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The voice of career federal executives since 1980

March 7, 2024

VIA FEDERAL eRULEMAKING PORTAL

(http://regulations.gov)

U.S. Merit Systems Protection Board

Jennifer Everling, Deputy Clerk of the Board

1615 M Street NW 

Washington, DC 20419

RE: Senior Executives Association comments on MSPB Proposed Rule—Appellate 

Jurisdiction

Dear Ms. Everling:

The Senior Executives Association (SEA) is a nonprofit, nonpartisan professional association 

representing the interests of career federal executives in the Senior Executive Service (SES), and 

senior leaders in Senior Level (SL), Scientific and Professional (ST) and equivalent. 

Since its founding in 1980, SEA has served as “the voice of the SES” before Presidential 

administrations, and the Legislative and Judicial branches. Today, the federal government 

employs nearly 10,000 members of the SES, which includes a majority of career appointees and 

a smaller portion of political, term, and limited appointment SESers. 

SEA commends the MSPB for issuing its proposed rule on appellate jurisdiction that implements

the Office of Personnel Management’s (OPM) proposed rule - Upholding Civil Service 

Protections and Merit System Principles, 88 Fed. Reg. 63862 (Sept. 18, 2023). 

SEA has no comments on MSPB’s proposed rule on appellate jurisdiction. We encourage

the Board to expeditiously finalize its rulemaking following OPM’s publication of its final

rule.

For your situational awareness, below are the complete comments SEA submitted via the Federal 

Register on OPM’s proposed rule, “Upholding Civil Service Protections and Merit System 

Principles,” RIN 3206-AO56, Docket No. 2023-19806.

The association’s comments are organized as follows: 
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1) We identify those areas where SEA concurs and supports OPM’s proposed regulatory 

updates. Occasionally technical feedback is provided to address specific questions raised 

by OPM for commenters.

2) We offer suggestions for areas to strengthen the proposed rule. Specifically, the 

proposed rule is almost entirely silent on the SES, which raises questions given the 

keystone role career executives play as a conduit between political appointees and the 

career federal workforce. In light of this, OPM’s interpretation of the terms “confidential, 

policy-determining, policy-making, or policy-advocating” and “confidential or policydetermining” could provide greater clarity about application of these terms to the SES.

3) Throughout, SEA addresses the list of specific areas OPM requested feedback from 

commenters around. We conclude by suggesting additional considerations for OPM to 

uphold civil service protections and merit system principles. 

General Comments

Preamble comments / Comments on OPM proposed amendments to 5 CFR chapter 1, subchapter 

B:

Amending 5 CFR Part 752 (Adverse Actions)–SEA supports OPM’s proposal to clarify that 

employees who are moved from the competitive service to a position in the excepted service, or 

from one excepted service to another, should retain the status and civil service protections 

accrued from their original appointment, unless the employee voluntarily waives such rights. 

SEA believes OPM’s proposal is sufficiently protective and provides adequate clarity. 

Amending 5 CFR Part 210 (Basic Concepts and Definitions (General))–SEA agrees in 5 U.S.C. 

7511(b) Congress excepts noncareer, political appointees from the civil service protections. Still, 

it is not clear that only political employees are involved in policy-related processes and policy 

decision support. The extent of policy support roles across the government and the history of the 

civil service suggest otherwise. 

Officials from the prior administration did openly admit that Schedule F could have been applied 

to as many as 50,000 employees.1 Other estimates predict Schedule F could have been applied to 

hundreds of thousands of employees. If tens of thousands of GS 13-15 employees could have 

been reclassified under the prior order, providing clarity on the appropriate application of the 

terms “confidential, policy-determining, policy-making, or policy-advocating” and “confidential 

or policy-determining” to those employees and the SES is essential. SEA further addresses this 

issue in our substantive comments below regarding the Senior Executive Service and the role of 

career senior executives in policy-related processes. 

As context for impact of the protections that OPM’s proposed rule offers, SEA interprets the 

OPM proposed rule’s definition of “policy determining, making, and advocating” positions as 

only applying to political appointments and schedule C hires – and that civil service officials fall 

1 How Trump could reimpose "Schedule F" in 2025, Axios (July 23, 2022) 

https://www.axios.com/2022/07/22/trump-presidency-schedule-f-federal-employees
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outside this definition, and thus should maintain civil service protections. OPM cites as a basis 

for this several statutes that use similar language. 

SEA notes that this definition is inconsistent with how many senior career officials in agencies

operate in providing value to political appointees. As noted above, many career staff support the 

policy making process, including support for decisions that could be categorized as consistent 

with policy work. There could be negative impacts for agency officials supporting government 

missions and programs if future political appointees were to cite the regulation to limit access to 

expertise and experience that enters the policy development process. This could result in 

additional reviews by political appointees for actions that have long been carried out by agency 

staff, and contrary to the intent of the rule may result in an increase in political considerations for 

non-political “policy” analysis and support. 

One way to address this concern would be to define “policy determining, making, and 

advocating” as covering issues that rise to a level needing decisions by Presidential 

appointees. The rule could then explain that many career officials support the policy making 

process, and that the rule is not intended to shift agency practices regarding the level of decisionmaking; a definition of “policy supporting” could potentially help to further clarify this 

distinction.

Amending 5 CFR part 302–SEA supports OPM’s proposal to provide and clarify additional 

procedures and rights that apply when moving positions from the competitive service to the 

excepted service, or from one excepted service schedule to another. SEA similarly supports 

OPM’s proposed amendment to 5 CFR part 212 (Competitive Service and Competitive Status). 

Specific Comments and Feedback regarding the SES

Members of the SES, most of whom are career civil servants, are the critical link between the 

President’s senior political appointees and the rest of the Federal workforce. Congress created 

the SES for the express purpose of “ ...ensur[ing] that the executive management of the 

Government of the United States is responsive to the needs, policies, and goals of the Nation and 

otherwise is of the highest quality.”

While presenting a plan to overhaul the civil service, to Congress in March 1978, President 

Jimmy Carter argued, “A critical factor in determining whether Federal programs succeed or fail 

is the ability of the senior managers who run them.”2 But prior to establishing the SES, thenChairman of the Civil Service Commission Dr. Alan "Scotty" Campbell, observed, “We could 

see the dysfunctional effects of the career/noncareer interface.”3 While career civil servants 

focused on technical programmatic details, political appointees focused on achieving political 

priorities and using executive skills to run the agencies. The differing objectives bred tension. In 

part to address this dichotomy, the President proposed a new Senior Executive Service, “A 

2 President Jimmy Carter, Federal Civil Service Reform Message to the Congress (March 2, 1978) (available 

through The American Presidency Project).

3 Maeve P. Carey, CONGR. RSCH. SERV., R41801, The Senior Executive Service: Background and Options for 

Reform 4 (2012).
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highly qualified corps of top managers with strong incentives and opportunities to improve the 

management of the Federal government.”4

Initial career appointments to the SES are based on merit competition. Federal law requires 

agencies to establish Executive Resources Boards (ERBs) to oversee and participate in the merit 

staffing process.5 Generally, the process includes widespread public notification of the job 

announcement, where diverse populations are engaged in the recruitment phase and rating and 

ranking of applicants by a panel with in-depth knowledge of the job's technical requirements.

While job-specific qualifications are important, the keystone of the SES is executive leadership.

Candidates for SES career positions must exhibit professional integrity, broad perspectives, and 

commitment to the highest ideals of public service. OPM administers independent Qualification 

Review Boards (QRBs) consisting of senior executive service members who assess the executive 

core qualifications of SES candidates. All SES candidates must have their executive 

qualifications certified by an independent QRB before being appointed as career members of the 

SES. This independent and objective review ensures that the Government is hiring executives 

with the qualifications needed in today's environment, especially the ability to lead in times of 

change.

OPM’s proposal provides little detail about the impact and coverage of this proposed rule on the 

career Senior Executive Service (SES). Although the administration that created Schedule F said 

in a fact sheet that it did not apply to the SES,6 SEA always believed that to be unclear. It is often 

hard to distinguish the role career senior executives play in federal agencies from their support 

for policy-related activities. Indeed, Congress defined one of the key functional criteria for the 

SES as “exercises important policy-making, policy-determining, or other executive functions.”7

Many SES are engaged in activities that the Schedule F order sought to increase political 

accountability over, and thus SEA recommends that OPM’s final rule clarify this critical link 

between the career and political cadres of government.

According to OPM’s SES Desk Guide, last updated in in December 2020, there are five elements 

of functional criteria to determine what roles should be classified as SES level.8

“Functional criteria. A position meets the SES functional criteria if its incumbent 

engages in any of the following activities: 

• directs the work of an organizational unit;

• is held accountable for the success of one or more specific programs or projects;

• monitors progress toward organizational goals and periodically evaluates and 

makes

appropriate adjustments to such goals;

• supervises the work of employees (other than personal assistants); or

4 President Carter, supra note 2.

5 5 U.S.C. 3393(b).

6 President Donald J. Trump Is Taking Action to Promote Good Governance and Accountability Within the 

Federal Workforce, White House (October 21, 2020).

7 5 U.S.C. 3132(a)(2).

8 OPM Senior Executive Service Desk Guide, Office of Personnel Manager (December 2020).
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• otherwise exercises important policy-making, policy-determining, or other 

executive functions.” [emphasis added]

OPM’s SES Desk Guide provides further guidance and clarity on classification of 

executive level roles. Several of the provisions included in OPM’s SES Desk Guide 

make clear that SESers jobs support policy, including the following:

- “Directing the work of an organizational unit includes the responsibility to—

assess policy, program, and project feasibility;” [emphasis added]

- “A position with policy-making or policy-determining functions [emphasis 

from original OPM document] would be expected to include responsibility for: 

• reviewing staff recommendations of policies developed to affect the 

organization’s mission; 

• considering political, social, economic, technical, and administrative factors 

with potential impact on the recommended policies; and 

• approving the policies or formally recommending action to the approving 

official.”

As stated in 5 U.S.C. 3131, “It is the purpose of this subchapter to establish a Senior Executive 

Service to ensure that the executive management of the Government of the United States is 

responsive to the needs, policies, and goals of the Nation and otherwise is of the highest quality.” 

The law further stipulates several criteria governing the administration of the SES as a third 

personnel service, the most pertinent for this regulatory proposal including:

- 5 U.S.C. 3131(7) – protect senior executives from arbitrary or capricious actions;

- 5 U.S.C. 3131(8) – provide for program continuity and policy advocacy in the 

management of public programs; [emphasis added]

- 5 U.S.C. 3131(9) – maintain a merit personnel system free of prohibited personnel 

practices;

- 5 U.S.C. 3131(13) – provide for an executive system which is guided by the public 

interest and free from improper political interference; [emphasis added]

Today, the federal government employs nearly 10,000 members of the SES, the vast majority of 

whom are career federal executives. There are “two types of positions and four types of 

appointments in the SES.”

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Career Reserved positions are those which, as defined in law, are “to ensure 

impartiality, or public’s confidence of impartiality of government.” These 

positions can only be filled by career appointees. [emphasis added]

General positions may be filled by any type of SES appointee – career, 

noncareer, limited term or limited emergency.

Career appointments may be to a General or Career Reserved position; rights of 

the individual are the same in either case. Incumbents are selected by agency 

merit staffing process and must have their executive qualifications approved by a 

Qualifications Review Board (QRB) convened by OPM.

9 Senior Executive Service Overview & History, Office of Personnel Management, https://www.opm.gov/policydata-oversight/senior-executive-service/overview-history/.
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Noncareer appointments are approved by OPM on a case-by-case basis and the 

appointment authority reverts to OPM when the noncareer appointee leaves the 

position. Appointments may be made only to General positions and cannot exceed 

25% of the agency’s SES position allocation. Governmentwide, only 10% of SES 

positions may be filled by noncareer appointees.

A Limited Term appointment may be made for up to 3 years, is nonrenewable 

and must be to an SES General position which will expire because of the nature of 

the work (e.g., a special project).

A Limited Emergency appointment is also a nonrenewable appointment, may

be for up to 18 months, and must be to an SES General position established to 

meet a bona-fide, unanticipated, urgent need.

The Federal Employees Pay Comparability Act of 1990 (FEPCA) established a pay system for 

certain senior-level positions (Scientific and Professional (ST) and Senior Level (SL)) classified 

above GS-15 in SES agencies based upon non-executive work, as well as some executive and 

non-executive positions classified above GS-15 in agencies not subject to the SES.10 All ST 

senior-level positions are in the competitive service.11 SL positions are generally in the 

competitive service but may also be made through appointment in the excepted service. SEA 

recommends that OPM also clarify the application of this proposed rule to SL/ST employees. 

SEA further recommends that OPM address how OPM’s proposed amendments to 5 CFR Part 

210 (Basic Concepts and Definitions (General)) interact with these statutes and regulations 

governing the SES, which make clear that career SES are involved in many policy-related 

activities, explicitly including support for policy advocacy. However, they should additionally 

clarify Congress’ intent that the government maintain a career executive leadership cadre “to 

ensure impartiality, or public’s confidence of impartiality of government.” 

One area for OPM to consider is how to address the “or” within both phrases: “confidential, 

policy-determining, policy-making, or policy-advocating” and “confidential or policydetermining.” Are political appointees responsible for final policy-determining, whereas career 

officials may be advocating? Is there an appropriate way to parse the terms, or are they truly 

interchangeable? Clarity here will also address the issue of how Schedule F could have been 

used to reclassify 50,000 or more employees, and how to protect against inappropriate rescoping 

of work done by career officials (SES and otherwise) who support the policy process relative to 

politically appointed policy decisionmakers. 

Additional Considerations for OPM

SEA believes there are additional critical actions which OPM can take to strengthen civil service 

protections and merit system principles in support of the goals of the proposed rule. For 

examples, finalizing regulations to implement the Administrative Leave Act of 2016 should be a 

top priority. These and other actions from OPM to strengthen accountability for the civil service 

can reduce potential future calls for a re-launch of Schedule F or related proposals.

10 5 U.S.C. 5376.

11 5 U.S.C. 3104.
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Thank you for the opportunity to submit comments on this proposed rule. If you wish to further 

discuss SEA’s views, please contact SEA Director of Policy & Outreach Jason Briefel at 

Jason.Briefel@seniorexecs.org. 

Sincerely,

Marcus L. Hill

President