 787–78 

(2020), https://digitalcomons.law.mercer.edu/cgi/

viewcontent.cgi?article=1313&context=jour_mlr. 

16U.S. Office of Personnel Management, supra 

note 14 at pp. 182–83. 

envisioned by Congress when it enacted 

the CSRA—and strengthened those 

protections through other actions, such 

as the Civil Service Due Process 

Amendments Act of 1990.3

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 ‘‘confidential, policydetermining, policy-making, or policyadvocating,’’ and ‘‘confidential or 

policy-determining’’ 8 in 5 CFR 

210.102—which would apply 

throughout 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 

interpretation that, in creating this 

exception to 5 U.S.C. 7511(b), Congress 

intended to except noncareer,10 political 

appointees from the civil service 

protections. 

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 

(Competitive Service and Competitive 

Status) to further clarify a competitive 

service 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 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 voteseller, and the man guilty of 

misfeasance in office.’’ 16 George 

William Curtis, a proponent of a meritbased civil service, described that, 

under the spoils system, ‘‘[t]he country 

seethe[d] with intrigue and corruption. 

Economy, patriotism, honesty, honor, 


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63864 Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 

17 Id. at p. 182. In 1871, Curtis was appointed by 

President Ulysses S. Grant to chair the first Civil 

Service Commission. See id. at p. 196. 

18 Id. at pp. 183–84. 

19See Gaughan, supra note 15 at p. 787; U.S. 

Merit System Protections Board, supra note 13 at 

pp. 3–5. 

20See Gaughan, supra note 15 at p. 787. 

21See U.S. Merit System Protections Board, supra 

note 13 at pp. 4–5; U.S. Office of Personnel 

Management, supra note 14 at pp. 198–201. 

22 22 Stat. 403–04 (stating that hiring should be 

based on an ‘‘open, competitive examination’’ of the 

employee’s ‘‘relative capacity and fitness . . . to 

discharge the duties of the service into which they 

seek to be appointed.’’). 

23 Id. at 403. 

24The 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. 

25U.S. Merit System Protections Board, supra 

note 13 at p. 5. 

26 37 Stat. 555 (1912). 

27The ‘‘classified civil service’’ refers to the 

competitive service. See 5 U.S.C. 2102. 

28 58 Stat. 387 (1944). 

29Agencies initially were not required to comply 

with the CSC’s recommendations in adverse action 

appeals, but Congress amended the Veterans’ 

Preference Act in 1948 to require compliance. See 

67 Stat. 581 (1948); see also U.S. Merit System 

Protections Board, supra note 13 at pp. 7–8. 

30E.O. No. 10988, 27 FR 551 (Jan. 19, 1962) (‘‘The 

head of each agency, in accordance with the 

provisions of this 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 personnel action taken against 

federal employees.’’). 

32Congress envisioned that: ‘‘OPM would be the 

administrative arm of Federal personnel 

management, serve as 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). 

33U.S. Government Accountability Office, ‘‘Civil 

Service Reform—Where it Stands Today,’’ at p. 2 

(May 13, 1980), https://www.gao.gov/assets/fpcd80-38.pdf. The Equal Employment Opportunity 

Commission and Office of Government Ethics also 

handle duties previously covered by the CSC. 

34See 5 U.S.C. 1103(a)(5), (a)(7). 

35 Id.; see 5 U.S.C. 8461. 

36See 5 U.S.C. 1204. 

37See 5 U.S.C. 1212. 

38See 47 Cong. Ch. 27 (Jan. 16, 1883), 22 Stat. 

403. 

39See 5 U.S.C. 2301. 

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

Civil service advocates and then 

Congress, therefore, sought to establish 

a Federal 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 work he had done for Garfield 

and his political party.21

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 government’s adherence 

to merit-based principles.23

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 1912 26 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 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. 

Thereafter, Congress enacted further 

requirements and reforms. In 1944, 

Congress 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 1978 31—the most 

comprehensive Federal civil service 

reform since the Pendleton Act. 

The CSRA made significant 

organizational changes to civil service 

management, adjudications, and 

oversight. It abolished the CSC and 

divided its duties among OPM 32 and 

the MSPB, which initially encompassed 

the Office of Special Counsel (OSC). 

OSC later became a 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 or 

authorities to promulgate regulations on 

specific topics. 

The CSRA codified fundamental merit 

system principles, which had developed 

since 1883.38 These principles are 

summarized here: 

Merit System Principles 39

1. Recruit, select, and advance on 

merit after fair and open competition. 

2. Treat employees and applicants 

fairly and equitably. 

3. Provide equal pay for equal work 

and reward excellent performance. 

4. Maintain high standards of 

integrity, conduct, and concern for the 

public interest. 

5. Manage employees efficiently and 

effectively. 

6. Retain or separate employees on the 

basis of their performance. 


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40See 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. 

43See 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). 

45The 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. 

46The 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). 

50See infra, Sec. II. Proposed Amendments; 5 

CFR 6.2 (‘‘Positions of a confidential or policydetermining 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 

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). 

51See 5 CFR 213.3301. 

52U.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. 

7. Educate and train employees if it 

will result in better organizational or 

individual performance. 

8. Protect employees from improper 

political influence. 

9. Protect employees against reprisal 

for the lawful disclosure of illegality 

and other covered wrongdoing. 

Under the CSRA’s ‘‘elaborate new 

framework,’’ challenges to nonappealable adverse 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 against whom such a 

suspension is proposed is entitled to 

certain procedural protections, 

including notice, an opportunity to 

respond, representation by an attorney 

or other representative, and a written 

decision.42

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 

of service conditions in 5 U.S.C. 7511.44

Under section 7511(a)(1), ‘‘employee’’ 

refers to an 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 

period 45 under an initial appointment; 

or (b) has completed 1 year of current 

continuous service under other than a 

temporary appointment limited to 1 

year or less; (2) a preference eligible 46

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 agency 

under other than a temporary 

appointment limited to 2 years or less.47

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 to 

review MSPB’s final orders and 

decisions.48

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 

confidential, policy-determining, 

policy-making, or policy-advocating 

character.’’ 49 This is true 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 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 a request to stay by 

an incoming administration, these 

positions are vacated following a 

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 Congress’ view, potentially improved 

process for empowering supervisors to 

address 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 


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53See 5 U.S.C. 7503(a), 7513(a); 5 CFR 752.102(a), 

752.202(a). 

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. 

57The 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). 

59 5 U.S.C. 2302(a)(2)(B), 3302. 

60 5 U.S.C. 2302(a)(2)(A). 

61 5 U.S.C. 2302(b). 

62 5 U.S.C. 1214(a)(1)(A), (a)(5). 

63See 5 U.S.C. 1214(b)(2)(B), (C), (b)(4)(A). But 

note that, by statute, OSC cannot request corrective 

action as to 5 U.S.C. 2302(b)(11). See 5 U.S.C. 

2302(e)(2). 

64 5 U.S.C. 2102(a)(1) (competitive service); 5 

U.S.C. 2103(a) (excepted service); 5 U.S.C. 

3132(a)(2) (Senior Executive Service). 

65See 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/policydata-oversight/hiring-information/competitivehiring/. 

66See Congressional Research Service, 

‘‘Categories of Federal Civil Service Employment; A 

Snapshot,’’ at p. 4 (May 26, 2019), https://

sgp.fas.org/crs/misc/R45635.pdf. 

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 

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 specified by 

Congress, in the circumstances 

described, to effectuate a removal under 

those chapters. 

Finally, in addition to establishing the 

requirements and procedures for 

challenging adverse actions and 

performance-based actions, the CSRA 

includes a mechanism for employees in 

a ‘‘covered position’’ to challenge a 

‘‘personnel action’’ that constitutes a 

‘‘prohibited personnel 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 

exception on the basis that the position 

is of a ‘‘confidential, policydetermining, policy-making, or policyadvocating 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 disciplinary or nondisciplinary reasons; (4) a detail, 

transfer, or reassignment; (5) a 

reinstatement; (6) a restoration; (7) a 

reemployment; (8) a performance 

evaluation; (9) a decision concerning 

pay, benefits, or awards, or concerning 

education or training if the education or 

training may reasonably be expected to 

lead to an appointment, promotion, 

performance 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 change in duties, 

responsibilities, or working 

conditions.60

The CSRA codified a comprehensive 

list of prohibited personnel practices, 

summarized here: 

Prohibited Personnel Practices 61

1. Illegally discriminate for or against 

any employee or applicant, including on 

the basis of marital status or political 

affiliation. 

2. Solicit or consider improper 

employment recommendations. 

3. Coerce political activity or take 

action against an employee or applicant 

for any person’s refusal to engage in 

political activity. 

4. Willfully obstruct a person’s right 

to compete for employment. 

5. Improperly influence any person to 

withdraw from competition for a 

position. 

6. Give unauthorized preference or 

improper advantage to improve or injure 

a particular person’s employment 

prospects. 

7. Employ or promote a relative. 

8. Act against a whistleblower, 

whether an employee or applicant. 

9. Act against employees or applicants 

for filing or assisting with an appeal, or 

cooperating with the Inspector General 

or Special Counsel. 

10. Discriminate on the basis of 

conduct that does not affect 

performance. 

11. Knowingly violate veterans’ 

preference requirements. 

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. 

13. Implement or enforce an unlawful 

nondisclosure agreement. 

14. Access the medical record of 

another employee or an applicant in 

furtherance of a prohibited personnel 

practice. 

OSC investigates allegations of 

prohibited personnel practices brought 

by an individual 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 action it 

deems appropriate.63

C. The Competitive, Excepted, and 

Senior Executive Services 

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 equivalent evaluation 

of the individual’s relative level of 

knowledge, skills, and abilities 

necessary for successful performance in 

the position to be filled.65

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 


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67See 5 U.S.C. 2103; 5 CFR parts 213, 302. 

68 5 U.S.C. 2301(b)(1). 

69 5 U.S.C. 3320. 

70See infra notes 139–142. 

71 5 CFR 302.101(c). 

72 5 U.S.C. 3302. 

73E.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.’’). 

74E.O. 10577 sec. 6.1(b); 5 CFR 6.1(b); see 28 FR 

10025 (Sept. 14, 1963) (reorganizing the civil 

service rules). 

75 5 CFR 6.2. 

76See 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. 

77See 5 U.S.C. 2108(3). 

78See 5 U.S.C. 7511(a)(1)(B). 

79See 5 U.S.C. 7511(a)(1)(C). 

80See 5 U.S.C. 4303(e). 

81See 5 U.S.C. 4303(f). 

82 85 FR 67631 (Oct. 21, 2020). 

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 situations 70 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

The President is authorized by statute 

to provide for ‘‘necessary exceptions of 

positions 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 thereto through 

competitive examination are not 

practicable.73 The President has further 

delegated authority to OPM to ‘‘decide 

whether the duties of any particular 

position are such that it may be filled as 

an excepted position under the 

appropriate schedule.’’ 74

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 

listed in 5 CFR part 213: 

• Schedule A—Includes positions 

that are not of a confidential or policydetermining character for which it is not 

practicable to examine applicants, such 

as attorneys, chaplains, and short-term 

positions for which there is a critical 

hiring need. 

• Schedule B—Includes positions 

that are not of a confidential or policydetermining character for which it is not 

practicable to examine applicants. 

Unlike Schedule A positions, Schedule 

B positions require an applicant to 

satisfy basic qualification standards 

established by OPM for the relevant 

occupation and grade level. Schedule B 

positions engage in a variety of 

activities, including policy analysis, 

teaching, and technical assistance. 

• 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. 

• Schedule D—Includes positions 

that are not of a confidential or policydetermining character for which 

competitive examination makes it 

difficult to recruit certain students or 

recent graduates. Schedule D positions 

generally require an applicant to satisfy 

basic qualification standards established 

by OPM for the relevant occupation and 

grade level. Positions include those in 

the Pathways Programs. 

• Schedule E—Includes positions of 

administrative law judges.75

As described supra, competitive and 

excepted service incumbents, except 

those in 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 

statute 77—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 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

D. The Prior Schedule F 

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 


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83 86 FR 7231 (Jan. 22, 2021). 

84Since 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. 

85E.O. 13957, sec. 1. 

86The 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 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. 

87Matters 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. 

88See 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. 

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. 

by purportedly stripping adverse action 

rights under chapter 75, performancebased action rights under chapter 43, 

and appeal rights from large swaths of 

the Federal workforce—thereby turning 

them into at-will employees—and by 

eliminating statutory 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

1. Adverse Action Rights, PerformanceBased Action Rights, and Appeals 

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 ‘‘confidential, policydetermining, policy-making, or policyadvocating character’’—including 

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 

schedule (and regardless of any rights 

they had already accrued).84

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 deemed to be of a 

‘‘confidential, policy-determining, 

policy-making or policy-advocating 

character,’’ and to incentivize 

employees in these positions to display 

what presidential appointees at an 

agency would deem to be ‘‘appropriate 

temperament, acumen, impartiality, and 

sound judgment,’’ in light of the 

importance of these functions.86

Executive Order 13957 did not 

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 place to escalate matters of 

importance to agency administrators.87

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 

Section 3 of Executive Order 13957 

provided that ‘‘[a]ppointments of 

individuals to positions of a 

confidential, policy-determining, 

policy-making, or policy-advocating 

character 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 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, 


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94 85 FR 67632. 

95See 5 CFR part 300. Validation generally 

requires that the criteria and methods by which job 

applicants are evaluated have a rational 

relationship to performance in the position to be 

filled. 

96OPM, ‘‘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. 

97See 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. 

98E.O. 14003, 86 FR 7231, 7231 (Jan. 22, 2021) 

https://www.federalregister.gov/documents/2021/ 

01/27/2021-01924/protecting-the-federal-workforce. 

100See 5 U.S.C. 1103(a)(5)(A). This authority does 

not include functions for which either MSPB or 

OSC is primarily responsible. Among other 

authorities, MSPB has specific adjudicative and 

enforcement authority upon the satisfaction of 

threshold showings that an employee has 

established appeal rights. It also has authority to 

administer statutory provisions relating to 

adjudication of adverse action appeals. OSC has 

specific and limited investigative and prosecutorial 

authority. See 5 U.S.C. 1213–1216. 

101See Presidential rules codified at 5 CFR parts 

1 through 10. 

102See, e.g., 5 U.S.C. 1103, 1302, 3308, 3317, 

3318, 3320; Chapters 43, 53, 55, 75. 

103President Jimmy Carter, Reorganization Plan 

No. 2, sec. 101 and 102 (May 23, 1978). The plan 

specifies in 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.’’ 

104 87 FR 7521 (Nov. 22, 1954). 

105See, e.g., 5 CFR parts 2, 6, 212, 213, 335, 430, 

550, 630, 733, 734, 831, 890. 

106 5 CFR 6.1(c), 6.2; see 28 FR 10025 (Sept. 14, 

1963), as amended by E.O. 11315; E.O. 12043, 43 

FR 9773 (Mar. 10, 1978); E.O. 13562, 75 FR 82587 

(Dec. 30, 2010); see also E.O. 14029, 86 FR 27025 

(May 19, 2021). 

107See 33 FR 12408 (Sept. 4, 1968). 

108 Id. 

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 to derived preference. The 

qualifications requirements, specialized 

experience, interview process 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 statutory 

requirements and could potentially be 

discriminatory in application, even if 

that were not the agency’s intent. 

3. Political Appointees in Career Civil 

Service Positions 

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 merit system principles— 

in effect, allowing political appointees 

on Schedule C appointments, who 

would normally expect to depart upon 

a presidential transition, to ‘‘burrow’’ 

into permanent civil service 

appointments. 

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 

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

E. OPM’s Authority To Regulate 

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 out the 

purpose of subchapter I of chapter 75. 

The same is true with respect to 

chapter 43. Pursuant to 5 U.S.C. 4305, 

OPM may issue regulations to carry out 

subchapter I of chapter 43. 

Prior to the reorganization 

proposal 103 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—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 

benefits.105 For instance: 

• 5 CFR part 6 requires OPM to 

publish in the Federal Register on a 

regular basis the list of positions that are 

in the excepted service.106

• 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


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109See 55 FR 9407 (Mar. 14, 1990), as amended 

at 58 FR 58261 (Nov. 1, 1993). 110See 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). 

111See 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). 

114See 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. 

• 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 understands he/ 

she is leaving the competitive service 

voluntarily to accept an appointment in 

the excepted service.’’ 109

• 5 CFR part 432 sets forth the 

procedures to be followed, if an agency 

opts to pursue a performance-based 

action against an employee under 

chapter 43 of title 5, U.S. Code. As 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 exceptions that 

include political appointees.110

• 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 an 

‘‘employee,’’ as defined in 5 U.S.C. 

7511. These regulations apply broadly 

to employees in 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 the statutory provisions 

governing the rights of Federal 

employees in connection to adverse 

agency actions.114

II. Proposed Amendments 

OPM proposes amending its 

regulations in 5 CFR chapter I, 

subchapter B, as summarized below to 

clarify and reinforce longstanding civil 

service protections and merit system 

principles. 

A. Civil Service Protections 

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 MSPB 

may prescribe regulations. 

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 explicitly results in the 

loss of, or different, rights. 

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 cause as will promote the 

efficiency of the service. 

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 loss of, or 

different, rights. 

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 crossreferences 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 

subchapter I of chapter 43. 

OPM proposes the following changes 

to 5 CFR part 752: 

Part 752—Adverse Actions, Subpart B 

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. 

Section 752.201 Coverage. 

Section 752.201(b) outlines which 

employees are covered by subpart B. 

OPM is proposing to modify the 

language in § 752.201(b) to further 

clarify when an employee has or retains 


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115See McCormick, 307 F.3d at 1341–43; Van 

Wersch, 197 F.3d at 1151–52. 

116OPM, ‘‘Career and Career-Conditional 

Employment and Adverse Actions,’’ 73 FR 7187 

(Feb. 7, 2008). 

117See, e.g., McCormick, 307 F.3d at 1341–43; 

Greene v. Def. Intel. Agency, 100 M.S.P.R. 447 

(2005). 

118See Public Law 117–81, Sec. 1106(a)(1). 

coverage under the procedures of this 

subpart. 

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 nonprobationers 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

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 other 

than a temporary appointment limited 

to one year or less. 

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 

service to the excepted service, unless 

specifically prohibited by law. 

Finally, OPM proposes to add a new 

5 CFR 752.201(c)(7) to further clarify 

that employees in positions determined 

to be of a confidential policydetermining, policy-making, or policyadvocating 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 

noncareer, political appointments. 

Part 752—Adverse Actions, Subpart D 

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 based on misconduct or 

unacceptable performance. The 

proposed changes are intended to 

reinforce the civil service protections 

that apply when an agency pursues 

certain adverse actions for the efficiency 

of the service, under chapter 75. 

Section 752.401 Coverage. 

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 retains 

coverage under the procedures of this 

subpart. 

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. 

The proposed changes to § 752.401 

reflect the impact of statutory 

requirements—namely, 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

In addition, OPM proposes to update 

§ 752.401(c)(2)(ii) to reflect the repeal of 

10 U.S.C. 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 one-year probationary period for 

covered Department of Defense 

employees. 

Finally, OPM proposes to modify 5 

CFR 752.401(d)(2) to further clarify that 

political appointees intended to work 

on matters of a confidential policydetermining, policy-making, or policyadvocating character, as defined in 

§ 210.102, are excluded from coverage 

under subpart D of part 752. 

B. Positions of a Confidential, PolicyDetermining, Policy-Making, or PolicyAdvocating Character 

OPM proposes to amend 5 CFR part 

210 (Basic Concepts and Definitions 

(General)), to add a definition for the 

terms ‘‘confidential, policy-determining, 

policy-making, or policy-advocating’’ 

and ‘‘confidential or policydetermining.’’ 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 administration during 

which the appointment occurred. 

Specifically, OPM proposes to add 

this definition for ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ and ‘‘confidential or policydetermining’’ to 5 CFR 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 


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119See 5 U.S.C. 7511(b)(2). 

120See ‘‘Report of the President’s Committee, 

Administrative Management in the Government of 

the United States,’’ p. 8 (Jan. 1937). 

121 427 U.S. 347, 354 (1976) (explaining that 

‘‘strong discontent with the corruption and 

inefficiency of the patronage system of public 

employment eventuated in the Pendleton Act’’). 

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). 

123S. Rep. No. 95–969, at 48 (1978), reprinted in 

1978 U.S.C.C.A.N. 2723, 2770. 

124Legislative 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). 

125H.R. Rep. No. 101–328, 4–5 (1989), reprinted 

in 1990 U.S.C.C.A.N. 695, 698–99. 

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 

752.401 to standardize the phrasing 

used to describe this type of position. 

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 which their appointment 

occurred. 

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-determining, policy-making or 

policy-advocating character.’’ 119

Likewise, Congress specifically 

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 

confidential, policy-determining, 

policy-making, or policy-advocating 

character.’’ 

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, policy-determining, 

policy-making, or policy-advocating’’ 

positions, and their exclusion from 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 patronagebased dismissals from government 

employment under the First 

Amendment. The Court explained that 

‘‘a nonpolicymaking, nonconfidential 

government employee’’ cannot be 

‘‘discharged or threatened with 

discharge from a job that he is 

satisfactorily performing upon the sole 

ground of his political beliefs.’’ 122

Consistent with this background, the 

CSRA’s legislative history explains the 

exclusion for ‘‘confidential, policydetermining, policy-making, or policyadvocating’’ employees from 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 

objectives required by those filling such 

positions.’’ 124

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 but retain 

the exclusion for political appointees. It 

states: 

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 explicitly serve at the 

pleasure of the President or the presidential 

appointee who appointed them.125

In a case concerning the application 

of 5 U.S.C. 2302(a)(2)(B)(i) (related to 

prohibited personnel practices), which 

also contains an exception for positions 

of a ‘‘confidential, policy-determining, 

policy-making, or policy-advocating 

character,’’ MSPB interpreted this 

legislative 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. Office of Independent Counsel, 74 

M.S.P.R. 192 (1997), the Board stated: 

Schedule C, the only category to include 

positions of a confidential or policydetermining character, authorizes 

appointments to positions ‘‘which are policydetermining or which involve a close and 

confidential working relationship with the 

head of the agency or other key appointed 

officials.’’ 5 CFR 213.3301. This regulation, 

while using the same language as 5 U.S.C. 

2302(a)(2)(B), adopts a narrow definition of a 

position of ‘‘a confidential or policydetermining nature,’’ i.e., involving ‘‘a close 

and confidential working relationship with 

the head of an agency or other key appointed 

officials.’’ 5 CFR 213.3301(a). The word 

‘‘confidential’’ in that regulation does not 

necessarily refer to matters that are to be kept 

secret but instead to the nature of the 

relationship between the employee and the 

head of the agency or other key appointed 

officials. 

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 


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126 74 M.S.P.R. at 207–08. 

127Special Counsel v. Peace Corps, 31 M.S.P.R. 

225, 231–32 (1986). 

128O’Brien v. Off. of Indep. Counsel, 74 M.S.P.R. 

192, 206 (1997) (quoting Special Counsel, 31 

M.S.P.R. at 231). 

129There 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. 

130See supra note 38. 

131Public Law 95–454, sec. 3.2. 

132 Id. at sec. 3.5 

133 5 U.S.C. 1103(a)(5). 

134 5 CFR 5.1, 6.1, 6.2. 

135 5 CFR 5.4. 

136 5 CFR 6.1. 

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, policymaking 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 policyadvocating’’ 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

Improperly applying the term ‘‘of a 

confidential, policy-determining, 

policy-making, or policy-advocating 

character’’ to describe positions held by 

career employees, who have an 

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 been 

interpreted as ‘‘a shorthand way of 

describing positions to be filled by 

political appointees,’’ including any 

appointment required or authorized to 

be made by the President, or by an 

agency head when there are 

‘‘indications that the appointment was 

intended to be, or in fact was, made 

with any political considerations in 

mind.’’ 128

In this proposed rule, therefore, OPM 

is making explicit this longtime, 

consistent understanding that positions 

of a ‘‘confidential, policy-determining, 

policy-making, or policy-advocating 

character’’ refer to noncareer, political 

appointments. Specifically, OPM is 

proposing to modify 5 CFR 210.102 to 

define the terms ‘‘Confidential, policydetermining, policy-making, or policyadvocating’’ 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 

during which the appointment 

occurred.’’ 

C. Agency Procedures for Moving 

Employees 

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. 

1. Procedures for Moving Positions 

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 

personnel practices should be 

‘‘expressly stated’’ in statute to ‘‘furnish 

guidance to Federal agencies.’’ 131 As 

explained previously, it then proceeded 

to divide functions previously 

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 and the use of 

unsound management practices by the 

agencies.’’ 132

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 within the civil 

service laws, rules, and regulations.135

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 


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137Nat’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). 

140See 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. 90, 57 Stat. 169, 173, to the Act of 

October 10, 1978, Pub. L. 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 FR 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. 

142See, 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. 

144See OPM Memorandum, ‘‘Coronavirus 

(COVID–19) Schedule A Hiring Authority,’’ (March 

20, 2020). 

145Even 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 tiebreaker, 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). 147 83 FR 32755–56. 148 85 FR 67633. 149 85 FR 67634 150OPM has proposed revisions to the rules 

governing the Pathways programs. 88 FR 55586 

(Aug. 16, 2023). 

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 

consequences of those moves. 

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. Circuit, 5 U.S.C. 3301 and 3302 

‘‘make it clear . . . that ‘competitive 

service [is] the norm rather than the 

exception.’ ’’ 137 The President, 

however, is authorized by Congress to 

provide for ‘‘necessary exceptions of 

positions from the competitive service’’ 

whenever warranted by ‘‘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 appointments where conditions 

of good administration warrant 

exceptions from competitive 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. 

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 processes 

associated with conducting a 

competitive examination.145 For 

example, 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 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 as of the date of 

enactment, would remain in their 

current positions.147

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 


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151See 5 CFR 362.105. 

152See 5 CFR 362.108. 

153See 5 CFR 362.104(b). 

154The Chief Human Capital Officers Act of 2002, 

enacted as part of the Homeland Security Act of 

2002, 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). 

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 OPM has the authority to 

cap Pathways hiring 152 and can even 

shut down an agency’s ability to use 

Pathways altogether.153

Based on this history and experience, 

OPM is proposing to establish 

appropriate safeguards—i.e., a floor of 

procedures—that would apply 

whenever an agency is executing 

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 move into or within the 

excepted service; 

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 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 

applicable, and advances sound 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. Use the excepted service authority 

only after obtaining written approval 

from the OPM Director to do so; and 

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, and locations of the 

positions moved to the excepted service. 

Specifically, OPM proposes the 

following regulatory changes to 5 CFR 

parts 212 and 302: 

Part 302—Employment in the Excepted 

Service, Subpart F 

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. 

Section 302.601 ‘‘Scope.’’ 

Proposed 5 CFR 302.601 Scope would 

describe the scope of the positions that 

would be subject to the new procedures 

in subpart F. 

Section 302.602(a) ‘‘Basic 

Requirements.’’ 

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 excepted service 

schedule to the same or similar position 

in another. 

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 list, and 

their location within the organization. 

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 explanation of 

how they were developed. 

Proposed § 302.602(b) describes the 

steps agency management must take, 

independent of the impacted 

employees, with respect to such moves. 

Proposed § 302.602(b)(1) requires an 

agency to identify the types, numbers, 

and 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 President, 

Congress, OPM, or their designees as 

applicable. 

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 applicable, and with merit 

system principles. 

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 advance of 

using the excepted service authority. 

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 excepted service 

authority until such publication occurs. 

2. Notice Rights for Encumbered 

Positions 

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 


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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 timelimited 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. 

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. 

157 5 U.S.C. 1204(a)(1), 7701(a). 

158See Roberto v. Dep’t of the Navy, 440 F.3d 

1341, 1350 (Fed. Cir. 2006); Folio v. Dep’t of 

Homeland Sec., 402 F.3d 1350, 1355 (Fed. Cir. 

2005); Dowd v. United States, 713 F.2d 720, 722– 

23 (Fed. Cir. 1983); Gaxiola v. Dep’t of the Air 

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

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 movement of the 

position. 

Proposed § 302.602(c) describes the 

interactions and communication an 

agency must 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

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 

intent to move the position. 

Proposed § 302.602(c)(2) requires that 

the written notification required by 

§ 302.602(c)(1) inform the employee that 

the employee maintains their civil 

service status and any accrued 

protections notwithstanding the 

movement of the position. 

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 with longstanding rules— 

codified at 5 CFR 302.102(b)—providing 

for employees to be given 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 accept an 

appointment in the excepted service.156

3. Appeal Rights for Encumbered 

Positions 

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. 

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 circumscribes the scope of 

the appeal.158

OPM, pursuant to its authority, has 

long conferred MSPB appeal rights via 

regulations under title 5, Code of 

Federal Regulations. For instance: 

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 to 

appeal to MSPB under the provisions of 

the Board’s regulations. 

2. Section 302.501—An individual 

who is covered by 5 U.S.C. 8101(1) and 

is entitled to 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 employment of another person. 

3. Section 315.806—An employee 

may appeal to MSPB in writing an 

agency’s decision 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. 

4. Section 315.908—An employee 

who alleges that an agency action 

demoting an 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 affiliation or marital status. 

5. Section 351.901—An employee 

who has been furloughed for more than 

30 days, separated, or demoted by a 

reduction in force action may appeal to 

MSPB. 

6. Section 352.209—When an agency 

denies reemployment to a person 

claiming 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. 


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159See part 731, subpart E. 

160See 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). 

162See NTEU, ‘‘Our Agencies,’’ https://

www.nteu.org/who-we-are/our-agencies. 

163See NTEU, Petition for Regulations to Ensure 

Compliance with Civil Service Protections and 

Merit System Principles for Excepted Service 

Positions, (Dec. 12. 2022), https://www.nteu.org/∼/ 

media/Files/nteu/docs/public/opm/nteupetition.pdf?la=en. 

7. Section 352.313—An employee 

may submit an appeal to MSPB alleging 

the agency has failed to comply with 

certain reemployment rights. 

8. Section 352.508—An employee 

may submit an appeal to MSPB alleging 

the agency has failed to comply with 

certain reinstatement rights. 

9. Section 352.707—If an agency 

denies reemployment to a person 

claiming 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 the Board’s regulations. 

10. Section 352.807—An employee 

may appeal to MSPB, under the 

provisions of the Board’s regulations, an 

agency’s decision on the employee’s 

request for reemployment which the 

employee believes is in violation of 

subpart H of part 352. 

11. Section 352.909—An applicant or 

an employee may submit an appeal to 

MSPB 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 

not review the suitability action 

specified as a result of that 

determination.159

Section 302.603 ‘‘Appeals.’’ 

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 reversal of the 

agency’s action. MSPB will find that an 

agency error is harmful only when the 

record shows that it was likely to have 

caused the agency to reach a different 

conclusion.160

Part 212—Competitive Service and 

Competitive Status, Subpart D 

Section 212.401 Effect of 

competitive status on position. 

OPM is also proposing to revise the 

regulations in 5 CFR part 212, subpart 

D, § 212.401(b) regarding the effect of an 

employee’s competitive status on the 

employee’s 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 within 

the excepted service. 

III. Regulatory Analysis 

A. Statement of Need 

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 away these rights, 

once accrued, without due process. 

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 Federal and District of 

Columbia workers, did the same. 

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 statutorily 

obligated to extend the specific 

protections codified at chapter 75 to 

eligible 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 are proposed to clarify and 

reinforce that point. 

OPM has the delegated authority to 

exempt employees from the competitive 


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164 5 U.S.C. 3302; 5 CFR 6.1. 

165See 5 CFR 6.1. 

166 85 FR 67361–62. 

167See 5 CFR 5.1 (‘‘The Director, Office of 

Personnel Management, shall 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.’’); 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 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). 168See, e.g., 5 CFR part 362. 169 5 CFR 6.1. 170 Id. 

171 5 CFR 302.102(b). 

172E.O 14003, sec. 2. 

173 Id. 174See 5 U.S.C. 2301(b)(1). 

service only 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 

by considerations of stripping career 

employees of civil service rights. 

As stated above, President Trump, in 

the now-revoked Executive Order 

13957, 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 longstanding 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 

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-defunct 

Schedule F, created ambiguity as to the 

continued vitality of these longstanding 

principles with respect to employees 

who had accrued adverse action appeal 

rights. We seek to confirm these 

principles through the proposed 

modifications to the regulations. 

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 

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 preserves if not promotes employee 

morale, minimizes workforce 

disruptions by preventing potential 

losses of seasoned or experienced 

personnel, and contributes to a positive 

impact on agencies’ ability to meet 

mission requirements. Finally, these 

changes will promote compliance with 

statutory enactments. 

This rulemaking is expected to create 

an incentive for agency recruitment 

efforts, enhancing agencies’ ability to 

fulfill important merit system 

principles—that recruitment should be 

from qualified individuals from 

appropriate sources in an endeavor to 

achieve a workforce 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 to derived 

preference. In a more pragmatic sense, 

diminishing or eliminating civil service 

protections from entire categories of 

career employees would destabilize the 

civil service—potentially repeatedly, 

each time there is a change in 

administration—and eliminate a 

competitive advantage Federal agencies 

have long enjoyed when competing with 

other sectors for needed talent: stable, 

fair, merit-based employment. 

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 technologies), public health, 

climate (both the private property and 

businesses impacted by droughts, 

floods, wildfires, etc.), data security, 

and emerging foreign powers on the 

international geo-political landscape, 

among others. 

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 


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175See Van Wersch, 197 F.3d at 1151–52; 

McCormick, 307 F.3d at 1341–43. 

176See 5 U.S.C. 7501. 

177U.S. Merit Systems Protection Board, supra 

note #45. 

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 their basic living 

expenses. 

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 

precedent 175 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 

employee had already accrued. 

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 urging OPM to 

update 5 CFR 752.401: 

Retaining out-of-date information in a 

Government regulation can confuse agencies, 

managers, and employees and produce 

unintended outcomes. Human resources 

specialists or managers who are not experts 

in employee discipline may inadvertently 

rely on these particular regulations. Agencies 

may fail to use proper procedures and fail to 

notify employees of appeal rights. 

Terminations may be reversed.177

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 

regulations need updating. 

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 mitigate cases 

in which an agency is unclear on 

whether to provide procedural rights to 

an 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. 

OPM is proposing these regulations in 

the least burdensome way possible. 

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 

service or placed in a new schedule 

within the excepted service. 

With respect to 5 CFR part 210, OPM 

considered not defining ‘‘confidential, 

policy-determining, policy-making, 

policy-advocating’’ and ‘‘confidential or 

policy-determining’’ 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. Accordingly, OPM proposes to add 

a definition for ‘‘Confidential, policydetermining, policy-making, or policyadvocating’’ and ‘‘confidential or policydetermining’’ to clarify that it means 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 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. 

Finally, OPM’s proposed addition of 5 

CFR 302.602 to establish minimum 

requirements 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) 

complaint, OSC complaint, 

administrative grievance, or if 

applicable, a negotiated grievance 

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 

equitable administrative processes of 

Federal civilian service. 

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. 

Currently, if an employee alleges that 

an agency has taken a prohibited 

personnel 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 

practice. OPM’s preferred option—the 

addition of § 302.603 as proposed— 

reinforces that affected employees are 

deserving of fair and equitable treatment 

in all aspects of their employment as it 


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178U.S. Merit System Protections Board, supra 

note 13 at p. ii. 

179See supra, Sec. I.B.; Loudermill, 470 U.S. at 

541. 

180U.S. Merit System Protections Board, supra 

note 13 at pp. ii–iii. 

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. 

relates to movement to and within the 

excepted service. 

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 to the ‘‘wrong’’ political party, 

the reservist whose periods of military 

service are inconvenient to 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 tenured employees,179 due 

process considerations protect 

employees from an unlawful 

deprivation of that interest. The 

procedural protections enacted by 

Congress are a small price to pay to 

deliver to the American people a meritbased 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 agencies is expected to be 

negligible. 

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 

which OPM already must comply. 

D. Costs 

If finalized, the proposed rule would 

require agencies to update internal 

policies and procedures to ensure 

compliance with proposed 

§§ 210.102(b), 212.401, 213.3301, 

302.101, 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 

estimate these costs with great 

specificity because they will vary 

depending on the specific number of 

positions an agency would seek to 

move. 

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 

necessarily a measurable increase in 

costs for agencies. 

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. Accordingly, in subsequent years, 

we estimate an average of 80 hours of 

work by employees 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 the first year of 

implementation. 

In sum, OPM estimates the first-year 

cost to be approximately $23,000 per 

agency, and about $1.84 million 

governmentwide. For subsequent years, 

we estimate annual costs to be $11,500 

for agencies, and about $920,000 

governmentwide. 

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 good 

government. As stated in Executive 

Order 14003, it is this Administration’s 

policy to ‘‘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 

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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. 

186See id.; see also Donald P. Moynihan, 

‘‘Populism and the Deep State: the Attack on Public 

Service under Trump,’’ Liberal-Democratic 

Backsliding and Public Administration, (May 21, 

2020), https://papers.ssrn.com/sol3/papers.

cfm?abstract_id=3607309 (‘‘If political appointees 

offer responsiveness to elected officials through 

their loyalty, this responsiveness comes at a cost. 

The best evidence we have is that appointees 

generate poorer organizational performance relative 

to career officials.’’) (citation omitted); David E. 

Lewis, ‘‘Testing Pendleton’s Premise: Do Political 

Appointees Make Worse Bureaucrats?’’ The Journal 

of Politics, Vol. 69, No. 4 (Nov. 2007), https://

www.jstor.org/stable/10.1111/j.1468-2508.

2007.00608.x (‘‘This analysis demonstrates that 

appointees get systematically lower performance 

grades than careerists. Previous bureau experience 

and longer tenure in management positions explain 

why careerist-run programs get higher grades. . . . 

These results add weight to what civil service 

reformers like George Pendleton believed, namely 

that a merit-based civil service system would lead 

to lower turnover in the Federal workforce and the 

cultivation of useful administrative expertise.’’). 

187U.S. Merit Systems Protection Board, supra 

note 45. 

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 resources 

(including taxpayer-funded resources) 

in a timely and efficient manner. 

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, depriving civil 

service protections to those who have 

rightfully earned them, and needlessly 

politicizing our nation’s nonpartisan 

career civil service. 

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 

conform to the court’s interpretation of 

5 U.S.C. 7511 as it pertains to 

appealable suspensions, 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. 

IV. Request for Comments 

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 interested includes, but is not 

limited to, the following: 

• Throughout the preamble, OPM 

provides examples of civil service 

protections since the Pendleton Act of 

1883. OPM seeks comment on whether 

more examples would be helpful and, if 

so, the authority for those protections. 

• Whether the regulatory changes 

proposed under part 752 are sufficiently 

protective of employees’ rights in their 

continued employment. 

• Whether the proposed definition for 

the terms ‘‘confidential, policydetermining, policy-marking, or policyadvocating’’ and ‘‘confidential or policydetermining’’ is appropriate or 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 they are is sufficiently 

protective of employees’ rights. 

• 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 studies that 

would inform OPM’s analysis. 

• 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. 

V. Procedural Issues and Regulatory 

Review 

A. Severability 

OPM proposes that, if any of the 

provisions of this proposed rule as 

finalized is held to be invalid or 

unenforceable by its terms, or as applied 

to any person or circumstance, it shall 

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 


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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, 

policy-making, or policy-advocating 

position’’ and ‘‘confidential and policydetermining’’ can 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. 

B. Regulatory Flexibility Act 

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 will apply only to 

Federal agencies and employees. 

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 Executive Orders 

13563 and 14094. 

D. Executive Order 13132, Federalism 

This regulation will not have 

substantial direct effects on the States, 

on the relationship 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 implications to 

warrant preparation of a Federalism 

Assessment. 

E. Executive Order 12988, Civil Justice 

Reform 

This regulation meets the applicable 

standards set forth in section 3(a) and 

(b)(2) of Executive Order 12988 (Feb. 7, 

1996). 

F. Unfunded Mandates Reform Act of 

1995 

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 

assessment of unfunded mandates is 

required. 

G. Paperwork Reduction Act of 1995 (44 

U.S.C. Chapter 35) 

This regulatory action will not impose 

any reporting or recordkeeping 

requirements under the Paperwork 

Reduction Act. 

List of Subjects 

5 CFR Parts 210 and 212 

Government employees. 

5 CFR Part 213 

Government employees, Reporting 

and recordkeeping requirements. 

5 CFR Parts 302 and 432 

Government employees. 

5 CFR Part 451 

Decorations, Government employees. 

5 CFR Part 752 

Government employees. 

Office of Personnel Management. 

Kayyonne Marston, 

Federal Register Liaison. 

Accordingly, OPM is proposing to 

amend 5 CFR parts 210, 212, 213, 302, 

432, 451, and 752 as follows: 

PART 210—BASIC CONCEPTS AND 

DEFINITIONS (GENERAL) 

■ 1. The authority citation for part 210 

continues to read as follows: 

Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 

10577, 3 CFR, 1954–1958 Comp., p. 218. 

Subpart A—Applicability of 

Regulations; Definitions 

■ 2. Amend § 210.102 by: 

■ a. Redesignating paragraphs (b)(3) 

through (18) as paragraphs (b)(5) 

through (20); and 

■ b. Adding new paragraphs (b)(3) and 

(4). 

The additions read as follows: 

§ 210.102 Definitions 

* * * * * 

(b) * * * 

(3) Confidential, policy-determining, 

policy-making, or policy-advocating 

means 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 

during which the appointment 

occurred. 

(4) Confidential or policy determining 

means 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 

during which the appointment 

occurred. 

* * * * * 

PART 212—COMPETITIVE SERVICE 

AND COMPETITIVE STATUS 

■ 3. The authority citation for part 212 

continues to read as follows: 

Authority: 5 U.S.C. 1302, 3301, 3302; E.O. 

10577, 3 CFR, 1954–1958 Comp., p. 218. 

Subpart D—Effect of Competitive 

Status on Promotion 

■ 4. Amend § 212.401 by revising 

paragraph (b) to read as follows: 

§ 212.401 Effect of competitive status on 

position. 

* * * * * 

(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 competitive service while he 

occupies that position. 

PART 213—EXCEPTED SERVICE 

■ 5. The authority citation for part 213 

continues to read as follows: 

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). 


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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; 38 

U.S.C. 4301 et seq.; and Public Law 105–339, 

112 Stat. 3182–83. 

Subpart C—Excepted Schedules 

■ 6. Amend § 213.3301 by revising the 

section heading and paragraph (a) to 

read as follows: 

§ 213.3301 Positions of a confidential or 

policy-determining character. 

(a) Upon specific authorization by 

OPM, agencies may make appointments 

under this section to positions that are 

of a confidential or policy determining 

character as defined in § 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 

through 213.3999, or other appropriate 

number, to be used by the agency in 

recording appointments made under 

that authorization. 

* * * * * 

PART 302—EMPLOYMENT IN THE 

EXCEPTED SERVICE 

■ 7. The authority citation for part 302 

continues to read as follows: 

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 

issued under 5 U.S.C. 7701 et seq. 

Subpart A—General Provisions 

■ 8. Amend § 302.101 by revising 

paragraph (c)(7) to read as follows: 

§ 302.101 Positions covered by 

regulations. 

* * * * * 

(c) * * * 

(7) Positions included in Schedule C 

(see subpart C of part 213 of this 

chapter) and positions excepted by 

statute which are of a confidential, 

policy-determining, policy-making, or 

policy-advocating nature; 

* * * * * 

■ 9. Add subpart F consisting of 

§§ 302.601 through 302.603, to read as 

follows. 

Subpart F—Moving Employees and 

Positions into and Within the Excepted 

Service 

Sec. 

302.601 Scope. 

302.602 Basic requirements. 

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. 

§ 302.602 Basic requirements. 

(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 

service, the following requirements 

must be met, as relevant: 

(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. 

(b) An agency is also required to— 

(1) Identify the types, numbers, and 

locations of positions that the agency 

proposes to move into the excepted 

service. 

(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, 

which OPM will then review. 

(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 

effective, or within 30 days thereafter. 

(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 of the position 

being moved. 

(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 the 

movement of the position. 

§ 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 civil 

service protections reinstated, as 

applicable. 

(b) An employee whose position is 

moved into the excepted service or into 

a different schedule of the excepted 


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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 the employee believes that 

such move was coerced. 

PART 432—PERFORMANCE BASED 

REDUCTION IN GRADE AND 

REMOVAL ACTIONS 

■ 10. The authority citation for part 432 

continues to read as follows: 

Authority: 5 U.S.C. 4303, 4305. 

■ 11. Amend § 432.102 by revising 

paragraph (f)(10) to read as follows: 

§ 432.102 Coverage. 

* * * * * 

(f) * * * 

(10) An employee whose position has 

been determined to be of a confidential, 

policy-determining, policy-making, or 

policy advocating character, as defined 

in § 210.102 of this 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 the 

competitive service (Schedule C); or 

(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: 

Authority: 5 U.S.C. 4302, 4501–4509; E.O. 

11438, 33 FR 18085, 3 CFR, 1966–1970 

Comp., p. 755; E.O. 12828, 58 FR 2965, 3 

CFR, 1993 Comp., p. 569. 

Subpart C—Presidential Rank Awards 

■ 13. Amend § 451.302 by revising 

paragraph (b)(3)(ii) to read as follows: 

§ 451.302 Ranks for senior career 

employees. 

* * * * * 

(b) * * * 

(3) * * * 

(ii) To positions that are excepted 

from the competitive service because of 

their confidential or policy-determining 

character. 

* * * * * 

PART 752—ADVERSE ACTIONS 

■ 14. The authority citation for part 752 

continues to read as follows: 

Authority: 5 U.S.C. 7504, 7514, and 7543, 

Pub. L. 115–91, 131 Stat. 1283, and Pub. L. 

114–328, 130 Stat. 2000. 

Subpart B—Regulatory Requirements 

for Suspension for 14 Days or Less 

■ 15. Amend § 752.201 by revising 

paragraphs (b)(1) through (6) and (c)(5) 

and (6) and adding paragraph (c)(7) to 

read as follows: 

§ 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; 

(2) An employee in the competitive 

service serving in an appointment 

which requires no 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 occupies that position or a 

similar position; 

(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 

schedule of the excepted service and 

still occupies that position; 

(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 

schedule of the excepted service and 

still occupies that position; 

(5) An employee of the Department of 

Veterans Affairs appointed under 38 

U.S.C. 7401(3), including such an 

employee who is moved involuntarily 

into a different schedule of the excepted 

service and still occupies that position; 

and 

(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) * * * 

(5) Of a National Guard Technician; 

(6) Taken under 5 U.S.C. 7515; or 

(7) Of an employee whose position 

has been determined to be of a 

confidential, policy-determining, 

policy-making, or policy-advocating 

character, as defined in § 210.102 of this 

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 the 

competitive service; or 

(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, Reduction in Grade or 

Pay, or Furlough for 30 Days or Less 

■ 16. Amend § 752.401 by revising 

paragraphs (c)(1), (c)(2)(i) and (ii), (c)(3) 

through (9), and (d)(2) to read as 

follows: 

§ 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 moved involuntarily 

into the excepted service; 

(3) An employee in the excepted 

service who is a preference eligible in 

an Executive 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 


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Federal Register / Vol. 88, No. 179 / Monday, September 18, 2023 / Proposed Rules 63885 

completed 1 year of current continuous 

service in the same or similar positions 

and who is either a supervisory or 

management employee or an employee 

engaged in personnel work in other than 

a purely 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; 

(5) An employee in the excepted 

service who is a nonpreference eligible 

in an Executive 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 excepted service and still 

occupies that position or a similar 

position; 

(6) An employee with competitive 

status who occupies a position in 

Schedule B of part 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; 

(8) An employee of the Department of 

Veterans Affairs appointed under 38 

U.S.C. 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 is moved involuntarily 

into the excepted service. 

(d) * * * 

(2) An employee whose position has 

been determined to be of a confidential, 

policy-determining, policy-making, or 

policy-advocating character, as defined 

in § 210.102 of this 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 the 

competitive service; or 

(iii) The President or the head of an 

agency for a position excepted from the 

competitive service by statute. 

* * * * * 

[FR Doc. 2023–19806 Filed 9–15–23; 8:45 am] 

BILLING CODE 6325–39–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 39 

[Docket No. FAA–2023–1881; Project 

Identifier MCAI–2023–00738–E] 

RIN 2120–AA64 

Airworthiness Directives; Rolls-Royce 

Deutschland Ltd & Co KG Engines 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Notice of proposed rulemaking 

(NPRM). 

SUMMARY: The FAA proposes to 

supersede Airworthiness Directive (AD) 

2021–25–04, which applies to certain 

Rolls-Royce Deutschland Ltd & Co KG 

(RRD) Model Trent 1000 engines. AD 

2021–25–04 requires operators to revise 

the airworthiness limitations section 

(ALS) of their existing approved 

continuous airworthiness maintenance 

program by incorporating the revised 

tasks of the applicable time limits 

manual (TLM) for each affected model 

turbofan engine. Since the FAA issued 

AD 2021–25–04, the manufacturer 

revised the TLM to introduce new or 

more restrictive tasks and limitations 

and associated thresholds and intervals 

for life-limited parts, which prompted 

this proposed AD. This proposed AD 

would require revising the ALS of the 

operator’s existing approved engine 

maintenance or inspection program, as 

applicable, to incorporate new or more 

restrictive tasks and limitations and 

associated thresholds and intervals for 

life-limited parts, as specified in a 

European Union Aviation Safety Agency 

(EASA) AD, which is proposed for 

incorporation by reference (IBR). The 

FAA is proposing this AD to address the 

unsafe condition on these products. 

DATES: The FAA must receive comments 

on this NPRM by November 2, 2023. 

ADDRESSES: You may send comments, 

using the procedures found in 14 CFR 

11.43 and 11.45, by any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

regulations.gov. Follow the instructions 

for submitting comments. 

• Fax: (202) 493–2251. 

• Mail: U.S. Department of 

Transportation, Docket Operations, M– 

30, West Building Ground Floor, Room 

W12–140, 1200 New Jersey Avenue SE, 

Washington, DC 20590. 

• Hand Delivery: Deliver to Mail 

address above between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

AD Docket: You may examine the AD 

docket at regulations.gov under Docket 

No. FAA–2023–1881; or in person at 

Docket Operations between 9 a.m. and 

5 p.m., Monday through Friday, except 

Federal holidays. The AD docket 

contains this NPRM, the mandatory 

continuing airworthiness information 

(MCAI) any comments received, and 

other information. The street address for 

Docket Operations is listed above. 

Material Incorporated by Reference: 

• For service information that is 

identified in this NPRM, contact EASA, 

Konrad-Adenauer-Ufer 3, 50668 

Cologne, Germany; phone: +49 221 8999 

000; email: ADs@easa.europa.eu; 

website: easa.europa.eu. You may find 

this material on the EASA website at 

ad.easa.europa.eu. It is also available at 

regulations.gov under Docket No. FAA– 

2023–1881. 

• You may view this service 

information at the FAA, Airworthiness 

Products Section, Operational Safety 

Branch, 1200 District Avenue, 

Burlington, MA 01803. For information 

on the availability of this material at the 

FAA, call (817) 222–5110. 

FOR FURTHER INFORMATION CONTACT: 

Sungmo Cho, Aviation Safety Engineer, 

FAA, 2200 South 216th Street, Des 

Moines, WA 98198; phone: (781) 238– 

7241; email: sungmo.d.cho@faa.gov. 

SUPPLEMENTARY INFORMATION: 

Comments Invited 

The FAA invites you to send any 

written relevant data, views, or 

arguments about this proposal. Send 

your comments to an address listed 

under ADDRESSES. Include ‘‘Docket No. 

FAA–2023–1881; Project Identifier 

MCAI–2023–00738–E’’ at the beginning 

of your comments. The most helpful 

comments reference a specific portion of 

the proposal, explain the reason for any 

recommended change, and include 

supporting data. The FAA will consider 

all comments received by the closing 

date and may amend the proposal 

because of those comments. 

Except for Confidential Business 

Information (CBI) as described in the 

following paragraph, and other 

information as described in 14 CFR 

11.35, the FAA will post all comments 

received, without change, to 

regulations.gov, including any personal 

information you provide. The agency 

will also post a report summarizing each 

substantive verbal contact received 

about this NPRM. 

Confidential Business Information 

CBI is commercial or financial 

information that is both customarily and 

actually treated as private by its owner. 

Under the Freedom of Information Act 

(FOIA) (5 U.S.C. 552), CBI is exempt 


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