Improving Performance, Accountability and Responsiveness in the Civil Service

Through this rulemaking, OPM is now finalizing regulations to rescind the changes made by the April 2024 final rule, implement E.O. 14171, and establish Schedule Policy/Career for policy-influencing career positions. Schedule Policy/Career positions will generally be filled using merit-based competitive hiring procedures, with exceptions only for those positions currently filled using excepted hiring procedures. Individuals appointed or reassigned to Schedule Policy/ Career positions will be excepted from chapter 43 and 75 procedures for performance-based and adverse actions. They will be exempt from statutory PPP coverage under 5 U.S.C. 2302(b) as policy-influencing positions are not covered positions under 5 U.S.C. 2032(a). However, E.O. 13957 is explicit that agencies must establish and enforce internal policies barring PPPs including whistleblower reprisal. Consequently, Schedule Policy/Career employees will remain career employees, while subject to elevated levels of accountability for their performance and conduct. For the reasons explained in greater detail in the proposed rule, OPM is proceeding with these changes to ensure accountability of the Federal career workforce charged by the President to deliver on the bold policy agenda endorsed by the American voters, as well as to bring the civil service regulations into conformity with operative legal requirements. 2. Needed To Address Factors Inadequately Considered in Prior Rulemaking

OPM also now realizes that it gave inadequate consideration to several factors when issuing the April 2024 final rule. Upon further consideration, OPM has concluded that these factors call for issuing this final rule. i. Adverse Action Procedures Make Addressing Poor Performance, Misconduct, and Corruption Challenging

Chapter 75 requires that most agencies follow specific procedures to take adverse actions against employees for misconduct or poor performance. Chapter 43 sets out procedures for actions based on unacceptable performance (i.e., performance-based actions). However, decades of experience have demonstrated that the procedures described in chapters 43 and 75 are inadequate to allow agencies to hold employees accountable for poor performance, misconduct, or corruption.

The substantial evidence documented in the proposed rule and this final rule demonstrate the extent to which existing authorities leave agencies unable to effectively address poor performance, misconduct, and corruption. Moreover, the April 2024 final rule imposed additional procedural hurdles that would delay or prevent agencies from effectively addressing these issues.

The proposed rule cited a wide range of data demonstrating the need for these reforms. Nevertheless, several commenters have argued against OPM's reliance upon this data. Commenters such as 1443, 2869, 14463, 16846, 26624, 27012, 28185, 28202, 28619, 32647, 34522, 35520, and others, claim that the proposed rule's citation to research published by the MSPB in 2016 and 2019 do not support the establishment of Schedule Policy/Career. Commenter 14463 asserts that the MSPB research is not based on objective facts nor suggests that political resistance is a problem. Commenters 19698, 30984, 35478, and 35520 criticize the research as not relevant to the class of employees who will be reassigned or hired into Schedule Policy/Career.

OPM notes, however, that these Commenters do not dispute the MSPB's findings that establish that supervisors believe they lack the ability to effectively address poor performance and misconduct, or that few employees believe their agencies address poor performers effectively. Although the research does not discuss establishing Schedule Policy/ Career to address these issues amongst senior career professionals, conversely the research does not recommend against doing so. Additionally, FEVS data published after this research and cited in the proposed and final rules indicate that these problems of employee accountability continue. In fact, Commenters 8029's and 14463's highlighting of other factors further supports this final rule as the removal of statutory adverse action procedures lessens the reliance on human resources processes and reduces leadership adversity to litigation, both driven by performance-based and adverse action procedures. OPM relies on the MSPB research to support the proposition that agencies continue to face substantive problems with poor performance and misconduct. This final rule establishes reforms consistent with the problems identified in MSPB's research and FEVS data that shows agencies face a lingering problem with addressing poor performance and misconduct.

Commenter 30426 claims that OPM failed to demonstrate that FEVS data shows that only a minority of employees believe that agencies appropriately deal with poor performers. This claim is puzzling. OPM cited to FEVS data in the proposed rulemaking showing a historical range of between 25 and 42 percent of Federal employees believe steps are taken to deal with a poor performer in their work unit who cannot or will not improve.\78\ This is supported by the historical FEVS data available to the public on OPM's website.\79\ OPM explained that employees are able to directly observe whether their agencies remove poorly performing employees or if they stay in their work unit and continue to underperform. This is a logical basis to reject the conclusion that employees do not know what steps their agencies are taking to address poor performance. They may not see intermediate steps, but they see the end result.

\78\ 90 FR 17182, 17189 (Apr. 23, 2025). We note, as Commenter 27647 pointed out, that the reference for the FEVS data was missing from the proposed rule. To remedy this, we provide the citation here, which was also provided in a subsequent footnote in the proposed rule. See U.S. Off. of Pers. Mgmt., 2020 FEVS at 24, https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwidemanagement-report/2020/2020-governmentwidemanagement-report.pdf.

\79\ See, e.g., U.S. Off. of Pers. Mgmt., FEVS Results: Employees Influencing Change at 29 (2015), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report; U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees. Inspiring Change at 24 (2020), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf; U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees. Inspiring Change at 15 (2021), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf.

Commenters 29987 and 30426 also argue that OPM's data does not show whether poor performance is actually widespread, or if it merely represents a large number of employees reporting the same few individuals. Commenter 30426 also criticizes the fact that OPM cites some sources dating to the mid-2000s and mid-2010s. Commenters 0085, 3728, 6205, 7795, 14463, 29987, 35520, and others, take issue with OPM's reliance upon existing data, describing it, variously, as “incomplete,” lacking “context,” as not actually documenting widespread lack of accountability or poor performance, or as a “gotcha” designed to stifle opposition to the proposed rule. Commenters 0210, 3326, 2764, 16846, 18811, 27647, 29923, 30317, 31210, 34881, and 35446 assert--without evidence--that the instances cited in the proposed rule do not substantiate widespread claims of poor performance. The proposed rule provided numerous examples, case studies, surveys, and academic articles discussing poor performance in the Federal Government.\80\ OPM notes that the FEVS ask employees about what happens to poor performers “in [their] work unit” \81\-- generally smaller groupings of employees--which makes it unlikely the widespread negative responses represent just a few individuals across the entire agency. At a minimum, employees in a significant number of work units are reporting the presence of at least one poor performer. Furthermore, these commenters fail to provide evidence that poor performance is not widespread or that the number of poor performers is limited to a few individuals. OPM also takes note of Commenter 29987's concession that, in the experience of the former EPA officials who volunteer for Commenter's organization, performance-based actions are not easily proven or quickly effectuated, and are not infrequently challenged successfully.\82\ OPM takes this admission against interest as evidence that even many Federal officials who oppose this rule recognize that performance-based actions are difficult to undertake.

\80\ 90 FR at 17189-91.

\81\ See, e.g., U.S. Off. of Pers. Mgmt., FEVS Results: Employees Influencing Change at 29 (2015), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2015/2015-governmentwide-management-report; U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees. Inspiring Change at 24 (2020), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2020/2020-governmentwide-management-report.pdf; U.S. Off. of Pers. Mgmt., FEVS: Empowering Employees. Inspiring Change at 15 (2021), https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-management-report/2021/2021-governmentwide-management-report.pdf.

\82\ Comment 29987 at 11, 18 (“In the decades of experience of EPN volunteers, many of whom were managers at EPA, disciplinary actions for misconduct, unlike performance-based disciplinary actions, are easily proven, quickly effectuated, and seldom challenged successfully.”) (emphasis added).

Additionally, many agencies during the comment period reported to OPM that adverse action procedures make it very difficult for them to remove poor performers, and this is a significant problem.\83\ OPM credits these comments. Agencies know what is occurring in their workforces and are often best positioned to evaluate challenges impacting them. The Department of Health and Human Services (HHS), for example, reported that it terminated 5, 4, and 7 career tenured employees for poor performance out of an employee population of 90,000 in fiscal years 2022, 2023, and 2024, respectively.\84\ This happened despite the 2024 FEVS survey showing less than a quarter of HHS employees believe there are no

poor performers in their work unit, while 30 percent reported poor performers exist in their unit, and typically remain on the job and continue to underperform, rather than being removed.\85\ This is strong, contemporaneous evidence that the Government has a serious performance management problem. It is not credible to anyone--including HHS employees--that just one in 10,000 HHS employees is a poor performer. Nonetheless, HHS performance-based dismissals still number in the single digits.

\83\ See, e.g., Comments 29917 and 31998 (HHS), 35535 (Department of Labor), and 35549 (Department of Veterans Affairs).

\84\ Comments 29917, 31998.

\85\ U.S. Off. of Pers. Mgmt., 2024 Office of Personnel Management FEVS: Report by Agency (2024), at Tables Q16_2 & Q16_5, https://www.opm.gov/fevs/reports/data-reports/data-reports/report-by-agency/2024/2024-agency-report-excel.xlsx.

Finally, Commenters 27467, 30055, and 30426's criticism of OPM citing data from 2003 and 2014 is without merit. Specifically, the proposed rule noted that the National Commission on Public Service concluded that: “[f]ederal employees themselves are unhappy with the conditions they face. . . . They resent the protections provided to those poor performers among them who impede their own work and drag down the reputation of all government workers.” \86\ Employee accountability procedures have not fundamentally changed in the interim--employees operate under the same adverse action procedures as one and two decades ago. This data, together with the FEVS data, supports the conclusion that accountability of the workforce is a longstanding problem, as stated in the proposed rulemaking.

\86\ 90 FR at 17189 (quoting The Nat'l Comm'n on Pub. Serv., Urgent Business for America: Revitalizing the Federal Government for the 21st Century at 12 (Jan. 2003), https://www.brookings.edu/wp-content/uploads/2016/06/01governance.pdf).

Commenters 14463, 27647, and 30426 also object to OPM citing news reports and academic research discussing surveys of Federal employees and managers without providing the actual data used by the news sources or researchers supporting their publications. In the proposed rule, OPM cited to a news article appearing in Government Executive from the mid- 2010s, discussing a poll the outlet's research arm had commissioned. OPM also cited and linked to an academic survey of Senior Executive Service (SES) members conducted by researchers affiliated with Vanderbilt and Princeton Universities, that provided the precise survey questions, sample size, and margin of error data. Notwithstanding these Commenters' arguments, OPM is not required to obtain the raw microdata underlying academic studies or publicly reported polls to take note of them in a rulemaking. Commenter 27647 complained of inability to access the source cited in footnote 103 despite it being readily available through online retailers such as Amazon.

Commenters 8029, 14463, 19791, 28481, 30426, and 35478 argue that none of the sources OPM cites provide logical support for the changes under the proposed rule. Commenter 8029 takes issue with OPM's interpretation of the research, suggesting that there are other problems such as lack of management support and poor human resources staffing that contribute to the problems of poor performance and misconduct. Commenter 14463 points out that a Department of Homeland Security (DHS) report from June 17, 2019, points to DHS' failure to properly resource, design, and oversee the Department's disciplinary program. Commenters 19698, 30984, 35478, and 35520 criticize the research as not relevant to the class of employees who will be reassigned or hired into Schedule Policy/Career.

Instead, these Commenters argue that better processes, more flexible personnel systems, more leadership support, and more training for managers on how to use the existing performance management system would better address poor performance and misconduct. Similarly, referring to the documented instances of sexual harassment at the Federal Deposit Insurance Corporation (FDIC), Commenters 29374 and 32793 argue that it would be more effective to change the culture of the organization using existing accountability tools, rather than promulgating a new rule to implement Schedule Policy/Career.

Despite the commenters' beliefs, evidence showing the Federal performance management system is dysfunctional and prevents agencies from effectively addressing poor performance is legion. Federal employees have, for decades, responded to Federal surveys that their agencies do not effectively address poor performers. During the proposed rule's comment period, OPM received comments from Federal employees complaining that agencies rarely address poor performance. For example, OPM received comments from Federal employees and others complaining about other Federal employees “retiring in place” and continuing to draw a paycheck despite doing little work, noting that agencies do not remove these employees and that this inaction is demoralizing to employees who want to do well.\87\ This phenomenon is supported by OPM's FEVS survey data, which reflects that many supervisors report they do not believe they could remove poor performers. Agencies, too, told OPM that performance management is a serious problem and provided data to support their concerns.

\87\ See, e.g., Comments 1734 and 5335.

Numerous reports spanning many decades \88\ have recommended other options like “better training managers on how to use performance management systems,” but all such initiatives have had little impact-- predictably so, given the burden and complexity of the current chapter 75 and 43 removal procedures, which often involve multiple layers of appeals.\89\ Commenter 30165 states that the cited cases are “primarily of issues other than policy execution or of serious misconduct,” and “not of employees failing to execute agency priorities.” The cited problems,

however, have been longstanding and consistent. OPM believes Schedule Policy/Career would be more effective in addressing these performance management challenges in policy-influencing positions than doubling down on prior practices that have not succeeded. Further, agencies have told OPM they believe the rulemaking would be beneficial and help them manage affected employees more effectively, including holding them accountable for poor performance. OPM credits agency experience and expertise, as well as the fact that this reform addresses a major driver of the difficulty in removing poor performers.

\88\ Remedying Unacceptable Employee Performance, https://www.mspb.gov/studies/researchbriefs/Remedying_Unacceptable_Employee_Performance_in_the_Federal_Civil_Service_1627610.pdf.; MSPB, Addressing Misconduct in the Federal Civil Service: Management Perspectives (Dec. 2016), https://mspbpublic.azurewebsites.net/studies/researchbriefs/Addressing_Misconduct_in_the_Federal_Civil_Service_Management_Perspectives_1363799.pdf; MSPB, Addressing Poor Performers and the Law (Sept. 2009), https://mspbpublic.azurewebsites.net/studies/studies/Addressing_Poor_Performers_and_the_Law_445841.pdf; MSPB, Removing Poor Performers in the Federal Service (Sept. 1995), https://mspbpublic.azurewebsites.net/studies/studies/Removing_Poor_Performers_in_the_Federal_Service_Issue_Paper_September_1995_253662.pdf; MSPB, The Changing Federal Workplace: Employee Perspectives (1996), https://mspbpublic.azurewebsites.net/studies/studies/The_Changing_Federal_Workplace_Employee_Perspectives_253655.pdf; MSPB, The Federal Workforce for the 21st Century: Results of the Merit Principles Survey at ix (Sept. 2003), https://mspbpublic.azurewebsites.net/studies/studies/The_Federal_Workforce_for_the_21st_Century_Results_of_the_Merit_Principles_Survey_2000_253631.pdf (“While 45 percent of respondents said their supervisor retains employees based on their job performance, just 35 percent claimed that their supervisor deals effectively with misconduct on the job, and just 22 percent said their supervisor deals effectively with poor performers.”); MSPB, The Other Side of the Coin: Removals for Incompetence in the Federal Service (Feb. 1982), https://mspbpublic.azurewebsites.net/studies/studies/The_Other_Side_of_the_Merit_Coin_Removals_for_Incompetence_in_the_Federal_Service_254732.pdf.

\89\ OPM acknowledges the need for training supervisors and is simultaneously introducing a new government-wide training program for supervisors on performance management. OPM, “Performance Management for Federal Employees,” June 17, 2025, https://www.opm.gov/chcoc/transmittals/2025/Performance%20Management%20for%20Federal%20Employees%207-17-2025.pdf. However, it understands based on long experience that enhanced training is unlikely to be enough to meaningfully change an entrenched culture, especially as this culture arose in large part due to the cumbersome nature of adverse action procedures required to remove employees.

Commenters 2222, 27432, and 30426 also take issue with the examples cited in the proposed rule to support OPM's argument that the adverse action process is protracted with an uncertain outcome. OPM presented a handful of cases as an illustration of the impediments MSPB cases impose. Commenter 30426 asserts that average case processing time in FY 2024 was 130 days. This is only for initial decisions before an administrative judge and does not include time to adjudicate a petition for review (i.e., appeal) to the full MSPB. Full MSPB review adds much more time, especially if the MSPB loses its quorum as it often has. An employee's subsequent appeal to the Federal Circuit takes even more time. Citing one stage of the MSPB appeal process for the proposition that the process is “hardly protracted” is misleading. OPM rightly takes note of the effect of the MSPB's loss of quorum on the appeals timetable. Relatedly, Commenters 17360, 24390, 30426, and 32556 point out that President Trump left MSPB without a quorum during the entirety of his first term. President Trump nominated numerous individuals to the MSPB, but the Senate did not act on those nominations. During his second Administration, the President nominated and the Senate confirmed James Woodruff to serve as a Member, creating a period of approximately eight months in which the MSPB operated without a quorum. Neither the President nor OPM can control the pace at which the Senate considers MSPB nominees, even if they leave the agency without a quorum. However, OPM must be cognizant of the fact that the pace at which the Senate considers nominees affects the resolution of MSPB appeals, creating real effects on agency operations.

Commenter 30426 argues that the best available evidence suggests poor performance is not widespread in the Federal workforce, citing FEVS data that “well over 80% of employees believe employees in their work unit “meet the needs of our customers,” “contribute positively” to agencies' performance, and “produce high-quality work.” Commenter 34522 criticizes OPM's citation to research and FEVS data because the data only demonstrates a perception problem. Commenter 22688 describes low performers in the workplace as “just a fact of life,” common in all large entities. Despite the commenters' interpretation, the actual FEVS data paints a more worrisome picture:

83.4 percent of employees believe employees in their work unit “always” or “most of the time” “produce high-quality work.” 13.4 percent believe they do so “sometimes”, while 3.2 percent believe they do so “rarely” or “never.” \90\

\90\ U.S. Off. of Pers. Mgmt., “Federal Employee Viewpoint Survey: 2024 Governmentwide All Levels-All Index-All Items Reports,” at Q22, https://www.opm.gov/fevs/reports/governmentwide-reports/governmentwide-reports/governmentwide-all-levels-all-index-all-items-reports/2024/2024-governmentwide-all-levels-all-index-all-items-report.xlsx.

87.7 percent of employees believe employees in their work unit “always” or “most of the time” “meet the needs of our customers.” 10.3 percent believe they do so “sometimes”, while 2 percent believe they do so “rarely” or “never.” \91\

\91\ Id. at Q20.

85.9 percent of employees believe employees in their work unit “always” or “most of the time” “contribute positively to their agency's performance.” 11.2 percent believe they do so “sometimes”, while 3 percent believe they do so “rarely” or “never.” \92\

\92\ Id. at Q21.

The fact that more than one-in-ten Federal employees answers “sometimes” to these questions is concerning. Agencies should not “sometimes” meet the needs of the American people. The fact that 2-3 percent answered “rarely” or “never” is even more concerning. OPM interprets the FEVS data as showing that most Federal employees believe their colleagues do high-quality work, but a meaningful number do not, and the Federal workforce has substantial performance management challenges that are not being effectively addressed. This rulemaking is not predicated on the notion that most Federal employees are poor performers. Rather, there is a cognizable amount of poor performance which, when it occurs, impairs agency performance. There is no inconsistency between saying most Federal employees do good work and that a minority do not, and that the minority's underperformance needs to be addressed. This is particularly true for key policy-influencing positions that can affect the performance of an entire agency or even presidential administration.

Commenters 26624 and 28202 take issue with the assertion that poor performers remain in policy-influencing positions and criticize the lack of supporting evidence to justify the wholesale changes proposed by OPM. The Commenters point to OPM's citation of just two instances involving the Chief of the U.S. Park Police and, separately, the Executive Director of the National Council on Disability, as specifically inadequate. Respectfully these Commenters misunderstand this portion of the proposed rule and the reasons for citing to these two examples. OPM argued that the Government suffers from a long- standing problem of holding subordinates accountable for misconduct and poor performance. OPM then cited two examples of senior career officials with serious misconduct and performance issues who remained in their positions despite agency efforts to remove them from their positions. OPM cited these two examples to support our argument that failing to address misconduct and poor performance directly undermines the Merit System Principles. OPM later cited to the misconduct and corruption at other agencies such as the FDIC where a fear of litigation contributed to the tolerance of rampant sexual misconduct committed by senior officials. These examples together with the 2016 Merit Principles Survey cited in the proposed rule sufficiently detail the problem of agencies' inability to address misconduct and poor performance and how this failure undermines the Merit System Principles.

Commenter 30426 also raises concerns with OPM's statistical analysis of the number of employees terminated. Specifically, Commenter 30426 questions why OPM's analysis excluded all employees fired after less than two years of service and asserts that the exclusion of this data is arbitrary and capricious and OPM's analysis was thus insufficient. On the contrary, OPM's analysis was straightforwardly focused on the firing rates of employees covered by subchapter II of chapter 75 to evaluate whether that process makes removals more difficult. Probationary employees and employees on trial periods do not have access to adverse action appeals, so dismissal rates among such employees do not necessarily reflect the effect of chapter 75

procedures.\93\ OPM focused on permanent (i.e., excluding term and political appointees) employees with more than 2 years of tenure because these are the employees that subchapter II covers.\94\ Evaluating the effect of subchapter II by examining agency experiences with employees who are covered by it is hardly arbitrary or capricious.

\93\ Competitive service employees and preference-eligible employees in the excepted service complete their probationary and trial periods, respectively, after one year of continuous service, while non-preference eligible employees generally take two years of continuous service to complete their trial period. Thus, the appropriate comparison is employees with more than two years of tenure, as they have almost universally completed their probationary and trial periods and are covered by subchapter II. See 5 U.S.C. 7511(a)(1).

\94\ We note, as Commenter 27647 pointed out, that the citation for the number of covered employees was missing in the proposed rule. This data is from the same source as the 2024 Rule, 89 FR 25039. See Off. of Pers. Mgmt., FedScope, Separations Trend FY 2020- FY 2024, https://www.fedscope.opm.gov/.

Commenter 14463 asserts that OPM “ignores the fact that existing procedures have resulted in the firings of tens of thousands of poor performing career employees.” In support of this assertion, the Commenter cites to a 2015 MSPB report, “Adverse Actions: The Rules and the Reality.” \95\ According to the Commenter, the fact that only 10% of deciding and proposing officials felt employees had too many rights in the context of adverse actions, means that employees have the appropriate amount of rights. OPM disagrees, and in fact, believes the cited source further supports the need for Schedule Policy/Career. The question presented was whether deciding and proposing officials agreed with the statement: “Federal employees have too many rights.” 42% of the respondents answered “neutral,” while 35% answered “agree or strongly agree.” \96\ The fact that only 23% of deciding and proposing officials disagree with the statement that employees have too many rights demonstrates the need of reform to the Federal performance management system.

\95\ U.S. Merit Sys. Prot. Bd., Adverse Actions: The Rules and the Reality, (Aug. 2015), https://www.mspb.gov/studies/researchbriefs/Adverse_Actions_The_Rules_and_the_Reality_1205509.pdf.

\96\ Id. at 6.

Several commenters, including Commenters 2241, 7611, 13583, 20991, 30426, and 31096, argued that the proposed rulemaking failed to cite evidence supporting its conclusion of widespread corruption in the career civil service. Commenter 30426, for example, critiques the proposed rulemaking's citation to corruption at the FDIC because the administration is closing offices that were meant to provide the training the report recommended to prevent future abuses. Commenter 30426 ignored the serious and well documented example of corruption in the civil service. The proposed rule cited examples such as the FDIC where an independent investigation documented widespread and longstanding abuses, including widespread sexual misconduct involving senior executives pressing junior female employees for sexual favors, at times providing career assistance in return.\97\ The report cited in the rulemaking specifically identified adverse action procedures as creating litigation risk that made the agency extremely reluctant to take action, even when leadership was aware of misconduct.\98\ Because removals created such litigation risk, the agency would move the offending employees around rather than dismiss them.\99\

\97\ See 90 FR at 17190 (citing Joon H. Kim, Jennifer K. Park, and Abena Mainoo, “Report for the Special Review Committee of the Board of Directors of the Federal Deposit Insurance Corporation,” April 2024, https://www.fdic.gov/sites/default/files/2024-05/cleary-report-to-fdic-src.pdf (FDIC Report)).

\98\ See id.

\99\ See FDIC Report at 134, A-15, A-33, and A-37.

Corruption is not limited to the FDIC. Since publication of the proposed rule, a Small Business Administration (SBA) loan officer pleaded guilty to making false statements to SBA in connection with loan applications for more than $550,000.\100\ The employee in question abused her position by approving several fraudulent COVID-19 pandemic loans she and her relatives submitted but that SBA initially declined.\101\ At the Department of the Army, the former deputy director of the U.S. Army Signal Network Enterprise Center used his position to steer business toward a specific, corrupt vendor.\102\ The former official accessed contract bid and proposal information used by a vendor to assist in winning a contract for upgrading the Army's communications infrastructure at Fort Gordon.\103\ The existence of such a scheme uncovered within the U.S. Army demonstrates the ease and feasibility of such misconduct occurring at other agencies throughout the Federal Government.\104\ The creation of Schedule Policy/Career offers a comprehensive solution to the government-wide problems created by the lengthy and litigious nature of the current removal procedures, at least with respect to policy-influencing positions.

\100\ News Release, U.S. Small Bus. Admin., Former Federal Employee and Two Other Women Plead Guilty in Pandemic Fraud Cases (Aug. 12, 2025) https://www.sba.gov/article/2025/08/12/former-federal-employee-two-other-women-plead-guilty-pandemic-fraud-cases.

\101\ Id.

\102\ Press Release, U.S. Dep't of Justice, Former deputy director of Signal Network Enterprise Center at Fort Gordon sentenced to federal prison (July 21, 2020), https://www.justice.gov/usao-sdga/pr/former-deputy-director-signal-network-enterprise-center-fort-gordon-sentenced-federal.

\103\ Id.

\104\ Id.

OPM recognizes that chapter 75 provides a pathway for agencies to address misconduct, including removing employees from the Federal service in circumstances such as those at the FDIC and the Army. In many cases, Federal agencies have been successful in doing so. However, these processes alone have proven insufficient. They foster a sense of futility and powerlessness at agencies which understandably seek to avoid spending their limited time and resources on litigation to remove employees who perform poorly or engage in misconduct. This sense of futility and powerlessness is evidenced, as noted above and in the proposed rule, in the lack of faith in the ability of agencies to hold employees accountable for poor performance and the relatively small number of adverse actions taken by agencies across Government. OPM finds it highly disturbing that only a minority of agency supervisors are confident they could remove subordinates for serious misconduct. This survey data shows that incidents like those at the FDIC illustrate systemic problems across the Government. What is needed to address this corruption and restore integrity to the Federal service is to break this cycle of poor performance and misbehavior that undermines the faith that the American people place in Government. It is, therefore, perfectly reasonable that the President reform how the executive branch manages career officials who are most responsible for the success of his policy agenda.

Commenters 0563, 12281, and 14010 argue that the cited instances of agencies' hesitancy to take appropriate action when faced with evidence of poor performance or misconduct are insufficient to justify a rule allowing for prompt agency action. These commenters miss a critical point. Any misconduct in the Federal service is a blot on its integrity. The FDIC report concerning sexual harassment found that the agency had “generally taken a risk-averse approach to the imposition of discipline.” It found that “the FDIC, like other federal agencies, risks having complaints and lawsuits” when taking adverse action against employees. Because removals created such litigation

risk, the agency would move employees around rather than dismissing them.\105\ Commenter 35478 takes issue with the proposed rule's citation to specific pages in the FDIC report for not supporting the proposition that adverse actions and appeals were a major reason for the lack of accountability, pointing out that the auditors identified 10 “root cause[s]” of the misconduct. However, OPM did not contend adverse action procedures were the sole reason for the problems at the FDIC and still finds sufficient evidence in the FDIC report to support its position. The FDIC report identified risk aversion to the disciplinary process perpetuating a lack of accountability in the agency as one of the root causes of its culture of corruption.\106\ The report specifically quoted a senior supervisor as noting “we are so risk averse we can't do anything, scared that the employees will sue us, and the ramifications are what you are seeing.” \107\ The factual record clearly demonstrates that current regulations, exacerbated by the April 2024 final rule, place unwarranted burdens upon agencies, which often prevents them from taking timely adverse action when faced with poor performance, misconduct, or corruption.\108\

\105\ Some agencies reported during the comment period that their experience in dealing with poor performers or misconduct is to simply reassign employees to other positions rather than taking performance-based or adverse actions out of fear of litigation or protracted statutory procedures. Commenters 2985 (Department of Transportation), 29882 (Department of Education), and 29909 (Office of Special Counsel). OPM credits their accounts of how subchapter II affects agency decision-making.

\106\ See FDIC Report at 154-55.

\107\ Id. at 155.

\108\ Commenter 35478 argues the fact the audit did not recommend changes to disciplinary procedures indicates they were not a major factor contributing to the FDIC's problems. Commenter's objection misses that FDIC has no authority to change those disciplinary procedures, which are set forth in statute, so such recommendations would be futile. OPM finds it unsurprising that an audit commissioned by the FDIC would not recommend changes the FDIC could not effectuate.

It is no surprise, then, that the President made the same determination. E.O. 13957, as amended, explained that “[a]gencies need the flexibility to expeditiously remove poorly performing employees from [Schedule Policy/Career] positions without facing extensive delays or litigation.” \109\ It cited evidence that less than a quarter of Federal employees believed their agencies appropriately addressed poor performance, and less than half believe they could remove employees who committed serious misconduct.\110\ President Trump ultimately found that the conditions of good administration still exist today warranting immediate action through executive action. As such, OPM concludes that even if the evidence discussed in this final rule were not independently persuasive and sufficient to support this final rule--and to be clear, OPM believes that it is--it would nonetheless credit the President's judgment within his core Article II authority to address the problems of poor performance, misconduct, and corruption in the civil service.

\109\ 85 FR 67631, 67632.

\110\ Id. at 67631.

ii. Proposed Regulations Are Necessary To Strengthen Democracy and Promote a Nonpartisan Civil Service

Commenters 1544, 9407, and 23384, and others characterize this rule as undermining democracy in favor of an authoritarian form of Government. Commenter 23384, specifically, suggests that the “independence of bureaucracy” is necessary to prevent authoritarianism. On the contrary, this rule ensures that Federal employees in policy-influencing positions are able to be appropriately disciplined for failing to faithfully implement the elected President's agenda. The U.S. Constitution provides “[t]he executive Power shall be vested in a President of the United States of America.” \111\ As such, the President is also the only official in the executive branch whose position is vested with executive power who is democratically accountable to the American people. Employees exercising executive power are doing so in place of--and, crucially, on behalf of--the President of the United States. Employees themselves are only properly vested with executive policy-influencing authority in so far as they exercise it faithfully and in accordance with the Constitution, existing law, and the President's policy agenda. The “independence of the bureaucracy,” to impose policy, or to scuttle, slow-walk, or otherwise undermine the President's policy agenda would bring about the very thing with which these commenters are concerned: the erosion of democracy. An unelected bureaucracy operating autonomously and at variance with the policy priorities of the elected President undermines democratic values.

\111\ U.S. Const. art. II, Sec. 1, cl. 1.

OPM notes that, because of the enormous scope and intricacy of many Federal statutes, Federal policymaking work frequently requires high levels of specialization. Further, Federal agencies are bureaucratic, characterized by division of labor, hierarchy of authority, and career orientation. Because career employees often play the principal and sometimes exclusive role in determining who is promoted through the hierarchy and on what schedule, career advancement in Federal service often has little do with effective execution of the President's priorities. This is particularly true over longer periods of time, where the professional relationships between agency personnel outlast individual Presidential administrations and the procedural rules of the agency and informal norms coalesce to form an agency culture or shared bureaucratic interests.

In some instances, the priorities of the President may conflict with an agency's culture or bureaucratic interests. This can occur, for example, when agency personnel have acclimated to executing their statutory mission in a manner that conflicts with the procedural or substantive values of the President. As the late William Niskanen (a longtime Government official) noted in his classic study, Bureaucracy and Representative Government (Chicago: Aldine, Atherton, 1971), the “budget-maximizing bureaucrat” will typically seek to maximize the total budget of their bureau, regardless of the public interest, in order to maximize the bureau's power and prestige. Given the incentives of a career bureaucracy, where the interests of an agency are at variance with the priorities of the President, a rational civil servant will often prioritize the institutional interests of the agency ahead of implementing the priorities of the democratically elected President. Where career employees involved in policymaking prioritize “loyalty to their building” over faithful execution of the President's priorities and the public interest, democratic accountability is undermined.

Commenters 1994, 7378, 34746, and others argue that this rule would undermine the nonpartisan nature of the civil service by making it easier to fire employees in policy-influencing positions for political reasons, including failing to adhere to political loyalty tests.

Commenters' supposition that this rule requires, or provides for, the dismissal of employees for political reasons is wholly incorrect. OPM proposed and adopts in this final rule a prohibition against personal or political loyalty tests as a condition of employment in Schedule Policy/Career. 5 CFR 213.3601(e). E.O. 13957 also requires agencies to establish and enforce internal policies protecting employees from PPPs including prohibiting discrimination based on political affiliation and political coercion. Further, this rule provides that in instances in which an employee in a policy-influencing position engages in

misconduct, performs poorly, or obstructs the democratic process by intentionally subverting Presidential policy directives, such employees may be quickly removed from the service.

OPM also views this rule as strengthening the nonpartisan nature of the civil service by ensuring employees in policy-influencing positions do not inject personal politics into their professional responsibilities related to implementing the President's agenda. Bureaucratic Resistance Is Evident

Commenters, including 0210, 3326, 3764, 16846, 18811, 27647, 29923, 30317, 31210, 32573, 34881, 35446, and 35478, assert that the proposed rule failed to provide evidence of widespread policy resistance. Despite these criticisms, considerable evidence supports the proposition that employees routinely inject their personal, partisan beliefs into their professional duties. Recent news reports detailed how career Federal employees resisted the changes pursued by the President during his current administration. One report detailed Federal employees engaged in “malicious compliance” with the President's directives.\112\ In a much more brazen act of defiance, a report detailed how staff of the U.S. African Development Foundation refused to allow employees of the Department of Government Efficiency to enter its building as part of the President's promise to eliminate unnecessary bureaucratic spending.\113\ Relatedly, Commenter 23567 also witnessed acts of resistance by describing career employees leak, “slow walk,” or deliberately perform poorly to resist changes to policies. In fact, in coordinating this final rule during the interagency comment period, a copy of the draft rule was leaked to the news media the same day that OPM briefed Federal agencies on the rule.\114\ And most recently, OPM's proposed rule to modify its performance management regulations leaked within 24 hours after sharing the rule with federal agencies for interagency comments.\115\ This was a clear breach of trust placed in the Federal workforce.

\112\ Juliana Kaplan and Ayelet Sheffey, “Random acts of protest: How federal workers are quietly pushing back on DOGE,” Business Insider, Mar. 8, 2025, available at: https://www.businessinsider.com/federal-workers-resist-trump-musk-doge-dei-emails-pronouns-2025-3.

\113\ Robert Tait and Lauren Gambino, “ `Little agency that could' cheered for act of resistance against Trump and Musk,” The Guardian, Mar. 6, 2025, available at: https://www.theguardian.com/us-news/2025/mar/06/federal-workers-block-musks-doge-africa-development-agency.

\114\ Eric Katz and Erich Wagner, “Final Schedule F regulations to describe civil service protections as `unconstitutional overcorrections,' ” Government Executive, Nov. 18, 2025, available at: https://www.govexec.com/workforce/2025/11/final-schedule-f-regulations-describe-civil-service-protections-unconstitutional-overcorrections/409616/; Courtney Rozen and Sarah N. Lynch, “US federal workers would lose whistleblower safeguards under Trump rule,” Reuters, Nov. 18, 2025, available at: https://www.reuters.com/legal/government/us-federal-employees-would-lose-whistleblower-safeguards-under-trump-rule-2025-11-18/.

\115\ Eric Katz, “Trump to limit top ratings for all feds and consolidate scoring in forthcoming rule,” Government Executive, Dec. 17, 2025, available at: https://www.govexec.com/management/2025/12/trump-limit-top-ratings-all-feds-and-consolidate-scoring-forthcoming-rule/410246/.

Another example comes from Commenter 34007 who obtained documents through a Freedom of Information Act request that uncovered career employee resistance expressed to the General Counsel of the National Labor Relation Board under the first Trump administration. In one of these emails, a former longtime NLRB employee bragged about “the brave resistance” of career NLRB employees to the presidentially appointed General Counsel's priorities.\116\

\116\ Comment 34007, at 4.

There are also widespread reports of Federal employees “pushing back,” engaging in “malicious compliance,” or being “subtle” about opposing administration policymaking.\117\ Researchers documented that Environmental Protection Agency (EPA) career staff moved policy in the opposite direction from the Reagan Administration's goals, concluding that “the influence of elected institutions is limited when an agency has substantial bureaucratic resources and a zeal for their use.” \118\ Commenter 32573 claims that the proposed rule mischaracterized the findings of researchers, noting that the EPA did not have a Senate- confirmed administrator when EPA career staff moved policy in the opposite direction, and that the Reagan administration drastically changed its policy later during the President's terms. However, we note that the EPA had an acting administrator during the time in question and EPA staff were surely informed of the Reagan administration's policy.\119\ The researcher found that even after the Senate confirmation of an Administrator “[t]he proclivity of EPA regulators to regulate seems to have been a factor negating the administration's ability to keep clean air enforcements to a minimum.” \120\ Further, it is immaterial whether the Reagan administration changed its policy later in the president's terms. This does not rebut the proposition for which the research was cited in the proposed rule. Commenter 8209 also criticizes the proposed rule's citation to a source that reported policy resistance during President Trump's first term.\121\ OPM notes that Commenter 8209 does not allege that the claims are fabricated or false but instead argues it should not be used to justify a change because of an alleged bias. OPM believes that this source--one of several--demonstrates that the first Trump administration faced policy resistance.

\117\ Kaplan & Sheffey, supra note 112.

\118\ B. Dan Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements, 82 Am. Pol. Sci. Rev. 213, 213 (1988).

\119\ See Env't Prot. Agency, Chronology of EPA Administrators (last updated Jan. 31, 2025), https://www.epa.gov/history/chronology-epa-administrators.

\120\ B. Dan Wood, Principals, Bureaucrats, and Responsiveness in Clean Air Enforcements, at 228.

\121\ See Comment 8209 (citing to Mark Moyar, Masters of Corruption: How the Federal Bureaucracy Sabotaged the Trump Presidency 83-84 (2024)).

Commenters 30055 and 34522 also allege that the proposed rule mischaracterizes one of the cited sources on page 17191. However, Commenter 30055 failed to recognize that the proposed rule cited two different articles from the same author. While part of the second article discusses reciprocal hierarchy, much of the article discusses several instances of civil servant disobedience during the President's first administration. Further, the other article cited discusses disobedience in the context of the President's administration. Based on the content from both articles, we disagree with both commenters that the proposed rule mischaracterized those sources. Similarly, Commenter 34522 also claims the proposed rule fails to discuss all the relevant conclusions of another two sources.\122\ We disagree. While the first source discusses other behavioral patterns and disclaims the empirical accuracy of its studies, the Commenter does not dispute that it discusses the claims made by the proposed rule. Lastly, Commenter 34522 does not dispute that the second source also discusses the claims made by the proposed rule. While we recognize that the second source comes to additional conclusions OPM does not share, we do not agree that OPM's statements regarding the source are inaccurate.

\122\ Comment 34522, n. 15 at p.9.

The proposed rule cited several examples of career employees stating plans to resist policies they disliked. The Washington Post reported on an EPA career employee explaining that “she and her co- workers are focused on how to make sure the new administration does not walk back environmental regulations achieved

under Biden.” \123\ An undercover journalist documented an employee in the White House Office of Pandemic Preparedness and Response Policy explaining that career employees “slow-walk” initiatives they dislike or “pretend to work really hard on something when they're not.” \124\ Others, like an Equal Employment Opportunity Commission (EEOC) employee, opt not to hide their opposition, but broadcast resistance plans. Soon after President Trump took office a second time, an EEOC administrative judge \125\ addressed an email to then-acting EEOC Chairwoman Andrea Lucas and sent it to all EEOC employees. The administrative judge stated, in relevant part: “I will not participate in attempts to target private citizens and colleagues through the recent illegal executive orders.” \126\ This employee openly professed her intention to refuse Presidential directives based purely on her personal views.\127\ Commenters 13308, 34947, 34522, 35446, and 35478 claim that this is a mischaracterization of the employee`s actions. In this regard, they claim that the employee viewed the “presidential directives were illegal and unconstitutional.” OPM disagrees and believes the characterization is correct. The email was a general and broad statement--broadcast to the entire agency--that this employee would not follow the administration's policy directives. The email did not mention any conflicting legal precedent or discuss the policy directives in the context of any pending agency action. Line Federal employees are not statutorily authorized to unilaterally decide the constitutionality of agency policies for themselves. That authority rests with other officials, such as the Attorney General.\128\ Further, none of the commenters provide any authority demonstrating that the policy directives were illegal. Therefore, the argument is faulty. OPM notes that nothing in this rule precludes an employee from discussing concerns about a presidential or agency policy with a supervisor or management.

\123\ Emily Davies, et al., Federal Workers Prepare for Cuts, Forced Relocations in Trump's Second Term, Wash. Post (Nov. 7, 2024), https://www.washingtonpost.com/dc-md-va/2024/11/07/trump-dc-federal-workforce-cuts/.

\124\ `The Deep State Is Real:' White House Advisor Reveals How Bureaucracy Protects “Its Own Interests,” Predicts Bureaucracy Will `Crush' RFK Jr. as HHS Secretary; “If I Was Given an Order . . . I Would Either Try to Block It or Resign”, O'Keefe Media Gp. (Jan. 23, 2025), https://okeefemediagroup.com/the-deep-state-is-real-white-house-advisor-reveals-how-bureaucracy-protects-its-own-interests-predicts-bureaucracy-will-crush-rfk-jr-as-hhs-sec/. Several commenters, including Commenter 4772 and 35478, assert that the tweet and the proposed rule mischaracterize the actual video footage attached to the tweet by claiming that the individual, if given an order he disagreed with, “would either try to block it or resign.” But regardless whether this particular employee would engage in policy resistance, there are plenty of other examples and additional information provided in the proposed rule that demonstrates widespread policy resistance.

\125\ Commenter 34947 questioned this example of an EEOC administrative judge, asserting an “administrative law judge [is] a category of employee who . . . would notably not be subject to Schedule Policy/Career.” Commenter is correct that administrative law judges are Schedule E; however, this example is an administrative judge, who is not Schedule E and would potentially be eligible for Schedule Policy/Career. See 5 CFR 6.2.

\126\ Abby Vesoulis (abbyvesoulis.bsky), Bluesky (Feb. 3, 2025, 10:12 a.m.), https://bsky.app/profile/abbyvesoulis.bsky.social/post/3lhbtdoudfs25. OPM contacted the EEOC and obtained verification both that the email was accurate and that it was sent by an administrative judge.

\127\ See id.

\128\ See, e.g., 28 U.S.C. 530D.

During the previous Trump administration, multiple Federal Labor Relations Authority (FLRA) decisions publicly chastised a career regional director for “willful noncompliance” with an earlier Authority order.\129\ This raises the obvious question--are chapter 75 procedures sufficient deterrent to ensure such employees are putting their partisanship aside and faithfully implementing the President's agenda?

\129\ See U.S. Dep't of Justice, Exec. Off. for Immigration Rev., 72 FLRA 622, 626-28 (Jan. 21, 2022); U.S. Dep't of Justice, Exec. Off. for Immigration Rev., 72 FLRA 733 (Apr. 12, 2022).

Finally, agencies also commented on the rule and indicated that they had experienced policy resistance, it impeded their operations, and they believed the proposed rule would be helpful in addressing such misconduct. The Department of Education, for example, commented that during the First Trump Administration, career employees would not constructively assist in drafting important regulations, such as the department's Title IX regulations.\130\ As a result, those regulations had to be primarily drafted by political appointees.\131\ OPM credits these comments; agencies are better positioned than external parties to observe whether policy resistance occurs.

\130\ Comment 29882, at 4.

\131\ The proposed rule cited a report that the Education Department's Title IX rule was primarily drafted by political appointees during the President's first term because key career employees would not constructively assist with drafting it. See 90 FR 17193. Some commenters questioned the accuracy of this report. See, e.g., Comment 35478 at 72. OPM credits the Education Department's statement as resolving this factual dispute and demonstrating the accuracy of the initial report.

Commenter 29987 asserts that academic research \132\ refutes OPM's assertion of widespread policy resistance. Specifically, the Commenter asserts “career civil servants generally do follow the president's agenda.” OPM agrees with this sentiment as expressed in the proposed rule. However, this does not refute the point that some career employees intentionally subvert policy directives with which they disagree. In fact, the source cited by Commenter 29987 provides additional evidence of such behavior, describing instances of career employees leaking information to the press because they did not like the administration's policy directives.\133\ Commenters 32573, 35478, and 35520 argue the proposed rule ignored evidence that detailed Federal workers' commitment to carrying out lawful administration policies. Again, OPM does not disagree that the majority of Federal employees faithfully perform their job duties. However, this does not refute the evidence of widespread policy resistance detailed in the proposed and this final rule. It can be both true that most Federal employees fulfill their job duties faithfully, and that a significant minority do not.

\132\ Marissa Martino Golden, What Motivates Bureaucrats?: Politics and Administration During the Reagan Years, Columbia University Press (2000).

\133\ Id. at pp. 134-135; see also id. at p.13 (“career civil service is neither entirely responsive nor entirely resistant, but rather bureaucratic behavior under the conditions of the administrative presidency is a mixture of both. . . .”).

In a similar fashion, Commenter 35478 also argues that a Bloomberg News article published in 2017 and cited in the proposed rule does not detail policy resistance but instead details “career employees following legal requirements, implementing policy at agencies that did not have political appointees in place, or providing candid advice.” We disagree with the Commenter's assessment. The Bloomberg News article provides numerous instances of policy resistance.\134\ Even if this article did not support this proposition, the other sources cited in the proposed rule demonstrate widespread policy resistance.\135\

\134\ Christopher Flavelle & Benjamin Bain, “Washington Bureaucrats are Quietly Working to Undermine Trump's Agenda,” Bloomberg News, (Dec. 18, 2017), https://www.bloomberg.com/politics/features/2017-12-18/washingtonbureaucrats-are-chipping-away-at-trump-s-agenda (State Department staff preserved programs to boost the economies of developing countries--at odds with Trump's campaign pledges--by relabeling them); id. (NOAA employees continuing to issue reports that are at odds with Trump administration's policies); id. (Pentagon staff delaying the reversal of an Obama-era directive by conducting a review of the policies).

\135\ See 90 FR 17192-93.

Commenters 29987, 35446, and 35478 argue that the majority of the examples

describe future actions that Federal employees may or may not take, not actual past conduct. It is true that some of the examples are statements from Federal employees on what they would do in a specific future situation. However, to completely disregard such statements simply because they are in the context of a future situation is nonsensical. It is a universal norm to rely on and take proactive measures based on an individual's statement as to what they will do or what they think will happen. Further, as the Commenters concede, there are other examples of past policy resistance documented in the proposed rule.

Commenter 35478 also argues OPM mischaracterized the role or status of the two individuals in two of the cited examples in the proposed rule. In this regard, the proposed rule cited “a long-time federal employee's guide to `useful tools' to `subtly subvert . . . orders' without outright revolting.” \136\ The Commenter insists that this is a mischaracterization because the individual retired from the Federal Government. OPM disagrees. While the individual did retire, he did so after “42 years of federal service.” \137\ As such, referring to this individual as a “a long-time federal employee” can hardly be said to be a mischaracterization. The Commenter similarly asserts OPM mischaracterized an example of policy resistance because the article stated the individual was a “federal employee in the Department of Justice's grants division,” \138\ while the proposed rule stated the individual was a “career Department of Justice employee with grantmaking responsibilities.” \139\ Again, this is not a mischaracterization--but instead an example of paraphrasing a source, which is common practice. Commenter objects that it is not clear from the article whether this employee had policy-influencing responsibilities. However, regardless of whether this career employee personally had such responsibilities, the employee was well positioned to observe how policy-influencing career employees in the grants division reacted to policies they did not support. Whether the employee personally slow-walked such policies, or merely observed more senior colleagues doing so, is immaterial to this rulemaking.

\136\ 90 FR 17192.

\137\ Joe Davidson, “Many feds don't like Trump's program, but they're not revolting,” Wash. Post (Feb. 1., 2017), https://www.washingtonpost.com/news/powerpost/wp/2017/02/01/many-feds-dontlike-trumps-program-but-theyre-not-revolting.

\138\ Juliet Eilperin, Lisa Rein, & Marc Fisher, “Resistance from within: Federal workers push back against Trump,” Wash. Post (Jan. 31, 2017), https://www.washingtonpost.com/politics/resistance-from-within-federal-workers-push-backagainst-trump/2017/01/31/c65b110e-e7cb-11e6-b82f-687d6e6a3e7c_story.htm.

\139\ 90 FR 17192.

Commenters 19791, 28481, and 32803 critique the proposed rule for citing “sources that reflect fringe right-wing opinion and conspiracy theories.” Without identifying the specific sources they are criticizing, the Commenters allege these examples should not be relied on to justify Schedule Policy/Career. OPM disagrees with the Commenters that the sources used are somehow discredited or refuted simply because they believe the sources are associated with one side of the political spectrum. Even assuming such sources are illegitimate, for sake of argument, the remaining sources and evidence still substantiate the claim of widespread policy resistance.

Commenter 30426 contends OPM has not cited a single instance in which the administration confronted an actual instance of policy resistance and was unable to use existing chapter 43 or 75 mechanisms to take action. Commenter contends this “failure is fatal” as OPM has not explained “why the proposed solution is a necessary or appropriate response” to the problem. To the contrary, the evidence OPM has cited shows exactly this.\140\ It shows policy resistance widely occurs, which demonstrates existing tools have proven insufficient to address the problem. Several agencies have told OPM that it occurs and they believe the rulemaking would ameliorate the problem. Support from affected agencies is strong evidence OPM has proposed an appropriate response.

\140\ OPM further notes that the Tales from the Swamp report, which, OPM credits (although it is far from the sole or primary basis for this rulemaking), provides examples of policy resistance stymieing policy initiatives in the first Trump Administration. For example, Education Department officials reported career staff unwillingness to meaningfully assist with drafting regulations reduced the Department's ability to write rules and prevented the Department from issuing rules that leadership considered good policy. Commenter did not dispute the accuracy of this account. Given that the Education Department has since verified, on the record, that political appointees had to draft priority regulations in the first Trump Administration, OPM considers this example highly credible. See James Sherk, Tales from the Swamp: How Federal Bureaucrats Resisted President Trump, Am. First Pol'y Inst. (Jan. 8, 2025) (Tales from the Swamp), at 18-19, https://www.americafirstpolicy.com/assets/uploads/files/Tales_from_the_Swamp-_How_Federal_Bureaucrats_Resisted_President_Trump_-_Revided_1.8.2025.pdf.

Adding further currency to this issue, a recent article appearing in Politico highlighted the deep level of resistance to Trump Administration policies that is currently playing out among career civil servants.\141\ The article, openly quoting many anonymous Federal employees, states: “At the end of the day, career staffers still believe that politicians come and go and it's them who will persevere” \142\ Another news outlet reported that Federal employees freely stated their intentions to resist the policies of the current Trump Administration on Reddit and to news reporters.\143\

\141\ Erin Schumaker, The `deep state' is proving to Trump it's a worthy foe, Politico (Sept. 14, 2025), https://www.politico.com/news/2025/09/14/trump-federal-workers-deep-state-civil-service-00558940 (“[M]ore than 1,000 civil servants, some current, some former, published an open letter demanding [Trump appointee's] resignation.”)

\142\ Id.

\143\ Allan Smith, “ 'They've radicalized me': Federal workers fight back as Trump dismantles their work,” NBC News (March 2, 2025), https://www.nbcnews.com/politics/doge/federal-workers-fight-back-trump-dismantles-work-radicalized-rcna192040 (detailing social media posts encouraging resistance).

Rather than hiding their contempt for the results of a democratic election, these employees are resisting, in some cases overtly--in many more instances covertly--the policies and direction of their own leadership. To argue that this does not constitute widespread resistance to a duly elected government is untenable. Schedule Policy/ Career attempts to partially address this issue for a relatively small subset of employees; those who are in the most sensitive policy- influencing positions. These positions are those that have the greatest impact on ensuring that the President's policies and directions are properly implemented.

Further, the President has concluded that policy resistance is a significant problem and that Schedule Policy/Career is needed to address it. The President is the official constitutionally and statutorily vested with responsibility for the executive branch. Even if OPM was not convinced that policy-resistance is a serious enough problem to warrant creating Schedule Policy/Career--and the evidence discussed above independently persuades OPM that it is--OPM would credit the President's judgment in this regard.

Accordingly, OPM believes that career employee partisanship and policy resistance is a serious problem because it undermines democracy. If the American people do not like the policies elected officials advance, they can vote for new leadership. But Americans have little recourse when career employees advance their personal agendas or undermine elected officials' policies. They are electorally unaccountable. America was founded

on the principle of government by consent of the governed. Career employees who resist elected officials' policy choices undermine the foundations of American democracy. iii. The Policy-Influencing Terms Are Not a Term of Art

Several commenters, including Commenters 0648, 23789, 26673, 30426, and 32573, argue that the use of the terms confidential, policy- determining, policy-making, and policy-advocating in 5 U.S.C. 2302(a)(2)(B)(i) and 5 U.S.C. 7511(b)(2) is a term of art that applies only to political appointees and, therefore, cannot be applied to career Federal employees to remove adverse action procedures. As explained below, OPM disagrees with this analysis of the statutory language. Irrelevant to the Rulemaking

First, this objection misses the point OPM made in the proposed rule that whether the policy-influencing terms are a term of art that means “political appointees” or a description of particular duties is legally irrelevant.\144\ Even assuming arguendo that the words confidential, policy-determining, policy-making, and policy-advocating are a term of art for political appointees, that construction makes no legal or practical difference. All that would mean is that E.O.s 13957 and 14151, and this rulemaking, are converting a class of positions and the employees occupying them into technically political appointments. Although this final rule is not converting career positions into political positions, nothing in Title 5 prevents the President from doing so and thereby changing an incumbent's status.

\144\ 90 FR at 17197.

Rather, the text of 5 U.S.C. 2302(a)(2)(B) implies an inflection point at which the nature of the position changes when an appropriate authority determines it is policy-influencing. The provision states that positions covered by PPP requirements do not include positions of a policy-influencing nature, provided that the PPP occurred prior to the designation of the position as policy-influencing. This implies that positions may be declared policy-influencing both prior to and subsequent to a personnel action occurring, as well as during the tenure of a single incumbent. The Senate's decision in 1994 to adopt a substitute amendment explicitly inserting this language into a House- passed bill would be pointless if positions could only be declared policy-influencing prior to appointment. If that were the case, the Senate's re-write of what became codified at 5 U.S.C. 2302(a)(2)(B) would necessarily mean it was adding mere surplusage to the statute. Congress did not amend 5 U.S.C. 2302(a)(2)(B) to add empty surplusage.\145\ In 1994, therefore, Congress recognized the President's authority to declare encumbered positions policy- influencing and thereby alter their legal status. If the President were to exercise that authority, an agency could thereafter take a previously proscribed PPP against an incumbent holder of the position, such as transferring him or her based on his or her political affiliation. Congress has thus recognized that the President can convert encumbered career positions to political appointments.\146\

\145\ See United States v. Menasche, 348 U.S. 528, 538-39 (1955), (citing Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 152 (1883) (“It is our duty `to give effect, if possible, to every clause and word of a statute[.]' ”)).

\146\ In the April 2024 final rule OPM argued that 5 U.S.C. 2302(a)(2)(B) had implications only for employee relief from PPPs and not chapter 75 actions. See 89 FR at 25025. Nonetheless, OPM recognizes that this statutory amendment presupposes that the President can convert career positions, and the incumbents in them, into political appointees by exempting them from prohibitions on discrimination based upon political affiliation. See 5 U.S.C. 2302(a)(2)(B) (excluding from coverage any position “excepted from the competitive service because of its confidential, policy- determining, policy-making, or policy-advocating character; or excluded from the coverage of this section by the President based on a determination by the President that it is necessary and warranted by conditions of good administration”).

At most, under these Commenters' reading of the policy-influencing terms, an executive order transferring career positions into Schedule Policy/Career would convert them into technically political appointments. However, as OPM explained in the April 2025 proposed rule, under that construction E.O. 13957, as amended, simply uses the President's constitutional and executive discretion to direct his subordinates to treat such nominally political positions as career positions, and to label and treat them as such, including by requiring agencies to establish protections against PPPs for Schedule Policy/ Career employees. This is a perfectly lawful and common practice. It is well established that the President may treat technically political appointments as career positions. Consider that most offices in the executive branch subject to the Constitution's Appointments Clause are, constitutionally speaking, political appointments.

Apart from the Senate's constitutional role in the confirmation process for Presidentially Appointed, Senate Confirmed (PAS) appointments, Congress holds extremely limited authority to substantively control the appointment of Officers of the United States. That prerogative is reserved for the executive branch. The Supreme Court has clarified as much, stating “[l]egislative power, as distinguished from executive power, is the authority to make laws, but not to enforce them or appoint the agents charged with the duty of such enforcement.” \147\. While the Senate may decline to confirm a nominee to a PAS position, Congress may not, for example, prohibit the President by law from nominating individuals based on political considerations. Similarly, the Supreme Court has well-clarified the President's extremely broad constitutional discretion to dismiss PAS officers extends to politically motivated dismissals.\148\ Nor can Congress restrict the President from removing, for political reasons, inferior officers who, acting alone, wield significant administrative or policymaking authority.\149\

\147\ Buckley v. Valeo, 424 U.S. 1, 139 (1976) (quoting Springer v. Philippine Islands, 277 U.S. 189, 202 (1928)).

\148\ Myers v. United States, 272 U.S. 52, 176 (1926) (“[I]t therefore follows that the Tenure of Office Act of 1867, in so far as it attempted to prevent the President from removing executive officers who had been appointed by him by and with the advice and consent of the Senate, was invalid, and that subsequent legislation of the same effect was equally so.”).

\149\ See Seila Law LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 238 (2020) (Seila Law).

The President and Congress nonetheless have the discretion to treat Federal offices that are, as a constitutional matter, political appointments as career positions, label them as such, and often have done both. For example, ambassadors are constitutionally obligated to be PAS appointments.\150\ But there is widespread practice of treating some ambassadorships as career positions, appointing career foreign service officers to serve.

\150\ See U.S. Const. Art. II, Sec. II, Cl. II.

Similarly, under 22 U.S.C. 3942(a)(1) most Foreign Service positions are PAS appointments. Constitutionally, Congress may not require particular screening procedures before the President submits nominations for PAS offices to the Senate. The President has plenary authority to nominate whomever he deems best. Nor can Congress require the President to delegate authority to dismiss PAS officeholders to a nonpartisan appeals board. Purely executive PAS officials serve at the pleasure of the President.\151\

However, Congress has passed laws, to which Presidents have voluntarily adhered, extensively regulating selection of nominees to, and dismissals from, PAS Foreign Service positions, even going so far as to label some as “career members” of the Foreign Service.\152\ The executive branch has routinely treated technically political PAS Foreign Service positions as career appointments because successive Presidents have found that doing so helps them carry out their constitutional responsibilities. This, however, is an act of Presidential discretion, not legal obligation. Congress may not enforce these restrictions except through the Senate's advice and consent role in the confirmation process. Technically, PAS Foreign Service positions remain political appointments,\153\ though both Congress and the President have found it advantageous to treat and describe them as career positions.

\151\ See, e.g., Humphrey's Executor v. United States, 295 U.S. 602, 631-32 (1935) (Humphrey's Executor) (“the Myers decision, affirming the power of the President alone to make the removal, is confined to purely executive officers” (citing Myers, 272 U.S. 52)). The Supreme Court has recognized an exception to the rule that PAS officials serve at the pleasure of the President, holding that it does not apply to officials who lead multimember agencies that do not wield substantial executive power. See id.; Seila Law, 591 U.S. at 198. The continuing validity of this exception is in question as the Supreme Court recently granted certiorari for the purpose of reconsidering Humphrey's Executor. See Trump v. Slaughter, No. 25A264, No. 25-332, 2025 WL 2692050 (U.S. Sept. 22, 2025). Regardless, the Humphrey's Executor exception is inapplicable to PAS foreign service members.

\152\ See 22 U.S.C. 3942(a)(1); see also 22 U.S.C. 3946 (“[T]he Secretary shall decide whether to recommend to the President that the candidate be given a career appointment under section 3942 of this title.”); 22 U.S.C. 4137(b)(4) (giving the Foreign Service Grievance Board the authority to reinstate a removed foreign service officer).

\153\ See 22 U.S.C. 3942(a)(1) (“The President may, by and with the advice and consent of the Senate, appoint an individual . . . as a career member of the Senior Foreign Service, or as a Foreign Service officer.”).

If the President wishes to appoint and dismiss officials in technically political positions without regard to political affiliation or personal political views, he is free to do so (and to direct his subordinates to do so). The fact that the President can legally appoint and vacate positions on a political basis does not mean that he must do so. The President can also label formally political positions as career positions to make it clear how he wants his subordinates to treat them. Such practices are not uncommon.

Consequently, even if the policy-influencing terms were a term of art that described political appointments, the President could still designate these positions as Schedule Policy/Career to make it clear subordinate officials are to fill and vacate them without regard for political affiliation. This is no more legally problematic than Congress and the executive branch designating PAS officers as “career members” of the Foreign Service \154\ notwithstanding the President's plenary constitutional authority to nominate candidates for and dismiss incumbents from such positions. As a result, whether the policy- influencing terms technically designate political appointments is administratively and practically irrelevant.

\154\ See id.

Even if the commenters are correct that the policy-influencing terms are a term of art referring exclusively to political appointments, the commenters have not explained how this makes any difference to the rule's legality or the administration's ability to execute it. Specifically, if the policy-influencing terms are descriptors of positions with a nexus to confidential duties or policy, then, under the E.O.s and Notice of Proposed Rulemaking, positions moved into Schedule Policy/Career remain career positions. If the policy-influencing terms are a term of art meant to refer to political appointees, then, under the E.O.s and the proposed rule, positions moved into Schedule Policy/Career are converted into technically political positions that by Presidential directive will be filled and vacated without regard to political affiliation. These positions will be labeled and treated as career positions, similar to career members of the Foreign Service whose PAS positions are technically constitutionally political but are, in practice, treated as career positions. In sum, the distinction between the two interpretations of the policy-influencing terms is substantively meaningless. Textual Analysis

Several commenters took the position that “confidential, policy- determining, policy-making, or policy-advocating” is a term of art which refers solely to political appointees. As discussed above, accepting this view has no legal or practical effect on the rule's validity. Moreover, as OPM explained in the proposed rule, the best interpretation of the CSRA is that each of the policy-influencing terms bear their constituent meanings. That is Congress used the terms “confidential,” “policy-making,” “policy-determining,” and “policy-advocating” to describe the types of positions that are eligible for the 5 U.S.C. 2302(a)(2)(B) and 7511(b)(2) exceptions.

Multiple canons of statutory construction point to this conclusion. First, meaningful variation in statutory language is presumed to entail a change in meaning. Congress used specific language in the CSRA to explicitly distinguish between career and political appointees in the SES, namely “career” and “noncareer” appointments.\155\ In subchapter V of chapter 75 Congress expressly gave all “career” SES officials adverse action procedures while excluding noncareer officials.\156\ Congress separately used quite different language-- namely the policy-influencing terms--to describe exceptions from adverse action appeals for non-SES employees in subchapter II.\157\ Canons of statutory construction indicate this shift in language implies a shift in meaning: the policy-influencing terms are not synonyms for “noncareer.” OPM is mindful of the Supreme Court's directive that “when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.” \158\

\155\ See 5 U.S.C. 3132 and 3134.

\156\ See 5 U.S.C. 7541(1) (defining “employee” as “a career appointee in the Senior Executive Service”); U.S.C. 3132(a)(4) (defining “career appointee” as “an individual in a Senior Executive Service position whose appointment was based on approval by the Office of Personnel Management of the executive qualifications of such individual”).

\157\ The fact that the CSRA uses terms whose ordinary meanings describe officials who can and cannot expect to stay in Government across presidential administrations, namely “career” and “noncareer”, further suggests Congress saw no need to use a term of art to distinguish political appointees from career officials. This reinforces the conclusion that the policy-influencing terms bear their ordinary, constituent meanings.

\158\ See Sosa v. Alvarez-Machain, 542 U.S. 692, 711 n.9 (2004) (quoting 2A N. Singer, Statutes and Statutory Construction Sec. 46:06, p. 194 (6th rev. ed. 2000)).

Second, under the presumption of consistent usage the “normal rule of statutory construction [is] that identical words used in different parts of the same act are intended to have the same meaning.” \159\ This matters because Congress used the policy-influencing terms elsewhere in the CSRA in a manner that is inconsistent with their being a term of art for political appointees. In 5 U.S.C. 3132(a)(2)--also part of the CSRA--Congress defined SES positions as those graded above GS-15 that “direct[ ] the work of an organizational unit; [are] held accountable for the success of one or more specific programs or projects; monitor[ ] progress toward organizational goals and periodically evaluates and makes adjustments to such goals; or otherwise exercise[ ]

important policy-making, policy-determining, or other executive functions.” \160\ In 5 U.S.C. 3134(b), Congress prohibited more than 10 percent of SES positions from being filled by noncareer (e.g., political) appointees.\161\ Consequently, at least nine-tenths of SES positions--which are definitionally “policy-making” or “policy- determining” executives--must be held by career officials.

\159\ Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 570 (1995) (quoting Dep't of Revenue of Ore. v. ACF Indus., Inc., 510 U.S. 332, 342 (1994) (internal quotation marks omitted)).

\160\ 5 U.S.C. 3132(a)(2) (emphasis added).

\161\ See 5 U.S.C. 3134(b) (“The total number of noncareer appointees in all agencies may not exceed 10 percent of the total number of Senior Executive Service positions in all agencies.”).

Congress's decision to use “policy-making” and “policy- determining” to define a class of employees which must be at least 90% career employees is incompatible with those terms being merely subcomponents of a single term of art which can refer only to political appointees. Moreover, the presumption of consistent usage most strongly applies to terms appearing in the same enactment, as these did.\162\ Congress's use of the terms “policy-making” and “policy- determining” to describe career positions in one part of the CSRA strongly suggests these terms are not mere synonyms for the different term used to describe political appointees elsewhere in the statute.

\162\ See United States v. Castleman, 572 U.S. 157, 174 (2014) (Concurring Opinion of Justice Scalia) (“[T]he presumption of consistent usage [is] the rule of thumb that a term generally means the same thing each time it is used[,]” and “is most commonly applied to terms appearing in the same enactment.”); IBP, Inc. v. Alvarez, 546 U.S. 21, 34 (2005) (“[T]he normal rule of statutory interpretation [is] that identical words used in different parts of the same statute are generally presumed to have the same meaning.”). See also Azar v. Allina Health Servs., 587 U.S. 566, 574 (2019) (“This Court does not lightly assume that Congress silently attaches different meanings to the same term in the same or related statutes.”).

Looking at the CSRA as a whole makes construing the policy- influencing terms as a specialized term of art describing only political appointees untenable. Congress knew how to categorically grant all career employees adverse action procedures in chapter 75 but used quite different language when drafting subchapter II of that chapter. Congress also used the policy-influencing terms employed in subchapter II to separately describe primarily career positions. The better reading of 5 U.S.C. 7511(b)(2) is that the terms in the expression “confidential, policy-determining, policy-making, or policy-advocating” have their ordinary, plain English meaning and describe positions involved in determining, making, or advocating for policy, or confidential positions. Such positions include but are not limited to political appointments.

This construction gives the same meaning to the terms “policy- making” and “policy-determining” throughout the CSRA while recognizing that the terms “career” and “noncareer” have an orthogonal meaning, referring to civil service and political appointments respectively. This interpretation also recognizes that Congress specifically gave adverse action procedures to career SES members and denied them to noncareer SES appointees, while using very different language in the section of chapter 75 governing the competitive and excepted services. These factors indicate the policy- influencing exclusion from subchapter II should not be read as a term of art that applies only to political appointees.

Commenters raised various objections to this conclusion and argued the policy-influencing terms should be read as a singular term of art whose meaning is divorced from its constituent terms. They assert that these terms mean only and exclusively “political appointee.” OPM disagrees with these comments, for the reasons set forth below. Otherwise Exercises

Commenter 29987 suggests that 5 U.S.C. 3132(a)(2) should be read to define SES employees to include officials above the GS-15 level who exercise policy-making, policy-determining, or executive functions, but that this does not imply that officials who perform the other duties set forth in that subsection have policy-making or policy-determining functions. In Commenter's view, the use of “policy-making” and “policy-determining” in section 3132(a)(2) supplies additional criteria for defining SES positions but does not imply the other enumerated criteria are policy-determining or policy-making functions.

OPM respectfully disagrees. Commenter's construction would make sense if 5 U.S.C. 3132(a)(2)(E) did not describe SES positions as “otherwise exercise[ing] important policy-making, policy-determining, or other executive functions” (emphasis added). In English, the use of the term “otherwise” in this manner indicates that the functions that precede the “otherwise” are of the same type as those that follow it. Congressional use of “otherwise” implies the criteria such as “[being] held responsible for the success of one or more specific programs or projects” or “monitor[ing] progress towards organizational goals and periodically evaluat[ing] and mak[ing] appropriate adjustments to such goals” are important policy- determining, policy-making, or executive functions.

Contrary to Commenter's suggestion, OPM also believes the functions expressly enumerated in section 3132(a)(2) cannot be characterized as only “executive” functions with no connection to policy. That construction would render the use of the terms “otherwise” “policy- making” and “policy-determining” in section 3132(a)(2)(E) mere surplusage. If none of the expressly enumerated functions are policy- making or policy-determining, it would make no sense to describe an employee as “otherwise” exercising such policy functions. Further, OPM believes it is natural to consider responsibilities such as making adjustments to organizational goals as involving policy-making and not purely executive functions. Location of 7511(b)(2) Does Not Limit Policy-Influencing Terms to Political Appointees

Commenter 30426 argues that 5 U.S.C. 7511(b)(2) was originally one of only two exclusions in section 7511(b), both of which only addressed political appointee positions. In its current form, paragraph (b)(2) is sandwiched between two other political appointee exclusions, one for PAS positions, and one for PA positions. This simply shows that Congress intended the exception to apply to political appointees, as it surely does.

OPM does not dispute that 5 U.S.C. 7511(b)(2) was added largely for the purpose of allowing exceptions for political appointees from adverse action appeals. However, OPM asserts that the exception can cover both political appointees and some policy-influencing career employees. The addition of a third exception presupposes congressional intent that the other two were insufficient to cover the universe of appointees to whom Congress intended to apply the exception. Commenter 30426 does not explain how this placement is an argument for construction of 5 U.S.C. 7511(b)(2) to exclusively cover political appointees, rather than it covering political appointees as well as a broader potential application subject to discretion to exercise that application. Congressional Purpose Does Not Override Statutory Text

Commenter 30426 similarly argues that in the CSRA itself, Congress declared that one of its purposes is to ensure that Federal employees “receive appropriate protections through increasing the authority of the MSPB in

processing hearings and appeals affecting [f]ederal employees.”

OPM concurs in the view that the CSRA was intended to provide MSPB coverage, which it will continue to provide to the vast majority of employees under this reading. That purpose can and does coexist with the statutory exceptions from MSPB coverage, including those for policy-influencing positions. As the Supreme Court has clarified, “[i]ndeed, it is quite mistaken to assume . . . that `whatever' might appear to `further[ ] the statute's primary objective must be the law.' ” \163\ Commenter's other arguments that CSRA adverse action exemptions should be read narrowly in light of other sections, including 2302(a)(2)(B)(i) have the same answer: OPM is reading the restrictions narrowly, just not as narrowly as the Commenter suggests. Further, 5 U.S.C. 2302(a)(2)(B)(ii) permits the President to except “any position”--not just policy-influencing positions--from PPP prohibitions if he determines it necessary and consistent with principles of good administration. If giving the President broad discretion to except any position he deems necessary from PPP prohibitions is consistent with the broader purpose of the CSRA, and 5 U.S.C. 2302, then reading 7511(b)(2) to authorize the President to except just policy-influencing career positions is also consistent with the CSRA's purpose.

\163\ Henson v. Santander Consumer USA Inc., 582 U.S. 79, 89 (2017) (citing Rodriguez v. United States, 480 U.S. 522, 526 (1987)).

OPM's Interpretation Is Consistent With the CSRA and Other Title 5 Authorities

Commenters 16670, 23789, 30426, and others argued that construing the policy-influencing terms to bear their ordinary, constituent meaning would be “incoherent” because it would give members of the SES, who wield more authority over policy, stronger removal protections than subordinate employees in the General Schedule covered by subchapter II with less authority over policy. They criticize OPM for failing to explain why Congress would make an “illogical” choice to create a “giant” exception from adverse action procedures for lower- ranking employees but not the more powerful senior executives who supervise them.

As OPM explained in the proposed rule, this objection misses statutory SES management flexibilities. Agency heads can reassign SES members at-will \164\ and have broad discretion to demote them from the SES for poor performance without external appeals.\165\ The President and OPM can also take agencies out of the SES and create alternative senior executive management systems.\166\ Section 7511(b)(2) of 5 U.S.C. would then allow the President to exclude employees in those alternative systems from chapter 75.\167\ Congress could have easily seen the need for greater authority to remove policy-influencing employees below the SES precisely because agencies do not have the same degree of management flexibility. Congress could have also drafted section 7511(b)(2) more expansively in part to ensure the President could make senior executives entirely at-will if he takes their agencies out of the SES.\168\ The commenters also failed to consider that the President proactively exercised his executive authority to extend protections from PPPs to Schedule Policy/Career positions by requiring agencies to establish and enforce internal policies protecting these career employees from, for example, whistleblower reprisal.

\164\ See 5 U.S.C. 3395.

\165\ See 5 U.S.C. 4312(d) and 4314(b)(3).

\166\ 5 U.S.C. 3132(c).

\167\ 5 U.S.C. 7511(b)(2) (excluding from chapter 75 any position that “has been determined to be of a confidential, policy- determining, policy-making, or policy-advocating character by (A) the President for a position that the President has excepted from the competitive service; (B) the Office of Personnel Management for a position that the Office has excepted from the competitive service”).

\168\ For example, unlike SES members, competitive and excepted service employees can appeal removals based on unacceptable performance to the MSPB. See 5 U.S.C. 4303(e).

Commenter 30426 rejected this analysis as “absurd” because it suggests Congress's intricate work crafting the CSRA, with the creation of the SES the crown jewel of that work, is meant only to “cohere” in agencies that are excepted from the SES. Commenter 30426 also objected that this would imply Congress gave the President the authority to fire a single member of the SES, but only if he excepted the entire agency from the SES system, a conclusion the Commenter similarly described as absurd. Commenter 30426 further argued that SES management flexibilities are not as significant as OPM explained, reasoning that reassignment at will and unappealable performance-based demotions of SES members are not comparable to at-will dismissal of sub-SES employees. The Commenter uses this observation to buttress the argument that it would be illogical to construe the CSRA to give the President more flexibility over junior employees than senior executives.

On the contrary, OPM believes construing 7511(b)(2) to allow the President to make policy-influencing excepted and competitive service employees at-will makes rational sense. Congress could reasonably have expected that heightened SES management flexibility would generally be sufficient to address performance issues or policy resistance, while recognizing that in some cases they would not. In those cases, Congress left the President backstop authority to exclude an agency or agency subunit entirely from the SES and use 7511(b)(2) to make such senior executives at-will employees. Congress may have expected this backstop authority to be the exception, not the rule. But construing the CSRA to provide such backstop authority, while expecting it would rarely need to be used, is a coherent construction of the statute.

In addition, employees in the competitive and excepted services can appeal performance-based demotions to the MSPB.\169\ SES members cannot.\170\ These are considerably greater management flexibilities than Congress has given agencies over sub-SES officials.\171\ Congress could have rationally expected SES management flexibilities would generally suffice and not see the need to provide for at-will SES removals in the mine run of agencies that the President elects to keep in the SES.\172\

\169\ See 5 U.S.C. 4303(e), 7513(d).

\170\ See 5 U.S.C. 4312(d), 4314(b).

\171\ The Supreme Court similarly recognized these SES management flexibilities as noteworthy in evaluating the constitutionality of removal protections for officers exercising executive power. Free Enterprise Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 506-07 (2010) (noting that “members of the Senior Executive Service may be reassigned or reviewed by agency heads (and entire agencies may be excluded from that Service by the President)” (citing 5 U.S.C. 3132(c), 3395(a), 4312(d), 4314(b)(3) and (c)(3)). Free Enterprise Fund also cited the fact that “[s]enior or policymaking positions in government may be excepted from the competitive service to ensure Presidential control” as another factor distinguishing the rules governing the civil service from the “significant and unusual protections from Presidential oversight” enjoyed by the board members at issue in Free Enterprise Fund. Id. at 506 (citing 5 U.S.C. 2302(a)(2)(B), 3302, 7511(b)(2)).

\172\ Indeed, any interpretation of the CSRA or any other law that restricted the President from removing an officer with significant “policymaking or administrative authority” would be constitutionally suspect. See Seila Law, 591 U.S. at 218.

Moreover, OPM notes that 7511(b)(2) authority only applies to the small subset of sub-SES employees in policy-influencing positions. Under the CSRA the rule is that agencies have more management authority over SES members than the vast majority of competitive and excepted service employees. It could easily be rational, rather than illogical, for Congress to

conclude the President needed heightened management authority over the small subset of policy-influencing employees covered by 5 U.S.C. 7511(b)(2).

OPM recognizes that the 7511(b)(2) exception was enacted for the purpose of permitting the executive branch to except political appointees from adverse action procedures. It has consistently been applied for that purpose. However, the text Congress used to draft this exception makes positions eligible based on the types of duties they perform--not the political nature of the incumbent's appointment. Nothing in the text of 7511(b)(2) restricts its application to employees hired on a political basis, or to employees who are expected to be dismissed upon a change of administration. Some members of Congress may have assumed that the exception would only apply to political appointees, but nothing in the enacted text of subchapter II requires that view. It is the text of statutes Congress enacts that binds as law.\173\

\173\ See Diamond v. Chakrabarty, 447 U.S. 303, 315 (1980) (“[A] statute is not to be confined to the `particular application[s] . . . contemplated by the legislators.' ” (quoting Barr v. United States, 324 U.S. 83, 90 (1945))); Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79 (1998) (“[I]t is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”); see also Bostock v. Clayton Cnty., Georgia, 590 U.S. 644, 653 (2020) (“[T]he limits of the drafters' imagination supply no reason to ignore the law's demands.”).

Relatedly, SES members generally supervise organizational units. Thus, the authority granted in 5 U.S.C. 3132(c) to remove an agency “unit” will generally suffice to allow OPM and the President to except a single individual from the SES. Contrary to Commenter 30426's statement, it is generally unnecessary to except an entire agency from the SES to hold accountable a single SES member. OPM's Interpretation Is Consistent With 5 U.S.C. 2302

Commenter 30426 argues that OPM's argument that the terms “policy- making” and “policy-determining” in 5 U.S.C. 3132(a)(2) have the same meaning as in 5 U.S.C. 2302(a)(2)(B) and 7511(b)(2) ignores the fact that Congress expressly included career SES in the coverage of 5 U.S.C. 2302, even though it excluded “confidential, policy- determining, policy-making or policy-advocating” excepted service positions from that section. Commenter contends that if the words used in 5 U.S.C. 3132 had the same meaning as the distinct term of art in 5 U.S.C. 2302(a)(2)(B)(i), then the express coverage of career SES members by 5 U.S.C. 2302 would make little sense, as all SES members would be expressly included by section 5 U.S.C. 2302(a)(2)(B), but then excluded under 5 U.S.C. 2302(a)(2)(B)(i).

Commenter's argument in this regard misses the fact that SES positions--both career and noncareer--are definitionally not in the excepted service but exist in a separate statutory category. Section 2103(a) of Title 5, U.S. Code, provides that the “excepted service” are those “civil service positions which are not in the competitive service or the Senior Executive Service.” Section 2302(a)(2)(B)(i) of Title 5, U.S. Code, does not apply to SES members, because it covers “any position which is excepted from the competitive service because of its confidential, policy-determining, policy-making or policy- advocating character.” In this way, SES positions are not “excepted from the competitive service,” but rather exist within a separate service.

Consequently, there is no contradiction as Commenter 30426 proposes. Section 2302(a)(2)(B) includes many positions, including career SES, under protections from PPPs, while 5 U.S.C. 2302(a)(2)(B)(i) excludes policy-influencing positions in the excepted service from coverage under 5 U.S.C. 2302. That exclusion for policy- influencing excepted service positions does not apply to any SES positions because they are not part of the excepted service, no matter the policy-nature of their duties. OPM further notes that Schedule Policy/Career will not apply to the SES, which operates under separate statutory authority. Consequently, the concerns expressed by Commenters 26624 and 28202 for SES employees are also inapplicable. E.O. 13957 and the Final Rule Do Not Expand the Meaning of the CSRA

Commenter 30426 criticizes Section 5(c) of E.O. 13957, as amended, and OPM's January 2025 Memorandum, as atextually expanding the use of “confidential, policy-determining, policy-making or policy- advocating” to include duties that are policy-related and develop or formulate policy. Commenter 30426 points to other descriptors used in the E.O. to describe policy-influencing positions, namely policy “viewing,” “circulating,” and “working”, and concludes that the E.O. expands the statutory terms under 5 U.S.C. 7511(b)(2) towards covering those involved in the daily administration of Government.

Commenter 30426 misreads the categories in subsection 5(c) of E.O. 13957 and OPM's January 2025 Memorandum requiring agencies to focus analysis on certain types of positions. Commenter 30426 construes these categories as definitions of the policy-influencing terms. As explained in this rule, they are not definitions, but rather are guideposts to focus agency analysis and recommendations on positions that are more likely to be policy-influencing. It is not the case that every position that falls within these criteria will be included in Schedule Policy/ Career, nor is it the case that every position not described by these guideposts will not be held to be policy-influencing. OPM's January 2025 Memorandum expressly advised agencies that these guideposts were not controlling but merely factors to consider. This guidance encompasses employees who have access to confidential, deliberative policy information by virtue of their close working relationship with agency leadership and management, given GS-13 and higher are the management grades in the Federal Government. While these positions may not, in an agency's determination, fall within the scope of the terms policy-making or policy-determining, they may execute confidential duties within the bounds of 5 U.S.C. 7511(b)(2). Commenter 30426 provides no argument as to why such positions should not be considered confidential.

Commenter 30426's conclusion is similarly confusing. Commenter 30426 does not explain how authority over the policies governing the daily administration of government are not policy-making authorities in and of themselves. Determining the manner in which agencies carry out their work is government policy. Agencies have substantial discretionary authority to determine how the government carries out its statutory responsibilities, and that authority is the authority to make policy if not determine it. In lay terms, the “how” and the “what” of a policy are interdependent and, in fact, inextricably linked considerations.

Commenter 30426 similarly argues that E.O. 13957, as amended, drifts away from the statutory focus on the “character” of a position towards the location of a position within an organization when, for example, it purports to cover positions situated in an executive secretariat. However, Executive Secretariat positions are often heavily involved with circulating draft proposals and documents with agency heads. Many, though not necessarily all, of them are appropriately considered confidential.