[Federal Register Volume 91, Number 147 (Monday, August 3, 2026)]
[Rules and Regulations]
[Pages 49230-49267]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-15666]
[[Page 49229]]
Vol. 91
Monday,
No. 147
August 3, 2026
Part VII
Office of Personnel Management
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5 CFR Part 351
Reduction in Force Appeals; Final Rule
Federal Register / Vol. 91 , No. 147 / Monday, August 3, 2026 / Rules
and Regulations
[[Page 49230]]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 351
[Docket ID: OPM-2025-0239]
RIN 3206-AO99
Reduction in Force Appeals
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The Office of Personnel Management (OPM) is issuing final
regulations to revise how an employee may appeal a furlough of more
than 30 days, separation, or demotion by a reduction-in-force (RIF)
action. OPM will replace the Merit Systems Protection Board (MSPB) as
the adjudicative agency for such appeals. The rule establishes a
uniform, record-based OPM appeal process; clarifies the appellant's
burden; requires production of the complete agency record; preserves
collateral statutory remedies; and applies prospectively to improve
timeliness, consistency, and cost-effectiveness while maintaining
administrative review.
DATES: Effective September 2, 2026. This final rule applies only to a
RIF action for which an agency issues the employee a specific RIF
notice under 5 CFR 351.802 on or after September 2, 2026.
FOR FURTHER INFORMATION CONTACT: Aaron Gottesman, Senior Advisor to the
Director, by email at [email protected] or by phone at
(202) 606-7400.
SUPPLEMENTARY INFORMATION: OPM is issuing this final rule to modernize
the administrative process for appeals by employees who are furloughed
for more than 30 days, separated, or demoted by a reduction-in-force
action under 5 CFR part 351. Congress charged OPM with prescribing
regulations governing the release of competing employees in a RIF, and
OPM has historically implemented RIF appeal procedures through
regulation. This final rule revises that regulatory framework by
replacing the prior MSPB forum for future non-SES RIF appeals with a
uniform OPM-administered process. The rule does not alter agencies'
responsibility to determine their workforce needs or whether a RIF is
necessary. By requiring a complete RIF-specific agency record,
permitting an appellant reply, authorizing additional information,
audits, investigations, and hearings when necessary and efficient, and
preserving collateral statutory remedies, the final rule provides
meaningful administrative review while reducing delay, fragmentation,
and unnecessary litigation burden.
I. Digest of Public Comments and Summary of Changes From the Proposed
Rule
In response to the proposed rule, OPM received 1,252 comments
during the 30-day public comment period from a variety of individuals,
including current and former civil servants, members of Congress, as
well as organizations, including local and national unions and Federal
agencies. Of the 1,252 comments, 1,251 were posted on
www.regulations.gov, and one was not posted because it contained vulgar
language unrelated to the rulemaking in question. At the conclusion of
the public comment period, OPM reviewed and analyzed the comments. In
general, the comments ranged from ardent support of the proposed
regulation to categorical rejection of it. Less than 1 percent of the
overall comments were supportive, neutral, or mixed, and 99 percent
opposed the proposed regulation.
OPM found many of the comments helpful. OPM has revised the final
rule to clarify, narrow, or supplement the proposed RIF appeal
procedures in response to comments, including comments concerning
burden of proof, access to the agency record, information asymmetry,
due process, neutrality, hearings, protective orders, collective
bargaining, and public disclosure. In response to those comments, the
final rule adds more precise appeal standards, a detailed RIF-specific
agency-record requirement, disclosure and privilege protections,
stronger adjudicator-separation and ex parte safeguards, narrower e-
filing sanctions, more flexible reply rules, and more carefully
tailored protective order and public posting provisions. The revisions
are summarized below.
Clarifying appealable actions. The final text clarifies the
appealable actions set forth in Sec. 351.901(a). The proposal allowed
an employee ``who has been the subject of a reduction-in-force action''
to appeal an action taken under part 351. The final text specifies that
only an employee furloughed for more than 30 days, separated, or
demoted by a RIF action taken under part 351 may appeal that action to
OPM.
Revising the merits standard. The final text replaces the proposed
``would not have suffered the same or another RIF action'' standard in
Sec. 351.901(b) with a more precise two-part merits showing: the
appellant must prove that the agency failed to comply with an
applicable statute or OPM regulation governing RIF actions under part
351, and the failure prejudiced the appellant by causing the appealed
action or the loss of a materially more favorable outcome. This is
clearer and better focused on prejudicial RIF-compliance error.
Revising exclusivity language. The final text continues to provide
that part 351 procedures are the sole and exclusive means of appealing
a RIF action, and adds that RIFs and matters related to the appeals of
RIFs cannot be raised in grievance procedures or challenged through
grievance arbitration, while expressly preserving collateral matters
within the independent jurisdiction of Equal Employment Opportunity
Commission (EEOC), Inspectors General, MSPB, Department of Labor
Veterans' Employment and Training Service (DOL VETS), and the Office of
Special Counsel (OSC). The final text also retains the no-judicial-
review provision.
Updating filing-system language. The final text replaces the
proposed placeholder for the electronic filing system with a reference
to the system identified on OPM's website. It also replaces
``statements, evidence, or documents'' with ``pleadings, evidence, or
documents,'' better aligning the filing provision with adjudicatory
terminology.
Clarifying filing deadlines. The final text changes the filing
deadline from 11:59 p.m. Eastern Standard Time to 11:59 p.m. Eastern
Time, avoiding confusion during daylight saving time. It also
consolidates the untimely-filing rule in Sec. 351.902(b)(2) and
provides that good-cause determinations are within OPM's sole and
exclusive discretion.
Adding a limited tolling rule for collateral matters. The final
text adds Sec. 351.902(b)(3), which permits an employee who timely
filed a collateral matter within the independent jurisdiction of an
entity identified in Sec. 351.901(c) to file a RIF appeal within 30
calendar days after the final decision on that matter, where that
decision materially affects the employee's retention standing, order of
release, assignment rights, or other rights under part 351. The final
text provides that a decision is final for this purpose when it is no
longer subject to further administrative review and that OPM
determines, in its sole and exclusive discretion, whether the decision
materially affects the employee's rights.
Requiring filing-information detail in the RIF notice. The final
text amends Sec. 351.802(a)(6) to require the specific RIF notice to
state, in addition to the employee's right to appeal to OPM, the
[[Page 49231]]
time limit for filing an appeal under Sec. 351.902(b) and the
electronic filing system through which an appeal must be filed.
Narrowing e-filing enforcement. The final text narrows the proposed
e-filing enforcement provisions. Rather than authorizing broader orders
regulating filing methods, sanctions, misuse, or termination of e-filer
participation, the final text provides that OPM may strike a document
when an e-filer repeatedly fails to follow filing instructions after a
show-cause order. The final text also removes the proposed statement
that withdrawal from e-filing may preclude future re-registration and
clarifies that withdrawal of e-filing registration is not good cause
for staying a case.
Simplifying initial-appeal information. The final text simplifies
the contact-information requirements in Sec. 351.903(a) by replacing
``legal name, best address'' with ``name, address.'' The core
requirement remains unchanged: the appeal must be written, state the
basis for the appeal, identify the appellant and any representative,
and include supporting documentation.
Defining the agency record. The final text adds a RIF-specific
minimum agency-record requirement to Sec. 351.903(b). The proposal
required the agency response to include the agency record but did not
define its contents. The final text specifies that the agency record
includes, at a minimum, the RIF notice and effective-date documents,
documents supporting the RIF reason, coverage and appointment records,
competitive-area and competitive-level records, retention-register and
retention-standing records, order-of-release records, assignment-rights
records, special RIF-circumstance records, and a certification that the
complete agency record has been produced.
Distinguishing production to OPM from service on the appellant. The
final text requires the agency to produce the complete agency record to
OPM while serving the appellant with the agency record subject to
legally required limits. The agency may redact or withhold information
from the appellant's copy only to the extent necessary to comply with
the Privacy Act, applicable legal privileges, classified-information or
national-security requirements, OPM protective orders, or other
disclosure limits required by law.
Allowing limited new matters in reply. The final text revises Sec.
351.903(c) to permit an appellant's reply to raise a new allegation of
error if the basis for that allegation rests on information first
disclosed in the agency response or if OPM grants leave for good cause.
Adding disclosure limits for inspection and service. The final text
makes inspection of OPM's appellate record and service of documents
subject to the Privacy Act, applicable legal privileges, classified-
information or national-security requirements, OPM protective orders,
and other applicable disclosure limits required by law. The proposal
allowed inspection and required service but did not include the same
express disclosure limitations.
Reorganizing representative provisions. The final text reorganizes
Sec. 351.904 into separate paragraphs addressing designation of a
representative, Federal employee representatives and restrictions on
official time and reimbursement, and disallowance of representatives.
The final text also narrows the grounds for disallowing a
representative. Because a Federal employee representative may not
perform representational functions while in a duty status, the final
text does not adopt the proposed additional grounds for disallowance
based on the priority needs of the Government or unreasonable costs to
the Government; OPM or the responsible agency may disallow an
employee's choice of representative only where the representative is an
employee of the responsible agency or OPM and the representative's
activities would cause a conflict of interest or position. The
remaining changes are primarily organizational and clarifying.
Adding adjudicator-separation and ex parte safeguards. The final
text adds safeguards in Sec. 351.905(a) requiring OPM adjudicators to
be insulated from officials who participated personally and
substantially in the challenged action or provided case-specific
advice. It also prohibits adjudicators from considering material ex
parte communications on the merits and requires any such communication
to be summarized in the record with an opportunity for party response,
unless disclosure is prohibited by law.
Clarifying OPM employee appeals. The final text clarifies that an
administrative law judge (ALJ) assigned to adjudicate an OPM employee's
appeal will issue an initial decision. It also adds material factual
error affecting the outcome as a ground on which OPM may disturb the
ALJ's decision and clarifies that assigning an ALJ does not make 5
U.S.C. 554, 556, or 557 applicable unless independently required by law
or expressly incorporated.
Tightening audits and investigations. The final text narrows the
standard for OPM audits or investigations. The proposal allowed OPM to
conduct an audit or investigation when the ``interest of justice''
would be served. The final text requires OPM to determine that the
existing record is insufficient to resolve a material issue within
OPM's jurisdiction and that the audit or investigation is reasonably
likely to produce material information. The final text also provides
that representatives may not participate in an audit or investigation
unless OPM specifically requests it.
Removing a separate ascertainment sanction. The final text removes
the proposed separate paragraph authorizing sanctions for failure to
participate in ascertainment of facts and renumbers the initial-
decision and remedies provisions.
Refining protective-order authority. The final text revises Sec.
351.906(a). The proposal focused on harassing communications and use of
appeal information for unrelated purposes. The final text authorizes
protective orders or cease-and-desist directives to protect the
integrity of the adjudicatory process and to prevent threats,
intimidation, targeted harassment, improper witness contact, disclosure
of protected personal information, or misuse of nonpublic information
obtained through the appeal. It also requires protective orders to be
no broader than reasonably necessary and not to restrict lawful
communications protected by law.
Clarifying OPM-initiated reconsideration. The final text clarifies
in Sec. 351.907(a) that OPM may reopen and reconsider an initial
decision either upon request of a party or on its own initiative. The
proposal allowed party-requested reconsideration, while Director sua
sponte review was addressed separately.
Clarifying Director review. The final text revises Sec. 351.908 to
preserve the Director's sua sponte authority to reopen and reconsider a
nonfinal initial decision or reopened and reconsidered decision, while
identifying nonexclusive considerations that may guide that review. The
proposal gave the Director broad discretion to reopen and reconsider
any nonfinal decision. The final text clarifies that the Director may
consider whether the decision contains clear legal error, rests on an
erroneous material factual finding, involves an issue of exceptional
importance, affects governmentwide civil service administration,
conflicts with another OPM decision, or otherwise warrants review. It
also clarifies that Sec. 351.908 does not create a party right to
request Director review and that, upon reopening, the Director may take
any action available under Sec. 351.907(c).
[[Page 49232]]
Revising finality of initial decisions. The final text revises
Sec. 351.909 so that an initial decision becomes final 30 calendar
days after issuance unless, before that time, a party timely requests
reopening and reconsideration under Sec. 351.907 or the Director
reopens the decision under Sec. 351.908. A timely request suspends
finality: if OPM denies or dismisses the request without reopening the
initial decision, the initial decision becomes final 30 calendar days
after issuance of the denial or dismissal unless the Director reopens
it before that time, and if OPM grants the request, the reopened and
reconsidered decision becomes final 30 calendar days after issuance
unless the Director reopens that decision before that time. An untimely
request does not suspend or otherwise affect finality. The final text
also clarifies that a decision by the Director that disposes of the
appeal is final and effective upon issuance and that, if the Director
remands the appeal or directs further proceedings, any resulting
decision becomes final under Sec. 351.909. These changes conform
finality to the reconsideration and Director-review provisions of the
final rule.
Adding public-posting disclosure limits. The final text adds
express legal limits on public posting of final merits decisions,
including requirements protecting privacy, privileged information,
protected personnel information, law-enforcement-sensitive information,
and other information that may not lawfully be disclosed. It also
clarifies that final merits decisions not publicly posted because of
such legal limits must be made available upon request to the Federal
employee or former Federal employee involved in a proceeding under this
subpart, his or her representative selected pursuant to Sec. 351.904,
or a representative of the Federal agency or office involved in the
proceeding who has a need to know.
OPM is finalizing the RIF appeals rule as amended. After
considering the comments, OPM concludes that the final rule, as
amended, better balances timely adjudication, governmentwide
consistency, employee access to meaningful administrative review, and
agencies' need for finality in workforce restructuring than the current
MSPB appeal process for non-SES RIFs.
II. Background
When agencies face workforce restructuring, RIF procedures provide
a mechanism for realigning staff through objective criteria. These
procedures are governed by 5 U.S.C. 3501-3504 and are implemented
through OPM regulations at 5 CFR 351. These regulations provided
employees subject to a RIF action with an avenue to appeal to the MSPB.
Under the previous 5 CFR 351.901, replaced by this rule, employees
furloughed for more than 30 days, separated, or demoted by a RIF action
were able to appeal to the MSPB.
Federal RIF procedures govern the release of competing employees
when a release is required because of lack of work, shortage of funds,
insufficient personnel ceiling, reorganization, or the exercise of
reemployment or restoration rights. Congress has directed OPM to
prescribe regulations governing the release of competing employees in a
RIF, giving due effect to the statutory retention factors specified in
5 U.S.C. 3502. OPM implements those requirements in 5 CFR part 351.
Part 351 does not determine whether an agency should conduct a RIF
in the first instance. Each agency remains responsible for determining
the categories of positions required, where positions are to be
located, and when positions are to be filled, abolished, or vacated.
The RIF regulations govern how an agency must apply retention, notice,
assignment, and related requirements once the agency determines that a
RIF action is required.
RIF appeal procedures have historically been established through
civil service regulation. Early RIF procedures were administered by the
Civil Service Commission and its predecessors. The first uniform RIF
regulations were issued in 1925 by the Personnel Classification Board,
which was subsumed by the Commission.\1\ Those regulations were
bolstered again in 1929, when President Calvin Coolidge issued E.O.
5068, prescribing how veterans were to be treated ``when reductions are
being made in the force.'' \2\ President Roosevelt similarly invoked
presidential authority to institute the regulatory procedures by which
RIFs may be executed.\3\
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\1\ U.S. Merit Sys. Prot. Bd., Reduction-in-Force in the Federal
Government, 1981: What Happened and Opportunities for Improvement
(June 1983), available at https://babel.hathitrust.org/cgi/pt?id=uc1.31210024942615&seq=31.
\2\ E.O. 5068, Amendment of Civil Service Rule VI (Mar. 2,
1929), available at https://www.presidency.ucsb.edu/documents/executive-order-5068-amendment-civil-service-rule-vi.
\3\ E.O. 6175, Separation Ratings of Departmental Employees
(June 16, 1933), available at https://www.presidency.ucsb.edu/documents/executive-order-6175-separation-ratings-departmental-employees.
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Following enactment of the Veterans' Preference Act of 1944,\4\
Commission regulations provided administrative appeal procedures for
employees who believed RIF regulations had not been correctly
applied.\5\ Those procedures were revised over time, including in 1963,
when the Commission provided that an employee who received a notice of
specific RIF action and believed the regulations had not been correctly
applied could appeal to the Commission.\6\
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\4\ Act of June 27, 1944, ch. 287, sec. 12, 58 Stat. 390
(codified as amended at 5 U.S.C. 861).
\5\ S. Comm. on Post Office & Civ. Serv., Reduction-in-Force
System in the Federal Government 89 (July 4, 1952), available at
https://babel.hathitrust.org/cgi/pt?id=uc1.aa0005567177&seq=67&q1=rule.
\6\ 28 FR 10021 (Sept. 14, 1963).
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Central to this regulatory framework was the understanding that
there was no right of judicial review of Commission decisions.
``Employees sought to appeal the decisions of [the Commission] through
the various forms of action traditionally used for so-called
nonstatutory review of agency action, including suits for mandamus . .
. injunction . . . and declaratory judgment.'' United States v. Fausto,
484 U.S. 439, 444 (1988). But ``so long as there was substantial
compliance with applicable procedures and statutes, the administrative
determination was not reviewable.'' Hargett v. Summerfield, 243 F.2d
29, 32 (D.C. Cir. 1957). It was long understood that RIFs ``are matters
peculiarly within the province of those who are in charge of and
superintending the departments, and, until Congress by some special and
direct legislation makes provision to the contrary, we are clear that
they must be settled by those administrative officers.'' Keim v. United
States, 177 U.S. 290, 296 (1900).
In 1978, Congress enacted the CSRA, which reorganized the civil
service system and established a comprehensive remedial structure for
Federal personnel matters.\7\ Congress excluded RIF actions under 5
U.S.C. 3502 from the adverse action provisions in chapter 75. Congress
also did not create an express statutory right for non-Senior Executive
Service (SES) employees to appeal RIF actions to MSPB. OPM therefore
continued to implement RIF appeal procedures through regulation.
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\7\ See Grosdidier v. Broad. Bd. of Govs., 560 F.3d 495, 497
(D.C. Cir. 2009); Filebark v. Dep't of Transp., 555 F.3d 1009, 1010
(D.C. Cir. 2009); Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir.
2004); Lindahl v. Office of Personnel Management, 470 U.S. 768, 773
(1985).
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In 1983, OPM revised part 351 to provide for MSPB adjudication of
non-SES RIF appeals. 48 FR 49462 (Oct. 25, 1983). That provision
reflected OPM's regulatory choice to use MSPB as the adjudicative
forum. OPM now revises that regulatory framework and establishes OPM as
the forum for appeals under subpart I of part 351.
Under the final rule, an employee who is furloughed for more than
30
[[Page 49233]]
days, separated, or demoted by a RIF action for which the agency issued
a specific RIF notice under 5 CFR 351.802 on or after the effective
date of the final rule under RIN 3206-AO86 may appeal that action to
OPM. A RIF action for which the agency issued that notice before the
effective date of the RIN 3206-AO86 final rule remains subject to
adjudication by the MSPB under the procedures applicable to that
action. The final rule also establishes filing procedures, agency-
record requirements, adjudication procedures, reconsideration, Director
review, and finality provisions for OPM RIF appeals. The appellant
bears the burden to prove timely and proper filing, OPM jurisdiction, a
failure to comply with an applicable statute or OPM regulation
governing RIF actions under part 351, and prejudice caused by that
failure.
The rule also preserves collateral statutory avenues administered
by other entities. Employees may continue to file matters within the
jurisdiction of EEOC, an Inspector General, MSPB where it has
independent statutory jurisdiction, DOL VETS, or OSC. Finally, the rule
applies to a RIF action for which the agency issued a specific RIF
notice under 5 CFR 351.802 on or after September 2, 2026, the effective
date of the final rule under RIN 3206-AO86; an appeal of a RIF action
for which the agency issued that notice before that date, including an
appeal pending before the MSPB, remains subject to adjudication by the
MSPB under the procedures applicable when the action was taken.
III. Responses to Major Issues Raised by Commenters
A. OPM's Authority To Transfer RIF Appeals From MSPB to OPM
Commenters 0370, 0928, 1025, 1092, 1099, 1165, 1217, and 1252
argued that OPM lacks authority to transfer RIF appeals from MSPB to
OPM. These commenters asserted that Congress created MSPB as the
independent adjudicatory body for Federal personnel appeals, that RIF
appeals are part of MSPB's statutory role, and that any removal of MSPB
jurisdiction must be accomplished by Congress rather than by
regulation. Commenters 1252, 1223, 1219, 1206, and 1119 argued that
returning RIF appeal authority to OPM from MSPB violates a requirement,
whether express or implied, that the CSRA mandates that personnel
policymaking and personnel claims adjudication functions maintain
structural separation. In support, commenters cite the legislative
history of the CSRA to support the proposition that the CSRA was
designed to decouple the adjudication function from the policymaking
function under the Civil Service Commission. Commenter 1099 further
argued that the proposed rule rested on an overbroad conception of
Presidential and agency RIF authority.
OPM disagrees that congressional action is required to revise the
forum for non-SES RIF appeals. Pursuant to 5 U.S.C. 1301, ``[t]he
Office of Personnel Management shall aid the President, as he may
request, in preparing the rules he prescribes under this title for the
administration of the competitive service.'' Under 5 U.S.C. 1104(a)(1),
``the President may delegate, in whole or in part, authority for
personnel management functions, including authority for competitive
examinations, to the Director of the Office of Personnel Management.''
Further, OPM ``shall establish standards which shall apply to the
activities of the Office or any other agency under authority delegated
under subsection (a) of this section.'' 5 U.S.C. 1104(b)(1). And the
OPM Director has the responsibility ``to prescribe regulations and to
ensure compliance with the civil service laws, rules, and
regulations,'' and ``execut[e], administer[], and enforc[e] . . . the
civil service rules and regulations of the President and the Office and
the laws governing the civil service.'' 5 U.S.C. 1104(b)(3),
1103(a)(5).
With respect to RIFs, Congress gave broad authority to OPM to
``prescribe regulations for the release of competing employees in a
reduction in force.'' 5 U.S.C. 3502. That authority, together with
OPM's related regulatory authority under 5 U.S.C. 1302(b) and (c) to
administer veterans' preference in retention, reasonably encompasses
regulations governing how an employee may challenge whether an agency
complied with those RIF requirements.
In passing the CSRA, Congress carefully created the MSPB review
scheme and determined that there should be no RIF appeal right to MSPB.
In 5 U.S.C. 7512(B), Congress expressly excluded ``a reduction-in-force
action under Sec. 3502 of this title'' from the list of adverse
actions covered under Chapter 75. 5 U.S.C. 7512(B). The MSPB appeal
right in chapter 75 applies to actions covered by that subchapter, see
5 U.S.C. 7513(d), and chapter 77 provides procedures only for actions
otherwise ``appealable to the Board under any law, rule, or
regulation.'' 5 U.S.C. 7701(a). Thus, chapter 77 does not itself create
an independent statutory MSPB appeal right for non-SES RIF actions;
The MSPB has long acknowledged that it derives its authority to
review agency RIF actions from OPM regulations at 5 CFR 351.901, not
from the CSRA itself. See Kohfield v. Dep't of the Navy, 75 M.S.P.R. 1,
4 (1997) (citing Grubb v. Dep't of the Interior, 73 M.S.P.R. 296, 299
(1997)); Gaxiola v. U.S. Dep't of the Air Force, 6 M.S.P.R. 515, 519
(1981).
By carving out RIFs conducted under 5 U.S.C. 3502 from the MSPB's
jurisdiction, Congress distinguished this type of reorganization
activity from the individually targeted personnel actions for which
employees have traditionally been accorded formal procedural
protections. In the CSRA, Congress did not direct that the MSPB have
jurisdiction over RIF appeals. Instead of altering the existing
statutory scheme, the CSRA affirmed 5 U.S.C. 3502 as the governing
statute on the issue of RIF appeal procedure for non-SES employees. In
the nearly 50 years since its original enactment, Congress has not
amended the statute to provide for such a right, nor has it provided
for an appeal process for RIFs that includes judicial review.
At the time the CSRA was passed, RIF appeals were housed within the
Civil Service Commission. Nothing in the CSRA altered that arrangement.
Indeed, the D.C. Circuit has stated that ``if OPM chooses to use the
MSPB for dispute resolutions, it must take that statutory device as it
finds it.'' American Federation of Government Employees v. Office of
Personnel Management (AFGE v. OPM), 821 F.2d 761, 769 (D.C. Cir. 1987)
(emphasis added). This declaration assumes that OPM may, in fact,
choose not to use the MSPB for dispute resolution and can create its
own RIF appeal process.
OPM is not persuaded that the general CSRA structure or legislative
history cited by commenters displaces the specific statutory text
governing RIFs. Under general principles of statutory construction, the
CSRA's plain and unambiguous language controls. Courts ``assum[e] that
the ordinary meaning of that language accurately expresses the
legislative purpose.'' \8\
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\8\ See CSX Transp., Inc. v. Ala. Dep't of Revenue, 562 U.S.
277, 296 (2011); Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175-
76 (2009) (quoting Engine Mfrs. Ass'n v. S. Coast Air Quality Mgmt.
Dist., 541 U.S. 246, 252 (2004)) (internal quotation marks omitted);
Christiana Tr. v. Riddle, 911 F.3d 799, 806 (5th Cir. 2018) (``If a
statute's text is `plain and unambiguous, it must be given effect.'
'' (quoting BMC Software, Inc. v. Comm'r, 780 F.3d 669, 674 (5th
Cir. 2015))); see also BedRoc Ltd., LLC v. United States, 541 U.S.
176, 183 (2004) (``[O]ur inquiry begins with the statutory text, and
ends there as well if the text is unambiguous'').
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Commenters identified no provision that grants non-SES employees a
statutory right to appeal RIF actions to
[[Page 49234]]
MSPB or prohibits OPM from revising the regulatory forum for such
appeals. General statements in the CSRA's legislative history about
MSPB's independent role cannot transform OPM's prior regulatory
delegation into an irrevocable statutory jurisdictional grant. Congress
expressly excluded RIF actions under section 3502 from the chapter 75
adverse action scheme, which is the statutory path that provides MSPB
appeal rights and judicial review for covered removals, suspensions,
reductions in grade or pay, and furloughs of 30 days or less. 5 U.S.C.
7512(B). Where Congress wanted to provide an MSPB appeal right for a
RIF-related action, it did so expressly, as it did for certain SES RIF
actions. See 5 U.S.C. 3595(c). The absence of comparable language for
non-SES RIF actions is therefore significant.
Commenters 0928, 1099, and 1165 argued that OPM's statutory
authority under 5 U.S.C. 3502 is limited to prescribing retention-order
rules and does not authorize OPM to create an internal adjudicatory
process for RIF appeals. OPM disagrees that its authority under 5
U.S.C. 3502 is limited to the mechanics of retention standing and does
not include appeal procedures. Section 3502 directs OPM to prescribe
regulations for the release of competing employees in a RIF.
Regulations governing how an employee may challenge whether the agency
complied with those RIF requirements fall comfortably within the
regulatory framework OPM is authorized to establish. Under this
authority, OPM may regulate matters such as whether to establish RIF
appeal rights, the entity responsible for accepting RIF appeals, and
the procedures under which an employee may appeal a RIF action. Thus,
OPM has long used part 351 not only to prescribe retention rules but
also to prescribe notice, assignment, record, certification, and appeal
provisions. The final rule revises one component of that regulatory
framework: the forum and procedure for administrative appeals.
Commenters 0343, 0928, 1092, 1099, and 1165 argued that Congress
acquiesced in or ratified MSPB adjudication of RIF appeals by leaving
OPM's regulatory delegation in place for decades. Some commenters also
argued that because MSPB's jurisdiction includes matters appealable to
the Board under any law, rule, or regulation, OPM's prior regulatory
delegation effectively became part of MSPB's ``organic jurisdiction.''
Commenters further cited the statutory MSPB appeal right for SES RIF
actions as evidence that Congress expected RIF appeals generally to be
heard by MSPB.
OPM disagrees. Congressional acquiescence is not lightly inferred,
particularly where the statutory text does not require the asserted
result.\9\ Congress has not enacted a provision making non-SES RIF
actions under 5 U.S.C. 3502 statutorily appealable to MSPB. The fact
that Congress has amended title 5 at various times without displacing
OPM's prior regulatory delegation does not transform that delegation
into a statutory mandate.
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\9\ See Brown v. Gardner, 513 U.S. 115, 121-22 (1994)
(``congressional silence lacks persuasive significance'') (internal
quotation marks and citations omitted); Alexander v. Sandoval, 532
U.S. 275, 292 (2001) (``And when, as here, Congress has not
comprehensively revised a statutory scheme but has only made
isolated amendments, we have spoken more bluntly: it is impossible
to assert with any degree of assurance that congressional failure to
act represents affirmative congressional approval of the statutory
interpretation.'') (internal citations omitted).
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Nor does MSPB's jurisdiction over actions appealable to it by
``law, rule, or regulation'' prevent OPM from amending its own
regulation. That formulation recognizes that MSPB may hear matters made
appealable to it by regulation. It does not freeze every such
regulation in place. Where MSPB jurisdiction exists only because an OPM
regulation makes an action appealable to MSPB, OPM may revise that
regulation through notice-and-comment rulemaking.
OPM's prior decision to use MSPB as the adjudicative forum for RIF
appeals was a regulatory policy choice, not a statutory requirement. In
adopting related RIF revisions, OPM explained that its objectives
included giving ``greater recognition to performance as a retention
factor, strengthen[ing] the objectivity of the RIF process, and
improv[ing] the efficiency of the system.'' 51 FR 318 (Jan. 3, 1986).
OPM continues to agree that performance should be meaningfully
reflected in RIF retention standing and that employees should receive
objective and efficient review of alleged RIF errors. But those
objectives do not require MSPB adjudication.
Congress assigned OPM a central role in administering and
safeguarding the merit-based civil service: the OPM Director is charged
with executing, administering, and enforcing the civil-service laws and
regulations, 5 U.S.C. 1103(a)(5); advising the President on actions to
promote an efficient civil service and the systematic application of
merit system principles, including policies concerning performance,
tenure, and separation, 5 U.S.C. 1103(a)(7); and designing systems to
assess agency human-capital management, including standards for holding
managers and human-resources officials accountable for efficient and
effective human-resources management in accordance with merit system
principles, 5 U.S.C. 1103(c)(1), (2)(F).
Congress also directed OPM to establish and maintain an oversight
program to ensure that delegated personnel activities comply with merit
system principles and applicable standards, 5 U.S.C. 1104(b)(2);
preserved the Director's responsibility to prescribe regulations and
ensure compliance with civil-service laws, rules, and regulations, 5
U.S.C. 1104(b)(3); and authorized OPM to require corrective action when
agency actions under delegated authority are contrary to law, rule,
regulation, or applicable standards, 5 U.S.C. 1104(c). In the RIF
context specifically, Congress directed OPM to prescribe regulations
governing the release of competing employees and to give due effect to
tenure, military preference, length of service, and efficiency or
performance ratings, 5 U.S.C. 3502(a), while also assigning OPM
responsibility for administering veterans' preference in retention, 5
U.S.C. 1302(b), (c).
These authorities operate within the merit system framework of 5
U.S.C. 2301, including the principles that the Federal workforce should
be used efficiently and effectively and that employees should be
retained on the basis of the adequacy of their performance, 5 U.S.C.
2301(b)(5), (6), as well as the prohibited-personnel-practice
provisions barring unauthorized preferences, violations of veterans'
preference, and actions contrary to laws, rules, or regulations
implementing or directly concerning merit system principles, 5 U.S.C.
2302(b)(6), (11), (12).
Accordingly, OPM concludes that transferring RIF appeals to OPM is
consistent with, rather than contrary to, Congress's merit system
design. The final rule preserves objective review of RIF actions while
allowing OPM, through its merit system compliance and adjudicatory
functions, to ensure that agencies correctly apply the RIF regulations
OPM is charged with prescribing and enforcing. OPM therefore declines
to retain MSPB adjudication merely to preserve a forum-based connection
to merit principles, where OPM has determined that a more focused OPM
process will better promote performance-based retention, uniform
interpretation of part 351, efficient adjudication, and timely
corrective relief where an appellant proves prejudicial RIF error.
[[Page 49235]]
B. Separation of Policymaking and Adjudication Functions and Adequacy
of OPM as a RIF Appeals Forum
Commenters 0370, 0928, 0962, 1025, 1092, 1099, 1165, 1217, and 1252
argued that the final rule improperly combines personnel policymaking
and adjudication within OPM. These commenters cited the CSRA's division
of the Civil Service Commission's functions between OPM and MSPB and
argued that Congress intended MSPB to provide independent adjudication
separate from OPM's personnel-management role. Commenters also argued
that OPM's responsibility for issuing RIF regulations, advising
agencies, and in some circumstances reviewing competitive-area matters,
creates an institutional conflict if OPM also adjudicates RIF appeals
and denies employees a meaningful opportunity for review.
OPM recognizes that Congress created MSPB as an independent
adjudicator for matters Congress made appealable to MSPB. But the CSRA
does not require that every regulatory personnel appeal be adjudicated
by MSPB. Administrative agencies routinely perform adjudicative
functions concerning matters within their regulatory responsibilities,
and OPM itself adjudicates a variety of Federal personnel matters. The
question here is not whether MSPB is an independent adjudicatory body,
but whether Congress required non-SES RIF appeals to remain with MSPB.
OPM concludes that Congress did not impose such a requirement.
The fact that OPM administers civil service laws and regulations
does not make OPM incapable of adjudicating disputes under those laws.
Federal agencies routinely issue regulations, provide governmentwide
guidance, and adjudicate matters within their statutory
responsibilities. OPM itself is a clear example. Congress has vested
the OPM Director with responsibility for executing, administering, and
enforcing civil service rules and regulations and the laws governing
the civil service, including retirement and classification activities.
See 5 U.S.C. 1103. OPM also has express regulatory authority in several
civil-service areas, including competitive-service examinations and
veterans' preference administration. See 5 U.S.C. 1302. The fact that
OPM issues governmentwide personnel policy therefore does not make it
unusual for OPM also to resolve particular disputes arising under that
same statutory framework.
Further, the CSRA currently provides for a broad range of venues to
hear various claims arising out of the CSRA and the employment
relationship with the government, including OPM which itself has long
performed adjudicative or quasi-adjudicative processes in personnel
matters.\10\ For example, OPM's Office of Merit Systems Accountability
and Compliance (MSAC) adjudicates classification appeals under 5 CFR
part 511, subpart F. Employees may request an OPM decision on the
proper occupational series, grade, or chapter 51 coverage of their
official positions, and agencies may appeal certain OPM classification
certificates. In those appeals, OPM may request written facts,
investigate, or audit the position; OPM's appellate decision is final
unless OPM reconsiders it; and the decision is binding on
administrative, certifying, payroll, disbursing, and accounting
officials.
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\10\ See 5 U.S.C. 1104(b)(2), 1216(a)(1)-(2), 2302, 3330a, 3702,
ch. 4, ch. 51, 5366, 7116; 42 U.S.C. 2000e-16; 29 U.S.C. 633a, 204;
38 U.S.C. ch. 43; 5 CFR parts 178, 536, and 771.
---------------------------------------------------------------------------
OPM's MSAC office also adjudicates Fair Labor Standards Act claims
under 5 CFR part 551, subpart G. Those procedures cover FLSA exemption-
status determinations, minimum-wage and overtime-pay claims, and child-
labor complaints. Covered claimants may file with either the employing
agency or OPM, but not both at the same time, and an OPM FLSA claim
decision is final and not subject to further administrative review.
Similarly, OPM settles certain compensation and leave claims under 5
CFR part 178; those claims are resolved on the written record, with the
burden on the claimant, and OPM's settlement is final within OPM. OPM
regulations also provide for appeals to OPM from certain examination
ratings or application rejections.
Other agencies operate in the same manner. The EEOC issues Federal-
sector EEO regulations and adjudicates appeals from agency final
actions, dismissals, class-complaint decisions, and certain grievance
decisions raising discrimination issues. See 29 CFR 1614.401(a)-(e).
EEOC's Office of Federal Operations issues written appellate decisions
on behalf of the Commission, applying specified standards of review and
providing for finality unless reconsideration is granted. 29 CFR
1614.405(a)-(c). The Federal Labor Relations Authority (FLRA) likewise
provides governmentwide leadership and guidance on Federal labor-
management relations while resolving representation, negotiability,
unfair-labor-practice, and arbitration matters. See 5 U.S.C. 7105.
These examples show that combining policy, guidance, and adjudication
within the same agency is a familiar feature of Federal administration
in general, and Federal workforce management in particular, not
evidence of structural bias.
Nor does the fact that OPM is headed by a presidentially appointed
Director establish bias. Like MSPB, OPM is an independent agency. 5
U.S.C. 1101. Both the OPM Director and MSPB Members are appointed by
the President with the advice and consent of the Senate and serve at
the President's pleasure.\11\ The principal structural difference
between MSPB and OPM is that the MSPB is led by three members while OPM
is headed by a single director. But a tripartite versus single-head
leadership structure has little bearing on an agency's capacity to
issue impartial decisions. Consequently, OPM rejects the argument that
greater MSPB independence makes it a more appropriate venue for RIF
appeals; the premise is inaccurate. Because MSPB members now serve at
will, the MSPB possesses no greater structural independence from the
President than does OPM.
---------------------------------------------------------------------------
\11\ See Harris v. Bessent, 160 F. 4th 1235 (D.C. Cir. 2025);
see also Trump v. Slaughter, No. 25-332 (June 29, 2026).
---------------------------------------------------------------------------
The relevant question is whether the adjudicatory structure creates
a constitutionally intolerable risk of actual bias or prejudgment--not
whether the agency head is politically accountable. Administrative
adjudicators are presumed to act with honesty and integrity, and the
combination of investigative, policymaking, and adjudicative functions
in an agency does not, without more, violate due process. Withrow v.
Larkin, 421 U.S. 35, 47, 58 (1975). The Supreme Court has also rejected
the proposition that agency decisionmakers are disqualified merely
because they previously investigated, reported on, or expressed policy
views concerning related issues. FTC v. Cement Inst., 333 U.S. 683,
700-03 (1948). Due process concerns arise from more concrete
circumstances, such as a direct pecuniary interest, personal
involvement, personal animus, or an objectively intolerable probability
of actual bias. See Tumey v. Ohio, 273 U.S. 510, 523, 532 (1927);
Withrow, 421 U.S. at 47; Caperton v. A.T. Massey Coal Co., 556 U.S.
868, 884-87 (2009).
The APA itself reflects the same principle. It permits agency
review of initial decisions by presiding employees and provides that,
on review, the agency has the powers it would have had in
[[Page 49236]]
making the initial decision, subject to any limits imposed by rule or
notice. 5 U.S.C. 557(b). The APA's separation-of-functions provision
also expressly does not apply to ``the agency or a member or members of
the body comprising the agency.'' 5 U.S.C. 554(d)(2)(C). Federal
administrative law therefore does not treat agency-head accountability
as equivalent to bias; it looks instead to whether the process includes
appropriate safeguards against prejudgment, improper influence, or
conflicts of interest.
Ultimately, OPM must determine whether the rule provides a fair and
reasoned adjudicatory process for RIF appeals. OPM concludes that it
does. Here, the final rule provides a defined administrative process,
requires decisions to be based on the record, preserves administrative
review of whether the agency complied with applicable RIF statutes and
OPM regulations and whether any failure prejudiced the appellant, and
includes safeguards against arbitrary or predetermined decision-making.
Those safeguards are substantial. The final rule includes
separation-of-functions safeguards tailored to the RIF appeal context.
Under Sec. 351.905(a), OPM personnel assigned to adjudicate appeals by
non-OPM employees must be insulated from officials who participated
personally and substantially in the challenged personnel action or
provided case-specific advice concerning that action. OPM adjudicators
may not consider material ex parte communications concerning the merits
of an appeal. If such a communication occurs, OPM will place a summary
of the communication in the record and provide the parties a reasonable
opportunity to respond, unless disclosure is prohibited by law.
The final rule also restricts adjudicator assignments. No OPM
employee may be assigned to adjudicate an appeal if the employee has a
relationship with the appellant or, during the preceding two years, was
an employee of the agency that is a party to the action or was subject
to an action covered by part 351. When necessary, OPM may assign an
administrative law judge to preside over an appeal. Appeals by OPM
employees receive additional protection: under Sec. 351.905(b), OPM
will assign an administrative law judge to adjudicate the appeal and
issue an initial decision, and OPM will not disturb that decision
except on specified grounds.
OPM further disagrees that its review of certain competitive-area
matters prejudges later appeals. OPM's regulatory review of a
competitive area, where required, is not approval of an individual RIF
action, not approval of an agency's decision to conduct a RIF, and not
a determination that any later action against any employee is lawful.
If a competitive area issue is raised in an appeal, the agency must
produce the relevant record, including competitive area and competitive
level documentation, and OPM will adjudicate the appeal based on the
record and applicable legal standards.
Commenter 1252 asserted that ``OPM has not demonstrated that it
possesses the adjudicatory capacity necessary to replace MSPB's
established system,'' and that effectuating this transfer ``without
evidence of readiness would risk inconsistent determinations,
procedural delays, and diminished confidence in outcomes.''
OPM respectfully disagrees. OPM currently serves as the appellate
venue for classification, Fair Labor Standards Act, compensation and
leave, and declination of reasonable offers, which are conducted by its
MSAC office under the supervision of the Director of OPM. MSAC is an
external-facing organization within OPM with longstanding
responsibility for oversight of agency compliance with civil service
laws, merit-system principles, and related regulations.\12\ MSAC also
has substantial experience adjudicating Federal personnel matters,
including classification appeals, Fair Labor Standards Act claims,
compensation and leave claims, and declination-of-reasonable-offer
claims.\13\ In those matters, MSAC provides employees with
administrative review of agency personnel determinations and issues
OPM's final administrative decision.
---------------------------------------------------------------------------
\12\ U.S. Off. of Pers. Mgmt., Off. of Inspector Gen., Final
Evaluation Report: Evaluation of the Merit System Accountability and
Compliance Office, Rep. No. 2021-OEI-001 (Dec. 12, 2022), available
at https://www.oversight.gov/sites/default/files/documents/reports/2022-12/Final-Report-2021-OEI-001.pdf.
\13\ U.S. Off. of Pers. Mgmt., Adjudications, available at
https://www.opm.gov/compliance/adjudications/.
---------------------------------------------------------------------------
RIF appeals are well suited to MSAC's existing institutional role.
A RIF appeal generally turns on whether the agency properly applied
OPM's governmentwide RIF regulations to the appellant, including
requirements concerning coverage, competitive area, competitive level,
retention standing, order of release, assignment rights, notice, and
related part 351 requirements. MSAC's mission and experience place it
in a strong position to evaluate whether agencies complied with OPM
regulations and whether any failure prejudiced the appellant. Locating
RIF appeals in MSAC also allows OPM to bring its subject-matter
expertise in part 351 directly to bear while maintaining an
adjudicatory process separate from the employing agency that took the
RIF action. Housing RIF appeals within MSAC would additionally separate
the RIF adjudicative function within OPM from OPM's RIF policymaking
function, which is housed in its Workforce Policy & Innovation (WPI)
office.\14\
---------------------------------------------------------------------------
\14\ U.S. Off. of Pers. Mgmt., FY 2026 Congressional Budget
Justification and Annual Performance Plan 26, available at https://www.opm.gov/about-us/fy-2026-congressional-budget-justification/fy-2026-congressional-budget-justification.pdf.
---------------------------------------------------------------------------
Commenters 0442, 0714, 0975, and 1147 asserted that assigning RIF
appeals to MSAC would overwhelm that office, particularly if RIF appeal
volume increases. OPM considered those comments but does not agree that
they warrant retaining MSPB as the forum for RIF appeals. OPM expects
MSAC to administer the appeal process through the streamlined, record-
based procedures established in this final rule. Those procedures are
designed to avoid unnecessary litigation burden while preserving the
tools needed to resolve material issues. MSAC may require additional
information, conduct an audit or investigation where the existing
record is insufficient to resolve a material issue within OPM's
jurisdiction, and hold a hearing when necessary and efficient. This
structure permits MSAC to focus resources on appeals that require
additional development, rather than applying the same litigation model
to every case.
OPM also does not agree that a temporary or anomalous increase in
RIF activity provides a reason to retain a fragmented appeal structure
indefinitely.\15\ This rule applies only to appeals of RIF actions for
which the agency issued a specific RIF notice under 5 CFR 351.802 on or
after September 2, 2026, the effective date of the final rule under RIN
3206-AO86, and OPM will administer the process prospectively. OPM will
monitor appeal volume, staffing needs, processing times, and
operational requirements as implementation proceeds. Because MSAC
already performs external adjudicatory and compliance functions, OPM
expects that MSAC can incorporate RIF appeals into its existing
adjudicatory framework more efficiently than creating a new office or
continuing
[[Page 49237]]
to rely on an external forum whose procedures OPM cannot control.
---------------------------------------------------------------------------
\15\ There have only been 141 separations resulting from a RIF
from January to April 2026, a far slower pace than 2025. (Source:
OPM FWD (June 3, 2026)).
---------------------------------------------------------------------------
Commenters 0483, 0303, 0308, 0332, and others argued that
transferring the appeal forum to OPM will deny appellants meaningful
review because, in their view, it would consolidate the conception,
execution, and adjudication of RIFs within a single agency. OPM
disagrees. The final rule does not give OPM authority to decide whether
another agency should conduct a RIF, what positions that agency should
abolish, or which organizational components should be restructured.
Those workforce management decisions remain with the employing agency.
Consistent with Sec. 351.201, each agency remains responsible for
determining the categories of positions required, where positions are
located, and when positions are filled, abolished, or vacated. OPM's
role is different: OPM prescribes governmentwide RIF regulations,
provides general regulatory guidance and technical assistance, and,
where the regulations require it, reviews discrete matters such as
certain competitive-area determinations or shortened notice requests.
Those functions do not make OPM the proponent or executing agency for
an individual RIF action, nor do they prejudge whether the employing
agency complied with part 351 as applied to a particular appellant.
The final rule also reinforces this distinction procedurally. OPM's
adjudicatory role is limited to determining whether the agency failed
to comply with an applicable statute or OPM regulation governing RIF
actions under part 351 and whether that failure prejudiced the
appellant. The agency must produce the complete agency record to OPM,
including RIF-specific documentation such as the RIF notice, effective-
date materials, records supporting the reason for the RIF, competitive-
area and competitive-level documentation, retention-register materials,
order-of-release records, assignment-rights records, and documentation
concerning any special RIF circumstance. In addition, OPM adjudicators
must be insulated from officials who participated personally and
substantially in the challenged personnel action or provided case-
specific advice concerning that action, and they may not consider
material ex parte communications concerning the merits of an appeal.
Thus, commenters' characterization of the rule as placing ``conception,
execution, and appeal'' of RIFs entirely within OPM conflates OPM's
governmentwide regulatory and advisory responsibilities with the
employing agency's independent decision to conduct and implement a RIF,
and it overlooks the final rule's record-production, separation-of-
functions, and ex parte safeguards.
C. Due Process, Neutrality, and Impartiality
Commenters 0343 and 1219 argued that the relocation of the RIF
appellate venue as provided for in this rule violates the
constitutional due process principles articulated in Cleveland Board of
Education v. Loudermill (Loudermill), 470 U.S. 532 (1985). As a matter
of constitutional due process, public sector employees can have a
property interest in their continued employment which may not be
terminated without certain pretermination procedures. Pursuant to
Loudermill, public sector employees are entitled to written or oral
notice of charges or rationale underlying their dismissal, an
explanation of the evidence supporting that rationale or charges, and
an opportunity to present their side of the issues. Id. The right to
``some kind of hearing,'' consistent with the three Loudermill
protections, attaches only when the employee faces a deprivation of a
protected property interest. Since Loudermill, several courts have
recognized that RIFs present different due-process considerations than
disciplinary removals, and some have held that post-deprivation
procedures may satisfy due process in bona fide RIF or reorganization
contexts.\16\
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\16\ See, e.g., Wash. Tchrs.' Union Loc. No. 6, Am. Fed'n of
Tchrs., AFL-CIO v. Bd. of Educ. of DC, 109 F.3d 774, 789-91 (D.C.
Cir. 1997); Duffy v. Sarault, 892 F.2d 139, 147 (1st Cir. 1989);
Dwyer v. Regan, 793 F.2d 457 (2d Cir. 1986), modifying 777 F.2d 825
(2d Cir. 1985); Misek v. City of Chi., 783 F.2d 98, 100-01 (7th Cir.
1986).
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Further, as opposed to adverse actions taken for disciplinary or
performance reasons, RIFs target positions, not individuals, and do not
stigmatize affected employees in light of the considerable differences
in the treatment of employees subject to a RIF and those subject to an
adverse action.\17\ Also weighing in favor of the ``reorganization
exception'' to Loudermill is the significant practical challenge of
conducting pretermination hearings when a RIF involves a large number
of employees. Consistent with these principles, both the Fifth and
Federal Circuits have concluded that employees do not have a right to
due process under the Constitution where a RIF initiated under 5 U.S.C.
3502 is concerned.\18\
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\17\ See West v. Grand Cnty., 967 F.2d 362, 367 (10th Cir.
1992); Am. Fed'n of Gov't Emps., AFL-CIO v. Off. of Pers. Mgmt., 821
F.2d 761, 767-68 (D.C. Cir. 1987).
\18\ See, e.g., Grier v. Dep't of Health & Hum. Servs., 750 F.2d
944, 947 (Fed. Cir. 1984); Am. Fed'n of Gov't Emps., AFL-CIO v.
Stetson, 640 F.2d 642, 645 (5th Cir. 1981).
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OPM also notes that some courts have found an employee can be
entitled to Loudermill protections when they assert a RIF was
pretextual rather than ``bona fide.'' \19\ In recognition of that
possibility, the revised 5 CFR 351.901 does not restrict employees from
pursuing claims that an agency's RIF was pretext for improper
retaliation, discrimination, or other unlawful rationales. However,
those claims must be pursued in alternative forums where employees and
agencies will most benefit from the specialized knowledge housed within
such venues. As these claims are collateral to whether an agency's RIF
action was executed in compliance with the statutory and regulatory
requirements governing RIFs, they are outside the scope of an appeal
under the regulations promulgated pursuant to this rule.
---------------------------------------------------------------------------
\19\ See, e.g., West, 967 F.2d at 367-68; Misek, 783 F.2d at
101.
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Commenter 0370 argued that transferring RIF appeals from MSPB to
OPM would violate due process by eliminating independent adjudication
and judicial review and create a constitutionally unacceptable risk of
structural bias under cases such as Caperton v. A.T. Massey Coal Co.,
556 U.S. 868 (2009), and Gibson v. Berryhill, 411 U.S. 564 (1973). The
commenter also asserted that OPM's involvement in reviewing competitive
areas would make subsequent OPM adjudication improper, and that
agencies may exercise less care if RIF actions are reviewed by OPM
adjudicators rather than MSPB administrative judges. OPM disagrees.
First, OPM disagrees that the final rule violates due process by
locating RIF appeal adjudication within OPM. The Supreme Court has
recognized a presumption of honesty and integrity in administrative
adjudicators, and the mere combination of policymaking, investigative,
supervisory, or adjudicative functions within an agency does not,
without more, establish unconstitutional bias. Withrow, 421 U.S. at 47,
58. The cases cited by the commenter involved materially different
circumstances, such as a judge's extraordinary personal campaign-
related relationship to a litigant in Caperton or an adjudicatory body
composed of market participants with a direct pecuniary interest in the
outcome in Gibson. OPM adjudicators will not have a personal financial
interest in RIF
[[Page 49238]]
appeal outcomes, and a generalized governmentwide interest in efficient
personnel administration is not the type of personal, direct, or
pecuniary interest that due process treats as disqualifying.
The final rule also includes safeguards to ensure record-based and
impartial adjudication. OPM personnel assigned to adjudicate RIF
appeals must be insulated from officials who participated personally
and substantially in the challenged personnel action or provided case-
specific advice concerning that action. OPM adjudicators may not
consider material ex parte communications concerning the merits of an
appeal. If such a communication occurs, OPM must place a summary in the
record and provide the parties a reasonable opportunity to respond,
unless disclosure is prohibited by law. The rule also provides
assignment restrictions, written decisions, reconsideration procedures,
Director review before finality, and public availability of final
merits decisions subject to privacy and other legal limits. For appeals
by OPM employees, the rule provides for adjudication by an
administrative law judge.
Second, OPM disagrees that its role in reviewing certain
competitive-area matters makes OPM an improper adjudicator of later RIF
appeals. Agencies, not OPM, remain responsible for determining their
workforce needs, including what positions are required, where positions
are located, and when positions are to be filled, abolished, or
vacated. OPM's review of a competitive area, where required by
regulation, is a regulatory safeguard concerning the competitive area
used in the RIF; it is not approval of the agency's decision to conduct
a RIF, approval of any individual RIF action, or prejudgment of any
future appeal. If a competitive-area determination is relevant to an
appeal, the agency must produce the pertinent agency record, and OPM
will adjudicate the appellant's claim on the appeal record under the
standards in part 351.
Commenter 0370 asserted that OPM approved certain competitive areas
in less than an hour. OPM does not adjudicate in this rulemaking the
validity of any particular competitive-area approval or any particular
agency RIF. Nor does an alleged processing time, standing alone,
establish that OPM's review was inadequate or that OPM cannot fairly
adjudicate future appeals. Some requests may present straightforward
issues or be supported by complete organizational documentation. In an
appeal, an appellant may challenge whether the agency failed to comply
with applicable statutes or OPM regulations governing RIF actions,
including requirements concerning competitive areas, and the agency
must produce the complete agency record to OPM.
Third, OPM disagrees that RIF appeals necessarily require MSPB
administrative judges or MSPB-style procedures to provide meaningful
review consistent with due process. Due process is flexible and calls
for procedures appropriate to the nature of the governmental action and
the interests at stake. RIF appeals generally concern whether the
agency complied with statutory and regulatory requirements governing
the conduct of a RIF, including coverage, competitive area, competitive
level, retention standing, order of release, assignment rights, notice,
and related requirements. Those issues are ordinarily well suited to
review on the written agency record, supplemented where necessary by
party submissions, requests for additional information, audits,
investigations, or hearings when OPM determines that such procedures
are necessary and efficient. Requiring discovery and hearings in all
RIF appeals would impose significant cost and delay on employees,
agencies, witnesses, and OPM, even in cases resolvable on the record.
The D.C. Circuit has instructed OPM that ``if OPM chooses to use
the MSPB for dispute resolutions, it must take that statutory device as
it finds it.'' \20\ OPM cannot tailor MSPB procedures to the nature of
the action at issue. In light of that legal requirement, OPM has chosen
to provide RIF appeals in an alternative forum better suited to
efficiently adjudicate the relevant matters. The final rule provides
targeted fact-development tools where needed without importing the full
MSPB litigation model into every RIF appeal.
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\20\ AFGE v. OPM, 821 F.2d 761, 769 (D.C. Cir. 1987).
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D. Claims of Politicization, Merit-System Harm, and Retaliatory RIFs
Commenters 0370, 0962, 0976, 1025, 1092, 1099, 1165, 1217, and 1252
asserted that the rule would politicize the civil service, weaken
merit-system protections, enable politically motivated mass firings, or
allow agencies to use sham RIFs to evade MSPB review of adverse
actions. Commenter 0370 specifically raised concern that agencies could
conduct one-person RIFs or rescind pending RIF actions and reissue them
after the effective date to avoid MSPB review.
OPM rejects the assertion that the final rule authorizes
politicized or retaliatory RIFs. The final rule does not change the
basic requirement that a RIF be a position-based action taken for
reasons recognized under part 351, such as lack of work, shortage of
funds, insufficient personnel ceiling, reorganization, or the exercise
of reemployment or restoration rights. The final rule also does not
authorize agencies to use RIF procedures to accomplish a disciplinary,
retaliatory, discriminatory, or otherwise unlawful personnel action.
The final rule's revised merits standard directly addresses these
concerns. An appellant may obtain relief by proving that the agency
failed to comply with an applicable statute or OPM regulation governing
RIF actions under part 351 and that the failure prejudiced the
appellant by causing the appealed action or the loss of a materially
more favorable outcome. If an agency labels an action a RIF but fails
to satisfy the requirements of part 351, that issue falls within OPM's
RIF-compliance review.
The final rule's agency-record requirements also reduce the risk of
rubber-stamp review. The agency must produce documents supporting the
reason for the RIF; documents establishing the appellant's coverage,
position, appointment, tenure subgroup, veterans' preference status,
service computation date, competitive area, and competitive level;
retention registers; order-of-release records; assignment-rights
records; and records concerning special circumstances such as
abolishment of an entire competitive area, transfer of function,
exclusion from RIF competition, or restoration protection. These
requirements give OPM and the appellant a concrete record against which
to test the agency's compliance with part 351.
OPM also notes that collateral protections remain available.
Allegations of discrimination, whistleblower reprisal, prohibited
personnel practices, veterans' rights violations, or other unlawful
conduct may be pursued in the forums Congress or applicable law has
designated, including EEOC, OSC, DOL VETS, Inspectors General, or MSPB
where it has independent jurisdiction. The final rule channels direct
RIF-compliance appeals to OPM; it does not immunize unlawful conduct.
Commenter 0370 expressed concern that an agency could rescind RIF
actions pending before MSPB and later reissue them after the final
rule's effective date to avoid MSPB review. OPM declines to adopt a
special rule prohibiting agencies from rescinding pending RIF actions
and later taking new RIF actions.
[[Page 49239]]
Agencies must be able to rescind, correct, and reissue personnel
actions where appropriate. Any new RIF action taken after the effective
date must comply with the statutes and regulations then in effect. If
an employee believes the new action is unlawful, pretextual,
discriminatory, retaliatory, or otherwise improper, the employee may
pursue the OPM RIF appeal and any collateral statutory remedies
preserved by the final rule.
Commenter 0370 also contended that the rule permits agencies to use
sham RIFs to evade MSPB review of removals. OPM disagrees. The rule
does not alter the basic distinction between a bona fide RIF and an
adverse action. A RIF remains a position-based action taken for reasons
recognized under part 351, such as lack of work, shortage of funds,
insufficient personnel ceiling, reorganization, or the exercise of
reemployment or restoration rights. An agency may not convert a
disciplinary or performance-based removal into a RIF merely by labeling
it as such. If an appellant contends that the agency failed to comply
with applicable RIF statutes or OPM regulations, including by using RIF
procedures where the action did not satisfy the requirements of part
351, OPM may consider that claim within the scope of the RIF appeal and
order corrective action. If the employee alleges that the agency acted
for discriminatory, retaliatory, or otherwise prohibited reasons, the
employee may also pursue any collateral statutory claims that are
within the jurisdiction of the EEOC, OSC, MSPB, an Inspector General,
or another authorized forum.
E. Procedural Protections in OPM Appeals
Several commenters urged OPM to provide RIF appellants with
procedures similar to those available to employees appealing adverse
actions before MSPB, including broader discovery and a hearing as of
right. OPM declines to adopt that approach. RIF appeals and chapter 75
adverse-action appeals involve materially different actions and
different issues. An adverse-action appeal generally concerns an agency
action directed at an individual employee for conduct or performance
reasons. A RIF action, by contrast, is a position-based workforce
action governed by part 351 and focused on whether the agency properly
applied the statutory and regulatory RIF requirements governing matters
such as coverage, competitive area, competitive level, retention
standing, order of release, assignment rights, and notice. Those issues
ordinarily can be resolved through the agency record, party
submissions, and targeted supplementation where necessary.
OPM has therefore determined that the final rule should not
replicate MSPB's adverse-action procedures. The final rule provides a
RIF-specific appeal process tailored to the issues presented in part
351 appeals. It requires the agency to produce the complete agency
record to OPM, requires service of the agency record on the appellant
subject only to legally required disclosure limitations, permits the
appellant to file a reply, authorizes OPM to require additional
information, and permits audits, investigations, or hearings when the
record requires further development. This structure balances the
employee's interest in meaningful review with the interests of
employees, agencies, and the Government in timely, efficient, and
accurate resolution of RIF appeals. The commenters' preference for
MSPB-style procedures does not establish that OPM is legally required
to apply MSPB's chapter 75 or part 1201 procedures to RIF appeals
adjudicated by OPM under part 351.
Commenters 0408, 0483, 0709, and 1119, among others, argued that
employees are entitled to a hearing in a RIF appeal as a matter of law.
OPM disagrees. The final rule does not bar hearings; it provides for
hearings when they are necessary and efficient to resolve the appeal.
Revised Sec. 351.905(c) expressly authorizes OPM to conduct a hearing
where the written record is insufficiently developed to determine one
or more facts material to the outcome of the appeal, or where a
disputed issue of witness credibility is material to the outcome. Thus,
the final rule addresses the concern that some appeals may present
material factual disputes requiring more than written submissions,
while avoiding the delay and expense of requiring a hearing in every
appeal regardless of whether one would assist the decisionmaker.
OPM also disagrees with commenters' suggestion that a hearing
should be required whenever a party characterizes a fact as disputed.
Not every factual disagreement is material, and not every material
issue requires live testimony. In many RIF appeals, the dispositive
questions will be resolved by applying part 351 to records the agency
is required to create and produce, including the RIF notice,
competitive-area and competitive-level documentation, retention
register, records supporting retention standing, order-of-release
materials, assignment-rights documentation, and records concerning any
special RIF circumstance. Requiring a hearing absent a particularized
need would impose unnecessary costs on appellants, agencies, witnesses,
representatives, and OPM, while delaying final resolution for employees
who need prompt certainty regarding their employment status and any
available remedy.
In the unusual case in which the written record is insufficient,
the final rule provides multiple tools for further development. OPM may
require either party to provide additional information, audit or
investigate an agency action when the existing record is insufficient
to resolve a material issue within OPM's jurisdiction and the audit or
investigation is reasonably likely to produce material information, and
conduct a hearing when necessary and efficient. Where OPM conducts an
audit or investigation, the final rule requires OPM to inform the
employee, the employee's representative, and the agency; provide them
with the results; and give them a reasonable opportunity to submit
arguments or additional information. These procedures provide
meaningful fact development without importing a full MSPB litigation
model into every RIF appeal.
Commenter 0113 supported placing the burden of proof on the
initiating party, noting that this approach is consistent with
administrative and civil litigation standards. OPM agrees. The
appellant is the party invoking OPM's appellate jurisdiction and
challenging the agency's RIF action, and it is appropriate for the
appellant to bear the burden of proving timely and proper filing, OPM
jurisdiction, a violation of an applicable statute or OPM regulation
governing RIF actions under part 351, and prejudice. At the same time,
the final rule does not leave the appellant without access to the
information needed to pursue the appeal. The agency must produce the
complete agency record to OPM and serve the appellant with the agency
record, subject only to applicable disclosure limitations. That
requirement ensures that the appellant's burden of proof operates
within a record-based process in which the relevant RIF documentation
is before OPM and available to the appellant to the extent permitted by
law.
Commenters 0370, 0386, 0928, 0962, 1089, 1092, 1099, 1165, 1217,
and 1252 raised numerous procedural concerns, including burden of
proof, access to records, discovery, hearings, written-record
adjudication, e-filing, reconsideration, Director review, protective
orders, and remedies. For example, Commenter 1089 asserted that the
documents necessary to challenge a RIF--including retention registers,
[[Page 49240]]
competitive-area definitions, scoring and ranking decisions, internal
planning documents, communications leading to the RIF, and records
showing how the agency applied OPM's rules--are generally in the
agency's possession. The commenter argued that it would be unfair to
require employees to prove RIF error while limiting access to the
records needed to test the agency's action. OPM has revised the final
regulatory text in several respects that address many of the procedural
concerns raised by commenters.
First, OPM revised the merits standard in Sec. 351.901(b). The
proposal required an appellant to prove that the employee would not
have suffered the same or another RIF action if the RIF had been
properly conducted. Commenters 1089, 1099, and 1165 argued that this
standard was too demanding and required employees to disprove
hypothetical RIF actions. OPM revised the final rule to require the
appellant to prove that the agency failed to comply with an applicable
statute or OPM regulation governing RIF actions under part 351 and that
the failure prejudiced the appellant by causing the appealed action or
the loss of a materially more favorable outcome. This revised
formulation focuses on prejudicial RIF-compliance error and avoids the
concern that the proposed standard could be read to require proof about
every possible alternative RIF.
Second, OPM revised Sec. 351.903(b) to specify the minimum
contents of the agency record in a RIF appeal. Commenters 1089, 1099,
and 1165 argued that appellants would bear the burden of proof while
the agency controlled most relevant evidence. The final rule requires
the agency response to include the agency record of the action, and the
regulation now identifies RIF-specific categories of documents that
must be included, as applicable. These include the appellant's specific
written RIF notice, any amended notice, proof of service or receipt,
and documents showing the effective date of the action; documents
supporting the reason for the RIF; documents establishing the
appellant's coverage, position, appointment, tenure group and subgroup,
veterans' preference status, service computation date, work schedule,
competitive area, competitive level, and status as a competing
employee; documents establishing the competitive area and competitive
level used for the RIF; the retention register applicable to the
appellant and related retention records affecting retention standing,
order of release, or assignment rights; documents showing application
of the order of release; documents concerning assignment rights;
documents concerning special RIF circumstances such as abolishment of
an entire competitive area, transfer of function, exclusion from RIF
competition, or restoration protection; and a certification that the
agency has produced the complete agency record.
This revision directly addresses Commenter 1089's concern that
employees may lack access to the information needed to evaluate a RIF
action. The final rule requires the agency to produce the complete
agency record to OPM and to serve the appellant with the agency record,
subject only to redaction or withholding necessary to comply with the
Privacy Act, applicable legal privileges, classified-information or
national-security requirements, OPM protective orders, or other legally
required disclosure limits. OPM also revised Sec. 351.903(d) and (e)
to make inspection of OPM's appellate record and service of documents
subject to those same legal limitations. These provisions are intended
to ensure that OPM adjudicates the appeal on the complete record while
protecting information that may not lawfully be disclosed in full to
the appellant or the public.
Third, OPM revised the appellant's reply right. Under final Sec.
351.903(c), an employee may file a reply within 15 calendar days of the
agency response. Although the reply generally may address only factual
and legal issues raised by the agency response, the final rule permits
the appellant to raise a new allegation of error when the basis rests
on information first disclosed in the agency response or when OPM
grants leave for good cause. This revision addresses the concern that
an appellant may not know the basis for a RIF-compliance challenge
until after receiving the agency's record and explanation.
Fourth, the final rule preserves fact development where needed.
Section 351.905(c) authorizes OPM to require either party to provide
additional information. OPM may audit or investigate an agency action
where the existing record is insufficient to resolve a material issue
within OPM's jurisdiction and the audit or investigation is reasonably
likely to produce material information. If OPM conducts an audit or
investigation, OPM must inform the employee, the employee's
representative, and the agency; provide them the results; and give them
a reasonable opportunity to submit arguments or additional information.
Fifth, the final rule permits hearings when necessary and
efficient. Commenters 0408, 0483, 0709, 1119, 0928, 1092, 1089, and
1217 argued that hearings should be available as of right or whenever
material facts are disputed. OPM disagrees that a hearing is required
in every case, but the final rule authorizes hearings where the written
record is insufficiently developed to determine material facts or where
witness credibility is material to the outcome. Commenter 0386
requested further definition of ``necessary and efficient''; OPM has
addressed that concern by defining the standard in the regulatory text
and declines to adopt an exhaustive list that could either require
unnecessary hearings or preclude useful ones.
Sixth, the final rule adds adjudicator-separation and ex parte
protections. Section 351.905(a) requires OPM adjudicators to be
insulated from officials who participated personally and substantially
in the challenged action or provided case-specific advice. It also
prohibits material ex parte communications concerning the merits and
requires any such communication to be summarized in the record with an
opportunity for party response, unless disclosure is prohibited by law.
The final rule also restricts assignment of adjudicators with specified
relationships to the appellant or the agency and permits OPM to assign
an administrative law judge when necessary. For appeals by OPM
employees, Sec. 351.905(b) requires ALJ adjudication and limits OPM's
ability to disturb the ALJ's initial decision.
Seventh, OPM narrowed and clarified the protective order provision.
Commenters 0928 and 1165 argued that the proposed protective-order
language was vague and could restrict protected speech. Final Sec.
351.906 now authorizes protective orders or cease-and-desist directives
to protect the integrity of the adjudicatory process and prevent
threats, intimidation, targeted harassment, improper witness contact,
disclosure of protected personal information, or misuse of nonpublic
information obtained through the appeal. The final rule further
provides that any protective order must be no broader than reasonably
necessary and must not restrict lawful communications protected by law.
Eighth, OPM retained reconsideration. Section 351.907 permits
either party to request reconsideration within 30 calendar days and
permits OPM to reopen and reconsider an initial decision on its own
initiative. Reconsideration may be granted for material factual error,
legal error affecting the outcome, new and material evidence or legal
argument unavailable
[[Page 49241]]
despite due diligence, or other good cause. OPM may require additional
argument or evidence and may take any action necessary for final
disposition.
OPM disagrees with Commenter 1089's assertion that reconsideration
is not meaningful under the final rule. Section 351.907 permits either
party to request reconsideration within 30 calendar days from issuance
of the initial decision and authorizes OPM to reopen and reconsider an
initial decision on its own initiative. The final rule identifies
several grounds for reconsideration, including erroneous findings of
material fact sufficient to warrant a different outcome, legal error
affecting the outcome, new and material evidence or legal argument that
was unavailable despite due diligence when the record closed, or other
good cause. OPM may require the parties to submit argument and evidence
and may take any other action necessary for final disposition of the
case.
F. Recruitment, Retention, and Workforce Concerns
Commenters 0962, 0976, 1089, 1092, 1099, and 1252 asserted that the
rule would harm recruitment and retention, reduce confidence in Federal
service, damage institutional knowledge, chill public servants, and
undermine agency missions or public services. Commenters argued that
Federal employees accept the obligations of public service in reliance
on a merit-based system with independent review, and that reducing
procedural protections could deter qualified individuals from joining
or remaining in Federal employment.
OPM considered these concerns but concludes that the final rule
will not undermine the merit system or Federal recruitment and
retention. The final rule preserves a meaningful administrative appeal
process for employees who are furloughed for more than 30 days,
separated, or demoted by a RIF action. It does not eliminate appeal
rights. It revises the forum and procedures for future RIF appeals and
establishes safeguards to ensure that OPM adjudicates those appeals on
a complete record.
OPM also concludes that timely resolution of RIF appeals benefits
employees as well as agencies. When an agency commits a prejudicial
error, faster adjudication allows corrective relief to be ordered
sooner, reducing uncertainty and potential back-pay exposure. When the
agency action is sustained, employees and agencies receive finality
sooner, allowing employees to make informed decisions about future
employment and allowing agencies to plan staffing and operations.
OPM further concludes that a consistent, record-based process
administered by the agency responsible for governmentwide RIF
regulations will support agency missions and reduce uncertainty. RIFs
may arise in response to budgetary, technological, mission, or
organizational changes. When they do, agencies and employees benefit
from clear rules, a complete record, prompt adjudication, and
consistent interpretation of part 351. All core merit-system
protections--including safeguards against retaliation and politicized
personnel decisions--remain intact under the final rule. OPM expects
the improved clarity and efficiency of the appeals process to
reinforce, not erode, employee trust.
OPM does not rely solely on agency efficiency. The final rule
balances efficiency with procedural protections, including detailed
agency-record requirements, employee replies, inspection of the
appellate record, additional information requests, audits,
investigations, hearings when necessary and efficient, written
decisions, reconsideration, and corrective relief. OPM therefore
concludes that the final rule supports, rather than undermines, the
effective and merit-based operation of the civil service.
Indeed, the final rule preserves protections against unlawful or
arbitrary layoffs that substantially exceed the baseline protections
generally available to private-sector workers. Federal employees
affected by a RIF remain protected by governmentwide retention rules,
notice requirements, assignment-right provisions where applicable, an
administrative appeal to OPM, production of the complete agency record,
an opportunity to reply, corrective relief where warranted, and
collateral statutory remedies in the appropriate forums.
In addition, employees separated or facing separation by RIF
receive priority consideration for continued Federal employment through
OPM's reemployment and career-transition regulations. The Reemployment
Priority List is a required agency placement program for competitive
service employees who will be or were separated by RIF, and agencies
must give RPL registrants placement priority for most competitive
service vacancies before hiring from outside their permanent
competitive service workforce. 5 CFR part 330, subpart B; 5 CFR
330.201. Eligible surplus or displaced employees may also receive CTAP
and ICTAP selection priority under 5 CFR part 330, subparts F and G.
These protections--objective retention criteria, notice, assignment
consideration, administrative review, record production, corrective
relief, and priority reemployment consideration--go well beyond the
ordinary Federal law baseline in the private sector, where WARN
generally provides advance notice only for covered plant closings and
mass layoffs and does not create a comparable Federal right to
retention standing, assignment rights, administrative appeal, or
priority reemployment. The streamlined OPM appeal process therefore
does not place Federal employees in a private-sector layoff regime; it
preserves a more protective civil-service framework while providing
faster finality. Faster adjudication benefits employees as well as
agencies: if the RIF action is unlawful, corrective relief can be
ordered sooner; if the action is sustained, the employee receives
prompt certainty for financial planning.
Commenters 0447, 0424, 0455, and others asserted that the rule
would contribute to disruptions in government services, including
emergency response, veterans' healthcare, national security, scientific
integrity, long-term projects, and foreign affairs. Commenters 0858,
0829, 1201, 1200, and others similarly argued that RIFs may reduce
workforce continuity, slow operations, diminish institutional
expertise, and impair agencies' ability to fulfill statutory missions.
OPM has considered these comments but concludes that they do not
warrant changes to the final rule. To the extent commenters challenge
whether agencies should conduct RIFs, how many employees agencies
should retain, or how agencies should balance mission needs, expertise,
staffing levels, and service delivery when restructuring, those issues
are outside the scope of this rulemaking. This rule governs the forum
and procedures for appeals after an agency has taken a covered RIF
action. It does not direct any agency to conduct a RIF, determine which
agency functions should be reduced or preserved, or substitute OPM's
judgment for the employing agency's determination of the positions,
skills, locations, or organizational structures needed to carry out its
mission.
Agencies remain responsible for managing their own workforces
consistent with applicable law. That responsibility includes
determining whether conditions exist that warrant a RIF, evaluating
mission needs, maintaining continuity of operations, and deciding how
to structure the workforce before and after a reduction. The final rule
does not alter those
[[Page 49242]]
responsibilities. Nor does it diminish the substantive requirements
that apply when an agency conducts a RIF, including requirements
governing coverage, competitive area, competitive level, retention
standing, order of release, assignment rights, notice, and other
protections under part 351.
To the extent commenters argue that a more efficient appeal process
may make agencies more willing to use RIF procedures where lawful and
appropriate, OPM does not view that as a defect in the rule. Congress
and OPM's regulations contemplate that agencies may need to conduct
RIFs in response to lack of work, shortage of funds, insufficient
personnel ceiling, reorganization, or the exercise of reemployment or
restoration rights. When those circumstances arise, agencies and
employees alike benefit from an appeal process that resolves RIF-
compliance disputes accurately and promptly. Prolonged uncertainty can
itself disrupt agency operations, delay corrective relief where an
error occurred, and leave affected employees without timely clarity as
to reinstatement, reemployment, or future career planning.
G. Judicial Review and CSRA Exclusivity
Many commenters, including but not limited to 0033, 0046, 0114,
0308, 0386, and others, criticized the proposed rule's foreclosure of
judicial review for RIF appeals adjudicated under the amended 5 CFR
part 351. Commenters 0033, 0908, and 1114 asserted that the APA
requires OPM to maintain judicial review of RIF appeals, while
Commenter 0343 argued that OPM barring judicial review would be an
ultra vires action. Commenters 0370, 0928, 1025, 1089, 1092, 1099, and
1165 argued that OPM cannot eliminate judicial review by regulation,
that judicial review is constitutionally required, that APA review
should remain available, and that Federal Circuit review of MSPB
decisions has long served as an important external check on RIF
adjudication.
OPM disagrees that the final rule eliminates judicial review that
Congress provided. The prior Federal Circuit review path for non-SES
RIF appeals depended on two things: OPM's regulation making RIF actions
appealable to MSPB and the statutory provisions governing judicial
review of MSPB decisions. Once OPM revises its regulation and no longer
provides MSPB as the forum for non-SES RIF appeals, the MSPB-to-
Federal-Circuit review path no longer applies.
Congress did not provide a separate statutory judicial-review route
for non-SES RIF appeals under 5 U.S.C. 3502. The CSRA and related title
5 provisions establish a comprehensive remedial scheme for Federal
personnel matters, ``prescrib[ing] in great detail the protections and
remedies applicable to such action[s], including the availability of
judicial review.'' Fausto, 484 U.S. at 443; see also Margolin v. Nat'l
Ass'n of Immigr. Judges, No. 25-767, slip op. at 1-3 (U.S. May 26,
2026) (Thomas, J., concurring). Where Congress provides review, it does
so expressly. Where Congress does not provide a judicial-review route
for a particular personnel matter, employees may not use the APA to
create an alternative route for challenging that personnel action. See
Filebark v. U.S. Dep't of Transp., 555 F.3d 1009 (D.C. Cir. 2009),
cert. denied, 558 U.S. 1007 (2009); Fornaro v. James, 416 F.3d 63, 66-
67 (D.C. Cir. 2005); Graham v. Ashcroft, 358 F.3d 931, 933-35 (D.C.
Cir. 2004); Carducci v. Regan, 714 F.2d 171, 172 (D.C. Cir. 1983).
The CSRA prescribes in precise detail the types of actions that
result in eventual judicial review, and it does not provide for such
review of non-SES RIFs. 5 U.S.C. 3595(c). Under the CSRA, ``[t]he
reviewable agency actions are removal, suspension for more than 14
days, reduction in grade or pay, or furlough for 30 days or less.''
Elgin v. Dep't of the Treasury, 567 U.S. 1, 5-6 (2012). Courts have
repeatedly dismissed actions brought outside the proper CSRA channels
(such as under the APA) by individuals regarding their employment under
the comprehensive statutory scheme provided for in the CSRA. See, e.g.,
Bush v. Lucas, 462 U.S. 367, 368 (1983); Zummer v. Sallet, 37 F.4th 996
(5th Cir. 2022); Dotson v. Griesa, 398 F.3d 156, 163 (2d Cir. 2005).
What is given by the comprehensive statutory scheme in the way of
RIF procedures are codified at 5 U.S.C. 3501-3504. While those statutes
technically predate the CSRA's enactment in 1978, it has long been
recognized that the statutes and regulations regarding reductions-in-
force in the Federal Government are part of the ``comprehensive
employment scheme'' created by the CSRA.\21\ While RIF separations can
result in job loss or reassignment, they are specifically excluded as
adverse actions under Chapter 75 of Title 5, U.S. Code, which governs
removals and discipline for misconduct and, in some cases, performance
deficiencies. See 5 U.S.C. 7512(B) (``This subchapter . . . does not
apply to . . . a reduction in force action under [Sec. ] 3502 of this
title.'').
---------------------------------------------------------------------------
\21\ Filebark v. U.S. Dep't of Transp., 555 F.3d 1009, 1010
(Fed. Cir. 2009); see also Nat'l Treasury Emps. Union v. Vought, 149
F.4th 762, 774-75 (D.C. Cir. 2025) (applying CSRA claims-channeling
in a lawsuit challenging, inter alia, reductions in force); Nat'l
Treasury Emps. Union v. Trump, 770 F. Supp. 3d 1, 11 (D.D.C. 2025)
(same); Gober v. Collins, No. 25-cv-714 (RC), 2025 WL 1360434, at *6
(D.D.C. May 8, 2025) (same).
---------------------------------------------------------------------------
``A RIF is an administrative procedure by which agencies eliminate
jobs and account for employees who occupied abolished positions. It is
not an adverse action against a particular employee, but it is directed
solely at a position within an agency.'' Huber v. Merit Systems
Protection Bd., 793 F.2d 284, 286 (Fed. Cir. 1986). ``Unlike adverse
actions, RIFs are not aimed at removing particular individuals; rather
they are directed solely at positions.'' Grier v. Dep't of Health &
Human Servs., 750 F.2d 944, 945 (Fed. Cir. 1984). MSPB concurs, noting
the Board's authority ``is not plenary,'' but rather ``the scope of the
Board's jurisdiction to review an agency's RIF actions [are] under
OPM's regulations at 5 CFR part 351,'' which do not implement Chapter
75. Adams v. Dep't of Defense, 96 M.S.P.R. 325, 329 (2004).
The final rule therefore provides that a party cannot obtain
judicial review of a decision under part 351. That provision governs
decisions issued under the regulatory RIF appeal process established by
this rule. It does not displace collateral statutory claims that
Congress has assigned to other forums or that carry their own review
provisions. Final Sec. 351.901(c) expressly preserves matters within
the jurisdiction of the EEOC, Inspectors General, MSPB where it has
independent jurisdiction, DOL VETS, and OSC.
OPM also disagrees that due process requires Article III review of
every RIF appeal. A RIF is a position-based workforce action governed
by part 351, not a disciplinary or performance-based adverse action
under chapter 75. The final rule preserves notice, a written appeal,
production of the agency record, service on the appellant subject only
to legally required disclosure limits, a reply, inspection of OPM's
appellate record, additional fact development where warranted, hearings
when necessary and efficient, written decisions, reconsideration, and
corrective relief. OPM concludes that these procedures provide
meaningful administrative review for the regulatory RIF appeal right
established under part 351.
Commenters 0033 and 0846 argue that Congress has not spoken clearly
on judicial review of RIF appeals. OPM disagrees. The statutory scheme
speaks through both text and structure.
[[Page 49243]]
Congress expressly excluded ``a reduction-in-force action under section
3502'' from the chapter 75 adverse-action provisions, 5 U.S.C. 7512(B),
and the chapter 75 MSPB appeal right applies only to actions covered by
that subchapter. See 5 U.S.C. 7513(d). Chapter 77 likewise does not
independently create a statutory RIF appeal right; it provides
procedures for matters otherwise ``appealable to the Board under any
law, rule, or regulation.'' 5 U.S.C. 7701(a). Judicial review under 5
U.S.C. 7703(a)(1), in turn, attaches to a ``final order or decision''
of MSPB. Once OPM withdraws the regulatory delegation that made non-SES
RIF actions appealable to MSPB, there is no MSPB decision for judicial
review under section 7703. Commenters identify no provision in 5 U.S.C.
3501 through 3504, chapter 75, chapter 77, or any other Federal
employment statute that creates judicial review for non-SES RIF appeals
under section 3502. The omission is significant. As the Supreme Court
explained in Fausto, Congress's failure to provide review in the CSRA
is not a statutory accident but reflects ``a considered congressional
judgment.'' 484 U.S. at 448. Congress also demonstrated that it knows
how to provide MSPB review of RIF-related actions when it chooses to do
so, as it did for certain SES RIF actions. See 5 U.S.C. 3595(c). It did
not enact comparable language for non-SES RIF actions under section
3502. This omission is significant. It is a basic canon of statutory
construction that if ``Congress includes particular language in one
section of a statute but omits it in another section of the same Act,
it is generally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion.'' \22\
---------------------------------------------------------------------------
\22\ INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987).
---------------------------------------------------------------------------
Commenter 0343 argued that OPM cannot preclude judicial review by
regulation. The final rule does not withdraw judicial review that
Congress provided; it reflects the review scheme Congress enacted. The
prior route to Federal Circuit review existed only because OPM's
regulation made non-SES RIF actions appealable to MSPB, and section
7703 then provided review of final MSPB decisions. OPM may revise that
regulatory delegation through notice-and-comment rulemaking. Nor does
the APA supply an independent route around the CSRA. The APA does not
apply where ``statutes preclude judicial review,'' 5 U.S.C. 701(a)(1),
and courts have repeatedly held that the CSRA is the exclusive remedial
scheme for Federal personnel disputes, even where the CSRA provides
limited or no relief.\23\ Accordingly, there is no statutory basis for
extending judicial review to OPM decisions in non-SES RIF appeals under
part 351. OPM's regulations stating that judicial review of RIF actions
is unavailable informs the public of the operative legal parameters.
Judicial review would be equally unavailable if the final rule said
nothing on the subject.
---------------------------------------------------------------------------
\23\ See Elgin v. Dep't of Treasury, 567 U.S. 1, 11-12 (2012);
Grosdidier v. Chair. of Broad. Bd. of Governors, 560 F.3d 495, 497
(D.C. Cir. 2009); Filebark v. Dep't of Transp., 555 F.3d 1009, 1010
(D.C. Cir. 2009); Graham v. Ashcroft, 358 F.3d 931, 935 (D.C. Cir.
2004); Fornaro v. James, 416 F.3d 63, 67 (D.C. Cir. 2005).
---------------------------------------------------------------------------
H. Scope of RIF Appeals and Collateral Claims
Commenters 0370, 0928, 0962, 1025, 1089, 1092, 1099, 1165, and 1217
raised concerns about the scope of OPM review and the preservation of
collateral claims. Commenters argued that the proposal could weaken
civil-rights enforcement, eliminate mixed-case processing, prevent
employees from raising pretext or retaliation, or force employees into
multiple forums. Commenters 0046, 0074, 0540, and 1252 contended that
the rule would eliminate the ability to appeal discrimination claims in
connection with RIFs entirely and allow agencies to RIF employees in
protected classes with impunity.
The final rule clarifies the scope of OPM's review. OPM will
adjudicate whether the agency failed to comply with an applicable
statute or OPM regulation governing RIF actions under part 351 and
whether that failure prejudiced the appellant. This includes RIF-
compliance issues such as coverage, competitive area, competitive
level, retention standing, order of release, assignment rights, notice,
special RIF circumstances, and related requirements.
At the same time, the final rule preserves collateral statutory
avenues. Final Sec. 351.901(c) states that the procedures in part 351
are the sole and exclusive means of appealing a RIF action, but do not
otherwise preclude an employee from filing a complaint, appeal, or
other matter within the jurisdiction of EEOC, an Inspector General,
MSPB, DOL VETS, or OSC. This provision reflects OPM's intent to channel
direct challenges to RIF compliance through OPM while preserving
matters Congress or applicable law has assigned to other forums.
OPM acknowledges that some claims previously could have been
combined with a RIF appeal before MSPB because OPM's regulation made
RIF actions appealable to MSPB. That prior combined forum was a
consequence of OPM's regulatory delegation to MSPB, not an independent
statutory requirement that OPM retain MSPB jurisdiction. The final rule
preserves the substantive availability of discrimination,
whistleblower, veterans' rights, prohibited-personnel-practice, and
Inspector General matters in the proper forums.
Commenter 0463 asserted that the exclusive RIF appeal procedure
could abrogate or supersede appeal rights available to preference
eligible veterans under 5 U.S.C. 3330a and 3330b. OPM disagrees. The
final rule's exclusivity provision governs direct appeals of RIF
actions under part 351; it does not displace independent statutory
causes of action that Congress assigned to other forums. Final Sec.
351.901(c) expressly preserves an employee's ability to file a
complaint, appeal, or other matter within the jurisdiction of, among
others, MSPB and the Department of Labor Veterans' Employment and
Training Service. That preservation language includes claims under the
Veterans Employment Opportunities Act. Under 5 U.S.C. 3330a, a
preference eligible who alleges that an agency violated the
individual's rights under a statute or regulation relating to veterans'
preference may file a complaint with the Secretary of Labor, and, if
the matter is not resolved, may appeal to MSPB under the procedures
Congress specified. 5 U.S.C. 3330a. Section 3330b separately provides
for judicial redress in district court in lieu of continuing the
administrative redress procedure after the statutory prerequisites are
met. 5 U.S.C. 3330b. Nothing in this final rule alters those statutory
rights, filing deadlines, forum assignments, or judicial-redress
provisions.
The final rule also reinforces, rather than weakens, the ability to
identify and address veterans' preference issues in a RIF appeal.
Section 351.903(b) requires the agency record to include documents
establishing the appellant's veterans' preference status and related
retention information, including records supporting veterans'
preference credit, tenure subgroup, service computation date, the
retention register, order of release, assignment rights, and any
special RIF circumstance relevant to the appellant. Thus, where the
issue is whether the agency complied with part 351's RIF requirements
as applied to a preference eligible, OPM will have the relevant RIF
record before it. Where the issue is an independent veterans'
preference claim under 5 U.S.C. 3330a
[[Page 49244]]
or 3330b, the final rule leaves that statutory route undisturbed.
Commenter 0074 similarly asserted that the revised RIF appeal
procedure would allow agencies to engage in pretextual terminations of
employees with disabilities in violation of the Rehabilitation Act of
1973. OPM disagrees. The final rule does not authorize agencies to use
RIF procedures as a pretext for disability discrimination or any other
unlawful personnel practice. Federal employees and applicants remain
protected by section 501 of the Rehabilitation Act, 29 U.S.C. 791, and
the remedies, procedures, and rights available under 29 U.S.C. 794a,
including the Federal-sector procedures incorporated from Title VII. In
addition, disability discrimination remains a prohibited personnel
practice under 5 U.S.C. 2302(b)(1)(D). The final rule expressly
preserves matters within the jurisdiction of the EEOC and OSC and
therefore does not redirect Rehabilitation Act claims into OPM's RIF
appeal process or limit the remedies available under those statutes.
I. Collective Bargaining, Grievance Arbitration, and CBAs
Commenters 0962, 1025, 1092, 0928, and 1217 objected to the
proposal's treatment of negotiated grievance procedures, arbitration,
and collective bargaining agreements. These commenters argued that the
Federal Service Labor-Management Relations Statute protects negotiated
grievance and arbitration procedures; that RIF matters are not among
the matters excluded from negotiated grievance procedures under 5
U.S.C. 7121(c); that questions of arbitrability should be resolved
through negotiated grievance procedures; and that OPM may not use a
governmentwide regulation to eliminate existing collective-bargaining
rights or union representation. Other commenters, including 0221, 0584,
0587, 0591, and 0621, asserted that the proposal would unlawfully
supersede existing CBAs, while commenters 0386 and 1004 requested a
clearer legal basis for OPM's position. Commenters 0049, 0092, 0483,
and others objected as a policy matter to any prospective limitation on
negotiated RIF appeal procedures.
OPM has considered these comments and has decided to finalize the
regulatory text as initially proposed, with some modifications. The
final Sec. 351.901(c) provides that the procedures in part 351 are the
``sole and exclusive means'' of appealing a RIF action, and matters
relating to such actions may not be raised under a negotiated grievance
procedure or contested through grievance arbitration, but employees are
not otherwise impeded from filing a complaint, appeal, or other matter
within the jurisdiction of the EEOC, an Inspector General, MSPB, DOL
VETS, or OSC.
OPM continues to conclude that a single governmentwide process for
direct RIF-compliance appeals is necessary to ensure uniform
interpretation and application of part 351. RIF appeals under part 351
involve governmentwide rules governing competitive areas, competitive
levels, retention standing, order of release, assignment rights,
notice, and related requirements. Allowing agencies to create or
bargain for parallel direct appeal mechanisms for the same RIF-
compliance claim would undermine the consistency, finality, and
efficiency the final rule is designed to achieve.
This conclusion is consistent with 5 U.S.C. 7117(a)(1). That
provision states that the duty to bargain extends only ``to the extent
not inconsistent with any Federal law or any governmentwide rule or
regulation,'' and, for matters that are the subject of a rule or
regulation, applies only where the rule or regulation is not
governmentwide. 5 U.S.C. 7117(a)(1). This final rule is a
governmentwide regulation: it applies across agencies to appeals of
covered RIF actions under part 351. To that end, it firmly and
completely limits the flexibility of agencies to provide processes not
contemplated by this rule, including grievance arbitration. See U.S.
Dep't of Treasury, I.R.S. v. FLRA, 996 F.2d 1246, 1250 (D.C. Cir. 1993)
(IRS) (5 U.S.C. 7117(a)(1) ``permits the government to pull a subject
out of the bargaining process by issuing a governmentwide rule that
creates a regime inconsistent with bargaining,'' including where a
regulation ``sets out an exclusive method of resolving any claims'').
Accordingly, agencies may not bargain for a claims-channeling process
that conflicts with the final rule's designation of part 351 as the
sole and exclusive means of directly appealing a RIF action.
OPM is not persuaded by commenters' argument that 5 U.S.C.
7121(a)(1) overrides this conclusion. Section 7121(a)(1) requires CBAs
to provide procedures for settlement of grievances, including questions
of arbitrability, and makes those procedures the exclusive
administrative procedures for grievances that fall within their
coverage. But that provision must be read together with section
7117(a)(1), which limits the duty to bargain where the matter is
inconsistent with Federal law or a governmentwide rule or regulation.
The broad definition of ``grievance'' in 5 U.S.C. 7103(a)(9) likewise
does not displace section 7117(a)(1). The fact that RIFs are not listed
in section 7121(c) does not mean parties may bargain for an alternative
direct RIF appeal procedure that conflicts with a governmentwide
regulation establishing a single appeal process.
The D.C. Circuit Court of Appeal's decision in IRS addressed
exactly this issue. The court held that a union proposal that would
permit grievances over contracting out was non-negotiable as it
conflicted with OMB Circular A-76, a government-wide rule that
prescribed the exclusive method for resolving disputes over contracting
decisions. The court thus held that Circular A-76 prohibited bargaining
over conflicting appeals processes. The final Sec. 351.901(c)
similarly prohibits creating an alternative RIF appeals process through
collective bargaining.
OPM also disagrees with Commenter 0962's assertion that section
7121(a)(1) has primacy over section 7117(a)(1). Sections 7103, 7117,
and 7121 are part of the same statutory scheme and must be read
together. Section 7121 establishes negotiated grievance procedures for
matters properly within a CBA's coverage; section 7117(a)(1) defines
the outer boundary of the bargaining obligation where Federal law or a
governmentwide regulation has occupied the field. Reading section 7121
to require negotiated grievance arbitration of direct RIF appeals
notwithstanding section 7117 would effectively nullify section
7117(a)(1) for any matter that could be characterized as a grievance.
In IRS the D.C. Circuit expressly rejected that statutory construction.
OPM accordingly declines to adopt that reading.
Nor is this final rule merely a restatement of management rights
under 5 U.S.C. 7106. Section 7106 preserves agency authority, subject
to subsection (b), to determine mission, budget, organization, number
of employees, internal security practices, and to lay off and retain
employees, while also preserving bargaining over procedures and
appropriate arrangements in appropriate circumstances. 5 U.S.C.
7106(a), (b). The final rule does not simply repeat those management
rights. It establishes a detailed governmentwide appellate process
governing who may appeal, the burden of proof, filing deadlines,
agency-record production, service, replies, inspection of the appellate
record, representation, adjudication, protective orders,
reconsideration, Director review, and finality.
[[Page 49245]]
For that reason, commenters' reliance on Office of Personnel
Management v. FLRA, 864 F.2d 165 (D.C. Cir. 1988), is misplaced. In
that case, the court addressed whether a governmentwide regulation that
merely restated management rights could displace bargaining
obligations. This rule does not merely restate a management right; it
creates a specific, comprehensive appeal procedure for covered RIF
actions. The final rule is therefore more closely aligned with the
principle that a governmentwide rule may establish an exclusive method
for resolving a particular category of claims, rather than simply
invoking management rights at a high level of generality.
OPM also considered comments invoking the general purposes of the
FSLMRS, including 5 U.S.C. 7101(a)(1), which recognizes that collective
bargaining safeguards the public interest, contributes to the effective
conduct of public business, and facilitates amicable dispute
resolution. OPM does not dispute those principles. But section 7101
must be read with the rest of chapter 71, including section 7117(a)(1),
and with section 7101(b)'s direction that chapter 71 be interpreted
consistently with the requirements of an effective and efficient
Government. Those provisions support, rather than preclude, a
governmentwide rule establishing one uniform process for direct RIF-
compliance appeals and prohibiting grievances over matters pertaining
to RIF appeals.
In addition to the benefits of maintaining a uniform process for
direct RIF-compliance appeals, OPM believes it is beneficial to
foreclose grievance arbitration in particular as a forum for
adjudicating RIF appeals. As OPM explained in the proposed rule, the
arbitrators who adjudicate Federal-sector grievances are private
contractors who typically do not have a background in agency operations
or Federal employment law. This makes them ill-suited to evaluate
potentially complex issues involved in arbitration appeals. OPM is
aware of multiple studies showing that, across multiple
administrations, the FLRA overturns arbitral awards at a high rate.\24\
The author of one of these studies, himself an arbitrator, concluded
that ``Federal sector arbitration is more complex than private sector
arbitration. The federal field is full of land mines in the form of
laws with which federal sector arbitrators may be less familiar.'' \25\
Foreclosing grievance arbitration ensures adjudication will be handled
by MSAC employees with specialized legal and subject matter expertise
who are less likely to make reversible errors.
---------------------------------------------------------------------------
\24\ See James Sherk, ``Federal Union Arbitrators Frequently
Misapply the Law,'' (Aug. 2, 2023), https://www.americafirstpolicy.com/issues/expert-insight-federal-union-arbitrators-frequently-misapply-the-law (finding that between 2019
and 2023 over 40 percent of arbitration awards were overturned or
remanded upon appeal); see also Helburn, B. (2019). The Trump FLRA:
Fair or foul (Helburn), at 6. https://cdn.govexec.com/media/gbc/docs/pdfs_edit/060619ew1.pdf (finding the FLRA set aside or remanded
arbitration awards 80, 50, and 43 percent of the time in a sampling
of cases arising under the Trump 45, Obama, and George W. Bush
Administrations, respectively).
\25\ Helburn at 10.
---------------------------------------------------------------------------
Additionally, under 5 U.S.C. 7122(a) arbitral awards concerning RIF
appeals are subject to FLRA review. This review can be protracted,
especially if the FLRA loses a quorum or the FLRA has a vacancy and the
remaining members deadlock.\26\ Authorizing grievance arbitration over
RIF actions would thus create a protracted second level of appeals that
would undermine the expeditious resolution of cases. OPM declines to
adopt this approach.
---------------------------------------------------------------------------
\26\ The FLRA has reported that in FY 2024 the average age of
pending (not decided) arbitration cases undergoing review was 307
days. See U.S. Federal Labor Relations Authority, Congressional
Budget Justification 2026, at 19. https://www.flra.gov/system/files/webfm/FLRA%20Agency-wide/Public%20Affairs/CBJ/FLRA%20FY26%20CBJ%20-%20Final.pdf.
---------------------------------------------------------------------------
OPM also clarifies that the final rule does not retroactively
invalidate existing CBAs or purport to adjudicate particular CBA
disputes in this rulemaking. To the extent commenters argued that the
proposal would automatically vitiate existing agreements mid-term, OPM
does not adopt that position in the final rule. Rather, when agreements
are renegotiated, this governmentwide rule will limit agencies' duty
and ability to bargain for provisions that create a direct RIF appeal
process inconsistent with part 351. Questions concerning the effect of
particular existing agreement provisions, negotiability disputes, or
unfair-labor-practice allegations remain matters for resolution under
chapter 71 by the appropriate forum.
OPM also disagrees that the final rule eliminates union
representation. Final Sec. 351.904(a) provides that an appellant may
select a representative of the appellant's choice to assist in
preparing and presenting an appeal, provided the appellant submits a
written designation of representative for the specific appeal. That
representative may be a union representative where otherwise
appropriate. Separate limitations on official time, duty status, and
reimbursement for Federal employee representatives are addressed in the
representation and official-time discussion.
OPM therefore declines to revise the final rule to permit
negotiated grievance arbitration to serve as an alternative direct
appeal mechanism for covered RIF actions under part 351. The final rule
establishes a uniform OPM process for direct RIF appeals while
preserving collateral statutory matters in the forums Congress or
applicable law has designated. This approach gives effect to both the
RIF appeal framework in part 351 and the limits on bargaining imposed
by 5 U.S.C. 7117(a)(1), while avoiding retroactive invalidation of
existing CBAs in this rulemaking.
J. Representation and Official Time
Commenters 0147, 0155, 0674, 1105, 0928, 1092, 1217, and others
objected to the rule's treatment of Federal employee representatives,
official time, and reimbursement. These commenters argued that unions
should be able to use official time to assist employees in preparing
and presenting RIF appeals; that 5 U.S.C. 7131(d) authorizes official
time for representational activity; and that limiting official time
would reduce employees' practical ability to obtain assistance.
Commenters 0161, 0166, 0199, 0204, 0270, 0346, and 0653 made similar
policy arguments that labor organizations should be able to use
official time in RIF appeals. Commenters 0166 and 0553 also objected to
OPM's authority to disallow a representative in specified
circumstances. Commenters 0199, 0200, 0243, 0466, and 0278 asserted
that restricting official time would impair meaningful exercise of
appeal rights, particularly for employees without independent
resources. Commenter 0928 argued that OPM had not adequately justified
the official-time restriction under the APA.
OPM disagrees that the final rule unlawfully eliminates
representation or prevents employees from obtaining assistance. Final
Sec. 351.904(a) expressly preserves an appellant's ability to select a
representative of the appellant's choice to assist in preparing and
presenting the appeal, provided the appellant submits a written
designation of representative for the specific appeal. That
representative may be a union representative, attorney, non-Federal
representative, or other representative where otherwise appropriate.
The final rule therefore does not deny employees representation; it
addresses when a Federal employee representative may perform
representational functions in a duty status and whether the employing
agency must subsidize that activity through official time or
reimbursement.
[[Page 49246]]
OPM also disagrees that 5 U.S.C. 7131(d) requires official time for
representation in an OPM RIF appeal under part 351. Section 7131(d)
authorizes official time in amounts the agency and exclusive
representative agree are reasonable, necessary, and in the public
interest for certain representational matters under chapter 71. The
direct RIF appeal established by this final rule is not a negotiated
grievance proceeding or other chapter 71 process; it is a
governmentwide appellate procedure under part 351 for determining
whether an agency failed to comply with an applicable RIF statute or
OPM regulation and whether that failure prejudiced the appellant. To
the extent commenters contend that official time for RIF appeals must
be bargainable, OPM concludes that this governmentwide rule establishes
the controlling procedure for such appeals and limits inconsistent
future bargaining obligations under 5 U.S.C. 7117(a)(1).\27\
---------------------------------------------------------------------------
\27\ See, e.g., Patent Office Professional Association and
United States Patent and Trademark Office, Alexandria, Virginia, 71
FLRA 1223, 1225 (2020) (there is a duty to bargain over official
time . . . [but] that duty to bargain is limited by Sec. 7117,
which provides that the duty to bargain in good faith only applies
to the extent a proposal is not inconsistent with any Federal law or
any Government-wide rule or regulation) (cleaned up).
---------------------------------------------------------------------------
OPM adopted Sec. 351.904(b) to prevent the RIF appeal process from
imposing additional duty-time and reimbursement burdens on agencies
during workforce restructuring. If a selected representative is a
Federal employee, the representative may not perform representational
functions while in a duty status, including while on official time
under 5 U.S.C. 7131, and may not claim agency reimbursement for
expenses incurred while performing that representational function. OPM
has determined that agencies should not be required to divert duty time
or agency funds to subsidize litigation against their own RIF actions,
except where otherwise required by law. This limitation is particularly
appropriate in a RIF context, where agencies may already be operating
under staffing, budgetary, or organizational constraints.
OPM is not persuaded that limiting official time makes the appeal
right illusory or meaningfully impairs representation. The final rule
preserves the right to a representative of choice; it does not require
an appellant to proceed alone. A Federal employee may serve as a
representative outside duty status, and appellants may also select non-
Federal representatives, attorneys, union representatives, or others
where otherwise appropriate. Moreover, the final rule is designed to
reduce the need for resource-intensive representation by requiring the
agency to produce the complete agency record to OPM, requiring service
of the agency record on the appellant subject only to legally required
disclosure limitations, permitting an appellant reply, allowing OPM to
require additional information, and authorizing audits, investigations,
or hearings when necessary and efficient. Those procedures provide
meaningful access to the information needed to challenge a RIF action
without requiring agencies to subsidize representational activity
through official time.
OPM also declines commenters' request to remove the representative-
disallowance provision. Final Sec. 351.904(c) does not authorize
arbitrary disallowance of representatives. It permits OPM or the
responsible agency to disallow a representative only when the
representative is an employee of the responsible agency or OPM and the
representational activity would cause a conflict of interest or
position. This limit is tailored to conflicts of interest or position.
It preserves orderly administration of the appeal process while
maintaining the appellant's general right to representation.
OPM further disagrees with Commenter 0928 that the official-time
provision is arbitrary and capricious. OPM has provided a reasoned
basis for the rule: reducing unnecessary costs, avoiding diversion of
duty time during workforce restructuring, maintaining agency
operations, and preventing agencies from being required to fund
representational activity in direct appeals challenging their own RIF
actions. OPM also balanced those interests against the employee's
interest in representation by preserving the right to designate a
representative and by strengthening the final rule's procedural
protections, including agency-record production, service, reply rights,
inspection of OPM's appellate record, and targeted fact-development
authority. OPM therefore concludes that Sec. 351.904 reasonably
balances employee representation interests with the Government's
interests in efficient adjudication, mission continuity, and
responsible use of agency resources.
K. Adequacy of the Comment Period
Commenters such as 0372, 1045, 0501, 1043, and others asserted the
comment period for this rule, which ran from February 10, 2026, to
March 12, 2026, was unlawfully short under the Administrative Procedure
Act (APA). Many commenters requested an extension of this period. In
support of this argument, commenters cited the APA's mandate that an
``opportunity to participate'' on proposed rules be provided following
a notice of proposed rulemaking; and E.O.s 12866 and 13563, which
specify that comment periods should ``generally'' be at least 60 days.
Respectfully, OPM rejects the argument that the comment period was
inadequate. The APA requires a meaningful opportunity to comment, and
OPM provided such an opportunity. Numerous courts have upheld a 30-day
comment period as sufficient to comply with the APA.\28\ With respect
to this rule, OPM received substantial comments from current and former
Federal employees, unions, organizations, Members of Congress, and
agencies, including detailed legal, procedural, economic, and policy
objections. The breadth and specificity of the comments demonstrate
that interested parties were able to engage meaningfully with the
proposal.
---------------------------------------------------------------------------
\28\ See Chamber of Com. of the U.S. v. SEC, 85 F.4th 760, 779
(5th Cir. 2023) (``the APA generally requires only a minimum thirty-
day comment period.''); Riverbend Farms, Inc. v. Madigan, 958 F.2d
1479, 1484 (9th Cir. 1992) (``Although the APA mandates no minimum
comment period, some window of time, usually thirty days or more, is
. . . allowed for interested parties to comment.''); Nat'l Lifeline
Ass'n v. FCC, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (``When
substantial rule changes are proposed, a 30-day comment period is
generally the shortest time period sufficient for interested persons
to meaningfully review a proposed rule and provide informed
comment.'').
---------------------------------------------------------------------------
Commenters' reliance on E.O. 12866 and E.O. 13563 is similarly
unpersuasive in this context. These orders only mandate that comment
periods should ``generally'' be at least 60 days. The policy rationale
for that mandate is to provide stakeholders with adequate opportunity
to meaningfully participate in the notice-and-comment process. That
rationale was fully satisfied here. OPM received 1,251 substantive
comments, offering perspectives on many aspects of the proposed rule,
as discussed herein. The volume and breadth of that participation is
itself evidence that the comment period was adequate to allow for
informed and meaningful engagement with the proposed rule.
Further, in the years since those orders were issued, comment
periods have not infrequently been shorter, often 30 or 45 days. This
is, in part, because agencies, working with the White House, have a
great deal of discretion in shortening the comment period based on the
facts of the situation. As courts have repeatedly held, ``executive
orders are not
[[Page 49247]]
judicially enforceable.'' \29\ That is, as a general matter, an
Executive Order (E.O.) or other White House guidance on the regulatory
process binds executive agencies only as a matter of the internal
management of the executive branch. Thus, several Federal courts have
specifically held that there is no legally enforceable requirement that
agencies comply with the requirements specified in E.O. 12866 and E.O.
13563.\30\
---------------------------------------------------------------------------
\29\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573
(D.C. Cir. 2025) (citing Marin Audubon Soc'y v. FAA, 121 F.4th 902,
913 (D.C. Cir. 2024)); see also Chen Zhou Chai v. Carroll, 48 F.3d
1331, 1338-39 (4th Cir. 1995) (holding that there is no private
right of action to enforce an executive order unless it was issued
pursuant to a statutory mandate or congressional delegation).
\30\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309,
1326-27 (11th Cir. 2021) (holding that E.O. 12,866 and E.O. 13,563
are not judicially enforceable); Miller v. Garland, 674 F. Supp. 3d
296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604, 2024 WL
4973474 (4th Cir. July 30, 2024) (holding that E.O. 12,866 is not
judicially enforceable).
---------------------------------------------------------------------------
Accordingly, the 30-day comment period provided by OPM was fully
consistent with the APA's requirements and well within the bounds of
established agency practice and legal precedent. OPM does not agree
with the assertion that the comment period was procedurally deficient.
Commenters 1099 and others argued that the 30-day comment period
was inadequate because OPM issued related rulemakings around the same
time. OPM disagrees that related rulemakings required a single
consolidated proceeding. The RIF appeals rule concerns the forum and
procedures for administrative review of RIF actions. Separate
rulemakings concerning substantive RIF procedures, performance
management, suitability, or probationary matters address distinct
regulatory provisions and distinct issues. Interested parties were free
to address interactions among the rules, and many did so.
L. Comments From Federal Agencies
Federal agency commenters (0351, 0352, 0418, 0434, and 0537)
supported the transfer of RIF appeals from MSPB to OPM. These
commenters stated that OPM, as the agency responsible for issuing and
interpreting the governing RIF regulations, is better positioned to
adjudicate RIF appeals efficiently, consistently, and in alignment with
the underlying regulatory framework. The agency commenters asserted
that centralizing adjudication within OPM would improve timeliness,
predictability, accountability, and consistency, while preserving
employee procedural protections and corrective remedies.
These commenters also stated that the current MSPB process can be
litigation-heavy, costly, and time intensive for agencies. Commenter
0352 stated that, although it had not recently handled suitability or
RIF appeals before MSPB, it had substantial experience defending other
MSPB appeals and that such proceedings require significant time from
legal representatives, supervisors, managers, and executives. Commenter
0352 further stated that MSPB proceedings may require an agency file,
discovery, depositions, evidentiary hearings, petitions for review, and
Federal Circuit litigation, and that the absence of summary judgment
and the application of technical standards can make the process
inefficient. Commenters 0418 and 0434 similarly stated that MSPB's
adversarial and multilayered process, including discovery, hearings,
and periods of delay associated with quorum lapses, can discourage
timely use of appropriate workforce-management tools and complicate
workforce planning, reorganization, and mission execution.
Commenters further stated that a streamlined OPM process would
reduce administrative burden and litigation aversion, allow agencies to
address lawful RIF and suitability actions more predictably, and reduce
the risk that appeals linger for years. Commenter 0351 asserted that
OPM's economic analysis may understate recurring cost savings because
it does not fully account for recent RIF activity, internal resources
devoted to MSPB litigation preparation, or potential future use of RIF,
transfer-of-function, and transfer-of-work procedures. Commenter 0351
also stated that prolonged adjudication can create uncertainty for
staffing, budget planning, and workforce reshaping, and may result in
significant remedial and back-pay consequences when final resolution is
delayed.
OPM agrees with these commenters that the final rule will improve
the efficiency, consistency, and timeliness of RIF appeal adjudication.
OPM also agrees that the current MSPB process can impose substantial
burdens on agencies and employees, including burdens associated with
discovery, hearing preparation, extended litigation timelines,
petitions for review, and uncertainty pending final resolution.
Although the experience of individual agencies varies, the supportive
comments provide practical confirmation that the existing process can
affect workforce planning, consume legal and management resources, and
complicate implementation of lawful RIF actions.
IV. Section-by-Section Analysis
In this section, OPM discusses the regulatory amendments to 5 CFR
chapter I, subchapter B, part 351, subpart I, governing appeals of and
corrective action with respect to RIFs.
A. Section 351.802--Content of Notice
OPM is revising Sec. 351.802(a)(6), which governs the information
an agency must include in a written notice to an employee affected by a
reduction in force. Current Sec. 351.802(a)(6) refers to the
employee's right to appeal to the Merit Systems Protection Board.
Because this final rule transfers adjudication of covered RIF appeals
from MSPB to OPM, revised Sec. 351.802(a)(6) replaces the MSPB
reference with a reference to OPM.
The revised provision requires an agency's RIF notice to inform the
employee, as applicable, of the employee's right to appeal to OPM. As
revised in this final rule, the notice must also state the time limit
for filing an appeal under Sec. 351.902(b) and identify the electronic
filing system, available on OPM's website, through which an appeal must
be filed. This requirement preserves the practical filing information
previously conveyed through the cross-reference to Sec. 1201.21 of
this title and forecloses any contention that a RIF notice failed to
apprise an employee of how and when to appeal. The provision is
conforming in nature and is intended to ensure that employees receive
accurate notice of the administrative appeal forum established by
revised subpart I. The revision does not eliminate any independently
applicable statutory notice requirement or any separately available
remedial process administered by another entity.
The proposed rule retained legacy language in Sec. 351.802(a)(6)
requiring agencies to comply with Sec. 1201.21 of this title, as
applicable. OPM is removing that cross-reference in the final rule.
Section 1201.21 is an MSPB notice provision that applies when an agency
issues a decision notice in a matter appealable to the Board. It
requires MSPB-specific information, including notice of the time limits
for appealing to the Board, the address of the appropriate Board
office, access to the Board's regulations, and access to the MSPB
appeal form. Because this final rule replaces MSPB with OPM as the
adjudicative forum for RIF appeals under part 351, retaining an
unqualified cross-reference to Sec. 1201.21 in the RIF notice
provision could create confusion about where an affected employee must
file a RIF appeal.
[[Page 49248]]
This deletion is conforming, clarifying, and nonsubstantive. It
does not eliminate any appeal right, shorten any filing period, alter
the information an agency must provide about the OPM RIF appeal right,
or affect any matter that remains independently appealable to MSPB.
Rather, it removes an obsolete MSPB-specific notice cross-reference
from a provision that now concerns OPM RIF appeals. To the extent an
employee has an independent statutory or regulatory right to proceed
before MSPB on a collateral matter, that right remains governed by the
statutes and regulations applicable to that matter consistent with
Sec. 351.901(c).
B. Section 351.807--Certification of Expected Separation
OPM is revising Sec. 351.807(e), which concerns agency
determinations of eligibility for certification of expected separation.
The prior provision referred to appeal to MSPB. Revised Sec.
351.807(e) removes that MSPB reference and states that an agency
determination of eligibility for certification may not be appealed.
This change is also conforming in nature. It aligns Sec.
351.807(e) with revised subpart I and clarifies that certification
determinations under Sec. 351.807 are not independently appealable
under part 351. Employees who are actually furloughed for more than 30
days, separated, or demoted by RIF action may pursue any appeal
available under revised Sec. 351.901.
C. Subpart I--Appeals
OPM is revising subpart I of part 351 in full. Revised subpart I
establishes the procedures governing appeals to OPM by employees who
are subject to covered RIF actions. The revised subpart identifies who
may appeal, the burden of proof, filing requirements, party
submissions, representation rules, adjudication procedures, remedies,
sanctions, reconsideration, Director review, and finality.
1. Section 351.901--Right To Appeal
Revised Sec. 351.901 establishes the right to appeal a covered
reduction-in-force action to OPM, identifies the appellant's burden of
proof, and defines the relationship between the OPM RIF appeal process
and other remedial forums.
Paragraph (a) provides that an employee who has been furloughed for
more than 30 days, separated, or demoted by a reduction-in-force action
taken under part 351 may appeal that action to OPM. This paragraph
identifies the covered actions that may be appealed under subpart I and
implements the rule's central procedural change: OPM, rather than MSPB,
will adjudicate appeals of covered RIF actions, subject to the
applicability provision described below.
Paragraph (b) establishes the employee's burden of proof. The
appellant must prove, by a preponderance of the evidence, that the
written appeal was timely and in the required form; that OPM has
jurisdiction over the appeal; that the agency failed to comply with an
applicable statute or OPM regulation governing reduction-in-force
actions under part 351; and that the failure prejudiced the appellant.
Paragraph (b)(4) defines the prejudice requirement. The appellant
must show that the agency's failure to comply with an applicable RIF
statute or OPM regulation caused the appellant to be subjected to the
appealed action or to lose a materially more favorable outcome under
part 351. This standard is intended to distinguish prejudicial errors
from technical or immaterial errors. OPM will not grant relief solely
because an agency committed a procedural or technical error if the
appellant would have been subject to the same action, or would not have
received a materially more favorable outcome, had the agency complied
with the applicable requirement. Conversely, prejudice may exist where
the violation affected the appellant's retention standing, order of
release, assignment rights, notice rights, or other RIF determination
in a way that materially affected the outcome of the RIF action as
applied to the appellant.
Paragraph (c)(1) provides that the procedures in part 351 are the
sole and exclusive means of appealing a RIF action covered by this
subpart. This provision is intended to avoid duplicative or overlapping
RIF appeal processes and to channel covered RIF appeals through the OPM
procedure established by this final rule. It also promotes consistent
application of OPM's governmentwide RIF regulations and avoids parallel
adjudication of the same RIF-compliance issues in multiple forums.
Paragraph (c)(2) provides that a reduction-in-force action taken
under part 351, and any matter relating to an appeal of such an action,
may not be raised under a negotiated grievance procedure or contested
through grievance arbitration. This provision forecloses negotiated
grievance procedures and grievance arbitration as alternative forums
for direct RIF-compliance challenges, for the reasons discussed in
Section III.I of this preamble.
At the same time, paragraph (c)(3) makes clear that the OPM RIF
appeal process does not displace matters within the independent
jurisdiction of other entities. Employees may continue to file
complaints, appeals, or other matters that fall within the independent
jurisdiction of the Equal Employment Opportunity Commission, an
Inspector General, MSPB, the Department of Labor Veterans' Employment
and Training Service, or the Office of Special Counsel. Thus, OPM will
adjudicate whether the RIF action complied with applicable RIF statutes
and OPM regulations, while collateral statutory claims remain available
in the forums Congress or applicable law has designated for those
claims.
Paragraph (c)(4) also provides that a party cannot obtain judicial
review of a decision under this subpart. OPM addresses comments
concerning judicial review and the CSRA remedial scheme in Section
III.G.
Consistent with the DATES section of this preamble, the appeal
process established by revised Sec. 351.901 and subpart I is available
for a reduction-in-force action for which the agency issued the
employee a specific RIF notice under Sec. 351.802 on or after the
effective date of the final rule under RIN 3206-AO86. An appeal of a
reduction-in-force action for which the agency issued that notice
before that date--including an appeal pending before the MSPB--
continues to be adjudicated by the MSPB under the procedures applicable
when the action was taken. This applicability provision is stated in
the preamble, and the final regulatory text accordingly does not
include a separate applicability note in Sec. 351.901.
2. Section 351.902--Procedures for Submitting Appeals
Revised Sec. 351.902 describes the procedures and timeline an
employee must adhere to when submitting an appeal.
Paragraph (a) requires a party, or the party's authorized
representative, to file an initial appeal or request for
reconsideration through the electronic filing system identified on
OPM's website. Unless a party demonstrates good cause and obtains
approval from OPM, OPM will not accept pleadings, evidence, or
documents submitted by electronic mail or postal mail. This requirement
is intended to promote consistent intake, reliable service, accurate
case tracking, and efficient adjudication.
Commenters 0066, 0272, 0296, 0299, 0304, and others, criticized the
requirement that employees use e-filing exclusively, absent a showing
of good
[[Page 49249]]
cause. OPM disagrees with these criticisms. The good cause requirement
permits nonelectronic filing methods for filers with a bona fide need
while furthering OPM's legitimate interest in maintaining a streamlined
case intake system that minimizes errors and delays. OPM notes that the
e-filing requirement for RIF appeals for which this rule provides is
consistent with the National Labor Relations Board's policy for
requiring parties to e-file documents absent justification to file in
paper format.\31\ Other agencies, including the FLRA and OSC, also have
adopted restrictions on electronic filing.\32\ OPM acknowledges
Commenter 0553's concern that the e-filing system described in the
proposed rule was not operational and available for public inspection
at the time the proposed rule was submitted for public comment.
However, OPM is confident that it will have an e-filing system in place
by this final rule's effective date.
---------------------------------------------------------------------------
\31\ 29 CFR 102.5(c) (providing that ``[u]nless otherwise
permitted under this section, all documents filed in cases before
the [National Labor Relations Board] must be filed electronically,''
and requiring paper filers to include ``a statement explaining why
the party does not have access to the means for filing
electronically or why filing electronically would impose an undue
burden'').
\32\ See, e.g., 5 CFR 2429.24 (``To file documents by personal
delivery, you must schedule an appointment at least one business day
in advance.''); Office of Special Counsel, File a Complaint,
available at https://www.osc.gov/file-complaint/ (last visited June
2, 2026) (requesting that parties submit documents electronically
because ``OSC is unable to process paper filings'').
---------------------------------------------------------------------------
Paragraph (b) establishes a 30-calendar-day deadline for filing an
appeal. An employee may submit an appeal within 30 calendar days from
the effective date of the RIF action. The appeal is timely if
electronically filed by 11:59 p.m. Eastern Time on the 30th calendar
day after the effective date of the action.
Paragraph (b)(1) explains how to compute the filing period. The
first day counted is the day after the effective date of the agency
action. If the last day for filing falls on a Saturday, Sunday, or
Federal holiday, the filing period extends to the first workday after
that date.
Paragraph (b)(2) provides that an untimely appeal will be dismissed
unless the employee demonstrates good cause for the untimely filing.
OPM will determine good cause in its sole discretion.
Paragraph (b)(3) adds a limited tolling rule for employees who
timely pursue collateral matters. The resolution of a matter within the
independent jurisdiction of another entity identified in Sec.
351.901(c)--for example, a prohibited-personnel-practice complaint that
results in correction of a performance rating--may materially alter an
employee's retention standing or other rights under part 351. Paragraph
(b)(3) therefore permits an employee who timely filed such a collateral
matter to file a RIF appeal within 30 calendar days after the final
decision on that matter, where that decision materially affects the
employee's retention standing, order of release, assignment rights, or
other rights under this part. This provision ensures that an employee
is not foreclosed from pursuing a meritorious RIF appeal solely because
the predicate for the appeal did not arise until the collateral matter
was resolved. For purposes of paragraph (b)(3), a decision on a
collateral matter is final when it is no longer subject to further
administrative review. OPM will determine, in its sole and exclusive
discretion, whether such a decision materially affects the employee's
rights under part 351.
Paragraph (c) establishes e-filing procedures. All parties and
representatives must register as instructed by OPM using a unique email
address. Registration as an e-filer constitutes consent to electronic
service of pleadings, evidence, notices, orders, decisions, and other
documents. Parties and representatives may not electronically file
documents or access case materials unless registered as e-filers.
The e-filing system will make OPM-issued documents and party-filed
documents available for viewing and downloading, with access limited to
the parties and their representatives in the relevant case. Parties and
representatives must follow OPM's filing instructions. OPM may strike a
document if an e-filer repeatedly fails to follow those instructions
after issuance of a show-cause order.
Paragraph (c) also requires e-filers to keep their contact
information current, notify OPM and other parties of changes in
address, telephone number, or email address by filing a pleading in
each pending case, and regularly monitor case activity in the e-filing
system. A party or representative may withdraw e-filing registration in
accordance with OPM's posted requirements. After OPM processes a proper
withdrawal, the person will no longer receive electronic service or
have electronic access to case records through the e-filing system. OPM
may continue processing the appeal or reconsideration request after
withdrawal, and withdrawal will not be considered good cause for
staying a case.
OPM may, in its sole and exclusive discretion, exempt a party or
representative from registering as an e-filer for good cause. A party
or representative seeking an exemption must promptly contact OPM as
instructed on OPM's website. OPM will not find good cause for failing
to timely file an appeal or seek reconsideration if the party or
representative failed to contact OPM to request an exemption before the
applicable deadline. Documents filed through OPM's e-filing system are
deemed received on the date of electronic submission.
3. Section 351.903--Form and Content of RIF Appeal and Agency Response
Revised Sec. 351.903 identifies the required contents of the
employee's appeal, the agency's response, the agency record, any
employee reply, inspection of OPM's appellate record, service
requirements, and treatment of untimely filings.
Paragraph (a) requires the employee's appeal to be in writing and
to state the basis for the appeal. The appeal must include the name,
address, and email address or telephone number of the appellant and, if
applicable, the appellant's representative. The employee must also
include any documentation supporting the appeal.
Paragraph (b) requires the agency to file its response within 30
calendar days after service of the initial appeal. The agency response
must identify the appellant and the agency whose action is being
appealed; identify the reduction-in-force action taken against the
appellant and state the reasons for the action; include all documents
contained in the agency record of the action; designate and be signed
by the authorized agency representative; and include any other
documents or responses requested by OPM.
Paragraph (b) also identifies the minimum contents of the agency
record for a RIF appeal. The agency record must include, at a minimum
and as applicable, the appellant's specific written RIF notice, any
amended notice, proof of service or receipt, and documents showing the
effective date of the action. The record must also include documents
supporting the agency's stated reason for the RIF, including whether
the action was based on lack of work, shortage of funds, insufficient
personnel ceiling, reorganization, or the exercise of reemployment or
restoration rights.
The agency record must include documents establishing the
appellant's coverage, position, appointment, tenure group and subgroup,
veterans' preference status, service computation
[[Page 49250]]
date, work schedule, competitive area, competitive level, and status as
a competing employee. It must also include documents establishing the
competitive area and competitive level used for the RIF, including any
required agency or OPM approval, written competitive-area
justification, organizational chart, position descriptions,
classification records, representative-rate determinations, and related
records.
In addition, the agency record must include the retention register
applicable to the appellant, if one was prepared, and related retention
records that affected the appellant's retention standing, order of
release, or assignment rights. These records include, as applicable,
records supporting performance credit, veterans' preference credit,
tenure subgroup, and service computation date. The record must also
include documents showing how the agency applied the order of release,
including any tie determination, correction of retention standing, and
mandatory or discretionary exception to the order of release.
Where assignment rights are at issue, the agency record must
include documents concerning the appellant's assignment rights,
including positions considered for assignment, qualification
determinations, job analysis or assessment materials, offers of
assignment, and any declination. Where a special RIF circumstance is
relevant to the appellant, the record must include documents concerning
that circumstance, including abolishment of an entire competitive area,
transfer of function, exclusion from RIF competition under Sec.
351.202(d), restoration protection, or another basis for modified
notice or treatment under part 351.
Finally, paragraph (b) requires a certification that the agency has
produced the complete agency record of the RIF action. The final rule
distinguishes between production to OPM and service on the appellant.
The agency must produce the complete agency record to OPM so that OPM
may adjudicate the appeal on the full record relevant to the action
under review. The agency must serve the appellant with the agency
record, except that the agency may redact or withhold information from
the copy served on the appellant to the extent necessary to comply with
the Privacy Act, applicable legal privileges, classified-information or
national-security requirements, protective orders issued by OPM, and
any other applicable limitation on disclosure required by law. This
distinction ensures that OPM receives the full record necessary to
decide the appeal while protecting information that may not lawfully be
disclosed in full to the appellant or the appellant's representative.
Paragraph (c) permits the employee to file a reply within 15
calendar days of the agency response. The reply may address only the
factual and legal issues raised by the agency response. The employee
may not raise new allegations of error in the reply unless the basis
for the new allegation rests on information first disclosed in the
agency response or unless OPM grants leave for good cause.
Paragraph (d) provides that the employee, the employee's
representative, and the agency may inspect OPM's appellate record on
request. Inspection is subject to the Privacy Act, classified-
information or national-security requirements, protective orders issued
by OPM, and any other applicable limitation required by law. This
limitation reflects that OPM's appellate record may include personnel
records, RIF records, performance information, veterans' preference
documentation, records concerning other employees, privileged material,
or other protected information.
Paragraph (e) establishes service requirements. The employee, the
employee's representative, and the agency must serve one another with
copies of information submitted to OPM in connection with the appeal,
subject to the disclosure limitations in paragraph (b). Service must
occur at the same time the information is submitted to OPM, and each
submission must be accompanied by a certificate of service stating how
and when service was made.
Paragraph (f) permits OPM to accept untimely filings upon a party's
showing of good cause. OPM will determine whether good cause exists in
its sole and exclusive discretion.
4. Section 351.904--Employee Representatives
Revised Sec. 351.904 governs representation in OPM RIF appeals.
Paragraph (a) provides that an appellant may select a
representative of the appellant's choice to assist in preparing and
presenting the appeal, provided the employee submits a written
designation of representative for the specific appeal. This provision
preserves an employee's ability to obtain representation while
requiring a clear written designation for the proceeding.
Paragraph (b) addresses representatives who are Federal employees.
If the selected representative is a Federal employee, the
representative may not perform representational functions while in a
duty status, including while on official time under 5 U.S.C. 7131. The
representative also may not claim agency reimbursement for expenses
incurred while performing the representational function. This provision
limits the use of agency time and resources in connection with RIF
appeals under this subpart.
Paragraph (c) authorizes OPM or the responsible agency to disallow
a representative in specified circumstances. OPM or the agency may
disallow the employee's choice of representative when the
representative is an employee of the responsible agency or OPM and the
representative's activities would cause a conflict of interest or
position. Because paragraph (b) prohibits a Federal employee
representative from performing representational functions while in a
duty status, the final rule does not adopt the proposed additional
grounds for disallowance based on the priority needs of the Government
or unreasonable costs to the Government.
5. Section 351.905--Adjudication of Appeals
Revised Sec. 351.905 establishes the procedures for adjudicating
RIF appeals.
Paragraph (a) governs appeals by employees of agencies other than
OPM. OPM will assign personnel to adjudicate those appeals. Assigned
OPM personnel must be insulated from officials who participated
personally and substantially in the challenged personnel action or
provided case-specific advice concerning that action. OPM adjudicators
may not consider material ex parte communications concerning the merits
of an appeal. If such a communication occurs, OPM will place a summary
of the communication in the record and provide the parties a reasonable
opportunity to respond, unless disclosure is prohibited by law.
Paragraph (a) also establishes assignment restrictions. No OPM
employee may be assigned to adjudicate an appeal if the employee has a
relationship with the appellant or, during the preceding two years, was
an employee of the agency that is a party to the appeal or was subject
to an action covered under part 351. When necessary, OPM may assign an
administrative law judge to preside over the adjudication of an appeal
by a non-OPM employee.
Paragraph (b) establishes a separate procedure for appeals by OPM
employees. OPM will assign an administrative law judge to adjudicate
[[Page 49251]]
an appeal by an OPM employee. The administrative law judge will issue
an initial decision. To insulate adjudication of OPM employees' appeals
from agency involvement, OPM will not disturb the initial decision in
those cases unless a party shows a harmful procedural irregularity
before the administrative law judge, a clear error of law, or a
material factual error that affected the outcome of the appeal.
Under this construction, the OPM Director would be proactively
exercising restraint in permitting decisions pertaining to OPM
employees to lie undisturbed, not delegating his authority to the ALJ.
In essence, the OPM Director is regulatorily tying his own hands but
can nevertheless choose to regulatorily untie them. This leaves the ALJ
as a properly supervised inferior officer, not a principal officer. See
United States v. Arthrex, Inc., 594 U.S. 1, 6 (2021) (holding that the
Appointments Clause provides that inferior officers may exercise
executive power provided they are directed and supervised by a
principal officer.).
Paragraph (b) defines ``harmful procedural irregularity'' as an
irregularity in the application of procedures likely to have caused the
administrative law judge to reach a conclusion different from the one
the judge would have reached in the absence or cure of the
irregularity. The assignment of an administrative law judge under
paragraphs (a) or (b) does not make 5 U.S.C. 554, 556, or 557
applicable to an appeal under part 351, except to the extent those
provisions are independently required by law or expressly incorporated
in the rule.
Paragraph (c) addresses ascertainment of facts. OPM may require
either party to provide additional information. OPM may also audit or
investigate an agency's action if OPM determines, in its sole
discretion, that the existing record is insufficient to resolve a
material issue within OPM's jurisdiction and that an audit or
investigation is reasonably likely to produce information material to
resolving that issue. A representative of either party may not
participate in an audit or investigation unless OPM specifically
requests that participation.
The review of an agency action will be based on the developed
written record unless OPM determines that a hearing is necessary and
efficient. Paragraph (c) defines ``necessary and efficient'' to mean
circumstances in which the written record is insufficiently developed
to determine one or more facts material to the outcome of the appeal,
or where there is a disputed issue of witness credibility that is
material to the outcome. If OPM conducts an investigation or audit, OPM
will inform the employee, the employee's representative, and the
agency, provide them the results, and give them a reasonable
opportunity to submit arguments or additional information supporting
their positions.
Paragraph (d) requires OPM to notify the employee, the employee's
representative, and the agency in writing of its decision.
Paragraph (e) addresses remedies. If the employee is the prevailing
party, OPM will order relief, including correction of the personnel
action and any back pay, interest, and reasonable attorney fees
consistent with subpart H of part 550 of this chapter. The employee is
not entitled to compensatory damages or other relief not authorized
under 5 U.S.C. 5596(b).
Paragraph (e) also provides that if the agency timely requests
reconsideration of an initial decision or OPM reopens and reconsiders
an initial decision, the agency must continue to provide the relief
ordered unless OPM issues an order staying that relief. OPM may not
order a stay that would deprive the employee of pay and benefits while
the initial decision is pending reconsideration.
6. Section 351.906--Sanctions and Protective Orders
Revised Sec. 351.906 authorizes OPM to issue protective orders and
cease-and-desist directives, and identifies available consequences for
noncompliance. OPM stated in the proposed rule that it believes that
MSPB procedures, while providing for protective orders, are inadequate
to protect Federal employees from threats and harassment.
Paragraph (a) permits OPM to issue a protective order or cease-and-
desist directive to protect the integrity of the adjudicatory process,
prevent threats, intimidation, targeted harassment, improper witness
contact, disclosure of protected personal information, or misuse of
nonpublic information obtained through the appeal. OPM may act sua
sponte or at the request of a party, either preemptively or at any
point in the appeal process.
A party requesting a protective order or cease-and-desist directive
must file the request through the prescribed e-filing procedures and
include a statement of reasons supporting the request, along with
relevant documentary evidence. Any protective order issued by OPM must
be no broader than reasonably necessary and must not restrict lawful
communications protected by law.
Commenters 0442, 0443, 0513, and 1119 objected to section
351.906(a) of the proposed rule, asserting the standards under which it
permitted OPM to issue cease-and-desist directives were overly broad
and vague such that it would chill employees from exercising their
First Amendment right to speak publicly about RIF adjudications.
OPM has considered these comments and is narrowing Sec. 351.906 in
the final rule. The final rule does not adopt the broad ``reasonably be
foreseen to lead to harassment'' formulation and does not authorize OPM
to bar use of any information related to an appeal for any purpose
whatsoever. Instead, OPM may issue a protective order or cease-and-
desist directive only to protect the integrity of the adjudicatory
process; prevent threats, intimidation, targeted harassment, improper
witness contact, disclosure of protected personal information; or
prevent misuse of nonpublic information obtained through the appeal.
The final rule also adds two limiting principles. Any protective order
must be no broader than reasonably necessary, and any such order must
not restrict lawful communications protected by law.
OPM declines to remove protective-order authority entirely. Because
OPM will adjudicate appeals under subpart I of part 351, it must have
reasonable procedural tools to protect witnesses, parties, protected
personal information, nonpublic appeal materials, and the integrity of
the adjudicatory record. OPM also retains authority to act sua sponte
or preemptively where necessary, because threats to the process,
improper witness contact, or disclosure of protected information may
arise before a party files a motion or before harm has fully occurred.
That authority is limited to matters connected to an appeal under
subpart I of part 351 and to the specific purposes identified in Sec.
351.906(a).
Paragraph (b) identifies consequences for failure to comply with an
OPM directive issued under paragraph (a). Except where prohibited by
law, OPM may draw inferences against the noncompliant party, prohibit
the noncompliant party from introducing evidence or additional evidence
or otherwise relying on the record, or eliminate from consideration an
appropriate part of the noncompliant party's filings or submissions.
OPM is additionally specifying in paragraph (c) that any sanction
issued under paragraph (b) must be proportionate, causally related to
the violation, and no broader than necessary to protect the
adjudicatory process.
[[Page 49252]]
7. Section 351.907--Reconsideration of an Initial Decision
Revised Sec. 351.907 establishes the process for reconsideration
of an initial decision.
Paragraph (a) authorizes OPM, in its sole discretion, to reopen and
reconsider an initial decision upon request of either party or on OPM's
own initiative. An employee, the employee's representative, or the
agency may request reconsideration within 30 calendar days from
issuance of the initial decision. The request must be filed in the same
manner as an initial appeal.
Paragraph (b) identifies the grounds on which OPM may grant
reconsideration. OPM may grant reconsideration if the initial decision
contains erroneous findings of material fact sufficient to warrant a
different outcome; if the initial decision is based on an erroneous
interpretation of statute or regulation or an erroneous application of
law to the facts; if new and material evidence or legal argument is
available that, despite the party's due diligence, was not available
when the record closed; or if OPM finds good cause to reconsider the
appeal.
When a party alleges legal error, the party must explain how the
error affected the outcome of the case. For new evidence, the relevant
question is whether the information contained in the documents, not
merely the documents themselves, was unavailable despite due diligence
when the record closed.
Paragraph (c) describes OPM's authority in a reopened or reviewed
case. OPM may issue a reopened and reconsidered decision that affirms,
reverses, modifies, vacates, or otherwise decides the case in whole or
in part. OPM may require the parties to submit argument and evidence,
take any other action necessary for final disposition of the case, and
issue an order with a date for compliance.
Paragraph (d) provides that there is no further right of
administrative appeal from the reopened and reconsidered decision.
8. Section 351.908--Review by the OPM Director
Section 351.908 reserves to the OPM Director the authority, in the
Director's discretion and sua sponte, to reopen and reconsider any
appeal in which OPM has issued a decision that has not yet become
final. Once a decision becomes final under Sec. 351.909, Sec. 351.908
does not provide a separate mechanism for reopening that decision.
Many commenters (including 0177, 0395, 0411, 0555, 1020, and
others) objected to providing the OPM Director with the authority to
reopen and reconsider decisions at his or her direction, sua sponte,
contending that it violated due process.
In response to comments expressing concern that Director review
could be too open-ended or could undermine the perceived neutrality of
OPM adjudication, OPM has revised Sec. 351.908 to identify
nonexclusive considerations that may inform the Director's decision to
reopen and reconsider a nonfinal RIF appeal decision. Under the final
rule, the Director may act on the Director's own initiative and only
before a decision becomes final under Sec. 351.909. In determining
whether to exercise that authority, the Director may consider, among
other things, whether the decision contains clear legal error, rests on
an erroneous finding of material fact, involves an issue of exceptional
importance, affects the governmentwide administration of civil service
laws, rules, regulations, or OPM policy, conflicts with another OPM
decision, or otherwise warrants Director review.
This revision responds to commenters who objected to Director
review as insufficiently cabined, while preserving final agency
supervision over important legal, factual, policy, consistency, and
governmentwide civil service issues. OPM has retained sua sponte
Director review because final agency oversight promotes decisional
consistency and accountability within OPM's adjudicatory process. The
revision does not create a separate right for parties to request
Director review; parties may seek reconsideration under Sec. 351.907.
If the Director reopens and reconsiders a decision under Sec. 351.908,
the Director may take any action available under Sec. 351.907(c). This
structure preserves meaningful principal-officer oversight while
clarifying that Director review will occur within the rule's record-
based adjudicatory framework, including the final rule's agency-record,
separation-of-functions, ex parte, reconsideration, and finality
provisions.
OPM declines to eliminate Director review entirely. Director review
serves both administrative and constitutional functions. As an
administrative matter, it ensures that OPM can correct material legal,
factual, or procedural errors before a decision becomes final; resolve
recurring or important questions of interpretation; and promote uniform
application of part 351 across agencies. That review function is
especially important in a governmentwide personnel system, where
inconsistent interpretations by subordinate adjudicators could produce
uneven appeal rights for similarly situated employees in different
agencies. Cf. 5 U.S.C. 1103(a)(1), (3), (5) (vesting the OPM Director
with responsibility for securing ``accuracy, uniformity, and justice''
in OPM's functions, directing and supervising OPM employees, and
executing, administering, and enforcing civil-service laws and
regulations).
Director review also reinforces the rule's consistency with the
Appointments Clause. The Constitution requires principal officers to be
appointed by the President with the advice and consent of the Senate,
while Congress may vest appointment of inferior officers in the
President alone, courts of law, or heads of departments. U.S. Const.
art. II, Sec. 2, cl. 2. The OPM Director is a presidentially
appointed, Senate-confirmed officer. 5 U.S.C. 1102(a). Under the
Supreme Court's Appointments Clause precedents, inferior officers must
remain subject to direction and supervision by a properly appointed
superior officer. Edmond v. United States, 520 U.S. 651, 663-65 (1997).
In the adjudicatory context, the Court has treated the availability of
review by a superior executive officer as a significant feature
distinguishing inferior officers from principal officers. Id. at 665.
That principle is particularly relevant where subordinate
adjudicators exercise significant authority under Federal law. The
Supreme Court has held that officials who occupy continuing offices and
exercise significant discretion in conducting adjudications may be
``Officers of the United States'' rather than mere employees. See
Freytag v. Comm'r, 501 U.S. 868, 881-82 (1991); Lucia v. SEC, 585 U.S.
237, 245-51 (2018). The rule preserves supervision by the Director, a
principal officer, before OPM's decision becomes final. Consistent with
Freytag, Lucia, and related precedents, the Director will appoint, or
ratify the appointments of, the OPM personnel assigned to adjudicate
appeals under this subpart, ensuring that any adjudicator who exercises
significant authority as an inferior officer has been properly
appointed.
The Supreme Court's decision in United States v. Arthrex, 594 U.S.
1, 22-23 (2021), confirms the importance of that structure. There, the
Court held that administrative patent judges could not constitutionally
issue unreviewable final decisions on behalf of the Executive Branch
while being appointed only as inferior officers. The constitutional
problem was not that subordinate adjudicators participated in deciding
cases; it was that their decisions were insulated from review by
[[Page 49253]]
a principal officer. Id. at 25-26. The Court's remedy was to permit
discretionary review by the Director of the Patent and Trademark
Office, explaining that the Director need not review every decision,
but must have authority to review decisions if he chooses. Id. at 27-
28.
The appeals process established in this rule follows that model.
OPM adjudicators may issue initial decisions, and OPM may reopen and
reconsider those decisions on party request or on its own initiative.
In addition, the Director may, in his or her discretion, reopen and
reconsider any appeal in which OPM has issued a decision that has not
yet become final, and a decision issued by the Director is the final
decision of OPM. This structure ensures that no subordinate adjudicator
has unreviewable authority to bind OPM or the Executive Branch in an
appeal under subpart I of part 351.
OPM does not agree that the possibility of Director review
establishes bias or a due-process violation. Agency heads commonly
retain final decisional authority within administrative adjudication
systems, and the mere availability of final agency review does not show
prejudgment, bad faith, or inability to decide a matter fairly.\33\ The
Director's review authority applies only before a decision becomes
final. It does not permit adjudication outside the regulatory
framework, and it does not eliminate the requirement that decisions be
based on the record and the governing standards in part 351. In
addition, OPM has revised Sec. 351.908 to identify nonexclusive
considerations that may inform the Director's decision to reopen and
reconsider a nonfinal RIF appeal decision, including whether the
decision contains clear legal error, rests on an erroneous finding of
material fact, involves an issue of exceptional importance, affects the
governmentwide administration of civil service laws, rules,
regulations, or OPM policy, conflicts with another OPM decision, or
otherwise warrants Director review.
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\33\ See Fogo de Chao (Holdings) Inc. v. U.S. Dep't of Homeland
Sec., 769 F.3d 1127, 1148-49 (D.C. Cir. 2014) (declining to find a
due process violation where plaintiff did not establish that the
individual agency decisionmaker ``ha[d] a closed mind'' and was
``impervious to evidence or argument''); Riggins v. Goodman, 572
F.3d 1101, 1115 (10th Cir. 2009) (denying claim of due process
violation absent evidence that administrative adjudicators had a
pecuniary interest in the case or personal animosity against a
party).
---------------------------------------------------------------------------
The final rule thus ensures that Director review occurs within a
structured adjudicatory process that includes record-based decision-
making, separation-of-functions protections, ex parte safeguards,
reconsideration, and public availability of final merits decisions.
Commenters did not identify specific evidence that the OPM Director
would prejudge individual RIF appeals or direct outcomes contrary to
the record. OPM therefore declines to eliminate Director review.
9. Section 351.909--Final Decision
Revised Sec. 351.909 explains when decisions issued under subpart
I become final and the effect of finality.
Paragraph (a) provides that an initial decision becomes OPM's final
decision 30 calendar days after issuance unless, before that time, a
party timely requests reopening and reconsideration under Sec. 351.907
or the Director reopens the decision under Sec. 351.908.
Paragraph (b) provides that a timely request for reconsideration
under Sec. 351.907 suspends finality. If OPM denies or dismisses the
request without reopening the initial decision, the initial decision
becomes OPM's final decision 30 calendar days after issuance of the
denial or dismissal, unless the Director reopens the initial decision
under Sec. 351.908 before that time. If OPM grants the request, the
reopened and reconsidered decision becomes OPM's final decision 30
calendar days after issuance unless the Director reopens that decision
under Sec. 351.908 before that time.
Paragraph (c) provides that an untimely request under Sec. 351.907
does not suspend or otherwise affect finality. If OPM accepts and
grants an untimely request for good cause, any resulting reopened and
reconsidered decision becomes final as provided in paragraph (b).
Paragraph d) provides that a decision by the Director under Sec.
351.908 that disposes of the appeal is OPM's final decision and is
effective upon issuance. If the Director remands the appeal or directs
further proceedings, any resulting decision becomes final under Sec.
351.909.
Paragraph (e) states that there is no further right of appeal of a
final decision of OPM. This provision works together with Sec.
351.901(c), which establishes the OPM process as the sole and exclusive
means of appealing covered RIF actions under part 351 and provides that
a party cannot obtain judicial review of a decision under this subpart.
As stated above, OPM is limiting judicial review of decisions
issued under this subpart to adhere to the CSRA's specific and well-
defined statutory scheme for judicial review and prevent unnecessarily
protracted litigation regarding RIFs. OPM recognizes the status quo
that RIF appeals are appealable to the MSPB and then, in turn, to the
Federal Circuit. 5 U.S.C. 7701, 7703(b). However, this pathway
currently exists because of an OPM regulation, not because the CSRA
itself specifically requires it. The detailed discussion above
regarding the structure of the CSRA supports both the legal and
prudential bases for limiting judicial review in accordance with the
comprehensive statutory scheme. OPM believes that there is little added
value from the review that an Article III court could provide relative
to OPM's adjudicatory venue.
Paragraph (f) requires OPM to maintain, subject to legal limits, a
publicly accessible website containing final decisions issued under
this subpart that address a party's claim on the merits. Those legal
limits include requirements protecting privacy, privileged information,
protected personnel information, law-enforcement-sensitive information,
and other information that may not lawfully be disclosed.
Final merits decisions that are not posted publicly because of such
legal limits must be made available upon request to the Federal
employee or former Federal employee involved in the proceeding, the
representative selected under Sec. 351.904, or a representative of the
Federal agency or office involved in the proceeding who has a need to
know.
V. Regulatory Analysis and Related Comments
A. Statement of Need
OPM is issuing this final rule to modernize the administrative
process for appealing a furlough of more than 30 days, separation, or
demotion by reduction-in-force action under part 351. OPM has
determined that the current RIF appeal process is more formal, costly,
and time-consuming than necessary to resolve the RIF-compliance issues
ordinarily presented in such appeals. This final rule streamlines the
appeal process, promotes more consistent application of OPM's
governmentwide RIF regulations, reduces unnecessary litigation burden,
and provides employees and agencies with more timely finality. The
final rule rests on several grounds: OPM's statutory responsibility for
part 351; the regulatory nature of MSPB's prior RIF jurisdiction; the
record-based nature of many RIF disputes; the cost and delay associated
with MSPB-style litigation, discovery, and hearing procedures; the
benefit of uniform interpretation of OPM's RIF regulations; and the
importance of timely finality for employees and agencies.
[[Page 49254]]
Many commenters, such as Commenters 0045, 0372, 0546, 0561, 0598,
and 1084, contended that the current and longstanding RIF appeal
procedures work properly and do not require revision. OPM disagrees.
The fact that a regulatory framework has existed for many years does
not preclude OPM from revising that framework when it concludes that a
different approach better serves the statutory objectives and the needs
of the civil service.
MSPB RIF appeals may involve discovery, hearing preparation,
evidentiary hearings, petitions for review, and subsequent judicial
review where MSPB jurisdiction exists. That process can impose
substantial costs on agencies and employees and can delay final
resolution. Delay is not merely an agency concern. If an agency
committed a prejudicial RIF error, an employee benefits from prompt
corrective relief. If the agency action is sustained, the employee
benefits from prompt certainty in pursuing reemployment opportunities
within the Federal Government, other Federal placement programs, or
non-Federal employment.
Under the prior regulatory framework, a RIF appeal filed with MSPB
could proceed through multiple adjudicative stages. First, the appeal
was assigned to an MSPB administrative judge, who possessed broad
authority to conduct the proceeding, including authority to rule on
discovery motions, issue subpoenas, receive evidence, order production
of evidence and witness appearances, hold prehearing conferences, grant
hearing requests, regulate hearings, and issue an initial decision. 5
CFR part 1201 also provides for discovery, including interrogatories,
depositions, requests for production, and requests for admission, as
well as motions to compel and subpoena procedures.
If a hearing is held, MSPB procedures contemplate hearing
scheduling, presentation of testimony and evidence, a hearing record or
transcript, and closure of the record after the hearing or after
written submissions if the hearing is waived. The administrative judge
then issues an initial decision containing findings of fact,
conclusions of law, reasons or bases for those findings, an order
disposing of the case, and notice of further review rights.
Second, after the administrative judge's initial decision, either
party may seek review by the full Board. The initial decision becomes
final after 35 days only if no petition for review is filed and no
other action prevents finality. If a party files a petition for review,
the Board may deny review, grant review, reopen the case, hear oral
argument, require briefs, remand for further testimony or evidence, or
take other action necessary for final disposition.
Third, after a final MSPB decision, a party may seek judicial
review. Under 5 U.S.C. 7703, an employee or applicant adversely
affected or aggrieved by a final MSPB order or decision may obtain
judicial review, generally by filing a petition in the U.S. Court of
Appeals for the Federal Circuit within 60 days, subject to specific
statutory rules for certain cases.
This multi-stage process may be appropriate for matters Congress
made appealable to MSPB under chapter 75 or other statutes. But OPM has
determined that it is not necessary or well-tailored for the regulatory
RIF appeal right under part 351. RIF appeals generally concern whether
the agency correctly applied governmentwide RIF requirements governing
coverage, competitive area, competitive level, retention standing,
order of release, assignment rights, notice, and related part 351
requirements. Those issues ordinarily can be resolved by reviewing the
agency's RIF record, supplemented when necessary by targeted requests
for information, audits, investigations, or hearings.
OPM also notes that RIF separations differ materially from chapter
75 removals and chapter 43 performance-based actions. A RIF is a
position-based workforce action, not an adverse action taken against an
employee for misconduct or unacceptable performance. See Huber v. MSPB,
793 F.2d 284, 286 (Fed. Cir. 1986); Grier v. Department of Health &
Human Services, 750 F.2d 944, 945 (Fed. Cir. 1984); Schall v. U.S.
Postal Service, 73 F.3d 341, 344 (Fed. Cir. 1996). Employees affected
by a RIF also receive protections not available to employees removed
for misconduct or unacceptable performance, including RIF notice
rights, assignment rights where applicable, priority reemployment
rights, and career-transition assistance. See 5 CFR 351.803(a); 5 CFR
part 351, subpart G; 5 CFR part 330, subparts B, F, and G.
Those differences support an appeal process tailored to RIF-
compliance issues rather than one modeled on adverse-action litigation.
A RIF appeal generally concerns whether the agency properly applied
governmentwide RIF requirements governing coverage, competitive area,
competitive level, retention standing, order of release, assignment
rights, notice, and related matters. Those issues are ordinarily
capable of resolution through the agency record, supplemented where
necessary by targeted requests for information, audits, investigations,
or hearings.
The final rule therefore replaces the MSPB's multi-stage litigation
model with a streamlined OPM process tailored to RIF-compliance issues.
Under the final rule, an employee who is furloughed for more than 30
days, separated, or demoted by a RIF action may file an appeal with
OPM. The appellant must show timely and proper filing, OPM
jurisdiction, a failure to comply with an applicable statute or OPM
regulation governing RIF actions under part 351, and that the failure
must have prejudiced the appellant by causing the appealed action or
the loss of a materially more favorable outcome.
The OPM process is designed to put the relevant RIF record before
the adjudicator promptly. This final rule also responds to the concern
that a streamlined process could deprive employees of meaningful
review. The agency must file a response within 30 calendar days after
service of the appeal and must produce the complete agency record to
OPM. The final rule specifies RIF-specific record categories, including
the RIF notice, effective-date materials, documents supporting the
reason for the RIF, coverage and appointment records, competitive-area
and competitive-level documentation, retention-register materials,
order-of-release records, assignment-rights records, special RIF-
circumstance records, and a certification that the complete agency
record has been produced. The agency must serve the appellant with the
agency record, subject only to legally required disclosure limitations.
The final rule also preserves meaningful fact development without
making discovery and hearings automatic in every case. The appellant
may file a reply after the agency response and may raise new
allegations based on information first disclosed in the agency response
or with OPM's leave for good cause. OPM may require additional
information, conduct an audit or investigation where the existing
record is insufficient to resolve a material issue within OPM's
jurisdiction, and hold a hearing when necessary and efficient,
including where the written record is insufficiently developed or a
material credibility dispute must be resolved.
Finally, the final rule replaces MSPB Board-level review and
Federal Circuit review with OPM reconsideration, limited Director
review before finality, and final OPM action. Either party may seek
reconsideration of an initial decision, and OPM may reopen and
reconsider an initial decision. The
[[Page 49255]]
Director may review a nonfinal decision on the Director's own
initiative before finality. Once the decision becomes final under Sec.
351.909, there is no further appeal of the OPM RIF decision under part
351. The rule separately preserves collateral matters within the
jurisdiction of EEOC, Inspectors General, MSPB where it has independent
jurisdiction, DOL VETS, and OSC.
OPM concludes that this structure better fits the nature of RIF
appeals. The MSPB process can involve administrative-judge proceedings,
discovery, hearings, petitions for review to the full Board, possible
remands or reopening, and subsequent judicial review. By contrast, the
final rule provides a single, record-focused OPM process that requires
the agency to produce the complete RIF record, gives the appellant an
opportunity to respond, permits targeted fact development where needed,
and provides corrective relief for prejudicial RIF error. This approach
reduces delay, cost, and uncertainty while preserving administrative
review of whether the agency complied with applicable RIF statutes and
OPM regulations.
OPM also considered historical and contemporary evidence concerning
the burden of the prior appeal process. For many years, agencies and
oversight bodies have expressed concern that Federal personnel appeal
procedures can become complex, costly, and time-consuming.\34\ Those
concerns remain relevant because RIF appeals often involve application
of detailed regulatory criteria to an established agency record. OPM
has determined that a record-focused OPM process, with additional
procedures available when necessary and efficient, better aligns the
appeal process with the issues presented in RIF cases.
---------------------------------------------------------------------------
\34\ Streamlining Federal Appeals Procedures: Hearings Before
the Subcomm. on Civ. Serv. of the H. Comm. on Gov't Reform &
Oversight, 104th Cong. (1995) (statement held Nov. 29, 1995).
---------------------------------------------------------------------------
Since OPM first delegated non-SES RIF appeals to MSPB by
regulation, the practical consequences of that delegation have changed
substantially. The delegation was not a statutory command; it was a
regulatory choice made under OPM's authority to prescribe regulations
governing the release of competing employees in a RIF. See 5 U.S.C.
3502. Congress did not make non-SES RIF actions appealable to MSPB by
statute, and Congress expressly excluded RIF actions under section 3502
from the chapter 75 adverse-action scheme. See 5 U.S.C. 7512(B). Thus,
the prior MSPB forum for non-SES RIF appeals existed because OPM's
regulations made those actions appealable to MSPB, not because Congress
required MSPB adjudication.
When OPM revised the RIF regulations in the 1980s, it attempted to
retain a record-focused model of review. OPM's rule provided that,
unless MSPB determined there were material factual disputes, ``the
review of the matter in the RIF appeal will be confined to the written
record.'' 51 FR 318, 319 (Jan. 3, 1986). The D.C. Circuit invalidated
that restriction in AFGE v. OPM, 821 F.2d 761, 768-69 (D.C. Cir. 1987),
holding that if OPM elected to use MSPB as the adjudicatory forum, OPM
could not control MSPB's adjudicatory procedures in the manner OPM had
attempted. The practical effect of AFGE v. OPM was that OPM could
continue delegating RIF appeals to MSPB, but could not require MSPB to
use the streamlined, written-record process OPM considered appropriate
for RIF appeals.
Commenters 0308 and 0386 recommended that OPM instead streamline
MSPB's procedures. OPM appreciates those recommendations and agrees
with the general premise that RIF appeals should be adjudicated through
more focused procedures. Indeed, several of the commenters' suggested
efficiencies are reflected in this final rule, including record-based
review, targeted fact development, hearings only when necessary and
efficient, and clearer filing and reconsideration procedures. But OPM
declines to adopt recommendations that would require OPM to dictate
MSPB procedure in contravention of AFGE v. OPM. The final rule instead
addresses the problem at its source by revising OPM's regulatory
delegation and establishing OPM procedures for the regulatory RIF
appeal right preserved in part 351.
The MSPB's processing time has been considerably delayed due to
exceedingly long backlogs. MSPB has recognized the problem its
recurring backlog of cases presents, as well as the cause: lack of
quorum because the Senate has not confirmed a sufficient number of
Board members. Between January 7, 2017, and March 3, 2022, and between
April 10 and October 27, 2025, MSPB lacked a quorum, which prevented it
from reviewing cases.\35\ In light of the Senate's failure to confirm
nominees to the MSPB in a timely way, a process over which OPM lacks
any meaningful control, prudent governance requires the executive to
minimize disruption in personnel operations caused by loss of a quorum
at MSPB. It is notable that MSPB too has mitigated, as far as
practicable, the effects of a future lack of quorum on delays. 89 FR
72957 (Sept. 9, 2024).
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\35\ U.S. Merit Sys. Prot. Bd., Frequently Asked Questions About
the Lack of Quorum Period and Restoration of the Full Board (Nov.
14, 2025), available at https://www.mspb.gov/FAQs%20Absence%20of%20Board%20Quorum%2011-14-25.pdf.
---------------------------------------------------------------------------
The risk of an additional backlog is also significant in light of
the significantly increased number of cases received in calendar year
2025.\36\ Not only is this frustrating for agencies that must be able
to efficiently and effectively manage their workforces, but so too for
employees. If an employee is subject to a RIF, the Federal Government
owes it to that individual to efficiently adjudicate his or her appeal
so that he or she may receive any remedies, if proper, or seek
alternative employment or reemployment elsewhere in the Federal
Government. Recent agency restructuring activity thus underscores the
importance of a clear and efficient RIF appeal process.
---------------------------------------------------------------------------
\36\ U.S. Merit Sys. Prot. Bd., Weekly Number of Cases Received
in the Regional and Field Offices Fiscal Year 2025 (Sept. 29, 2025),
available at https://www.mspb.gov/Recent%20ROFO%20Case%20Receipts.pdf.
---------------------------------------------------------------------------
OPM does not rely solely on MSPB quorum history or case backlogs.
Those circumstances reinforce OPM's conclusion that the regulatory RIF
appeal process should not depend on an external adjudicative forum
whose procedures and institutional availability OPM cannot control. But
the final rule rests on broader grounds: OPM's statutory and regulatory
responsibility for part 351; OPM's subject-matter expertise in RIF
administration; the record-based nature of many RIF disputes; the cost
and delay associated with default discovery, hearing, and multi-stage
review procedures; and the benefits of a single governmentwide process
tailored to RIF appeals.
Several commenters supported the proposed rule on these grounds.
Commenters 0351, 0352, 0418, 0434, and 0657 stated that MSPB
adjudication can be time-consuming, costly, and resource-intensive, and
that transferring RIF appeals to OPM would improve efficiency,
consistency, predictability, and finality. These commenters also stated
that lengthy appeals can consume legal, human-resources, management,
and operational resources; complicate workforce planning; and delay
corrective relief or final resolution. OPM agrees. A more streamlined
OPM process will benefit both employees and agencies by reducing
uncertainty, focusing adjudication on the RIF record and applicable
legal standards, and allowing RIF-compliance disputes to be resolved
more promptly.
[[Page 49256]]
Accordingly, OPM concludes that retaining the prior MSPB forum is
no longer the best regulatory approach. The final rule preserves an
administrative appeal for employees furloughed for more than 30 days,
separated, or demoted by a RIF action; requires a complete RIF-specific
agency record; provides reply and inspection rights; authorizes
additional fact development where warranted; permits hearings when
necessary and efficient; and provides corrective relief for prejudicial
violations of applicable RIF law or regulation. At the same time, the
rule avoids importing MSPB procedures that OPM cannot control and that
OPM has determined are not necessary in every RIF appeal.
In addition, OPM has long been responsible for prescribing,
interpreting, and overseeing governmentwide RIF regulations. The prior
framework divided responsibility between OPM, which issued and
interpreted the RIF rules, and MSPB, which adjudicated RIF appeals
under procedures outside OPM's control. OPM has determined that this
divided structure creates unnecessary fragmentation, and that
consolidating RIF appeal adjudication within OPM will reduce
fragmentation and improve accountability in the administration of part
351. As the Administrative Conference of the United States has
recognized, when agencies share closely related responsibilities for
different aspects of the same regulatory or management enterprise, that
arrangement can produce redundancy, inefficiency, gaps, and other
coordination problems.\37\ GAO has similarly recognized that reducing
fragmentation can improve the efficiency and effectiveness of
government operations.\38\ Those concerns are present here. Under the
prior framework, OPM prescribed and interpreted the governmentwide RIF
regulations, while MSPB adjudicated RIF appeals under procedures OPM
could not control. That divided structure created unnecessary
separation between the agency responsible for the substantive RIF rules
and the forum responsible for applying those rules in individual
appeals. OPM believes that centralizing RIF appeal adjudication within
OPM will allow the agency responsible for part 351 to apply its
specialized expertise directly, improve consistency in the
interpretation of OPM's RIF regulations, and reduce the procedural
complexity associated with the prior forum.
---------------------------------------------------------------------------
\37\ Admin. Conf. of the U.S., Improving Coordination of Related
Agency Responsibilities (June 15, 2012), available at https://www.acus.gov/document/improving-coordination-related-agency-responsibilities.
\38\ U.S. Gov't Accountability Off., Opportunities to Reduce
Fragmentation, Overlap, and Duplication and Achieve an Additional
One Hundred Billion Dollars or More in Future Financial Benefits,
GAO-25-107604 (May 13, 2025), available at https://www.gao.gov/assets/gao-25-107604.pdf.
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OPM is the agency Congress charged with prescribing regulations
governing the release of competing employees in a RIF. 5 U.S.C. 3502.
OPM also has governmentwide responsibility for administering civil-
service laws and regulations, promoting merit-system principles,
overseeing delegated personnel authorities, and ensuring agency
compliance with applicable personnel standards. See 5 U.S.C.
1103(a)(5), 1103(a)(7), 1103(c), 1104(b)(2), 1104(c). OPM implements
the RIF statutory framework through part 351, provides governmentwide
guidance to agencies on workforce reshaping and RIF administration, and
oversees compliance with merit-system requirements. Locating RIF appeal
adjudication within OPM therefore aligns interpretation, oversight, and
adjudication of the RIF regulations in the agency with the most direct
statutory and regulatory responsibility for those rules.
Accordingly, OPM concludes that this final rule is needed to
provide a more efficient, consistent, and cost-effective RIF appeal
process while preserving meaningful review for employees who allege
that a covered RIF action was conducted in violation of an applicable
statute or OPM regulation and that the violation prejudiced them.
Consolidating RIF appeals in OPM reduces fragmentation, leverages OPM's
statutory responsibility and subject-matter expertise, improves uniform
interpretation of part 351, and provides employees and agencies with a
clearer and more timely path to final resolution.
B. Regulatory Alternatives
OPM considered several alternatives before adopting the final rule.
First, OPM considered taking no action and retaining the existing
regulatory delegation of RIF appeals to MSPB. OPM rejected that
alternative. The current framework separates responsibility for the RIF
regulations from responsibility for adjudicating disputes under those
regulations. OPM prescribes and interprets the governmentwide RIF
rules, while MSPB adjudicates RIF appeals under procedures OPM cannot
control. OPM has determined that this divided structure produces
unnecessary fragmentation, delay, and cost, and does not best serve
employees, agencies, or the public. Retaining the status quo also would
not address the concerns that prompted this rulemaking, including the
burden of MSPB-style litigation, the need for more consistent
interpretation of part 351, and the need for a process better tailored
to the record-based issues ordinarily presented in RIF appeals.
Second, OPM considered eliminating administrative RIF appeals
entirely. Congress directed that a RIF notice include a description of
any appeal or other rights that ``may be available,'' 5 U.S.C.
3502(d)(2)(E), and OPM has discretion to determine the contours of any
regulatory RIF appeal procedure for non-SES employees. OPM declined to
eliminate administrative RIF appeals. Employees have long had an
administrative mechanism to challenge whether a RIF action was
conducted consistently with applicable statute and regulation.
Eliminating that mechanism would reduce adjudication costs, but it
would also remove an orderly process for correcting prejudicial errors
in the application of RIF requirements. OPM concluded that employees
should continue to have a direct administrative avenue to challenge
covered RIF actions, provided the process is structured to resolve RIF-
compliance issues efficiently and consistently.
Third, OPM considered delegating RIF appeal adjudication to
employing agencies. OPM rejected that alternative because it would
create greater risk of inconsistent results and diminished confidence
in the neutrality of the process. A decentralized agency-level appeal
system would require each agency conducting a RIF to adjudicate direct
challenges to its own RIF actions, which would heighten the very
impartiality concerns commenters raised. It would also undermine
governmentwide consistency in applying part 351 and reduce the
efficiency gains expected from a single OPM-administered process.
Fourth, OPM considered retaining MSPB as the forum while attempting
to impose OPM-designed streamlined procedures, including more limited
discovery, record-based review, and hearings only where necessary. OPM
rejected this alternative because it would not accomplish OPM's
objective. In AFGE v. OPM, 821 F.2d 761, 768-69 (D.C. Cir. 1987), the
D.C. Circuit explained that where OPM elects to use MSPB as the
adjudicative forum, OPM may not dictate MSPB's adjudicatory procedures
in the manner OPM had attempted. Thus, recommendations to streamline
MSPB procedures, including those advanced by Commenters 0308 and 0386,
cannot be implemented by OPM while leaving RIF appeals at MSPB. Several
of those procedural concepts are instead reflected in the
[[Page 49257]]
final OPM process, including written-record review, targeted fact
development, and hearings when necessary and efficient.
Fifth, OPM considered moving RIF appeals to OPM while retaining
MSPB-style procedures, including broader discovery and a hearing as of
right. OPM rejected that alternative because it would preserve many of
the features that make the current process costly, lengthy, and poorly
suited to many RIF appeals. The final rule is not merely a forum
change. Its purpose is to establish a RIF-specific process tailored to
the issues ordinarily presented in part 351 appeals: coverage,
competitive area, competitive level, retention standing, order of
release, assignment rights, notice, and related RIF-compliance
requirements. OPM concluded that written-record adjudication, supported
by a complete agency record and supplemented by additional procedures
when necessary and efficient, better balances fairness, accuracy,
speed, and administrative cost.
Sixth, OPM considered relying on negotiated grievance arbitration
or agency-specific appeal procedures as an alternative to a
governmentwide OPM appeal process. OPM rejected that approach for
direct RIF-compliance appeals. RIF appeals require uniform application
of governmentwide regulations, and allowing parallel direct appeal
mechanisms across agencies or bargaining units would undermine
consistency and finality. Arbitrators also lack the expertise necessary
to adjudicate RIF appeals effectively. At the same time, OPM revised
the final regulatory text to address comments concerning collateral
forums outside of collective bargaining and grievance arbitration.
Final Sec. 351.901(c) provides that the procedures in part 351 are the
sole and exclusive means of appealing a covered RIF action, bars
raising such actions and matters relating to their appeal under
negotiated grievance procedures or through grievance arbitration, and
preserves matters within the jurisdiction of the EEOC, Inspectors
General, MSPB where it has independent jurisdiction, DOL VETS, and OSC.
Seventh, OPM considered retaining MSPB review while seeking
increased MSPB staffing, specialized MSPB RIF tracks, expedited MSPB
procedures, or other MSPB case-management reforms. OPM rejected these
alternatives because they depend on institutional, budgetary, or
procedural choices outside OPM's control and would not resolve the
fundamental fragmentation created by locating adjudication outside the
agency responsible for part 351. Additional MSPB resources also would
not give OPM authority to require the RIF-specific process OPM has
determined is appropriate.
Commenters 0928, 1092, and 1099 argued that OPM failed to consider
less disruptive alternatives, including retaining MSPB review,
improving MSPB procedures, creating expedited MSPB tracks, preserving
grievance arbitration, or otherwise modifying the existing system. OPM
has considered those alternatives and disagrees that they would better
accomplish the goals of this rulemaking. Retaining MSPB would preserve
the divided structure OPM seeks to correct. Attempting to dictate MSPB
procedures would conflict with AFGE v. OPM. Mirroring MSPB procedures
at OPM would preserve unnecessary procedural burden. Agency-level
adjudication would reduce consistency and raise neutrality concerns.
Eliminating appeals entirely would go too far by removing a useful
mechanism for correcting prejudicial RIF errors.
OPM selected the final approach because it best balances fairness,
efficiency, consistency, and cost. The final rule preserves an
administrative appeal right for employees furloughed for more than 30
days, separated, or demoted by a RIF action; clarifies the appellant's
burden and prejudice standard; requires the agency to produce the
complete RIF-specific agency record to OPM; requires service of the
agency record on the appellant subject only to legally required
disclosure limits; permits an appellant reply; authorizes additional
information, audits, investigations, and hearings when necessary and
efficient; provides reconsideration and limited Director review before
finality; preserves collateral statutory forums; and authorizes
corrective relief where the appellant proves prejudicial RIF error.
Accordingly, OPM concludes that the selected alternative is
preferable to the status quo and to the other alternatives considered.
It preserves meaningful administrative review while reducing
fragmentation, aligning adjudication with OPM's governmentwide RIF
expertise, and establishing procedures better tailored to the nature of
RIF appeals.
C. Expected Impact
OPM expects the final rule to produce a more streamlined,
consistent, and administrable RIF appeal process. The rule does not
alter the substantive requirements agencies must follow when conducting
a RIF, nor does it authorize OPM to substitute its judgment for an
agency's workforce-management determinations. Rather, it changes the
forum and procedures for adjudicating whether an agency complied with
applicable statutes and OPM regulations governing RIF actions under
part 351 and whether any failure prejudiced the appellant.
The revised process is designed to match the issues ordinarily
presented in RIF appeals. RIF appeals typically turn on the application
of established statutory and regulatory criteria to an agency record,
including coverage, competitive area, competitive level, retention
standing, order of release, assignment rights, notice, and related part
351 requirements. These issues generally are well suited to record-
based adjudication, supplemented where necessary by targeted requests
for information, audits, investigations, or hearings when OPM
determines that such procedures are necessary and efficient.
OPM will administer this process through MSAC, an external-facing
OPM component with longstanding oversight and adjudicatory
responsibilities. MSAC already adjudicates Federal personnel matters,
including classification appeals, Fair Labor Standards Act claims,
compensation and leave claims, and declination-of-reasonable-offer
claims. RIF appeals are well suited to MSAC's institutional role
because they require application of OPM's governmentwide personnel
regulations to agency records and because MSAC is responsible for
evaluating agency compliance with civil service laws, merit system
principles, and related regulations.
The final rule also strengthens the record on which appeals will be
decided. The agency must produce the complete agency record to OPM and
must serve the appellant with the agency record, subject only to
legally required disclosure limitations. The required record includes,
as applicable, the RIF notice, effective-date documentation, records
supporting the reason for the RIF, coverage and appointment records,
competitive-area and competitive-level documentation, retention-
register materials, order-of-release records, assignment-rights
materials, special RIF-circumstance records, and a certification that
the complete agency record has been produced. These requirements will
allow OPM to adjudicate RIF appeals on a complete and reviewable record
while giving appellants meaningful access to the materials needed to
test whether the agency complied with part 351.
For employees, the final rule is expected to provide faster and
clearer resolution of RIF appeals while
[[Page 49258]]
preserving meaningful administrative review. An employee who is
furloughed for more than 30 days, separated, or demoted by a RIF action
may appeal to OPM. The employee may submit supporting documentation,
review the agency response, file a reply, inspect OPM's appellate
record subject to legal limits, and obtain corrective relief if the
employee proves a prejudicial violation of an applicable RIF statute or
OPM regulation. Faster resolution benefits employees whether the action
is corrected or sustained: if the agency committed a prejudicial error,
relief can be ordered sooner; if the action is upheld, the employee
receives earlier certainty for purposes of Federal reemployment, non-
Federal employment, financial planning, and career decisions.
For agencies, the final rule is expected to reduce litigation
burden, improve predictability, and promote finality. Under the prior
framework, RIF appeals could proceed through MSPB's multi-stage
process, including discovery, hearing preparation, evidentiary
hearings, petitions for review, and judicial review where available.
That process can require substantial participation by agency counsel,
human-resources staff, supervisors, managers, and witnesses. The OPM
process preserves the ability to develop the record where necessary but
avoids applying the same litigation model to every appeal regardless of
whether the issues can be resolved on the written record.
For OPM, the final rule consolidates interpretation, oversight, and
adjudication of part 351 within the agency charged with prescribing and
administering governmentwide RIF regulations. This alignment will
promote more consistent interpretation of OPM's RIF rules and reduce
the fragmentation created when one agency writes and interprets the
regulations while another adjudicates appeals under procedures outside
OPM's control. OPM expects that MSAC's existing adjudicatory
infrastructure and compliance experience will allow OPM to administer
RIF appeals efficiently while maintaining record-based decision making
and appropriate separation between policy and adjudicatory functions.
The final rule also includes safeguards designed to support fair
and consistent adjudication. OPM adjudicators must be insulated from
officials who participated personally and substantially in the
challenged personnel action or provided case-specific advice concerning
that action. OPM adjudicators may not consider material ex parte
communications concerning the merits of an appeal, and any such
communication must be summarized in the record with an opportunity for
the parties to respond unless disclosure is prohibited by law. OPM may
require additional information, conduct an audit or investigation when
the existing record is insufficient to resolve a material issue within
OPM's jurisdiction, and hold a hearing when necessary and efficient.
These safeguards allow OPM to achieve the efficiency benefits of
record-based review without eliminating tools needed to resolve
material factual or legal issues.
For MSPB, the rule will remove future part 351 RIF appeals from its
docket, except where MSPB has independent statutory jurisdiction over a
matter not displaced by this rule. That change will allow MSPB to focus
resources on matters Congress made appealable to MSPB by statute, while
OPM adjudicates the regulatory RIF appeal right established under part
351.
Overall, OPM expects the final rule to reduce delay, decrease
unnecessary litigation costs, improve consistency in the application of
part 351, and provide employees and agencies with more timely finality.
The rule preserves an administrative appeal mechanism, strengthens the
agency-record requirement, allows targeted fact development where
needed, and provides corrective relief for prejudicial RIF error. OPM
concludes that this structure better serves employees, agencies, and
the public than the prior fragmented process.
D. Costs
This final rule affects how a Federal employee may pursue an
administrative appeal of a furlough of more than 30 days, separation,
or demotion by reduction-in-force action under part 351. The final rule
transfers adjudication of covered RIF appeals from MSPB to OPM and
establishes a streamlined OPM process focused on the written agency
record, with targeted supplementation through additional information
requests, audits, investigations, or hearings when OPM determines that
such procedures are necessary and efficient.
OPM expects the final rule to result in net cost savings to the
Federal Government. Under the prior process, RIF appeals before MSPB
could involve party-conducted discovery, hearing preparation,
evidentiary hearings, petitions for review to the full Board, and,
where available, judicial review. The final rule replaces that
litigation model with an OPM process that requires the agency to
produce the complete agency record to OPM, requires service of that
record on the appellant subject only to legally required disclosure
limitations, permits an appellant reply, and allows OPM-directed fact
development where necessary. The detailed agency-record requirement
added in the final rule is not expected to impose substantial new
record-creation costs because the required materials are documents
agencies must generate, maintain, or rely upon in conducting a RIF,
including RIF notices, competitive-area and competitive-level records,
retention registers, order-of-release materials, assignment-rights
records, and related documentation. Rather than adding a separate
litigation burden, the requirement is intended to substitute a
complete, reviewable agency record for routine discovery.
1. Changes From the Proposed Analysis
The final analysis uses the same general methodology as the
proposed rule, but OPM has made several updates and corrections. First,
OPM updated labor rates from 2025 rates to 2026 rates because the final
rule will take effect after the proposed rule's publication. The
proposed rule used 2025 Washington, DC locality rates and estimated
first-year implementation costs using a loaded GS-14, step 5 hourly
rate of $154.76; the final analysis uses the 2026 GS-14, step 5 hourly
rate of $78.15 and a loaded hourly rate of $156.30.
Second, OPM retains the proposed rule's estimate of approximately
292 RIF appeals annually but clarifies that the estimate is based on
historical RIF appeal data from 1995 through the most recent available
data, excluding the anomalously high volume of RIF activity in 2025.
The proposed rule used the same 292-appeal annual estimate and
acknowledged recent elevated RIF activity as anomalous; the final
analysis makes that exclusion explicit and explains that including 2025
would likely overstate recurring annual appeal volume, while retaining
earlier periods of higher RIF activity avoids understating long-run
costs.
Third, OPM corrected several arithmetic issues in the proposed
estimates. Most significantly, the proposed rule stated that procedural
OPM appeals would cost about $2,085 per appeal but also stated that 219
such appeals would cost approximately $135,025 annually. Based on the
proposed rule's own stated staffing and hour assumptions, that annual
total should have been substantially higher.
[[Page 49259]]
The final analysis corrects that calculation using 2026 rates.
As a result of these updates and corrections, OPM no longer
estimates annual recurring savings of over $6.1 million, as stated in
the proposed rule. OPM now estimates annual recurring savings of
approximately $5.65 million. OPM concludes that this revised estimate
is more conservative and more accurate, while still demonstrating
substantial recurring savings from the final rule. The proposed rule
estimated annual status quo costs of more than $7.3 million and annual
OPM-process costs of just over $1.1 million; the final analysis
estimates annual status quo costs of approximately $7.51 million and
annual OPM-process costs of approximately $1.87 million.
2. One-Time Implementation Costs
OPM estimates that more than 80 Federal agencies, including MSPB
and EEOC, will incur one-time implementation costs to review the final
rule, update regulations, policies, and procedures, and train human
resources practitioners, managers, attorneys, adjudicators, and other
relevant personnel.
For purposes of this estimate, OPM assumes that the employees
performing this work will have an average salary equivalent to GS-14,
step 5, on the 2026 Washington, DC locality pay table, with an hourly
locality rate of $78.15. OPM assumes that the total dollar value of
labor, including wages, benefits, and overhead, equals 200 percent of
the wage rate, resulting in a loaded hourly labor cost of $156.30.
OPM estimates that implementation will require an average of 100
hours per affected agency. This results in a one-time cost of
approximately $15,630 per agency and approximately $1.25 million
governmentwide, assuming 80 affected agencies.
3. Recurring Costs and Savings
OPM estimates that approximately 292 employees will file RIF
appeals annually. This estimate is based on historical RIF appeal data
from 1995 through the most recent available data, excluding 2025. OPM
acknowledges comments asserting that recent RIF activity may indicate
higher future appeal volume. OPM declines to use 2025 as the recurring
baseline because RIFs are episodic and OPM does not have reason to
conclude that the 2025 volume will recur annually. OPM's estimate
retains earlier periods of higher RIF activity, which guards against
underestimating annual appeal volume, while excluding 2025, which
guards against overstating recurring costs.
4. Costs Under the Prior MSPB Process
OPM estimates that, under the prior process, each initial RIF
appeal before MSPB required 40 hours of administrative judge time at
the GS-14, step 5 level and 4 hours of paralegal time at the GS-11,
step 5 level. Using loaded hourly rates of $156.30 for the
administrative judge and $92.81 for the paralegal, OPM estimates an
MSPB initial-adjudication cost of approximately $6,623 per appeal. For
292 appeals annually, this results in approximately $1.93 million in
annual MSPB initial-adjudication costs.
OPM estimates that MSPB would receive petitions for review in
approximately 53 percent of RIF appeals, or approximately 155 petitions
annually. This estimate is based on MSPB annual report data for recent
years, excluding the anomalously high volume of RIF activity in 2025.
OPM estimates that each petition for review requires 4 hours each from
the MSPB Chairman and two Board Members, at the loaded Executive
Schedule Level IV hourly rate of $188.98, and 16 hours from one GS-15,
step 5 attorney, at a loaded hourly rate of $183.85. On that basis, OPM
estimates annual MSPB Board-review costs of approximately $807,000.
OPM also estimates agency litigation costs under the prior MSPB
process. For each initial appeal, OPM estimates 80 hours of GS-14, step
5 agency attorney time, 4 hours of GS-11, step 5 paralegal time, and 8
hours of GS-15, step 5 supervisory attorney time. Using loaded hourly
rates of $156.30, $92.81, and $183.85, respectively, OPM estimates
agency litigation costs of approximately $14,346 per initial appeal, or
approximately $4.19 million annually for 292 appeals.
For petitions for review, OPM estimates 24 hours of GS-14, step 5
agency attorney time per petition. At a loaded hourly rate of $156.30,
this equals approximately $3,751 per petition, or approximately
$581,000 annually for 155 petitions.
Accordingly, OPM estimates annual costs under the prior MSPB
process of approximately $7.51 million, consisting of MSPB initial-
adjudication costs, MSPB Board-review costs, agency initial-appeal
litigation costs, and agency petition-for-review litigation costs.
5. Costs Under the Final OPM Process
OPM estimates that approximately 219 of the 292 annual appeals will
be resolved on procedural grounds, including untimeliness or lack of
jurisdiction. OPM estimates that each such appeal will require 20 hours
of GS-11, step 5 paralegal time and 4 hours of GS-7, step 5 staff
assistant time. Using loaded hourly rates of $92.81 and $62.71,
respectively, OPM estimates a procedural-appeal cost of approximately
$2,107 per appeal, or approximately $461,000 annually for 219 appeals.
OPM estimates that approximately 73 appeals annually will be timely
and within OPM's jurisdiction and will require merits adjudication. OPM
estimates that each such appeal will require 20 hours of GS-13, step 5
adjudicator time and 1 hour of GS-11, step 5 paralegal time. Using
loaded hourly rates of approximately $132.28 and $92.81, respectively,
OPM estimates a merits-adjudication cost of approximately $2,738 per
appeal, or approximately $200,000 annually for 73 appeals.
OPM estimates that approximately 15 requests for reconsideration
will be filed annually. OPM estimates that each request will require 16
hours of GS-14, step 5 adjudicator time and 1 hour of GS-11, step 5
paralegal time. Using loaded hourly rates of $156.30 and $92.81,
respectively, OPM estimates a reconsideration cost of approximately
$2,594 per request, or approximately $39,000 annually.
OPM also estimates agency litigation costs under the OPM process.
OPM expects that approximately 128 appeals annually will require more
than negligible agency litigation resources. For those appeals, OPM
estimates 40 hours of GS-14, step 5 agency attorney time, 4 hours of
GS-11, step 5 paralegal time, and 8 hours of GS-15, step 5 supervisory
attorney time. Using loaded hourly rates of $156.30, $92.81, and
$183.85, respectively, OPM estimates agency initial-appeal litigation
costs of approximately $1.04 million annually.
For reconsideration requests, OPM estimates 24 hours of GS-14, step
5 agency attorney time for each of 15 requests. At a loaded hourly rate
of $156.30, this equals approximately $56,000 annually. OPM therefore
estimates total agency litigation costs under the OPM process of
approximately $1.09 million annually.
OPM also considered potential EEO-related costs. The final rule
does not limit an employee's ability to pursue discrimination claims
through the appropriate statutory process. OPM estimates that
approximately 1 percent of employees who otherwise would file a RIF
appeal may instead file an EEO complaint related to a RIF action,
resulting in approximately 3 complaints annually. OPM estimates that
each such complaint will require 125 hours of GS-
[[Page 49260]]
14, step 5 attorney time, at a loaded hourly rate of $156.30, plus
$5,000 in miscellaneous litigation costs. This results in approximately
$73,600 in annual EEO-related costs. This estimate uses the same 1
percent assumption as the proposal, updates the labor rate to 2026, and
corrects the arithmetic in the proposed estimate.
6. Summary of Recurring Annual Costs
------------------------------------------------------------------------
Prior MSPB Final OPM
Cost category process process
------------------------------------------------------------------------
MSPB/OPM initial procedural or merits $1,934,000 $661,000
adjudication...........................
MSPB Board review/OPM reconsideration... 807,000 39,000
Agency initial-appeal litigation........ 4,189,000 1,036,000
Agency petition/reconsideration 581,000 56,000
litigation.............................
EEO-related incremental costs........... .............. 74,000
-------------------------------
Total recurring annual cost......... 7,511,000 1,866,000
------------------------------------------------------------------------
OPM therefore estimates recurring annual savings of approximately
$5.65 million. In the first year after publication, those savings will
be offset by approximately $1.25 million in one-time implementation
costs, resulting in estimated first-year net savings of approximately
$4.40 million. In subsequent years, OPM expects the recurring savings
to continue without those one-time implementation costs.
7. Response to Cost-Related Comments
Commenter 0351 stated that OPM may have underestimated recurring
cost savings by relying on a historical average rather than recent RIF
activity. OPM appreciates the comment and agrees that higher appeal
volumes would increase the absolute value of savings from a streamlined
process. OPM nevertheless declines to use 2025 as the baseline for
recurring annual costs because OPM does not direct agencies to conduct
RIFs and does not have reason to conclude that the unusually high 2025
volume will recur annually. OPM's approach is conservative in that it
excludes the anomalous 2025 volume while retaining earlier periods of
comparatively higher RIF activity.
Several commenters, including Commenters 0235, 0332, 0336, 0548,
0877, 0908, and 1237, argued that OPM should include additional costs,
including possible litigation challenging the rule, costs of replacing
employees separated by RIF, workforce-disruption costs, or other
collateral consequences. OPM declines to include those costs in the
quantified estimate. Litigation challenging the final rule depends on
future decisions by third parties and courts and cannot be reliably
estimated. Replacement costs, workforce-planning costs, and other
operational costs generally arise from the underlying RIF action or
agency restructuring decision, not from the appeal forum established by
this rule. This rule governs the process for adjudicating RIF appeals
after an agency has taken a covered action; it does not direct agencies
to conduct RIFs or determine which positions agencies must abolish or
retain.
OPM also has not quantified several benefits that may result from
the final rule, including reduced back-pay exposure from faster
correction of prejudicial errors, reduced management and witness time,
reduced uncertainty for employees, faster finality for agencies, and
improved consistency in applying part 351. These benefits are real but
difficult to quantify with precision. Accordingly, OPM's quantified
estimate likely understates the full benefits of the final rule.
OPM concludes that the final rule will produce substantial
recurring savings while preserving meaningful administrative review.
The final rule requires a complete RIF-specific agency record, permits
an appellant reply, authorizes additional information, audits,
investigations, and hearings when necessary and efficient, and provides
corrective relief where the appellant proves a prejudicial violation of
an applicable RIF statute or OPM regulation. OPM therefore concludes
that the final rule's benefits justify its costs.
E. Benefits
In addition to the quantified cost savings discussed above, OPM
expects the final rule to produce substantial non-quantified benefits
for employees, agencies, and the Federal Government. These benefits
include faster resolution of RIF appeals, reduced uncertainty, more
consistent application of OPM's governmentwide RIF regulations, reduced
litigation burden, and more timely corrective relief where an agency
commits a prejudicial RIF error.
First, the final rule is expected to provide employees with faster
and clearer resolution of RIF appeals. A RIF action can significantly
affect an employee's employment, finances, career planning, benefits,
and ability to seek other employment. A prolonged appeal process can
leave an employee uncertain as to whether the action will be sustained,
corrected, or followed by reinstatement, back pay, priority
reemployment consideration, or other relief. A streamlined OPM process
benefits employees by providing a more prompt determination. If the
agency committed a prejudicial RIF error, the employee will receive
corrective relief sooner. If the agency action is sustained, the
employee receives earlier certainty for purposes of Federal
reemployment programs, non-Federal employment, financial planning, and
career decisions.
Second, the final rule is expected to benefit agencies by reducing
unnecessary litigation burden. Under the prior MSPB process, RIF
appeals could involve party-conducted discovery, motions practice,
hearing preparation, evidentiary hearings, petitions for review, and
additional review where available. Those procedures require substantial
time from agency counsel, human-resources staff, managers, supervisors,
and witnesses. The final rule replaces that default litigation model
with a record-focused process in which the agency must produce the
complete RIF-specific agency record, the appellant may reply, and OPM
may require additional information, conduct an audit or investigation,
or hold a hearing when necessary and efficient. This approach preserves
tools needed to resolve material disputes while avoiding routine use of
costly procedures in cases that can be resolved on the written record.
Third, faster adjudication can reduce remedial costs where an
employee prevails. Delayed resolution may increase potential back pay,
interest, and attorney-fee exposure if a RIF action is later found to
have violated applicable statute or OPM regulation in a way that
prejudiced the appellant. A more prompt administrative decision can
limit the period of uncertainty and
[[Page 49261]]
reduce the accumulation of remedial costs. This benefit serves both
employees and agencies: employees receive relief sooner where relief is
warranted, and agencies receive earlier notice of any corrective action
required.
Fourth, OPM expects the final rule to promote greater consistency
in RIF appeal outcomes. OPM is the agency responsible for prescribing
and administering governmentwide RIF regulations under part 351. RIF
appeals generally require application of those regulations to an agency
record concerning coverage, competitive area, competitive level,
retention standing, order of release, assignment rights, notice, and
related requirements. Assigning appeals to OPM will better align
interpretation, oversight, and adjudication of part 351 and reduce
fragmentation between the agency that issues the RIF regulations and
the forum that applies them in individual appeals. MSAC's existing
adjudicatory and civil-service compliance functions further support
consistent adjudication of these record-based personnel matters.
Fifth, the final rule strengthens the record available for
decision. In response to comments expressing concern about information
asymmetry and the appellant's ability to prove RIF error, the final
rule requires the agency to produce the complete agency record to OPM
and to serve the appellant with the agency record, subject only to
legally required disclosure limitations. The final rule also identifies
RIF-specific categories of required record materials, including the RIF
notice, documents supporting the reason for the RIF, competitive-area
and competitive-level documentation, retention-register materials,
order-of-release records, assignment-rights records, and records
concerning special RIF circumstances. These requirements promote
accurate adjudication and meaningful employee participation without
requiring routine discovery in every case.
Sixth, the final rule is expected to maintain transparency and
accountability. OPM decisions will be issued in writing,
reconsideration will be available under specified standards, and final
merits decisions will be made publicly available subject to privacy,
privilege, protected personnel information, law-enforcement-sensitive
information, national-security, and other legal limits. OPM
acknowledges that final MSPB decisions likewise are issued in writing
and made publicly available; the final rule carries those transparency
and accountability features forward to the new OPM forum rather than
diminishing them. The rule also includes adjudicator-separation and ex
parte safeguards to ensure that appeals are decided on the record and
not through case-specific policy direction. These features help
preserve confidence in the administrative process while allowing OPM to
adjudicate appeals more efficiently than the prior multi-stage MSPB
process.
OPM considered comments from 0928, 1089, and 1092 asserting that
the cost-benefit analysis undervalued procedural protections, did not
adequately account for confidence in the civil service, and improperly
treated recent RIF activity as anomalous. OPM disagrees that the final
rule undervalues procedural protections. The final rule does not
eliminate administrative review; it preserves an appeal right for
employees furloughed for more than 30 days, separated, or demoted by
RIF action. It also adds protections not included in the proposal,
including a more precise prejudice standard, a detailed agency-record
requirement, appellant access to the record subject only to legal
limits, a reply right that permits new allegations based on information
first disclosed in the agency response, targeted fact-development
authority, hearings when necessary and efficient, adjudicator-
separation requirements, ex parte protections, reconsideration,
Director review before finality, and public posting of final merits
decisions subject to legal limits.
OPM also considered supportive comments from 0351, 0352, 0418,
0434, and 0657 stating that MSPB adjudication can be costly, time-
intensive, and resource-intensive, and that transferring RIF appeals to
OPM would improve efficiency, predictability, consistency, and
finality. OPM agrees that the final rule will reduce unnecessary
process costs and will provide benefits beyond those quantified in the
cost analysis, including reduced management and witness time, reduced
litigation-driven uncertainty, improved workforce planning, and more
timely resolution for employees. Some of these benefits are difficult
to quantify with precision, but OPM concludes they are substantial and
reinforce the quantified savings discussed above.
OPM continues to treat unusually high recent RIF activity as
anomalous for purposes of estimating recurring annual costs, but that
assumption does not diminish the benefits of the final rule. If future
RIF appeal volumes are higher than the historical average used in the
cost analysis, the benefits of a streamlined process would likely
increase because more employees and agencies would avoid the delay and
expense of the prior process. If future RIF appeal volumes are lower,
the rule still provides a clearer, more consistent, and more
administrable process for the appeals that are filed.
Accordingly, OPM concludes that the final rule will produce
benefits beyond direct cost savings. It will provide employees with
faster resolution and earlier access to any warranted relief; reduce
unnecessary litigation burden on agencies; limit avoidable back-pay and
attorney-fee exposure; promote uniform interpretation of part 351;
improve the completeness of the record before the adjudicator; and
provide a more predictable, transparent, and efficient process for
resolving RIF-compliance disputes. These benefits support OPM's
conclusion that the final rule better serves employees, agencies, and
the public than the prior fragmented process.
F. Reliance Interests
In the proposed rule, OPM invited comments on any reliance
interests that OPM should consider before finalizing revisions to the
RIF appeal process. OPM received comments on this issue and has
considered them consistent with the APA's requirement that an agency
changing policy consider serious reliance interests engendered by the
prior policy. See FCC v. Fox Television Stations, Inc., 556 U.S. 502,
515-16 (2009); Department of Homeland Security v. Regents of the
University of California, 591 U.S. 1, 30-33 (2020).
Commenters 0310, 0846, 1089, 1092, and 1219 argued that employees,
unions, and agencies have relied for decades on the availability of
MSPB adjudication for RIF appeals. Commenters asserted that employees
entered or remained in Federal service with the expectation that any
future RIF appeal would be heard by an adjudicative body outside OPM,
and that limiting the final rule to prospective application does not
fully address those broader expectations. Commenter 1089, for example,
stated that employees accepted the obligations and constraints of
Federal service in reliance on a rules-based civil service system that
included meaningful procedural protections and independent review.
Commenters 1092, 1165, and others similarly argued that MSPB review has
been part of the civil service system for decades and that employees
and unions have structured expectations around that forum.
OPM has considered these asserted reliance interests. OPM
recognizes that the prior regulatory framework has existed for many
years and that employees, unions, and agencies may have expected future
RIF appeals to
[[Page 49262]]
proceed before MSPB under the prior version of Sec. 351.901. OPM also
recognizes the general importance of stability in civil service
procedures. OPM concludes, however, that the reliance interests
identified by commenters do not warrant retaining MSPB as the forum for
future non-SES RIF appeals.
First, the asserted reliance interest is principally an interest in
the continuation of a particular regulatory forum and procedural model,
not an interest in the continued existence of administrative review.
The final rule does not eliminate administrative review of covered RIF
actions. Employees who are furloughed for more than 30 days, separated,
or demoted by a RIF action may appeal to OPM. The final rule preserves
the ability to obtain corrective relief where the appellant proves that
the agency failed to comply with an applicable statute or OPM
regulation governing RIF actions under part 351 and that the failure
prejudiced the appellant by causing the appealed action or the loss of
a materially more favorable outcome.
Second, the final rule strengthens the OPM process in ways that
address many of the procedural reliance concerns commenters raised. The
rule requires the agency to produce the complete agency record to OPM;
requires service of the agency record on the appellant, subject only to
legally required disclosure limitations; identifies RIF-specific
categories of required record materials; permits an appellant reply;
allows OPM to require additional information; authorizes audits,
investigations, and hearings when necessary and efficient; provides
written decisions; permits reconsideration; and authorizes corrective
relief where warranted. These features preserve meaningful
administrative review while replacing the prior MSPB forum with a
process tailored to RIF-compliance issues.
Third, the final rule preserves collateral statutory avenues that
are independent of the part 351 RIF appeal process. Employees may
continue to file complaints, appeals, or other matters within the
jurisdiction of EEOC, an Inspector General, MSPB where it has
independent jurisdiction, DOL VETS, or OSC. Thus, the final rule does
not alter the availability of independently authorized statutory
remedies for discrimination, prohibited personnel practices, veterans'
rights claims, whistleblower reprisal, or other collateral claims.
Fourth, OPM has addressed concrete transition concerns by applying
the rule prospectively. The final rule does not apply to appeals of RIF
actions for which the agency issued a specific RIF notice under 5 CFR
351.802 before September 2, 2026, the effective date of the final rule
under RIN 3206-AO86. Those appeals remain subject to adjudication by
the MSPB under the procedures applicable to those actions. Thus, any
appeals currently pending before the MSPB and any potential appeals of
RIF actions that have been effectuated will proceed before the MSPB.
This transition rule avoids disrupting pending appeals, prevents
confusion for parties already litigating before MSPB, and provides a
clear line for future cases.
OPM does not find that commenters identified concrete,
individualized reliance interests requiring broader grandfathering or
retention of MSPB review for all future RIF appeals. Federal employees
may have relied generally on the existence of a merit-based civil
service system and procedural protections, but the final rule preserves
both. Employees remain protected by the substantive RIF requirements in
part 351, the merit system principles, prohibited-personnel-practice
protections, veterans' preference requirements, applicable anti-
discrimination laws, and the administrative appeal process established
by this final rule. What changes is the regulatory forum and procedure
for future direct RIF-compliance appeals.
OPM also concludes that additional transition relief would
substantially undermine the purpose of the rule. Extending MSPB
adjudication to future RIF appeals based on generalized expectations
would perpetuate the divided structure OPM has determined is
inefficient and unnecessary: OPM would continue to prescribe and
interpret the RIF regulations while MSPB adjudicated appeals under
procedures OPM cannot control. OPM has determined that a single,
record-focused OPM process will better promote timely resolution,
consistent interpretation of part 351, reduced litigation burden, and
prompt corrective relief where an agency commits prejudicial RIF error.
Accordingly, OPM concludes that the final rule reasonably accounts
for reliance interests. The rule preserves administrative review,
strengthens record-production and fact-development procedures,
preserves collateral statutory remedies, and applies only
prospectively. Any reliance interest in maintaining MSPB as the forum
for future regulatory RIF appeals is outweighed by OPM's reasoned
determination that the final rule will provide a more efficient,
consistent, and cost-effective process for resolving RIF appeals.
VI. Procedural Issues and Regulatory Review
A. Regulatory Review
The Office of Information and Regulatory Affairs in the Office of
Management and Budget has designated this as a significant regulatory
action under E.O. 12866 section 3(f). Accordingly, OPM has examined the
impact of this rule as required by E.O.s 12866 and 13563, 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 rules
that have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities. This rulemaking does not reach that threshold. This rule
is an E.O. 14192 deregulatory action. OPM estimates this rule generates
$4.6 million in annualized savings in 2024 dollars at a 7% discount
rate, discounted relative to year 2024, over a perpetual time horizon.
B. Severability
If any of the provisions of this rule as finalized are 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. In enforcing civil service protections and
merit system principles, OPM will comply with all applicable legal
requirements.
C. 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 involves the
authority of Federal agencies to adjudicate appeals filed by current
and former Federal employees. While small entities representing current
or former Federal employees will be affected by the change in venue for
appeals and
[[Page 49263]]
complaints of discrimination, the procedures employed by the OPM and
EEOC will not cause a significant economic impact on these small
entities.
D. 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 E.O. 13132
(Aug. 10, 1999), it is determined that this rule does not have
sufficient Federalism implications to warrant preparation of a
Federalism Assessment.
E. Civil Justice Reform
This regulation meets the applicable standards set forth in
subsections 3(a) and (b)(2) of E.O. 12988 (Feb. 5, 1996).
F. Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires that agencies assess anticipated costs and benefits before
issuing any rule that would impose spending costs on State, local, or
Tribal governments in the aggregate, or on the private sector, in any 1
year of $100 million in 1995 dollars, updated annually for inflation.
That threshold is currently approximately $206 million. This rulemaking
will not result in the expenditure by State, local, or Tribal
governments, in the aggregate, or by the private sector, in excess of
the threshold. Thus, no written assessment of unfunded mandates is
required.
G. Congressional Review Act
Subtitle E of the Small Business Regulatory Enforcement Fairness
Act of 1996 (known as the Congressional Review Act or CRA) (5 U.S.C.
801 et seq.) requires most final rules to be submitted to Congress
before taking effect. OPM will submit to Congress and the Comptroller
General of the United States a report regarding the issuance of this
rule before its effective date. The Office of Information and
Regulatory Affairs in the Office of Management and Budget has
determined that this rule is not a major rule as defined by the CRA (5
U.S.C. 804).
H. Paperwork Reduction Act
This final rule contains information collection requirements within
the meaning of the Paperwork Reduction Act of 1995, as amended (44
U.S.C. chapter 35). The final rule establishes procedures for filing
and adjudicating RIF appeals before OPM, including electronic filing,
appellant submissions, representative information, requests for e-
filing exemptions, agency responses, appellant replies, requests for
reconsideration, and related case-processing submissions. The final
rule also requires use of the electronic filing system identified on
OPM's website, except where OPM grants an exemption for good cause.
OPM has requested approval from the Office of Management and Budget
for this information collection. See 91 FR 46802. OPM will not conduct
or sponsor, and a person is not required to respond to, an information
collection unless it displays a currently valid OMB control number.
To the extent the final rule requires Federal agencies to submit
agency responses, agency records, certifications, or other documents in
their official capacity, those submissions are not collections from
``persons'' for purposes of the Paperwork Reduction Act. However,
submissions from appellants, representatives, or other non-agency
parties may constitute information collections subject to the Paperwork
Reduction Act.
List of Subjects in 5 CFR Part 351
Administrative practice and procedure, Government employees.
Signing Statement
Director of OPM, Scott Kupor, reviewed and approved this document
and has authorized the undersigned to electronically sign and submit
this document to the Office of the Federal Register for publication.
Office of Personnel Management.
Jerson Matias,
Federal Register Liaison.
Accordingly, for the reasons stated in the preamble, OPM amends 5
CFR part 351 as follows:
PART 351--REDUCTION IN FORCE
0
1. The authority citation for part 351 is revised to read as follows:
Authority: 5 U.S.C. 1103, 1104, 1302, 2301, 3502, 3503, 38
U.S.C. 4331; E.O. 14284, 90 FR 17729; 5 CFR 2.2(c). Sec. 351.801
also issued under E.O. 12828, 58 FR 2965, 3 CFR, 1993 Comp., p. 569.
Subpart H--Notice to Employee
0
2. Amend Sec. 351.802 by revising paragraph (a)(6) to read as follows:
Sec. 351.802 Content of notice.
(a) * * *
(6) The employee's right, as applicable, to appeal to OPM,
including the time limit for filing an appeal under Sec. 351.902(b) of
this part and the electronic filing system, identified on OPM's
website, through which an appeal must be filed.
* * * * *
0
3. Amend Sec. 351.807 by revising paragraph (e) to read as follows:
Sec. 351.807 Certification of expected separation.
* * * * *
(e) An agency determination of eligibility for certification may
not be appealed.
* * * * *
0
4. Revise subpart I to read as follows:
Subpart I--Appeals
Sec.
351.901 Right to appeal.
351.902 Procedures for submitting appeals.
351.903 Form and content of RIF appeal and agency response.
351.904 Employee representatives.
351.905 Adjudication of appeals.
351.906 Sanctions and protective orders.
351.907 Reconsideration of an initial decision.
351.908 Review by the OPM Director.
351.909 Final decision.
Sec. 351.901 Right to appeal.
(a) Right of appeal. An employee who has been furloughed for more
than 30 days, separated, or demoted by a reduction-in-force action
taken under this part may appeal that action to OPM.
(b) Burden of proof. The employee (i.e., appellant) bears the
burden of proof to demonstrate, by a preponderance of the evidence:
(1) The timeliness of the written appeal;
(2) That OPM possesses jurisdiction over the appeal;
(3) That the agency failed to comply with an applicable statute or
OPM regulation governing reduction-in-force actions under this part;
and
(4) That the failure prejudiced the appellant by causing the
appellant to be subjected to the appealed action or to lose a
materially more favorable outcome under this part.
(c) Exclusive appeal procedure. (1) The procedures in this part are
the sole and exclusive means of appealing a reduction-in-force action
taken under this part.
(2) A reduction-in-force action taken under this part, and any
matter relating to an appeal of such an action, may not be raised under
a negotiated grievance procedure or contested through grievance
arbitration.
(3) Paragraphs (c)(1) and (2) of this section do not preclude an
employee
[[Page 49264]]
from filing a complaint, appeal, or other matter within the independent
jurisdiction of the Equal Employment Opportunity Commission, an
Inspector General, the Merit Systems Protection Board, the Department
of Labor Veterans' Employment and Training Service, or the Office of
Special Counsel.
(4) A party cannot obtain judicial review of a decision under this
subpart.
Sec. 351.902 Procedures for submitting appeals.
(a) Filing an appeal. A party, or his or her authorized
representative, seeking to file an initial appeal or reconsideration of
an initial decision under this subpart must utilize the electronic
filing system identified on OPM's website. Unless a party demonstrates
good cause and seeks approval from OPM, OPM will not accept any
pleadings, evidence, or documents via electronic mail or postal mail.
(b) Time limits. An employee may submit an appeal of a reduction-
in-force action within 30 calendar days from the effective date of the
action. An appeal is deemed timely when it is electronically filed by
11:59 p.m. Eastern Time on the 30th calendar day after the effective
date of the action.
(1) In computing the number of days allowed for filing an appeal,
the first day counted is the day after the effective date of an agency
action. If the date that ordinarily would be the last day for filing
falls on a Saturday, Sunday, or Federal holiday, the filing period will
include the first workday after that date.
(2) If an employee does not submit an appeal within the time set by
this section, the appeal will be dismissed as untimely filed unless the
employee demonstrates good cause for an untimely appeal. The
determination of good cause will be in the sole and exclusive
discretion of OPM.
(3) If, before the expiration of the filing period in this
paragraph (b), the employee timely filed a complaint, appeal, or other
matter within the independent jurisdiction of an entity identified in
Sec. 351.901(c), and the final decision on that matter materially
affects the employee's retention standing, order of release, assignment
rights, or other rights under this part, the employee may file an
appeal under this subpart within 30 calendar days after the date on
which the decision on that matter becomes final and is no longer
subject to further administrative review. OPM will determine, in its
sole and exclusive discretion, whether the decision on the collateral
matter materially affects the employee's rights under this part.
(c) E-filing procedures. (1) All parties and their representatives
to an appeal or reconsideration must register as instructed by OPM on
its e-filing website using a unique email address.
(2) Registration as an e-filer constitutes consent to accept
electronic service of pleadings, evidence, notices, orders, and other
documents filed by other e-filers or issued by OPM. No party may
electronically file any document with OPM or access an appeal or
reconsideration of an appeal unless registered as an e-filer or
exempted under paragraph (c)(7) of this section for good cause.
(3) All notices, orders, decisions, and other documents issued by
OPM, as well as all documents filed by parties, will be made available
for viewing and downloading at OPM's electronic filing system. Access
to documents is limited to the parties and their representatives who
are registered e-filers in the cases in which they were filed.
(4) All parties and their representatives must follow the
instructions on OPM's website for properly filing all pleadings,
evidence, and other documents. OPM may strike a document where an e-
filer repeatedly fails to follow these instructions following receipt
of a show cause order.
(5) Each e-filer must promptly update their profile in OPM's
electronic filing system and notify OPM and other parties of any change
in their address, telephone number, or email address by filing a
pleading in each pending case with which they are associated. E-filers
are responsible for monitoring case activity regularly in OPM's
electronic filing system to ensure that they have received all case-
related documents.
(6) A party or representative may withdraw their registration as an
e-filer pursuant to the requirements posted on OPM's website.
Withdrawing registration in OPM's e-filing system means that, effective
upon OPM's processing of a proper withdrawal, pleadings, evidence,
orders, and other documents filed by a party or party's representative
and OPM will no longer be served on that person electronically and that
person will no longer have electronic access to their case records
through OPM's e-filing system. OPM may still process an appeal or
request for reconsideration after a party withdraws as an e-filer.
Withdrawal of e-filing registration by a party or representative will
not be considered good cause for staying a case.
(7) OPM, in its sole and exclusive discretion, may exempt a party
or representative from registering as an e-filer for good cause. A
party or representative must promptly contact OPM as instructed on
OPM's website to request an exemption from the e-filing requirements in
this part. OPM will not find good cause for failing to timely file an
appeal or seek reconsideration if the party or representative fails to
contact OPM to request an exemption before any deadline to appeal or
seek reconsideration.
(8) Documents filed in OPM's e-filing system are deemed received on
the date of the electronic submission.
Sec. 351.903 Form and content of RIF appeal and agency response.
(a) Initial appeal. An employee's appeal shall be in writing and
shall state the basis of the employee's appeal; the name, address, and
email address or phone number of the appellant and appellant's
representative, if any; and any documentation supporting the
appellant's appeal.
(b) Agency response. (1) The agency response to an appeal must be
filed within 30 calendar days after service of the initial appeal and
contain:
(i) The name of the appellant and of the agency whose action the
appellant is appealing;
(ii) A statement identifying the agency action taken against the
appellant and stating the reasons for taking the action;
(iii) All documents contained in the agency record of the action;
(iv) Designation of and signature by the authorized agency
representative; and
(v) Any other documents or responses requested by OPM.
(2) The agency's 30 days to respond begins upon service of the
appeal.
(3) The agency record of the action shall include, at a minimum:
(i) The appellant's specific written reduction-in-force notice, any
amended notice, proof of service or receipt, and documents showing the
effective date of the action;
(ii) Documents supporting the reason for the reduction in force,
including whether the action was based on lack of work, shortage of
funds, insufficient personnel ceiling, reorganization, or the exercise
of reemployment or restoration rights;
(iii) Documents establishing the appellant's coverage, position,
appointment, tenure group and subgroup, veterans' preference status,
service computation date, work schedule, competitive area, competitive
level, and status as a competing employee;
(iv) Documents establishing the competitive area and competitive
level used for the reduction in force, including any required agency or
OPM approval, written competitive area
[[Page 49265]]
justification, organizational chart, position descriptions,
classification records, representative rate determinations, and related
records;
(v) The retention register applicable to the appellant, if one was
prepared, and any related retention records that affected the
appellant's retention standing, order of release, or assignment rights,
including records supporting performance credit, veterans' preference
credit, tenure subgroup, and service computation date;
(vi) Documents showing how the agency applied the order of release,
including any tie determination, any correction of retention standing,
and any mandatory or discretionary exception to the order of release;
(vii) Documents concerning the appellant's assignment rights, if
any, including positions considered for assignment, qualification
determinations, job analysis or assessment materials, offers of
assignment, and any declination;
(viii) Documents concerning any special reduction-in-force
circumstance relevant to the appellant, including abolishment of an
entire competitive area, transfer of function, exclusion from RIF
competition under Sec. 351.202(d), restoration protection, or other
basis for modified notice or treatment under this part; and
(ix) A certification that the agency has produced the complete
agency record of the reduction-in-force action.
(4) The agency must produce the complete agency record to OPM. The
agency must serve the appellant with the agency record, except that the
agency may redact or withhold information from the copy served on the
appellant to the extent necessary to comply with the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law.
(c) Reply. An employee may file a reply to an agency response to an
initial appeal within 15 calendar days of the agency response. The
reply may only address the factual and legal issues raised by the
agency in response to the initial appeal. The reply may not raise new
allegations of error unless the basis rests on information first
disclosed in the agency response or unless OPM grants leave for good
cause.
(d) Inspection of OPM's appellate record. The employee, an
employee's representative, and the agency will be permitted to inspect
OPM's appellate record on request, subject to the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law.
(e) Service of documents. The employee, employee's representative,
and agency will serve on each other copies of any and all information
submitted to OPM with respect to an appeal, subject to the Privacy Act,
applicable legal privileges, classified information or national
security requirements, protective orders issued by OPM, and any other
applicable limitation on disclosure required by law. Such information
must be served on all other parties at the same time the information is
submitted to OPM and must be accompanied by a certificate of service
stating how and when service was made.
(f) Untimely filings. Untimely filings may be accepted upon a
party's showing of good cause at the sole and exclusive discretion of
OPM.
Sec. 351.904 Employee representatives.
(a) Designation of representative. An appellant may select a
representative of his or her choice to assist in the preparation and
presentation of an appeal, provided that the employee submits his or
her designation of representative in writing related to the specific
appeal.
(b) Federal employee representatives; official time and
reimbursement. If the selected representative is a Federal employee,
the representative may not perform such representational functions
while in a duty status (including while on official time under 5 U.S.C.
7131), nor may the representative claim agency reimbursement for any
expenses incurred while performing such representational function.
(c) Disallowance of representative. OPM or the responsible agency
may, in its sole and exclusive discretion, disallow an employee's
choice of representative when the representative is an employee of the
responsible agency or OPM and the representative's activities would
cause a conflict of interest or position.
Sec. 351.905 Adjudication of appeals.
(a) Appeals by non-OPM employees. OPM will assign personnel to
adjudicate an appeal under this subpart by an employee of an agency
other than OPM. OPM personnel assigned to adjudicate an appeal under
this subpart shall be insulated from officials who participated
personally and substantially in the challenged personnel action or
provided case-specific advice concerning that action. OPM adjudicators
shall not consider material ex parte communications concerning the
merits of an appeal. If such a communication occurs, OPM will place a
summary of the communication in the record and provide the parties a
reasonable opportunity to respond, unless disclosure is prohibited by
law. In addition, no OPM employee may be assigned to adjudicate an
appeal if the employee has a relationship with the appellant or, during
the preceding two years, that person was an employee of the agency that
is a party to the action to be assigned, or the employee was subject to
an action covered under this part. When necessary, OPM may assign an
administrative law judge to preside over the adjudication of an appeal.
(b) Appeals by OPM employees. OPM will assign an administrative law
judge to adjudicate an appeal under this subpart by an OPM employee and
to issue an initial decision. To insulate the adjudication of its own
employees' appeals from agency involvement, OPM will not disturb
initial decisions in those cases unless a party shows that there has
been harmful procedural irregularity in the proceedings before the
administrative law judge, a clear error of law, or a material factual
error that affected the outcome of the appeal. For the purposes of
paragraph (b) of this section, the term harmful procedural irregularity
means an irregularity in the application of procedures that was likely
to have caused the administrative law judge to reach a conclusion
different from the one he or she would have reached in the absence or
cure of the irregularity. The assignment of an administrative law judge
under paragraph (b) or under paragraph (a) of this section does not
make 5 U.S.C. 554, 556, or 557 applicable to an appeal under this
subpart except to the extent those provisions are independently
required by law or expressly incorporated in this part.
(c) Ascertainment of facts. OPM may require either party to provide
additional information, and it may audit or investigate an agency's
action in the course of adjudicating an appeal if it determines, in its
sole discretion, that the existing record is insufficient to resolve a
material issue within OPM's jurisdiction, and that the audit or
investigation is reasonably likely to produce information material to
resolving that issue. An individual serving as a representative of
either party may not participate in an audit or investigation unless
OPM specifically requests them to do so. The review of an agency action
must be based solely on the developed written record unless OPM
determines that a hearing is
[[Page 49266]]
necessary and efficient in resolving an appeal. For purposes of this
section, the phrase necessary and efficient means circumstances in
which the written record is insufficiently developed to make a
determination regarding one or more facts material to the outcome of
the appeal, or where there is a disputed issue of witness credibility
that is material to the outcome of the appeal. Where an investigation
or audit is conducted, OPM will:
(1) Inform the employee, the employee's representative, and the
agency of an investigation or audit; and
(2) Provide the employee, the employee's representative, and the
agency with the results of an investigation or audit, and a reasonable
opportunity to submit arguments or additional information to support
their positions.
(d) Initial decision. OPM will notify the employee, employee's
representative, and agency in writing of its decision.
(e) Remedies. (1) If the employee is the prevailing party, OPM will
order relief including correction of the personnel action and any back
pay, interest, and reasonable attorney fees consistent with subpart H
of part 550 of this chapter. The employee as a prevailing party is not
entitled to compensatory damages or other relief not authorized under 5
U.S.C. 5596(b).
(2) If the agency timely requests reconsideration of an initial
decision or OPM reopens and reconsiders an initial decision, the agency
must continue to provide the relief ordered unless OPM issues an order
staying any such relief. No such stay may be ordered that would deprive
the employee of pay and benefits while the initial decision is pending
reconsideration.
Sec. 351.906 Sanctions and protective orders.
(a) Cease-and-desist directive. OPM may issue a protective order or
cease-and-desist directive to protect the integrity of the adjudicatory
process, prevent threats, intimidation, targeted harassment, improper
witness contact, disclosure of protected personal information, or
misuse of nonpublic information obtained through the appeal. OPM may do
this sua sponte, or at the request of a party, preemptively or at any
juncture in the appeal process. A party requesting OPM to issue a
protective order or cease-and-desist directive should file such request
using the e-filing procedures prescribed at Sec. 351.902(c), and must
include a statement of reasons justifying the request, together with
any relevant documentary evidence. Any protective order issued by OPM
must be no broader than reasonably necessary and must not restrict
lawful communications protected by law.
(b) Failure to comply with an OPM directive. When a party to an
appeal fails to comply with a directive issued under paragraph (a) of
this section, OPM may, except when prohibited by law:
(1) Draw all inferences in opposition to the noncompliant party
with regard to the appeal in question;
(2) Prohibit the noncompliant party from introducing evidence, or
additional evidence, concerning the appeal, or otherwise relying on the
record; or
(3) Eliminate from consideration any appropriate part of the
filings or other submissions of the noncompliant party.
(c) Scope of sanctions. Any sanction issued under paragraph (b) of
this section must be proportionate, causally related to the violation,
and no broader than necessary to protect the adjudicatory process.
Sec. 351.907 Reconsideration of an initial decision.
(a) Upon a request from either party to the dispute or upon its own
initiative, OPM may, in its sole and exclusive discretion, reopen and
reconsider an initial decision issued under this subpart. An employee,
the employee's representative, or the agency may request
reconsideration of an initial decision within 30 calendar days from
issuance of the initial decision. The request for reconsideration must
be filed in the same manner as an initial appeal.
(b) Grounds for which OPM may grant a request for reconsideration
are:
(1) The initial decision contains erroneous findings of material
fact sufficient to warrant an outcome different from that of the
initial decision;
(2) The initial decision is based on an erroneous interpretation of
statute or regulation or the erroneous application of the law to the
facts of the case. The party must explain how the error affected the
outcome of the case;
(3) New and material evidence or legal argument is available that,
despite the party's due diligence, was not available when the record
closed. To constitute new evidence, the information contained in the
documents, not just the documents themselves, must have been
unavailable despite due diligence when the record closed; or
(4) OPM finds good cause to reconsider an appeal.
(c) In any case that is reopened or reviewed, OPM may:
(1) Issue a reopened and reconsidered decision (``R&R decision'')
that affirms, reverses, modifies, vacates, or otherwise decides the
case, in whole or in part;
(2) Require the parties to submit argument and evidence;
(3) Take any other action necessary for final disposition of the
case; and
(4) Issue an order with a date for compliance with the R&R
decision.
(d) There is no further right of administrative appeal from the R&R
decision.
Sec. 351.908 Review by the OPM Director.
The Director may, on the Director's own initiative and before a
decision becomes final under Sec. 351.909, reopen and reconsider any
initial decision or reopened and reconsidered decision. In determining
whether to exercise this authority, the Director may consider, among
other things, whether the decision contains clear legal error; rests on
an erroneous finding of material fact; involves an issue of exceptional
importance, an issue affecting the governmentwide administration of the
civil service laws, rules, regulations, or OPM policy, or a conflict
among OPM decisions; or otherwise warrants Director review. This
section does not create a right to request Director review. Upon
reopening and reconsideration, the Director may take any action
described in Sec. 351.907(c).
Sec. 351.909 Final decision.
(a) The initial decision becomes OPM's final decision 30 calendar
days after issuance unless, before that time, a party timely requests
reopening and reconsideration under Sec. 351.907 or the Director
reopens the decision under Sec. 351.908.
(b) A timely request under Sec. 351.907 suspends finality. If OPM
denies or dismisses the request without reopening the initial decision,
the initial decision becomes OPM's final decision 30 calendar days
after issuance of the denial or dismissal, unless the Director reopens
the initial decision under Sec. 351.908 before that time. If OPM
grants the request, a reopened and reconsidered decision becomes OPM's
final decision 30 calendar days after issuance unless the Director
reopens that decision under Sec. 351.908 before that time.
(c) An untimely request under Sec. 351.907 does not suspend or
otherwise affect finality. If OPM accepts and grants an untimely
request for good cause, any resulting reopened and reconsidered
decision becomes final as provided in paragraph (b) of this section.
(d) A decision by the Director pursuant to Sec. 351.908 that
disposes of the appeal is OPM's final decision and is effective upon
issuance. If the
[[Page 49267]]
Director remands the appeal or directs further proceedings, any
resulting decision becomes final under this section.
(e) There is no further right of appeal of a final decision of OPM.
(f) Subject to applicable legal limits, including requirements
protecting privacy, privileged information, protected personnel
information, law-enforcement-sensitive information, and other
information that may not lawfully be disclosed, OPM shall maintain a
publicly accessible website containing final decisions issued under
this subpart that address a party's claim on the merits. Any final
merits decision not made publicly available because of such legal
limits shall be made available upon request to the Federal employee or
former Federal employee involved in a proceeding under this subpart,
his or her representative selected pursuant to Sec. 351.904, or a
representative of the Federal agency or office involved in the
proceeding who has a need to know.
[FR Doc. 2026-15666 Filed 7-31-26; 8:45 am]
BILLING CODE 6325-39-P