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February 9, 2024

VIA E-MAIL: mspb@mspb.gov

Merit Systems Protection Board

1615 M Street, N.W. 

Washington, D.C. 20419 

Attn: Jennifer Everling, Deputy Clerk 

Re: Proposed Rule – Appellate Jurisdiction

Dear Madam Deputy Clerk:

The National Treasury Employees Union (NTEU) submits these comments in support of 

the MSPB’s proposed rule regarding its appellate jurisdiction. 89 Fed. Reg. 8083 (Feb. 6, 2024). 

As background, on December 12, 2022, NTEU petitioned the Office of Personnel 

Management to issue regulations to protect employees who might be moved involuntarily to the 

excepted service. A since-rescinded Executive Order directed agencies to shift employees doing 

“confidential, policy-determining, policy-making, or policy-advocating” work into a new 

excepted service Schedule F. See 85 Fed. Reg. 67631 (Oct. 21, 2020). Proponents of that 

Executive Order intended for employees shifted to Schedule F to have fewer rights, so that they 

could be “expeditiously remove[d].” See E.O. No. 13,957, sec. 1. In response to NTEU’s 

petition, OPM has proposed regulations that would clarify the rights of employees whose 

positions might be shifted from the competitive service to the excepted service or from one 

excepted service schedule to another. 85 Fed. Reg. 63862 (Sept. 18, 2023). 

The MSPB’s proposed rule would align its regulations with one of OPM’s proposed 

changes. Specifically, OPM is proposing to allow employees who are shifted from the 

competitive service to the excepted service, or shifted from one excepted service schedule to 

another, to appeal that shift to the MSPB. See 85 Fed. Reg. 63883-84 (proposing amendment to 5 

C.F.R. § 302.603). The MSPB’s proposal would add such appeals to the existing list of appeals

that the Board may hear. See 89 Fed. Reg. 8084 (proposing amendment to 5 C.F.R. § 1201.3).

NTEU supports the MSPB’s proposal. The MSPB has the authority to issue this

regulation. See 5 U.S.C. § 7701(a) (granting the MSPB jurisdiction to hear appeals of any action 

made appealable “under law, rule, or regulation”). The MSPB’s proposal is sound policy because 

its regulations should align with OPM’s to ensure uniformity of law. And OPM’s proposal to 

establish such appeal rights, in turn, promotes merit system principles. Employees should have 

rights when they are then shifted involuntarily to the excepted service or shifted involuntarily 

from one excepted service schedule to another. 
Merit Systems Protection Board

February 9, 2024

Page Two

To ensure full alignment with OPM’s proposal, the MSPB should clarify in the notice 

accompanying its final rule that this appeal right exists if an agency coerces the employee to 

“voluntarily” move to a new position that would require the employee to relinquish their 

competitive service status or civil service protections. See 85 Fed. Reg. 63877 (explaining that 

employees may voluntarily waive their rights, but an appeal right exists if the agency coerces the 

employee to shift to an excepted service schedule). The MSPB should further clarify that in any 

such appeal, employees may allege, if applicable, that the agency failed to act in accordance with 

the procedural requirements of 5 C.F.R. § 302.602 (as modified by OPM’s proposal). 

We appreciate your consideration of these comments. We urge the MSPB to act promptly 

once OPM has finalized its proposed rule. 

Sincerely,

 

Doreen P. Greenwald

National President