The Office of Personnel Management published four final rules in the August 3 Federal Register that together rewrite how federal employees are cut in a layoff and who decides the appeal when they contest it. All four take effect September 2, 2026. Three of the four take the Merit Systems Protection Board out of the process and put OPM in its place. [1][2][3][4]
The package: "Reduction in Force" (2026-15665) revises 5 CFR part 351 to make retention decisions "more streamlined, efficient, and merit-based by prioritizing performance over tenure and length of service when determining which employees will be retained in a RIF" [6]. "Reduction in Force Appeals" (2026-15666) states that "OPM will replace the Merit Systems Protection Board (MSPB) as the adjudicative agency for such appeals" [1]. "Streamlining Probationary and Trial Period Appeals" (2026-15654) builds a new limited appeals process at OPM after an executive order rendered the prior MSPB procedures inoperative [3]. "Suitability Action Appeals" (2026-15650) moves adjudicative authority over 5 CFR part 731 suitability appeals from the Board to OPM [4].
The Board that three of these rules displace exists because Congress deliberately split one agency into two. The Civil Service Reform Act of 1978 divided the old Civil Service Commission's functions, giving OPM the job of managing federal personnel and giving the Merit Systems Protection Board the job of hearing employees' appeals independently of the manager. An MSPB appeal is heard by an administrative judge outside the employing agency and outside OPM. The rule records commenters making precisely that argument: they "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." [5]
The comment record on the appeals rule is unusual, because OPM published it. "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 those, "1,251 were posted on www.regulations.gov, and one was not posted because it contained vulgar language unrelated to the rulemaking in question." [5] The arithmetic closes: 1,251 plus one is 1,252.
Then the disposition. "Less than 1 percent of the overall comments were supportive, neutral, or mixed, and 99 percent opposed the proposed regulation." [5] OPM does not publish a hard count of opposing comments, and its two published percentages do not quite reach 100, which rounding accounts for. Ninety-nine percent of 1,252 is roughly 1,239.
Commenters also attacked the schedule. The comment window ran February 10 to March 12, 2026, exactly thirty days, and commenters argued that was unlawfully short under the Administrative Procedure Act, citing Executive Orders 12866 and 13563, which say comment periods should "generally" be at least 60 days. OPM devotes a section of the final rule to the objection, headed "Adequacy of the Comment Period," and answers it: "Respectfully, OPM rejects the argument that the comment period was inadequate." [5]
Two sentences later the agency turns its own tally into its defense. "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." [5] The same count that records 99 percent opposition is offered as proof the process worked.
OPM's legal position is not a throwaway, and the rule argues it at length. On independence, the agency concedes the premise before narrowing it: "OPM recognizes that Congress created MSPB as an independent adjudicator for matters Congress made appealable to MSPB." The question, OPM says, "is not whether MSPB is an independent adjudicatory body, but whether Congress required non-SES RIF appeals to remain with MSPB," and it concludes Congress did not. The rule points to OPM's Office of Merit Systems Accountability and Compliance, which already adjudicates classification appeals under 5 CFR part 511 and Fair Labor Standards Act claims under 5 CFR part 551. [5] On the calendar, OPM cites federal appellate decisions treating a 30-day window as sufficient, among them Chamber of Commerce v. SEC, and notes that courts have repeatedly held "executive orders are not judicially enforceable." [5] A reader can find all of that persuasive and still notice what the adequacy section does with the opposition count.
For a federal worker, the practical change is the forum and the format. Under 2026-15666 an employee furloughed more than 30 days, separated, or demoted by a reduction in force gets "a uniform, record-based OPM appeal process" [1]. Record-based means the written file rather than a hearing before an MSPB administrative judge. The rule applies only forward: to a RIF for which an agency issues a specific notice under 5 CFR 351.802 on or after September 2 [1]. The suitability rule leaves the Board's existing docket alone, stating that "this rule does not apply to appeals filed with the MSPB before the effective date of this final rule" [4].
Underneath the appeals changes sits the rule that decides who is cut. OPM eliminated 5 CFR 351.701(d) on the ground that the new method of calculating retention standing "emphasizes performance over tenure and length of service," making the old restriction unnecessary [6]. Length of service used to be a protection with a fixed value. It now competes with a rating.
The four rules are one package, published the same morning, effective the same day. One of them decides who loses the job. Three of them decide who hears about it. Docket OPM-2025-0239 runs from page 49230 to page 49267 of the August 3 issue [1], and all 1,251 posted comments are in it, including the 99 percent that said no.
