Four rules from the Office of Personnel Management went on public inspection Friday, publishing Monday. Together they change who decides whether a federal firing was lawful, and the answer is now: the agency that did the firing. [3]
The clearest statement of it is OPM's own summary in the reduction-in-force appeals rule, 125 pages: "OPM will replace the Merit Systems Protection Board (MSPB) as the adjudicative agency for such appeals." [3]
The Merit Systems Protection Board was created by the Civil Service Reform Act of 1978 as the independent adjudicator standing between a federal employee and the agency that employs them. Under the new rules, appeals of reduction-in-force actions, probationary terminations and suitability determinations go instead to OPM's Merit System Accountability and Compliance office, reviewable by the OPM Director. Federal-court review is eliminated. [3][4]
OPM ran the docket and reported the result: 1,252 comments, of which the rule states 99 percent opposed. [3] Roughly a dozen commenters out of more than twelve hundred were not against it.
The agency answered the obvious constitutional objection directly, and its answer is worth reading in full: "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." [3]
That is a real doctrine, fairly cited. Agencies do adjudicate their own programs across the government, and the presumption OPM invokes exists. The question the doctrine leaves open is what counts as "more" when the same agency writes the layoff rule, sets the rating system the layoff runs on, conducts the layoff, and then hears the appeal, with no court at the end.
The second rule supplies the layoff mechanics. Retention will now run primarily on performance ratings: a Level 5 rating earns 7 points, Level 4 earns 5, Level 3 earns 3, drawn from the three most recent ratings in a four-year window, with veterans' preference adding 5 points or 3. Tenure groups collapse from three to two. If an agency abolishes an entire competitive area within 180 days, it may release employees without ranking them at all. [1]
OPM's director, Scott Kupor, makes the efficiency case: "The current MSPB backlog stretches to many months and, in some cases, years...Our proposed internal appeal processes are designed to be faster, more efficient, and, critically, structurally independent." [4] The backlog is real and the delay is a genuine harm to employees waiting years for a ruling. Raymond Limon, a former MSPB member, calls the replacement "an existential threat to due process" and the new process "a paper exercise." [4]
Both things can be true. A slow independent adjudicator and a fast in-house one are different failures, and only one of them is fixed by the rule OPM wrote.
The probationary-appeals rule shows what fast looks like in practice: grounds narrowed to partisan-political or marital-status discrimination plus limited procedural failures, discrimination claims split off to the EEOC, a written record by default, and a hearing only when OPM deems one "necessary and efficient." [2]
Yesterday we reported OPM deleting the Uniform Guidelines, the rules requiring agencies to validate selection procedures and measure adverse impact [callback]. Within the same week, performance ratings became the currency that decides a layoff, the validation requirement disappeared, and the appeal moved in-house.
The rules take effect roughly thirty days after Monday's publication, on or about September 2. They were filed on a Friday at the start of August, with Congress in recess.
