Improving Performance, Accountability and Responsiveness in the Civil Service

Commenter 30426 and others take issue with OPM's January 2025 Memorandum that provides guideposts to agencies to implement E.O.s 13957 and 14171. Commenter 30426 argues that by including the 5 U.S.C. 3132(a)(2) terms defining SES positions in the January 2025 Memorandum, OPM has effectively advanced a view that the CSRA authorizes exclusion of nearly all supervisory positions in Government. Commenter 30426 points to the separate probationary period for new supervisors authorized by Congress in 5 U.S.C. 3321(a)(2).

The CSRA defines SES positions as positions above the GS-15 level that perform certain enumerated functions or “otherwise exercise[ ] important policy-determining, policy-making, or other executive functions.” \174\ From these enumerated functions the January 2025 Memorandum did not include “supervising the work of employees other than personal assistants,” \175\ and thus does not include most line supervisors who perform executive functions without the same degree of responsibility for agency policy. However, it included executives whose responsibilities include “directing the work of an organizational unit”, “being held accountable for one or more specific programs or projects”, and “monitoring progress toward organizational goals, and periodically evaluating and making appropriate adjustments to such goals.” \176\ Such duties go beyond executive supervision to involvement in making or setting the policies of an agency. Congress considered these to be important policy-determining and policy-making functions. Many agency executives below the level of the SES who perform these functions thus meet the criteria for Schedule Policy/ Career. Further, the supervisory probationary period remains relevant because most supervisors do not exercise these higher-level functions. Generally, only more senior executives in the rungs immediately below the SES meet these criteria, while line supervisors do not.

\174\ See 5 U.S.C. 3132(a)(2).

\175\ Id.

\176\ Id.

While SES members will not be included in Schedule Policy/Career because they are appointed to a service separate and distinct from the competitive and excepted services, Schedule Policy/Career complements the SES structure and ensures those non-SES personnel executing similar duties are appropriately accountable to the President. Thus, Commenter 30426's complaint is with congressional judgment, not OPM's guidance on positions to review that follows these statutory guideposts. OPM's Interpretation Is Consistent With the Use of Policy-Influencing Terms in Individual Agencies' Organic Statutes

Commenter 30426 also points to several other statutory provisions within title 5 that do not define excepted service policy-influencing positions as political appointments per se but that classify such employees along with political appointees for certain purposes. For example, Commenter 30426 discusses 5 U.S.C. 5753(a)(2)(C) and 5 U.S.C. 5754(a)(2) recruitment and retention bonuses. They do not apply to Presidential appointees, noncareer SES, or a “position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.” In addition, Commenter raises the Intergovernmental Personnel Act, which authorizes the head of a Federal agency to detail an employee to state and local governments so long as employees commit to serving in their original position for the same length of time. Under the Intergovernmental Personnel Act, Congress excluded employees in a confidential, policy-making, policy-determining, or policy-advocating position along with noncareer SES and temporary SES personnel.\177\ Commenter argues these laws show policy-influencing positions were treated the same as political appointees (and different from career employees) and that this sheds light on interpreting the CSRA. Commenter 30426 further argues, “applying this term to career civil servants would produce an absurd outcome: career officials who occupy positions of a “confidential, policy-determining, policy-making or policy-advocating” character would be ineligible for recruitment or retention bonuses, whereas all other career officials could receive them.” \178\ This rulemaking addresses these arguments in the next section.

\177\ 5 U.S.C. 3372(a)(1).

\178\ Comment 30426, at 16.

Commenter 30426 also argues that various Federal laws define political appointees as individuals occupying policy-influencing positions in the excepted service and that is relevant to interpreting the CSRA. In support, Commenter 30426 asserts that the Supreme Court's decision in United States v. Fausto compels OPM to interpret 5 U.S.C. 7511(b)(2) and 2302(a)(2)(B)(i) in a manner consistent with the definitions these other statutes supply. They purportedly reflect the consistent understanding of Congress that the term of art “confidential, policy-determining, policy-making, or policy- advocating” applies only to political appointee positions. In other words, Congress defined the concept of a political appointee in other laws based on the understanding of the term of art.

But there is no inconsistency between these statutes and OPM's construction of the policy-influencing terms. As discussed previously, the textual interpretation and statutory analysis, as well as the history of these terms' usage, which Commenter supplies and is discussed in a later section, reinforces the conclusion that the meaning of these terms at the time of the CSRA and the DPAA was clear and the terms bear their ordinary meaning: positions involved in determining, making, or advocating for policy, or confidential positions. At the same time, as a matter of Presidential discretion, the executive branch limited the application of the 7511(b)(2) exception to political appointments, principally Schedule C positions.\179\ Subsequently, Congress passed a handful of provisions scattered across the U.S. Code that define policy-influencing positions as political appointments for certain narrow applications. This occurred because, until 2020, the policy-influencing exception had only been applied to political appointments. So at the time these laws were enacted, the terms only described political appointments. At the same time, Congress expressly limited the application of these definitions to whichever inferior subdivision of Title 5 was at issue, using limiting language like “for purposes of this section” or “this subsection.” At no point did Congress provide a global definition across Title 5 for the meaning of those terms or interpret those terms for purposes of 7511(b)(2). Rather, Congress legislated against the backdrop of contemporary executive branch practice. Construing those terms now to implicitly provide a global definition of the policy- influencing terms for Title 5 as a term of art would construe these laws to implicitly and retroactively modify the scope of 7511(b)(2)-- ignoring Congress's direct statutory command that these are to be narrow

and local definitions that do not control across all of Title 5.\180\

\179\ Notably, Presidential discretion has resulted in many, but not all, policy-influencing positions being placed into the excepted service. Some have been so-designated by agency heads. See Stanley v. Gonzales, 476 F.3d 653, 658-59 (9th Cir. 2007) (evaluating the Attorney General's redesignation of a position as “confidential or policy-making”).

\180\ Further, there is nothing problematic with treating some career positions as political appointments for narrowly defined purposes, like performance review procedures or details to state or local government.

Additionally, each of the four instances Commenter 30426 cites of policy-influencing positions being defined as political appointees are compatible with E.O.s 13957 and 14171, as well as this rulemaking. First, 7 U.S.C. 6992(e)--passed by Congress and signed into law in 2018--prohibits any “political appointee” from being employed in the U.S. Department of Agriculture National Appeals Division, defining the term political appointee, “in this subsection” to mean, inter alia, “a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.” This provision prohibits the President from using 7511(b)(2) to remove adverse action appeals from employees within the Appeals Division. It does not purport to define any employees holding policy-influencing positions outside the Appeals Division as political appointees. By its own terms, it has no bearing on that question.

Second, 5 U.S.C. Chapter 98 provides the National Aeronautics and Space Administration (NASA) with a variety of compensation flexibilities, such as recruitment and retention bonuses, and leave accrual enhancements. Section 9803(c)(2) of Title 5, U.S. Code--enacted in 2004--prohibits exercising these flexibilities with respect to political appointees, defining that term, “For purposes of this subsection,” to mean, inter alia, “a position which has been excepted from the competitive service by reason of its confidential, policy- determining, policy-making, or policy-advocating character.” This means that NASA could not use these pay flexibilities for either Schedule C, Schedule G, or Schedule Policy/Career, or any other position covered under 5 U.S.C. 7511(b)(2). Congress passed this prohibition because at the time of its enactment, only political appointees were covered by that exception. However, the inability to use certain pay flexibilities available would not prevent NASA from filling or vacating section 7511(b)(2) positions on a nonpartisan basis, nor would doing so create any conflicts with E.O.s 13957 and 14171. Rather, this section cabins off the application of compensation flexibilities within NASA. Nothing else.

Third, 6 U.S.C. 349(d)--enacted in 2016--authorizes the Secretary of DHS to appoint a Deputy Under Secretary to support the Under Secretary for Strategy, Policy, and Plans, but in exercising that discretion, requires the Secretary to appoint a career employee to the position, defining a career employee as a non-political appointee and defining a “political appointee” “for purposes of [this] paragraph” as “any employee who occupies a position which has been excepted from the competitive service by reason of its confidential, policy- determining, policy-making, or policy-advocating character.” \181\ This prohibition simply prevents the President from applying the section 7511(b)(2) prohibition to a single position at the DHS. It does not, and on its own terms does not attempt to, limit the application of section 7511(b)(2) elsewhere within DHS. In addition, it does not purport to apply a generally applicable definition of career employee or political appointee. Under 6 U.S.C. 349(d)(3) a noncareer SES member can be considered a “career employee” and not a “political appointee” because SES positions are not “excepted from the competitive service” and thus are outside the definition of political appointees. Looking to this subsection to interpret the scope of political appointments or delineate political from career positions in the Federal workforce would be highly problematic. This is no doubt one reason Congress expressly said not to do so.

\181\ 6 U.S.C. 349(d)(3).

Fourth, 38 U.S.C. 725, enacted in 2017, requires the Secretary of Veterans Affairs (VA Secretary) to give specific performance evaluations to each “political appointee” in the VA that covers certain congressionally mandated metrics, such as engaging and motivating employees, and recruiting and retaining well-qualified individuals in the VA. “In this section the term `political appointee' means an employee of the Department who holds . . . a position which has been excepted from the competitive service by reason of its confidential, policy-determining, policy-making, or policy-advocating character.” \182\ This language requires the VA Secretary to evaluate employees with important policy responsibilities based on categories of interest to Congress. This section also does not purport to generally define political appointees, as it excludes PAS positions and Presidentially Appointed (PA) positions, of which VA has both. PAS and PA positions are obviously political appointments, but not in scope for the purposes Congress intended section 725 to cover, so they are not covered by the definition (though the VA Secretary has limited authority to review the performance of Presidential appointees). Section 725 of title 38, U.S. Code, should therefore not be read to define the 7511(b)(2) exception as limited to political appointees any more than it should be read to declare PAS and PA appointees not to be political appointees. It simply does not speak to that question, a view Congress expressly endorsed by cabining off the scope of the definition exclusively to 38 U.S.C. 725.

\182\ 38 U.S.C. 725(c).

Additionally, Congress elsewhere defined “political appointee” more narrowly to only encompass Schedule C appointees. For example, 49 U.S.C. 106(f)(5)(C) provides that political appointee, for the purpose of operations of the Federal Aviation Administration, is to mean any individual who is “employed in a position in the executive branch of the Government in a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5 of the Code of Federal Regulations.” A note to 5 U.S.C. 3101 (Pub. L. 114-136, sec. 4, 130 Stat. 305, March 18, 2016) defines political appointees for purposes of reports on officials burrowing into career positions as, in relevant part, “a position in the executive branch of the Government of a confidential or policy-determining character under schedule C of subpart C of part 213 of title 5, Code of Federal Regulations.” So, it is not the case, as Commenter 30426 suggests, that Congress consistently uses the policy-influencing terms as a unified term of art to define political appointees. Rather, in some sections, Congress specifically described Schedule C positions and not the broader policy- influencing phrase. These are local definitions and should be treated as such. Historical Context Supports OPM's Interpretation

Commenters 23789, 30055, 30426, and others presented arguments that historical context shows the policy-influencing phrase “positions of a confidential, policy-determining, policy-making, or policy-advocating character” is a singular term of art. They pointed to legislative history, MSPB decisions, amicus briefs, and statements of legislators, among other sources, to conclude that Congress used the policy- influencing terms to describe political appointments. Commenters conclude that it is a fallacy to focus on the meaning of the distinct component terms of this term of art, and that its

meaning can only be understood by looking at the phrase as a whole.

There is no doubt that Congress meant the policy-influencing terms to encompass political positions. What is at issue is whether Congress used the terms as a singular term of art that definitionally describes only political appointments, or used the terms in their ordinary sense and employed language that can, at the President's discretion, also cover some career positions. Reviewing this history, OPM concludes that phrase “positions of a confidential, policy-determining, policy- making, or policy-advocating character” is not a singular term of art, but the components in this phrase bear their ordinary meaning. That meaning certainly encompasses, but is not limited to, politically appointed positions.

OPM notes that the phrase “confidential, policy-determining, policy-making, or policy-advocating” was not used as a term of art, or even as a singular phrase, before the CSRA's enactment in any source OPM or commenters have identified. This strongly implies Congress did not use this phrase as a term of art. The history that commenters point to instead used 7511(b)(2)'s constituent terms as separate descriptors. For example, the Brownlow Report spoke of “policy-determining posts.” \183\ The Senate debate over the First and Second Hoover Commission Reports used the terms “policy-making” and “policy-determining” respectively.\184\ E.O. 10440, which created Schedule C, used the phrase “positions of a confidential or policy-determining character.”

\183\ See generally President's Comm. On Admin. Mgmt., Report of the Committee with Studies of Administrative Management in the Federal Government, Gov't Printing Office, Wash., DC (1937).

\184\ 124 Cong. Rec. 27540 (Senate) (Aug. 24, 1978) (remarks of Sen. Ted Stevens (R-AK)) (“The Hoover Commission believed that in a true career service, the employee could go as far as his ability and initiative and qualifications indicated, excepting only decisionmaking or confidential posts. It held: [`]Top policy-making officials must and should be appointed by the President. But all employment activities below these levels, including some positions now in the exempt category, should be carried on within the framework of (the civil service system).[']”), https://www.govinfo.gov/content/pkg/GPO-CRECB-1978-pt20/pdf/GPO-CRECB-1978-pt20-7-1.pdf.

The CSRA, by contrast, did not use any of these pre-existing terms or phrases. It instead used a broader and more expansive formulation: “confidential, policy-determining, policy-making, or policy- advocating.” Even if, arguendo, commenters' argument was correct that the expression “confidential or policy-determining,” used in E.O. 10440 in describing Schedule C positions, was an accepted term of art that referred exclusively to political appointees, the natural implication is that Congress intended to add two other categories of employees to the exceptions contained in 5 U.S.C. 7511(b)(2)--those employees who did not fall into the Schedule C classification but were “policy-making” or “policy-advocating.” \185\ Under the reading advanced by Commenters, these additions would be mere surplusage, serving no practical purpose other than to needlessly confuse a reader familiar with the pre-existing term of art. Congress's deliberate decision to add additional new terms to the prior formulation suggests each term is meant to have independent meaning. The alternative reading would depart from “[f]ollowing the axiom that words used in a statute are to be given their ordinary meaning in the absence of persuasive reasons to the contrary[.]” \186\

\185\ OPM accepted similar arguments in the April 2024 rule. OPM now rejects this conclusion, for the same reason it rejects commenters' arguments.

\186\ See Burns v. Alcala, 420 U.S. 575, 580-81 (1975) (citing Banks v. Chicago Grain Trimmers, 390 U.S. 459, 465 (1968); Minor v. Mechanics Bank of Alexandria, 26 U.S. 46, 64 (1828)).

Additionally, Congress's use of “or” rather than “and” in 7511(b)(2) implies that it intended (b)(2) to describe a list of characteristics building on existing determinations made by President Eisenhower (in creating Schedule C) and others rather than a self- contained term of art created from whole cloth. Had Congress intended to classify this term as a term of art, it was well able to do so. Congress did in fact do so many times for other terms of art used elsewhere in the CSRA, including in 5 U.S.C. 7511 itself.\187\ The choice not to provide a unified definition in the section in which the phrase is used, while doing so for terms of art Congress did use in the very section in question, cuts sharply against Commenter 30426's and others' assertion that this list of duties should be understood to be a term of art.

\187\ Chapter 75 precisely defines the scope on an “employee” subject to its provisions. See 5 U.S.C. 7511(a)(1). The CSRA also defines the terms “career appointee” and “noncareer appointee.” See 5 U.S.C. 3132(a)(4) and (7). The CSRA elsewhere expressly defines many specific terms of art. See, e.g., 5 U.S.C. 3391 (including separate definitions for “career appointee” and “noncareer employee”), 3591 (same), 3401(2) (defining “part-time career employment”), 4301(3) (defining “unacceptable performance”), 4311 (defining “senior executive” and “career appointee”), 4507(a) (same), 5381 (same), 4701(a)(4) and (5) (defining “demonstration project” and “research program”), 5351(2) (defining “student-employee”), 7103(a)(10), (11), and (13) (defining, e.g., “supervisor,” “management official,” and “confidential employee”), 7501 (defining “employee” and “suspension”), and 7541 (same).

Not only did Congress elect not to define the policy-influencing terms as a term of art in section 7511 along with the other terms it defined in that section, it used portions of these terms elsewhere in other contexts. As discussed previously in this final rule, Congress established the SES which defined the duties of SES members to include policy-making and policy-determining functions but left out confidential or policy-advocating functions. This makes sense as career SES do not necessarily perform confidential duties, nor are they necessarily expected to advocate for administration policy. In section 3132(a), which was part of the CSRA, Congress treated the policy- influencing terms as separate descriptors, applying only those terms that described the duties of career senior executives and omitting those which did not.

This understanding is most consistent with OPM's near contemporaneous interpretation of the CSRA when it issued implementing regulations. Specifically, in 1981, OPM updated its regulations governing Schedule C appointments and did not extend them to cover “policy-making” or “policy-advocating positions.” \188\ However, OPM did clarify what positions “confidential or policy determining” described. In 1981, OPM modified 5 CFR 213.3301 to provide that the Schedule C exception for “[p]ositions of a confidential or policy- determining character” applied to “positions in grades GS-15 and below which are policy-determining or which involve a close and confidential working relationship with the head of an agency or other key appointed officials.” \189\ OPM contemporaneously treated the words “confidential” and “policy determining” as functional descriptions of the types of duties that make positions eligible for placement in Schedule C. It treated them as having separate meanings-- not a singular phrase synonymous with a “political appointee.” This usage of these terms as having a functional and separate meaning from one another lasted from 1981 to 2024.\190\ Thus, OPM credits this

historical evidence from both Congress and its prior interpretation historically treating the terms “confidential,” “policy- determining,” “policy-making,” and “policy-advocating” as individual words bearing individual constituent meanings used to describe position duties, not as a singular term of art. Accordingly, 7511(b)(2) can only be understood by examining the meaning of its constituent words, individually, and not as a cohesive term, especially as several of these constituent words are used elsewhere in the same statute to define primarily career appointments.

\188\ OPM has not expanded the scope of Schedule C positions in its regulations because Civil Service Rule 6.2 does not place positions of a policy-making or policy-advocating character in Schedule C. E.O. 14317 recently amended Rule 6.2 to place such positions in Schedule G of the excepted service. See E.O. 14317, Creating Schedule G in the Excepted Service, 90 FR 34753, 34754 (July 17, 2025).

\189\ 46 FR 20146, 20148 (Apr. 3, 1981).

\190\ Treatment of the terms as having separate meanings extends to other roughly contemporaneous sources outside the CSRA. See, e.g., Branti v. Finkel, 445 U.S. 507, 519-20 (1980) (in discussing whether county public defenders can be treated as purely political appointees, found that the “confidential” information they possessed, concerning individual defendants represented, was not the sort of confidential information which necessitated that result).

The historical record relied upon by Commenter 30426 shows several parties asserting that “policy-determining” and “policy-forming” positions should not be subject to civil service removal procedures. President Truman issued E.O. 9830 in 1947 in which he moved “Positions excepted from the competitive service . . . [b]ecause of their confidential or policy-determining character” into Schedules A and B, and provided further that the agencies may request that the CSC except additional positions from the competitive service on an ongoing basis, requiring the Commission to furnish an annual report “of the positions which it has excepted from the competitive service under this section during such year.” \191\ President Eisenhower thereafter issued E.O. 10440 in 1953, in which he authorized the Commission to except positions that “are of a confidential or policy-determining character” from the competitive service, and moved positions of a confidential or policy-determining character into schedule C.\192\

\191\ E.O. 9830, 12 FR 1259, 1263 (Feb. 25, 1947).

\192\ E.O. 10440, 18 CFR 1823, 1823 (Apr. 2, 1953).

Throughout this history, the terms were not used as a synonym for or “term of art” that was shorthand for “political appointee.” Rather, they were used to describe the types of duties that made a position inappropriate for coverage under civil service protections and eligible to be converted into political appointments. The terms described the types of duties that would appertain to positions that could, or should, be made political appointments. They did not mean political appointments themselves.

This view is supported by contemporaneous evidence, such as President Eisenhower's press conference and press statement accompanying E.O. 10440, which discusses positions “that do not belong in the Civil Service System.” \193\ In a press release, the White House described those positions as ones where they “shape the policies of the Government” as well as those where these is “a close personal and confidential relationship between the incumbent of the position and the head of the agency.” \194\ Further, in answering questions regarding his E.O., President Eisenhower himself asserted the necessity of not putting policy into the hands of people who are not subject to removal by the electorate.\195\ Shortly thereafter, Schedule C was created for positions of a confidential or policy-determining character. E.O. 10440 treated the terms “confidential” and “policy- determining” as independent, specific terms the words of which have specific meanings which set forth which positions were eligible for Schedule C, not a “term of art” synonymous with “political appointee.”

\193\ Pres. Dwight D. Eisenhower, President's News Conference (Mar. 19, 1953), https://www.presidency.ucsb.edu/documents/the-presidents-news-conference-459.

\194\ Id.

\195\ Id.

As Commenter 30426 notes, over time it became the case that employees appointed to Schedule C positions were often performing policy-making or policy-advocating work as well. Commenter quotes a number of lawmakers and officials describing Schedule C appointees, including CSC Chairman Robert Hampton who said, while testifying in 1972 to the House Committee on Post Office and Civil Service, that “[t]hese generally are positions [Schedule C] which have responsibility for the formulation or advocacy of administration policies, or which involve a confidential relationship with a Presidential appointee.” \196\ Chairman Hampton's characterization, and the characterization by others, are descriptions of the position's duties.

\196\ See Commenter 30426, at 23 (citing The Federal Executive Service: Hearings on H.R. 3807 Before the Subcomm. on Manpower & Civil Serv. Of the H. Comm. On Post Off. & Civil Serv., 92 Cong. 13 (1972).

Subsequently, Congress enacted 5 U.S.C. 7511(b)(2), providing for exceptions from adverse action appeals for excepted positions using the descriptors “confidential, policy-determining, policy-making, or policy-advocating character.” This choice added “policy-making” and “policy-advocating” to the already-existing scope of Schedule C pursuant to E.O. 10440. As already discussed, if Commenter 30246 is correct and “confidential or policy-determining” was a term of art, Congress deliberately chose to add words to an existing term (describing Schedule C) which serves no purpose other than to confuse readers who knew the existing term. Conversely, if Congress used the terms as separate descriptors the additions of additional functions is easily explained. Prior Presidential Administration Practices Do Not Limit the Scope of the Final Rule

Commenter 30426 argues that longstanding practice cabins the policy-influencing terms to cover a small number of positions, about 1,600. Commenter 30426 contends, “[t]he long history of this interpretation further evidences that only a few positions can satisfy the criteria of having a `confidential or policy determining' or `confidential, policy-determining, policy-making, or policy-advocating' character.”

This argument conflates successive administration's policy decisions to limit political appointments--precisely because of the benefits of expert career civil servants that commenters discuss and with which OPM agrees--with a substantive limit on the scope of 5 U.S.C. 7511(b)(2). Congress has been clear when it caps the number of positions exempt from adverse action procedures. The CSRA caps the number of noncareer SES at no more than 10 percent government-wide and 25 percent in any one agency.\197\ Other statutes also cap the number of positions that can be given 5 U.S.C. 7511(b)(2) determinations. Title 42 caps the number of policy-influencing positions in the Social Security Administration at no more than 20.\198\ Elsewhere in statute, the Department of Veterans Affairs is capped at no more than 15 positions excepted from competitive service because of their “confidential or policy-determining character.” \199\

\197\ See 5 U.S.C. 3134(b) and (d)(1).

\198\ See 42 U.S.C. 904(c). OPM notes that 42 U.S.C. 904(c)(2) explicitly presupposes the authority of the President, or OPM, to exclude positions from the competitive service that have been “determined . . . to be of a confidential, policy-making, or policy-advocating character and have been excepted from the competitive service thereby.” This directly refutes the contention that the President cannot except positions from the competitive service for purposes of bringing them within the 5 U.S.C. 7511(b)(2) exception.

\199\ 38 U.S.C. 709(b).

It is a basic canon of statutory construction that if “Congress includes particular language in one section of a statute but omits it in another section of the same [statute], it is generally presumed that Congress acts

intentionally and purposefully in the disparate inclusion or exclusion.” \200\ Consequently, Congress declining to specify in statute a numerical limitation in 5 U.S.C. 7511(b)(2) when it opted to do so elsewhere is telling. This indicates the number of positions that can be held policy-influencing is left, in other cases, to the discretion of the executive branch. Commenter provides no argument grounded in statutory text that the President is, outside agencies with express statutory restrictions, limited to determining a small number of positions are policy-influencing.

\200\ Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) (quoting Russello v. United States, 464 U.S. 16, 23 (1983) (internal quotation marks omitted)).

Further, accepting Commenter's construction would raise serious constitutional concerns, as discussed in more detail below. Briefly, reading 7511(b)(2) to implicitly limit how many positions can be declared policy-influencing means the President cannot generally except policymaking inferior officers in the General Schedule from removal restrictions and subchapter II appeals. In that case the CSRA is unconstitutional as applied to those offices because Congress cannot restrict the President's ability to dismiss inferior officers with substantive policymaking or administrative responsibilities. Reading 7511(b)(2) to not contain such an unenumerated numerical limit largely sidesteps this constitutional concern. Prior Interpretative Statements From Other Agencies Are Not Controlling

Commenter 30426 also argues that a 2020 Department of Justice (DOJ) rulemaking described political appointees as policy-influencing positions. Respectfully, Commenter 30426 misinterprets the DOJ rulemaking. DOJ was responding to concerns that giving authority to the Director of the Executive Office of Immigration Review would lead to these decisions being subject to political influence. At the time that rule was issued, no positions had been transferred into the former Schedule F--in DOJ or elsewhere--so all positions that had been excepted under section 7511(b)(2) at the time were political appointees. DOJ's point was that all employees in the Executive Office of Immigration Review were selected on a non-partisan basis, including the EOIR Director, who is a career SES member. DOJ was not attempting to define how section 7511(b)(2) could be applied, including under E.O. 13957, but how it was then applied in EOIR. Reliance on MSPB's Decisions in Thompson and Briggs Is Inapposite

Commenters 30426 and 35519, among others, argue that the MSPB held that a determination under 5 U.S.C. 7511(b)(2) is not adequate unless it is made before the employee is appointed to the position. As OPM explained in the proposed rule, the MSPB's statements to this effect in Thompson v. Department of Justice and Briggs v. National Council on Disability are unreasoned dicta.\201\ Thompson itself merely cited Briggs for this proposition without further analysis. However, in neither case was the issue of whether an incumbent employee could lose adverse action protections when a policy-influencing declaration was made actually before the Board. In Briggs the MSPB never analyzed the text of CSRA to assess whether policy-influencing determinations could be applied to current employees. It simply asserted without any statutory analysis that determination had to be made before appointment. However, this ruling was not necessary to the MSPB's holding, as Briggs's position was found to have never been declared policy-influencing as a matter of fact.\202\ In Thompson, it was not clear if the decision declaring the position policy-influencing was ever properly made, and if it had been made it must have occurred after the employee was removed.\203\ OPM agrees an agency cannot sanction a removal by retroactively declaring the incumbent's position policy- influencing.\204\

\201\ See Briggs, 60 M.S.P.R. 331, 335-36 (1994) and Thompson, 61 M.S.P.R. 364, 368-69 (1994).

\202\ Briggs, 60 M.S.P.R. at 335-36.

\203\ Thompson, 61 M.S.P.R. at 368-69.

Subsequent MSPB cases simply cite Briggs and Thompson for the proposition that 7511(b)(2) determinations must be made prior to a position being filled. None of these cases provided further analysis. OPM rejects the position that MSPB dicta trumps the plain language of the CSRA insofar as the latter forecloses adverse action appeals for positions that are statutorily excluded from coverage. Nothing in chapter 75 requires that 7511(b)(2) determinations be made prior to appointment for the determination to be effective. Given the significant restriction on Presidential authority this would impose, and the severe constitutional concerns it would raise (discussed below), OPM believes at the very least a clear statement from Congress would be necessary to insulate senior policymaking employees from accountability to the President.

In response to the Department of Justice's conduct at issue in Thompson, Congress in 1994 amended 5 U.S.C. 2302(a)(2)(B) to expressly state that policy-influencing determinations had to be made prior to a personnel action for the exception from PPPs to apply. Commenter 30426 argues that this legislation did not “disturb” Thompson's statement that chapter 75 policy-influencing determinations would need to be made prior to an incumbent filling a position to lose entitlement to adverse action procedures. Commenter concludes that while section 7511(b)(2) determinations would have to be made prior to an employee's acceptance of a position, section 2302(a)(2)(B) determinations would have to be made prior to the relevant personnel action.

OPM disagrees that this analysis is relevant. The fact that Congress did not amend the CSRA in response to MSPB dicta implies nothing about how chapters 23 and 75 operate.

Commenter 30426 also points to the MSPB's decision in Chambers v. Department of the Interior,\205\ arguing that a 7511(b)(2) policy- influencing determination must be made before an employee is appointed to a position. As with precedents discussed above, the relevant discussions are dicta and conducted no analysis of the underlying statutory text. Chambers is also inapposite, as the policy-influencing determination was never made and the issue was not before the MSPB.\206\

\205\ 116 M.S.P.R. 17 (2011).

\206\ See id.

Commenter 30426 also argues that the exclusion's applicability was necessarily before the court in Briggs, because its applicability would have stripped the Federal Circuit of jurisdiction. According to the Commenter, if paragraph (b)(2) exclusion had applied, the Federal Circuit would have had to reverse and remand the case with instructions that the MSPB dismiss it for lack of jurisdiction. The court would have had no power to adjudicate the case. However, the issue of whether a position can be declared policy-influencing after someone is appointed to it was not before the Federal Circuit. Its opinion thus says nothing about whether it would have jurisdiction if an appropriate authority had declared the position policy-influencing.

Commenter 21374 argued that the proposed rule is not in accord with Hamlett v. Department of Justice.\207\ In Hamlett, much like Briggs, the MSPB held that a non-preference eligible Assistant U.S. Attorney who had completed a two-year trial period, could

challenge their chapter 75 removal before the Board under the DPAA.\208\ Notably, the Board found that neither the President nor OPM had made a determination that the incumbent occupied a policy- influencing position under 5 U.S.C. 7511(b)(2).\209\ However, the MSPB did not foreclose the possibility that such a determination could have been made. OPM believes Hamlett recognizes that if such a decision had been made by the President or OPM, that Hamlett would not have been entitled to challenge her removal.

\207\ 90 M.S.P.R. 674 (2002).

\208\ Id. at 680.

\209\ Id. at 678.

Commenter 8019 argues that the MSPB's opinions in Special Counsel v. Peace Corps and O'Brien v. Office of Independent Counsel that the usage of the term “confidential, policymaking” in the CRSA is no more than shorthand for positions to be filled by “political appointees.” \210\ With respect, OPM declines to accept those Board opinions as controlling the interpretation of these terms for section 7511(b)(2) for several reasons.

\210\ 31 M.S.P.R. 225 (1986) and 74 M.S.P.R. 192 (1997), respectively.

OPM first notes that Congress vested the President and OPM, not the MSPB, with authority to determine whether excepted service positions were policy-influencing. The MSPB has no authority to countermand Presidential or OPM determinations in this regard. Further, as the O'Brien Board explicitly noted, there is nothing in the interpretation of the relevant provisions of the legislative history of the CRSA or the Whistleblower Protection Act, the statute at issue in that proceeding, to compel the MSPB's interpretation.\211\ The Board relied largely on the authority of its earlier Special Counsel v. Peace Corps opinion.\212\ Special Counsel cited no authority whatsoever for its determination that the terms “confidential,” “policy-making,” and “policy-determining” are mere shorthand for “political appointee,” and it made no argument of any kind for that position.\213\ It seemed to take as dispositive the President's authority to unilaterally appoint and remove occupants of such positions “notwithstanding any provision of law,” \214\ but it also stated that positions falling under those terms “can be identified by their relationship to the President or the administration officials in furthering the goals of the President.” \215\ The first suggestion seems to rely on an untenable bifurcation of employees with and without protection from presidential removal, one that fails to comport with the actual variety of excepted service positions or with a functional appraisal of the importance of the position in advancing the President's priorities. And, considering OPM's position that Schedule Policy/Career positions should be exempted for much the same reason that the Board suggested that political appointees should be in Special Counsel--based on the centrality of the role in advancing the President's priorities--it is unclear that the actual reasoning of Special Counsel cuts against the present rulemaking. The proposed rule discussed at length its textual analysis of the CRSA which led it to reject the position, advanced by the Commenter, that the policy-influencing terms are mere terms of art; this final rule expands on those arguments above.\216\ Ultimately, OPM respectfully declines to accept MPSB's opinion as controlling.

\211\ 74 M.S.P.R. at 204 (stating that the CRSA had “little discussion of the phrase” and the WPA “does not indicate what Congress intended.”).

\212\ Id. at 205-06.

\213\ 31 M.S.P.R. at 231.

\214\ Id. at 229.

\215\ Id. at 232.

\216\ See 90 FR at 17194-97 (discussing why “positions of a confidential, policy-determining, policy-making, or

policy-advocating character” should not be read as a term of art meaning “political appointee.”).

Commenter 30426 also argues that Roth v. Brownell \217\ and other cases point to the long historical tradition of applying civil service protections based on the employee's accrual of status or rights. The Commenter argues that this tradition was well understood by members of Congress when they enacted the CSRA and that they assumed it would continue. On the contrary, Roth was concerned with interpreting provisions of the Lloyd-La Follette Act.\218\ As OPM explained in the proposed rule, Congress abolished that statutory requirement for adverse action procedures upon transfer out of the competitive service when it enacted the CSRA, and Congress did not replace it with any comparable language providing adverse action procedures upon reclassification. It is well settled that it is the text of the law that governs, not legislators' assumptions.\219\

\217\ 215 F.2d 500 (D.C. Cir. 1954), cert. denied, 348 U.S. 863 (1954).

\218\ Id. at 502.

\219\ See Diamond, 447 U.S. at 315 (“[A] statute is not to be confined to the `particular application[s] . . . contemplated by the legislators.' ” (quoting Barr, 324 U.S. at 90)); Oncale, 523 U.S. at 79 (“[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, 590 U.S. at 653 (“[T]he limits of the drafters' imagination supply no reason to ignore the law's demands.”).

Commenter 30426 also argues that inherent in the structure of the CSRA is the fundamental notion that employees who accrue civil service protections, particularly with respect to adverse actions, retain those protections unless they either forfeit them voluntarily by accepting a new appointment or lose them due to poor performance or misconduct through the application of the CSRA's procedures. However, Commenter 30426 points to no statutory authority for this proposition, only a handful of isolated court cases, which universally involve statutory analysis of pre-CSRA laws.

Commenter 30426 also points to non-judicial materials, such as a 1980 Comptroller General opinion and 1988 transition guidance. The transition guidance was interpreting 1968 OPM regulations that were still in effect then but are not now. The Comptroller General opinion was based on a 1963 Court of Claims decision interpreting the now- repealed Lloyd-La Follette Act. And the Commenter's citation to Casman v. Dulles is similarly unavailing, as that case concerned statutory interpretation of the Veteran's Preference Act. Involuntary Reassignment Into Schedule Policy/Career Does Not Continue MSPB Jurisdiction

Commenter 30426 argues that the Federal Circuit's decision in Williams v. Merit Systems Protection Board \220\ requires that the agencies must give employees a choice to be moved into Schedule Policy/ Career. The Commenter infers that accepting appointment in a position excepted from chapter 75 is a choice, and on that basis that employees must have an implicit choice about whether their positions are declared policy-determining for that determination to be effective. Otherwise, according to Commenter 30426, the act of reassigning the employee to Schedule Policy/Career is an involuntary movement and, therefore, does not strip the MSPB of jurisdiction.

\220\ 892 F.3d 1156 (Fed. Cir. 2018).

OPM disagrees with Commenter 30426's assessment of the court's decision in Williams. The employee in Williams voluntarily applied and was

selected for a position without MSPB appeal rights within the same agency.\221\ And despite not being fully apprised of the consequences of accepting the new position, the court ultimately found that appeal rights will not attach to the new position because he did not meet the definition of employee under 7511(a)(1)(B)(ii).\222\ The court analogized the facts in Williams with prior decisions finding that employees who voluntarily move to positions without appeal rights do not bring those rights with them.\223\ Moreover, the Federal Circuit expressly declined to rule in Williams whether an employee retains MSPB appeal rights after an involuntary or coerced intra-agency transfer to a position.\224\

\221\ Id. at 1163.

\222\ Id. at 1162.

\223\ Id. at 1162-63.

\224\ Id. at 1163 (“[T]here may be situations in which an agency coerces or deceives an employee into accepting a new position. We need not consider those scenarios here.”).

While neither the Federal Circuit nor MSPB have since ruled whether an employee retains statutory appeal rights following involuntary movement to a position without them, OPM believes that they do not. Consistent with the Federal Circuit's views on voluntary movement of personnel, 7511(b)(2) clearly excludes policy-influencing positions from coverage under chapter 75 adverse action procedures. Congress did not establish in statute a savings provision for employees impacted by 7511(b)(2) determinations to retain their procedural rights under chapter 75. The text of the law instead applies to all positions that have been determined policy-influencing, without respect to the personal status of the employees encumbering the position. Schedule Policy/Career Determinations May Be Made While a Position Is Encumbered

Commenter 30246 argues that 7511(b)(2) determinations cannot be made while the position is encumbered due to the text of 7511(b). Commenter 30426 also argues that other exclusions in section 7511(b) describe a condition that exists only in the present. For example, (b)(10) excludes an employee “who holds a position” in a particular agency component and (b)(9) excludes an employee “who is described” in another statute. Only (b)(2) uses the present perfect tense: “whose position has been determined to be of a confidential, policy- determining, policy-making or policy-advocating character.” Commenter 30426 argues that the Supreme Court has characterized the present perfect tense as “denoting an act that has been completed.” Commenter concludes that because Congress did not use the present tense and drafted 7511(b)(2) as applying to an employee “who holds a position” subject to the requisite determination, that indicates the exception is not meant to be applied to currently encumbered positions.

Respectfully, Commenter 30246 misstates how the Supreme Court characterizes the present perfect tense. Hewitt v. United States explained that the present perfect tense can refer to “ `a past action that comes up to and touches the present' ” \225\ and elaborated that “one might employ the present-perfect tense to describe situations `involv[ing] a specific change of state' that produces a `continuing result.' ” \226\ 7511(b)(2) determinations are exactly this: a past change of state which produces an ongoing result. The determination that a position is policy-determining is a one-time event that occurs in the past and has been completed, but produces a specific change of state with ongoing relevance. In contrast, using the present tense in 7511(b)(2) would make little sense. The President or OPM do not determine a position is policy-influencing as an ongoing event. Further, 7511(b)(10) also uses the same grammar: “who holds a position within the Veterans Health Administration which has been excluded from the competitive service. . . .”

\225\ 606 U.S. 419, 427-28 (2025) (quoting Chi. Manual of Style Sec. 5.132, at 145 (17th ed. 2017)).

\226\ Id. at 428 (quoting R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language at 145 (2002)).

Commenter 30426 also argues that reading 7511(b)(2) to only apply to determinations made prior to an employee accepting a position, and to thus have no application to currently encumbered positions, is supported by viewing section 7511(b)(2) in the context of the other exceptions in section 7511(b). Commenter argues that the other exceptions in section 7511(b) apply only when an employee has made a choice, and this indicates the same applies to 7511(b)(2).

OPM disagrees. Nothing in 7511(b) discusses giving employees an affirmative choice. 7511(b) instead categorically excepts entire agencies and classes of positions, like those in the CIA, the FBI, the Foreign Service, and entire categories of individuals like reemployed annuitants and foreign nationals working overseas. Commenter 30426 infers that accepting appointment in a position excepted from chapter 75 is a choice, and on that basis that employees must have an implicit choice about whether their positions are declared policy-determining for that determination to be effective. This does not follow, and, as discussed below, that construction raises serious constitutional concerns. Employee Position Descriptions Are Not Dispositive of Policy- Influencing Duties

Commenter 30426 also argues that OPM's January 2025 Memorandum sweeps into consideration for Schedule Policy/Career every position for which a position description mentions policy work. OPM has long- established position classification standards for agencies to implement the Classification Act of 1949. Some standards use terms related to policy work for the purpose of determining a position's grade level. Commenter argues, without supporting evidence, that the use of the word “policy” in position descriptions pursuant to the Classification Act of 1949 has no bearing on the meaning or scope of the term as used throughout the CSRA. Commenter asserts the term “policy” in position descriptions implicates grade-determining functions, not rights- determining ones.

As a preliminary matter, OPM does not expect to recommend every position described as entailing policy work for Schedule Policy/Career, but the fact that a position entails policy work is a natural factor for consideration when formulating recommendations. Commenter presents no evidence that Congress intended the term “policy” in section 7511(b)(2) to be divorced from that terms' use in implementing the Classification Act.

Rather, OPM believes Commenter's argument strengthens the point that Congress did not intend the word “policy” to describe only a few hundred political appointments in light of the executive branch's longstanding preexisting practice of describing tens of thousands of career positions as developing or establishing policy. Congress surely understood this when it passed the CSRA. Schedule Policy/Career Does Not Target Attorneys

Commenter 30426 also argues that this rulemaking targets attorneys throughout the Federal Government, without regard to attorneys' responsibilities or their lack of authority to do more than suggest ideas. Commenter 30426 alleges that this arbitrary targeting of attorneys runs contrary to the function of the DPAA, which the congressional committee responsible for that law indicated was expressly meant to provide attorneys

with MSPB appeal rights. Commenter 29987 and others similarly argue that employees (including but not limited to attorneys) involved in the policy process through activities such as reviewing, editing, or drafting regulations should not be considered policy-determining or policy-making employees because they lack authority to decide the content of those regulations and are merely advisors or assistants in the policy process. In Commenter 29987's view, “[o]nly those people who have the final say are `determining' or `making' policy.”

OPM believes this approach reads the terms “policy-making” and “policy-determining” too narrowly. In general, authority to issue regulations is statutorily vested in agency heads, who are excluded from subchapter II's provisions. Reading the term “policy- determining” to mean only those with ultimate decisional control over policy decisions would rule out its application to virtually every employee covered by subchapter II and render the 5 U.S.C. 7511(b)(2) exemption for policy-determining positions a nullity. In statutory context, “policy-determining” covers more officials than principal officers given the final say over policy decisions.

OPM also finds it significant that the CSRA added “policy-making” to the pre-existing term “policy-determining.” The canon against surplusage indicates this addition implies “policy-making” and “policy-determining” are distinct categories. OPM believes that it is reasonable to construe employees substantively involved in the policy process, such as through drafting or editing policy documents, or providing policy advice, as “making” policy even if they do not “determine” it. As Commenter 29887 points out, to “make” something ordinarily means to produce or create it. Just as a factory's employees are understood to be “making” manufactured goods, even though they do not determine what the factory will produce, employees substantively involved in the policy process are naturally seen as “making” policy even though they do not unilaterally “determine” policy decisions. OPM believes that viewing policy-determining as describing (delegated) authority to make policy decisions and policy-making as involvement in policy production is a natural reading of the terms.\227\

\227\ OPM has no authority over how the President interprets or applies the policy-influencing terms, and this discussion is not a regulatory definition of the policy-influencing terms.

Unlike Commenter 29887's construction, this interpretation treats “policy-making” and “policy-determining” as distinct, rather than redundant terms. Commenter does not explain why OPM should read the Congressional addition of the new term “policy-making” as entirely synonymous with the pre-existing term “policy-determining.” In addition to avoiding surplusage, construing employees substantively involved in the policy process as “making” policy also reflects the significant real-world authority that such employees can wield.

The authority to suggest policy ideas or to produce or edit draft policy documents is often a significant policy-making role. This is easily seen in other contexts. White House staff, for example, typically have no formal authority over agency policymaking--merely the authority to suggest ideas, review proposals and flag concerns, or produce initial drafts of executive orders. But it would be na[iuml]ve to imagine White House staff's role has negligible impact on the policy process because they do not possess formal decisional authority. Positions that involve drafting regulations and guidance or suggesting or otherwise advising on policy decisions are similarly reasonably viewed as having a policy-making character, even if they are not necessarily policy-determining.

Commenter 30426 provides no support for the contention that attorney positions that involve such functions do not have a policy- making character. Attorneys with authority to direct other attorneys in the exercise of their functions, setting responsibilities and priorities and deciding on arguments the Government will advance (or not) are more likely to be policy-determining or policy-making, though OPM recognizes that not all supervising attorneys are appropriate for Schedule Policy/Career. That said, only a minority of attorneys are likely to be reclassified into Schedule Policy/Career. The DPAA will continue to cover a majority of Federal attorneys--just not those with policy-making, policy-determining or policy-advocating responsibilities.

OPM consequently agrees with the notion that the DPAA was intended to provide MSPB appeal rights to attorneys in the Federal Government. The proposed rule is consistent with that expansion and purpose. Previously, adverse action appeals in the excepted service were categorically limited to preference eligible employees in the non- policy influencing positions. The DPAA extended coverage to all excepted service employees in non-policy influencing positions. OPM expects that most line attorneys will not be held to occupy policy- influencing positions, so that the DPAA's expansion of appeal rights will not be rendered void by this interpretation. Policy-Influencing Terms Covers Political Appointees and Few Career Employees

Commenter 30426 also argues that the text and purpose of 5 U.S.C. 7511(b)(2) support the interpretation that career positions should continue to be covered under the adverse action procedures codified in chapter 75 of Title 5. Commenter 30426 argues that narrow exceptions, such as those found in sections 7511(b)(2) and 2302(a)(2)(B)(i), must not be read to swallow or alter the rules they modify. Exceptions must be read “fairly,” which sometimes means “narrowly in order to preserve the primary operation of the provision” to which they apply.

OPM largely agrees with this analysis and believes a fair reading of the policy-influencing terms is that they cover all political appointees and a relatively small minority of career employees. As described above, this construction aligns with the historical usage of these terms as bearing their individual component meanings, and with Congress' usage of some of these terms in the CSRA itself to describe thousands of career SES members. In the proposed rule, OPM estimated that Schedule Policy/Career would apply to approximately two percent of the Federal workforce. Under this construction, adverse action procedures will continue to apply to the overwhelming majority of the civil service. That is a far cry from the exception swallowing the rule.

Relatedly, many commenters suggest that OPM's estimate of approximately 50,000 positions moving into Schedule Policy/Career is “misleading” and that the guideposts set forth in E.O. 13957, as amended, and OPM's January Memorandum suggest an order of magnitude more positions will be converted. See, e.g., Comment 29887. Having conducted initial review of agency recommendations for Schedule Policy/ Career conversions, OPM can state that its initial estimate of 50,000 positions was a reasonable approximation of potential conversions. Policy-Influencing Is a Short-Hand Descriptor for Statutory Terms

Commenters 0821, 24251, 30426, 35350, and others criticized E.O. 13957, as amended, and the proposed rule for using a vaguely defined term “policy-

influencing” to describe the types of positions to be placed in Schedule Policy/Career. They argue that this term impermissibly expands upon the statutory terms “confidential,” “policy-determining,” “policy-making,” and “policy-advocating.”

OPM recognizes that the terms “confidential,” “policy- determining,” “policy-making,” and “policy-advocating” are not synonymous with “policy-influencing” but, as OPM has explained, bear their individual constituent meanings. However, using the term “positions of a confidential, policy-determining, policy-making, or policy-advocating character” constantly throughout this rulemaking would be needlessly cumbersome. OPM suspects the White House invoked “policy-influencing” in its fact sheet and E.O. for the same reason, though the White House did not consult with OPM about doing so. OPM is consequently using “policy-influencing” as a shorthand for the longer phrase, while recognizing the longer statutory phrase and not OPM's shorthand is legally controlling.

A number of commenters argued that the Rule exceeds the OPM Director's authority under 5 U.S.C. 1103. OPM strongly disagrees. This rule falls squarely within the OPM Director's authority under 5 U.S.C. 1103. Under subsection (a)(5), the Director of OPM is vested with the functions of “executing, administering, and enforcing the civil service rules and regulations of the President and the Office and the laws governing the civil service. . . .” Paragraph (a)(7) of this section further provides that the Director of OPM is responsible for “aiding the President, as the President may request, in preparing such civil service rules as the President prescribes. . . .” Additionally, 5 U.S.C. 1104 provides that the President may delegate his authority for personnel management functions to the OPM Director, and 5 U.S.C. 3301 authorizes the President to “(1) prescribe such regulations for the admission of individuals into the civil service in the executive branch as will best promote the efficiency of that service.” 5 U.S.C. 1104(b)(3) further presupposes the OPM Director has responsibility for prescribing civil service regulations.

Even if OPM were to accept the argument put forth--and it does not--that the Director's authority only extends to advising agencies, but does not include executing, administering, or overseeing the Civil Service Rules or regulations of the President (an argument that is conclusively refuted by the plain statutory text), the Director is subject to direction from the President in establishing such Civil Service Rules as the President shall from time-to-time promulgate. The President's authority to manage the civil service is a core function of the office based on Article II of the Constitution.\228\ Pursuant to his constitutional authority, the President issued E.O. 14171, directing the Director of OPM to issue regulations implementing this E.O. The President will make all decisions regarding positions to be placed under Schedule Policy/Career.

\228\ Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 483 (2010); Nixon v. Fitzgerald, 457 U.S. 731 (1982).

In addition, under 5 U.S.C. 7511(b), and historically, determining whether positions are “of a confidential, policy-determining, policy- making or policy-advocating character” and thus exempt from adverse action procedures, is a part of the core Article II power of the President to manage the executive branch. Congress has delegated to the President this power. When a statutory delegation invokes the President's discretion in exercising core Article II responsibilities-- such as managing the internal affairs of the executive branch,\229\-- “his authority is at its maximum.” \230\ Our constitutional structure presumes that Federal officers and agencies will be “subject to [the President's] superintendence,” \231\ and the President concomitantly “bears responsibility for the actions of the many departments and agencies within the executive branch.” \232\ Federal agencies depend for their “legitimacy and accountability to the public [on] a `clear and effective chain of command' down from the President, on whom all the people vote.” \233\

\229\ See Nixon v. Fitzgerald, 457 U.S. 731, 756-57 (1982).

\230\ Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952) (Youngstown Sheet) (Concurring Opinion of Justice Jackson).

\231\ The Federalist No. 72, at 487 (Alexander Hamilton) (Jacob E. Cooke ed., 1961).

\232\ Trump v. United States, 603 U.S. 593, 607 (2024).

\233\ United States v. Arthrex, Inc., 594 U.S. 1, 11 (2021) (citation omitted); cf. Elena Kagan, Presidential Administration, 114 Harvard L. Rev. 2245, 2331-2339 (2001).

OPM has for many decades administered, on the President's behalf and pursuant to delegations, the rules and regulations pertaining to the excepted service.\234\ These OPM rules are issued pursuant to Presidential E.O.s authorizing appointments under Schedules A, B, C, D and E. For example, OPM's predecessor agency, the CSC had, as early as passage of the Pendleton Act, promulgated rules relating to what is known today as Schedule A.\235\ In 1953, President Eisenhower issued E.O. 10440 \236\ providing for Schedule C in the excepted service. Although Schedule C appointments are made by agencies, generally in coordination with the Office of Presidential Personnel, it is OPM that publishes the periodic list of such appointments. Similarly, President Obama issued E.O. 13562 on December 27, 2010, creating Schedule D in the excepted service, “Recruiting and Hiring Students and Recent Graduates.” \237\ Subsequently, OPM issued proposed \238\ and final rules \239\ implementing this E.O.

\234\ See 5 CFR parts 213 and 302.

\235\ Van Riper at 207.

\236\ E.O. 10440, 18 FR 1823.

\237\ E.O. 13562, 75 FR 82585, 82585-87 (Dec. 30, 2010).

\238\ 76 FR 47495 (Aug. 5, 2011).

\239\ 77 FR 28194 (May 11, 2012).

More recently, to address issues concerning the constitutionality of the appointment of administrative law judges performing various administrative adjudication functions within executive agencies, President Trump issued E.O. 13843 on July 10, 2018, “Excepting Administrative Law Judges from the Competitive Service.” \240\ This E.O. established Schedule E within the excepted service. OPM issued a final rule establishing, inter alia, criteria for pay setting for administrative law judges under Schedule E and had previously issued a proposed rule addressing issues governing the service of administrative law judges at executive agencies.\241\ The numerous instances in which OPM has issued rules governing appointments to positions placed in the excepted service by the President under an E.O. makes clear that OPM's role in the administration of excepted hiring authorities is backed by longstanding precedent. Accordingly, this rulemaking is fully in accord with the authorities found at 5 U.S.C. 1103(a)(5) and (7).

\240\ 83 FR 32755 (July 13, 2018).

\241\ See 85 FR 59207 (Sep. 21, 2020).

In establishing Schedule Policy/Career, the President has directed OPM to follow certain procedural requirements to broadly develop rules governing the administration of positions placed under Schedule Policy/ Career. Recommendations for which positions should be placed under Schedule Policy/Career will initially be made by agency heads. These recommendations will be sent to and reviewed by OPM, and the final decision made by the President.

Although OPM believes its Director has broad authority to undertake this rulemaking, the Director in prescribing

rules for the administration of Schedule Policy/Career is also simultaneously following Presidential direction and authorization. Accordingly, this rulemaking is fully in accord with the authorities found at 5 U.S.C. 1103(a)(5) and (7) and 1104(a)(1).

OPM also notes that commenters' argument proves too much. Assuming, arguendo, that OPM lacks regulatory authority to modify civil service rules and regulations of the President, then it follows that OPM lacked authority to issue the changes made by the 2024 final rule. In that case OPM would be obligated to withdraw its prior unlawful regulations. So even accepting that argument reinforces the case for rescinding the changes made by the 2024 final rule.

In this final rule, OPM amends its 5 CFR part 213 regulations (the Excepted Service) to incorporate Schedule Policy/Career into OPM's civil service regulations. Part 213--Excepted Service, Subpart A Section 213.101 Definitions

Section 213.101 defines terms relating to the excepted service. This rule amends these definitions to add two new definitions of “career position” and “noncareer position” for purposes of part 213. These definitions clarify the distinction between noncareer Schedule C positions and career Schedule Policy/Career positions. Commenter 33529 raised concerns that OPM's proposed definition of a noncareer position as one who will normally resign upon a Presidential transition does not take into account that expectations of resignation may change with each new Presidential administration. Commenter 33328 also recommends revising 5 CFR 213.101(b)(1) to clarify that a career position means any position other than a non-career position, including positions of a temporary or time-limited nature.

OPM appreciates this perspective. However, in the proposed rule OPM clarified that the definition of noncareer position is taken from Section 2 of E.O. 13957, as amended, with additional clarity that such positions are subject to preclearance by the White House Office of Presidential Personnel. Any employee holding a noncareer position at the time of a Presidential transition will be subject to a decision by the White House Office of Presidential Personnel to retain the noncareer employee. Section 213.102 Identification of Positions in Schedule A, B, C, D, or Policy/Career

This rule amends Sec. 213.102 to state that the President may place positions in Schedule Policy/Career. While Civil Service Rule 6.2 now authorizes OPM to place positions in Schedule Policy/Career, E.O. 13957, as amended, directs OPM to make recommendations to the President about what positions should go into that schedule rather than approve agency petitions itself. President Trump has reserved to himself the final decision about which positions will go in Schedule Policy/Career.

Commenter 27012 points out that the proposed rule does not list comprehensive characteristics for positions included in Schedule Policy/Career. Other commenters, such as Commenter 7547, 13168, 16850, 30426, and 35031 also expressed concern that there is little guidance to agencies on who will be included in Schedule Policy/Career and that the guidance provided is very broad. Similar to the implementation of other new rules and executive orders, OPM notes that it published the January 2025 Memorandum to provide agencies with guideposts to help agencies identify positions that are more likely to be policy- influencing.\242\ Further, OPM notes that within the universe of positions that are eligible for transfer to Schedule Policy/Career because of their policy duties or confidential character, exactly which positions will move to Schedule Policy/Career is a discretionary Presidential policy decision that OPM has no authority over. OPM is not in a position to issue regulations or guidance restricting Presidential discretion in this matter. OPM accordingly is not in a position to list comprehensive characteristics of positions that will be moved to Schedule Policy/Career.

\242\ U.S. Off. Of Pers. Mgmt., “Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce” (Jan. 27, 2025), https://www.opm.gov/chcoc/latest-memos/guidance-on-implementing-president-trump-s-executive-order-titled-restoring-accountability-to-policy-influencing-positions-within-the-federal-workforce.pdf.

Separately, Commenter 30426 criticizes the guidance in the January 2025 Memorandum. The Commenter argues that memorandum incorrectly focuses on the significance of a position's authority rather than on the position's character. The Commenter also points to the memorandum's discussion of the “authority to bind the agency” to a “course of action” or holding “delegated or subdelegated authority to make decisions committed by law to the discretion of the agency head. OPM's position is that the authority to legally bind the Government will often be indicative of a policy-making or policy-determining role which justifies placing the position into Schedule Policy/Career. Again, this is one factor to be considered as OPM and the White House exercise discretionary judgment.

That said, the specific positions to which Commenter 30426 objects also have an obvious connection to the section 7511(b)(2) exceptions. For example, Commenter 30426 objects to positions involved in presenting program resource requirements to OMB examiners. These positions advocate for agency policy and secretarial priorities, expressed through funding requests, within the executive branch. They have a straightforward connection to policy-advocacy. Nothing in the policy-advocating exception requires that advocacy be directed toward the general public. Advocacy before other branches of government, or within the executive branch, also can qualify. Similarly, if an employee is policy-making, policy-advocating, or policy-determining, then those above them in the chain of command with authority to tell that employee what to do will likely be policy-determining, policy- making, or policy-advocating as well. Where an employee qualifies for the confidential exception based on their confidential relationship to a senior official, that official is also likely policy-making or policy-determining.

Commenters 18409 and 18642 argue that those engaged in grantmaking, particularly scientific grantmaking, are inappropriate for Schedule Policy/Career inclusion because the grantmaking decision is not a policymaking decision. Consequently, Commenter 18409 argues that it makes no sense to reclassify all the reviewers, program officers, advisory councils, and leadership at science funding agencies as political in nature. OPM notes that eligibility for Schedule Policy/ Career is distinct from whether a position will actually be moved into that Schedule.

Beyond that, OPM disagrees that such positions are not eligible. The scientific nature of a particular job is not determinative of whether or not the position is policy-influencing. As this Commenter, and others, point out, some positions in scientific grantmaking influence public policy. Those positions, as well as any others that are policy- influencing, are appropriate candidates for Schedule Policy/Career. OPM agrees that many positions involved in grantmaking do not determine or make agency policy. OPM will not recommend such positions for reclassification into Schedule Policy/Career.

Commenter 30426 argues that the proposed paragraph (d) at 5 CFR 213.102 is unusual because it states that the President may directly places positions in Schedule Policy/Career when the President already has that statutory authority. OPM appreciates the Commenter's concerns. The Constitution gives the President the power to set workforce policy and 5 U.S.C. 3302(1) vests the President with the power to exempt positions from the competitive service. OPM, of course, recognizes it is not vesting the President with any authority he does not already possess. OPM is modifying its regulations to reflect how Schedule Policy/Career will be implemented. OPM believes that maintaining regulations that clarify to relevant stakeholders and the public how Schedule Policy/Career will operate is beneficial in its own right.

Commenter 31616 maintains that centralizing the power to move positions into Schedule Policy/Career with the President raises concerns over politicization. Commenter's concerns are with the Pendleton Act, not this rulemaking. Under the relevant provision of the Pendleton Act, now codified at 5 U.S.C. 3302(1), the President determines what exceptions from the competitive service are necessary. OPM's authority to place positions in the excepted service is only a delegation of this Presidential authority. OPM has no authority to modify this statutory hierarchy of authority. Commenter also overlooks the role that OPM will still play in the process of designating positions. For instance, OPM issued the January 2025 Memorandum, and will issue additional guidance as needed to assist agencies in identifying Schedule Policy/Career positions and implement these regulations. However, the ultimate decision concerning moving employees to Schedule Policy/Career lies with the President. Finally, as discussed below, OPM believes that concerns over politicization are misplaced because the President has made it clear that the jobs of Schedule Policy/Career employees who perform their duties effectively and with integrity and efficiency are safe, irrespective of their personal politics.

Commenter 8019 states that there has only been one case--National Treasury Employees Union v. Horner (Horner) \243\--interpreting relevant statutory language, contained at 5 U.S.C. 3302(1), which allows the President to make exceptions from the competitive service which are necessary and consistent with good administration. Commenter correctly notes that the court in that case ruled OPM's rulemaking arbitrary and capricious under the APA. However, the case has limited if any precedential value.

\243\ 854 F.2d 490 (D.C. Cir. 1988).

In Horner, OPM attempted to reclassify a large number of competitive service positions into Schedule B on the grounds that, in the aftermath of the Luevano consent decree,\244\ it had no competitive examinations available that would be sufficient to choose appropriate candidates for hire.\245\ Because OPM claimed it was unable to promptly develop new competitive examinations, it attempted to exempt the positions from examination requirements altogether. As the commenter notes, the court found OPM's decision to be arbitrary and capricious. However, the court did so because OPM requested that the court “defer to its `expert judgment regarding the costs of developing new examinations' ” with there being “no indication in the record, however, that OPM ever made an expert judgment about what those costs would be.” \246\ In other words, while the court recognized that, under APA review, it must accord great deference to OPM's reasoned decision-making, it saw no evidence that OPM had come to a reasoned decision at all. Particularly, OPM had not “considered cost to even the minimally meaningful degree required to command judicial deference to its administrative judgment.” \247\ Thus in Horner, the circuit court could not even reach OPM's arguments concerning reclassification into the excepted service on the merits because nothing in the rulemaking materials gave it the ability to do so. Such a situation is clearly inapposite here to the extent that, in both the proposed and this final rule, OPM has explained at length its decision to implement Schedule Policy/Career. Further, as other commenters note, numerous provisions in Title 5 and throughout presuppose that conditions of good administration warrant excepting positions from the competitive service because of their policy-influencing duties.\248\

\244\ Luevano v. Campbell, 93 FRD. 68 (D.D.C. 1981).

\245\ Horner, 854 F.2d at 492-93.

\246\ Id. at 499.

\247\ Id. at 501.

\248\ See, e.g., 5 U.S.C. 2302(a)(2)(B)(i) (a “covered position . . . does not include any position . . . excepted from the competitive service because of its confidential, policy-determining, policy-making, or policy-advocating character”).

Section 213.103 Publication of Excepted Appointing Authorities

OPM amends Sec. 213.103 to include references to Schedule Policy/ Career where applicable throughout. Section 213.104 Special Provisions for Temporary, Time-Limited, or Intermittent or Seasonal Appointments

OPM amends Sec. 213.104 to include references to Schedule Policy/ Career where applicable throughout, as well as references to existing excepted service Schedules A, B, C, and D throughout. As with Sec. 213.102, this rule does not add references to Schedule E administrative law judges, retaining that for a future rulemaking. Part 213--Excepted Service, Subpart C Section 213.3301 Positions of a Confidential or Policy-Determining Character

Section 213.3301 sets forth the criteria for Schedule C appointments. This rule amends the heading to align with the text of Civil Service Rule 6.2, as amended by E.O. 13957. Accordingly, Schedule C positions are those of a confidential or policy-determining character normally subject to change as a result of a presidential transition, rather than just positions of a confidential or policy-determining character.

Commenter 33328 recommended amending this heading by using the definition of Schedule C positions at Sec. 213.101. OPM considered making this change but ultimately decided against adopting this recommendation both to streamline the text of the regulation and because it finds the proposed change is not necessary.

This rule also modifies the body of Sec. 213.3301 to expressly define Schedule C positions as noncareer positions. Under these amendments, agencies can “make appointments under this section to noncareer positions that are of a confidential or policy-determining character” (emphasis supplied). The definition of noncareer follows that which OPM is adding to Sec. 213.101.

OPM is also eliminating the reference in this section to the Sec. 210.102 definition of “confidential or policy-determining.” E.O. 14171 rendered this definition inoperative and, as discussed below, OPM is removing it from the civil service regulations. Section 213.3601 Career Positions of a Confidential, Policy- Determining, Policy-Making, or Policy-Advocating Character

The proposed rule added a new Sec. 213.3501 to subpart C for appointments to Schedule Policy/Career of the excepted service. Schedule Policy/Career covers “career positions of a confidential, policy-determining, policy-making, or policy-advocating character that are not in the Senior Executive Service.” OPM notes that it is making an administrative change to renumber the proposed Sec. 213.3501 to Sec. 213.3601 to accommodate a future rulemaking.

Commenters 13602 and 30426 argue that OPM's proposal to convey competitive status after one year of service in Schedule Policy/Career under paragraph (c) of 5 CFR 213.3501 would be unlawful and enhance the capacity of political appointees to burrow into Government at the end of the Trump administration. Several other commenters submitted similar concerns about the entire rule enabling burrowing-in.

In accordance with Section 4 (b) of E.O. 13957, OPM is exercising its long-standing discretionary authority under 5 CFR 6.3(a) to provide competitive status to excepted service employees who were appointed in the same manner as competitive service employees. Therefore, only individuals appointed to Schedule Policy/Career positions through the merit hiring procedures that would have otherwise been used had the position not been moved into Policy/Career may acquire competitive status. Individuals appointed to positions that, but for their placement in Schedule Policy/Career, would be hired using excepted service hiring procedures, such as Schedule A for attorneys, may not acquire competitive status. OPM also notes that it modified the final rule at Sec. 212.401 to make clear that an employee who has competitive status at the time his or her position is first listed in an excepted service schedule, such as Schedule Policy/Career, or who is moved to a position in the excepted service, will retain competitive status.

However, OPM appreciates the concerns raised by commenters and, therefore, is increasing the time-period necessary to acquire competitive status from 1 year to 2 years of continuous employment which is consistent with other service requirements (e.g., length of trial periods for nonpreference eligible employees) associated with employment in the excepted service. OPM is also modifying Sec. 213.3601 to detail the requirements for agencies in making appointments to positions in Schedule Policy/Career. As explained in greater detail below, these changes impose merit-based hiring requirements currently used by agencies in making appointments when filling these positions. Together with the expansion of the time required to gain competitive status, these changes adequately address concerns of burrowing-in as raised by the Commenters. OPM will also monitor movement of noncareer personnel into Schedule Policy/Career positions to ensure appointments of current or recent political appointees comply with merit system principles and applicable civil service laws.

Commenter 30426 also argues that OPM is stripping statutory veterans' preference entitlements including the rights of employees to seek corrective action at the MSPB when a veteran is not hired for a position in Schedule Policy/Career. Respectfully, OPM rejects this hyperbole. Section 4 of E.O. 13957, as amended, requires agencies to follow the principle of veterans' preference as far as administratively feasible. Accordingly, OPM is modifying Sec. 213.3601(d) to require that agencies must apply the principles of veterans' preference as far as administratively feasible based on the rating, ranking, and selection processes used for making appointments to Schedule Policy/ Career positions. Section 213.3601(d) also specifies that, where numerical ratings are used in the evaluation and referral of candidates, agencies shall follow the regulations related to veterans' preference in competitive examining found in part 302 and subpart A of part 337 of this chapter, where applicable. When category ratings are used, agencies will follow subpart C of part 337 of this chapter. And where another process is used, veterans' preference must be considered a positive factor.

These changes to Sec. 213.3601(d) are consistent with the understanding of the term “administratively feasible” found in Patterson v. Department of Interior,\249\ which suggests that it is “administratively feasible” to apply veterans' preference as a “set increase[ ] in the rating of preference eligibles who receive a passing score on an agency's examination” where numerical ratings are used in the evaluation or referral of candidates.\250\ For attorney positions, or other positions for which competitive examining is not permitted or is otherwise not appropriate, agencies may treat veteran status as a “positive factor” in the evaluation of candidates.\251\

\249\ 424 F.3d 1151 (Fed. Cir. 2005)

\250\ Id. at 1159.

\251\ Id. at 1159-1160.

Once the President determines to place positions in Schedule Policy/Career, therefore, the positions will continue to be subject to the application of veterans' preference whether they are moved from the competitive service or another schedule in the excepted service. Additionally, applicants for positions in Schedule Policy/Career will still be able to seek corrective action, first, through the Department of Labor and, later, at the MSPB, based on allegations that an agency failed to apply veterans' preference, as others have done for excepted service positions.\252\

\252\ See Jarrard v. Social Security Administration, 115 M.S.P.R. 397, 399-400 (2010), aff'd sub nom. Jarrard v. Dep't of Justice, 669 F.3d 1320 (Fed. Cir. 2012).

OPM is also modifying 5 CFR 213.3601 to identify the minimum merit- based competitive hiring procedures agencies must follow in appointing employees to Schedule Policy/Career positions. At a minimum, agencies will be required to publicly announce job opportunities; evaluate applicants based on valid, job-related assessments; and make selections of highly qualified individuals based on merit. OPM also clarifies the application of veterans' preference when hiring for positions in Schedule Policy/Career in Sec. 213.3601. Consistent with E.O. 13957's amendments to Civil Service Rule 6.2 (5 CFR 6.2), agencies are required to follow the principle of veterans' preference when making appointments to Schedule Policy/Career positions.

Commenter 33204 recommends modifying 5 CFR 213.3601 to provide opportunities for former and current employees appointed to Schedule Policy/Career to obtain positions outside the new excepted service schedule. The Commenter suggests establishing a non-competitive reappointment authority for former Schedule Policy/Career employees initially hired under excepted status, providing the same grade advancement opportunities available to former competitive service employees under existing Enhanced Reinstatement Authority. The Commenter also suggests establishing clear pathways for exceptional Schedule Policy/Career employees to be converted to competitive service positions without competitive examination, based on

performance and agency need. OPM appreciates the proposal and will consider modifying these regulations as proposed at a future date, if necessary. However, OPM notes that, by providing competitive status to certain individuals appointed under Schedule Policy/Career, those employees may be appointed to competitive service positions and be reinstated back into the civil service, noncompetitively (without a competitive examining announcement).

Commenter 0210 also characterizes Schedule Policy/Career as a solution in search of a problem as they do not see rampant poor performance or misconduct at their agency. If this is in fact that case, this agency should keep most policy-influencing employees after the implementation of Schedule Policy/Career. However, this one employee's observations do not mean that all Federal agencies are free of the problems of weak employee accountability as documented in the proposed rule.

Moreover, Commenter 30055 asserts that various groups, including civil servants, researchers, and scholars, argue that the implementation of Schedule Policy/Career will politicize the civil service such that employees will be hesitant to advise political leaders on policy options based on evidence. Commenter 0210, and others, agree with this sentiment. See Comments 66, 85, 209, 338, 1122, 27012, 30464, and 31616. As explained in the proposed rule, maintaining Federal staff who have a diversity of views and opinions will help identify issues that may have been overlooked during the policymaking process. Even the strongest advocates of E.O. 13957 and opponents of career staff resistance have reported that policymakers under the last Trump administration found career staff criticism to be highly valuable.\253\ Therefore, there would be no incentive to dismiss career employees who provide reasoned, candid advice. Consistent with the President's express directives in E.O. 13957, OPM expects that employees who provide frank and candid advice, then faithfully implement agency leadership's ultimate decision irrespective of their personal preferences, have nothing to fear from Schedule Policy/Career. Finally, as OPM stated in the proposed rule, since Schedule Policy/ Career is an entirely new schedule, OPM will be closely monitoring its implementation and will recommend additional measures to prevent any abuse by agency personnel who attempt to circumvent the purpose behind Schedule Policy/Career's creation.

\253\ See Tales from the Swamp at 5.

Several commenters, including 30426 and 27012 also argue that evidence of the administration's contempt for career Federal employees and sustained effort to politicize the Federal workforce is abundant. President Trump called career Federal employees “crooked,” “dishonest” and “corrupt”, etc. Commenter 30426 also argues that employees will feel pressured to wear MAGA hats and pro-Trump slogans in the Federal workplace, including in offices that deal directly with the public. This purported pressure would mean that political appointees and supervisors in agencies will know which Schedule Policy/ Career employees fervently support the President politically and which do not. Commenter argues the results of that revelation are predictable--the spoils system will return to a large segment of the Federal workforce.

This criticism is baseless. Commenters overlook the many times the President has praised and lauded Federal employees as a whole, including in public proclamations.\254\ The President has also praised specific categories of Federal employees, such as when he told Immigration and Customs Enforcement employees “we love you, we support you, and we will always have your back.” \255\ Commenters inaccurately conflate the President's criticisms of some Federal employees who have engaged in problematic behavior with a disdain for Federal employees writ large. And as discussed extensively below, the President and OPM flatly reject the notion that this final rule constitutes a return to the patronage system. Further, as discussed throughout this rule, and in more detail below, the President has directed that Schedule Policy/ Career include numerous safeguards to prevent politicization. These include retaining merit-based competitive hiring procedures for positions transferred from the competitive service, and a prohibition on dismissing employees based on their personal political affiliation or views. OPM will help the President ensure these safeguards are effectively implemented.

\254\ See, e.g., Presidential Proclamation No. 9744, Public Service Recognition Week, 2018, 83 FR 22169 (May 11, 2018).

\255\ Brian Naylor, Trump Calls ICE Opponents `Big Loudmouths,' Praises Agents As `Great Patriots', Nat'l Pub. Radio, Aug. 20, 2018, https://www.npr.org/2018/08/20/640307567/trump-calls-ice-opponents-big-loudmouths-praises-agents-as-great-patriots (internal quotations omitted).

Commenter 30426 also argues that Trump purported to fire a Democratic appointee on the MSPB without cause, which if successful after the conclusion of pending litigation would strip the MSPB's board of the quorum needed to adjudicate cases because only one member, a Republican appointee, would remain on that board. Commenter argues that President Trump left the MSPB without a quorum for his entire first term. Therefore, Commenter concludes this action is a blatant attempt to gut the CSRA's statutory remedial mechanism for correcting unwarranted adverse actions, including those that constitute PPPs.

This criticism is also baseless. The Supreme Court has ruled that the President is likely to succeed in defending the legal merits of this action. See Trump v. Wilcox, 145 S.Ct. 1415 (2025). The President also promptly nominated a new MSPB nominee. That nominee was recently confirmed by the Senate and appointed to the Board, restoring a quorum. Commenter's concerns about a lack of quorum in the President's first term is more appropriately addressed to the Senate, as the President also repeatedly nominated MSPB members in his first term but the Senate did not vote on their nominations.

Commenter 33328 pointed out that the proposed rule conflicts with E.O. 14284, “Strengthening Probationary Periods in the Federal Service,” April 24, 2025, because it exempts Schedule Policy/Career employees from serving a trial period. Under Section 3 of E.O. 14284, the President established a new Civil Service Rule XI to require all employees in the excepted service to serve a trial period. 5 CFR 11.3 establishes the requirement for excepted service employees to serve a trial period as well as certain rules for administering trial periods including crediting prior service. OPM agrees with the Commenter that establishing an exception to serving a trial period for employees in Schedule Policy/Career positions would conflict with E.O. 14284 and 5 CFR 11.3. Therefore, OPM establishes in the final rule that employees in Schedule Policy/Career positions must serve a trial period unless otherwise excepted under the Civil Service Rules or other legal authority. OPM notes that the President or Congress may nonetheless except such employees through a future executive order or change in law, respectively.

Commenters 0610, 0630, 1154, 1477, 1681, 16152, 23876, 26587, 30426, and others, also argue that in these and other ways, the administration has actively

demonstrated that it will, indeed, politicize the Federal workforce once it has removed the guardrails protecting the American people against a return of the spoils system. Commenters 30055 and 30408 provide a collection of research on the topic of public policy, specifically the politicization of the U.S. Government and its effect on performance. Commenter 30055 posits that civil service protections lead to a reduction in turnover, a greater investment in skills, lower costs, greater democratic capacity and responsiveness to more than the President, greater communication of program flaws, and an increase in public trust. The creation of Schedule Policy/Career, on the other hand, increases political control on the civil service beyond what was contemplated by Congress in the CSRA and concentrates that control with the President, who has already demonstrated that he will fire employees without regard to their performance. As discussed in Section V(A) below, OPM strongly disagrees with the notion that the final rule returns the Federal civil service to the spoils system or will lead to mass firings without regard for employee performance.

Several commenters mentioned the effects of Schedule Policy/Career on the National Science Foundation (NSF), the National Institutes of Health (NIH), and the scientific community. They argue that positions at these and other agencies will be particularly affected by converting career employees to Schedule Policy/Career. Commenters argue that politics will erode the public trust in science; Schedule Policy/Career positions will be filled by individuals who do not have the required level of expertise; and that career employees outside of Schedule Policy/Career are needed over many years to accomplish the mission.

OPM believes that these commenters overstate the impact on agencies' scientific missions and the scientific community as a whole. These concerns are buttressed more by fear than actual evidence to support their conclusions. Rather, the creation of Schedule Policy/ Career is intended to ensure nonpartisan, senior career officials follow executive direction from the President. Freeing these positions from the adverse action appeals process will ensure that only the best candidates will fill these jobs. As these commenters noted, Federal work in the sciences could be undermined by the politicization of this type of work which Schedule Policy/Career is deliberately designed to prevent from occurring. Schedule Policy/Career is not a political appointment--that is reserved for noncareer positions. While policy- influencing positions can encompass political appointments under Schedule C, they are not exclusively limited to political appointments. As noted in the proposed rule, policymaking, or policy-influencing, is not tantamount to being a political appointee. Adding Schedule Policy/ Career will not erode the scientific principles that are implicit in the jobs that this Commenter, and others, describe by changing them to political appointments. Further, OPM notes that Schedule Policy/Career does not alter agency hiring procedures. Positions that are currently filled through competitive hiring will continue to be so filled after being moved to Schedule Policy/Career. By presidential directive, the White House office tasked with selecting political appointees is forbidden from playing any role in the selection of Schedule Policy/ Career employees. E.O.s 13957 and 14171 expressly reject treating Schedule Policy/Career positions as political appointments. OPM expects and understands that agencies will follow this Presidential command.

This rule amends 5 CFR part 210 (Basic Concepts and Definitions (General)), to remove the definitions for the terms “confidential, policy-determining, policy-making, or policy-advocating” and “confidential or policy-determining” from 5 CFR 210.102(b)(3) and (b)(4) added by the April 2024 final rule. These definitions equate these phrases with political appointees.

Several commenters (0630, 19994, 30408, 30426, and 31616, for example) expressed concerned about the removal of these definitions and the lack of a definition of “policy-influencing.” In particular, Commenter 30408 states that the lack of a definition will lead to an inconsistent application of Schedule Policy/Career.

As explained in the proposed rule, E.O. 14171 requires OPM to rescind these restrictive definitions of confidential, policy- determining, policy-making, or policy-advocating established at 5 CFR 210.102(b)(3) and (b)(4); definitions determined to be inconsistent with statutory text that also raised grave constitutional concerns. Moreover, removing these definitions will clarify that both political and career positions can be policy-influencing, and that the President's decision to strengthen accountability in policy-influencing positions by removing adverse action procedures does not simultaneously impose a personal loyalty test. Removing these definitions also has no practical legal effect because the President has already rendered them inoperative and without effect. The primary effect of these regulatory changes is to update OPM regulations to accord with the operative legal standards.

The ultimate decision about which positions will be moved to Schedule Policy/Career is a discretionary presidential policy determination. OPM has no control over how the President exercises this discretion. Using delegated presidential authority to issue regulatory definitions cabining presidential discretion in defiance of a presidential directive to do the opposite would be inappropriate. Finally, OPM issued the January 2025 Memorandum addressing positions agencies should consider recommending for Schedule Policy/Career.

OPM rescinds the changes made in its April 2024 rulemaking that allowed employees whose positions were moved or who were involuntarily transferred into a policy-influencing excepted service position to nonetheless remain covered by chapter 75 adverse action procedures and MSPB appeals. In addition, OPM now clarifies that chapter 75 does not apply to employees in Schedule C and Schedule Policy/Career positions. OPM also amends its part 432 regulations to exclude Schedule Policy/ Career positions from chapter 43 performance-based removal procedures.

Accordingly, this rule makes the following changes to 5 CFR parts 432 and 752: Part 432--Performance Based Reductions in Grade and Removal Actions

The April 2024 final rule amended 5 CFR 432.102(f)(10) to: (1) formally exclude excepted service employees whose positions have been determined to be policy-influencing as defined by Sec. 210.102; (2) state that if OPM put such positions in the excepted service they are Schedule C appointments; and (3) eliminate the exception if the incumbent was involuntarily moved to an excepted service position after accruing tenure. This final rule amends Sec. 432.102(f)(10) to remove the reference to the Sec. 210.102 definition, remove the language indicating policy-influencing positions excepted by OPM are necessarily Schedule C positions, and remove the proviso regarding

incumbents moved. Retaining regulatory references to a non-existent definition is not practical.

OPM determined that it would be misleading to state that Schedule C positions are the only policy-influencing positions in the excepted service, since policy-influencing positions in schedules other than Schedule C may also exist. OPM has determined that removing the exception for involuntary transfers will bring the regulation into conformity with the amendments to part 752 and ensure that Schedule Policy/Career employees are treated consistently in chapters 43 and 75. These amendments will clarify that agencies are not required to employ chapter 43 procedures prior to removing Schedule Policy/Career employees for their poor performance.

Several commenters (3269, 20523, 22709, and 23031, for example) allege that the removal of appeal procedures for employees placed into Schedule Policy/Career would violate those employees' due process rights. However, OPM's regulations have long allowed OPM to place employees in excepted categories. A Presidential section 7511(b)(2) determination covering thousands of positions is a policy of general applicability that does not implicate individualized due process.\256\ The amendments do not violate any employee's due process claim of a property interest in continued employment.

\256\ See Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915) (Bi-Metallic) (individuals affected by generally applicable laws are accorded access to the legislative process “by their power, immediate or remote, over those who make the rule”).

Some commenters, including Commenters 13168 and 30426, argue that the recission of Sec. 752.201(c)(7) is contrary to law because it “misapplies” the Policy/Career exclusion, violates due process rights, and potentially subjects Federal employees to political discrimination. Commenter 34546 also claims that rescinding Sec. 752.201(c)(7) will dissuade qualified applicants from applying for Federal jobs and wrongly affect Federal employees who have relied on the protections in subpart B of part 752. However, for the same reasons stated below, these arguments are baseless. Part 752--Adverse Actions, Subpart B

OPM retains the changes the April 2024 final rule made to 5 CFR 752.201--namely to modify language in 5 CFR 752.201(b)(1) to conform with the statutory language in 5 U.S.C. 7501. This change to 5 CFR 752.201(b)(1) conforms the regulatory language to the decisions of the Federal Circuit in Van Wersch v. Department of Health & Human Services, 197 F.3d 1144 (Fed. Cir. 1999), and McCormick v. Department of the Air Force, 307 F.3d 1339 (Fed. Cir. 2002). OPM's revision to Sec. 752.201(b)(1) prescribes that, even if an employee in the competitive service who has been suspended for 14 days or less is serving a probationary or trial period, the employee has the procedural rights provided under 5 U.S.C. 7503 if the individual has completed one year of current continuous employment in the same or similar position under other than a temporary appointment limited to one year or less.

As discussed above, OPM also rescinds the changes made to Sec. 752.201 in its April 2024 rulemaking--establishing 5 CFR 752.201(c)(7)--because it is no longer accurate based on OPM's removal of the relevant definition in 5 CFR 210.102.

Commenter 31616 argues that excluding career Schedule Policy/Career officials from subpart B of part 752 “could actually result in more terminations rather than progressive discipline,” because Policy/ Career employees do not have any appeal rights under subparts B and D of part 752. However, this comment is speculative. As stated above, the purpose of this rulemaking is to provide agencies with authority to address individual instances of unacceptable performance or misconduct by individual career Schedule Policy/Career officials. This amendment does not suggest that an employee performing policy-influencing duties will be indiscriminately terminated or wrongly disciplined.

Some commenters, including Commenters 13168 and 30426, argue that the rescission of Sec. 752.201(c)(7) is contrary to law because it “misapplies” the Policy/Career exclusion, violates due process rights, and potentially subjects Federal employees to political discrimination. Commenter 34546 also claims that the recession of Sec. 752.201(c)(7) will dissuade qualified applicants from applying for Federal jobs and wrongly affect Federal employees who have relied on the protections in subpart B of part 752. However, for the same reasons stated above, these arguments are baseless. Part 752--Adverse Actions, Subpart D

Subpart D of part 752 implements subchapter II of chapter 75. Subpart D applies to removals, suspensions for more than 14 days, reductions in grade or pay, or furloughs for 30 days or less. Section 7511(b)(2) of 5 U.S.C. excludes from subchapter II, and thus subpart D, excepted service employees in policy-influencing positions. This final rule revokes the changes the April 2024 final rule made to subpart D. This rule clarifies that employees reclassified or transferred into policy-influencing positions are excluded from subpart D. Section 752.401 Coverage

Section 752.401 governs the scope of subpart D. Paragraph (c) lists the positions subpart D covers and paragraph (d) lists positions it excludes. As adopted by this final rule, OPM removes the phrases “including such an employee who is moved involuntarily into the excepted service” and “including such an employee who is moved involuntarily into a different schedule of the excepted service and still occupies that position or occupies any other position to which the employee is moved involuntarily” from throughout paragraph (c). These changes clarify that employees do not remain covered by subpart D or chapter 75 procedures if they or their positions are moved into Schedules C or Policy/Career.

Commenter 14305 argues that the amendment to Sec. 752.401 is insufficient because it does not specifically define which positions are “confidential, policy-determining, policymaking, or policy- advocating.” Commenter 14305 alleges that, as a result, Sec. 752.401 will be applied “in arbitrary ways.” As noted above, the President's actions in E.O.s 13957 and 14171 legally prohibit OPM and Federal agencies from implementing the April 2024 rule's definition of “confidential, policy-determining, policymaking, or policy- advocating.” Consequently, Sec. 752.401 aligns this section to current legal standards. Further, as discussed above, OPM has made an intentional policy choice not to regulatorily define the policy- influencing terms as they relate to Schedule Policy/Career because the CSRA, E.O. 13957, and E.O. 14171 leave such determinations to the President or the agency head based on an analysis of each employee's specific duties and functions.\257\

\257\ 5 U.S.C. 7511(b)(2)(B) authorizes OPM to determine that positions that OPM has excepted from the competitive service are policy-influencing for purposes of chapter 75. However, since the President will be effectuating transfers into Schedule Policy/Career directly this provision gives OPM no authority over whether Schedule Policy/Career positions are or are not policy-influencing.

Commenter 33328 also argues that the amendments to Sec. 752.401 conflict with E.O. 14284 on “Strengthening Probationary Periods in the Federal Service.” However, Commenter 33328 does not identify, or otherwise establish,

that the removal of coverage under subpart D or chapter 75 procedures for Schedule Policy/Career officials would conflict with E.O. 14284.

Many commenters, including Comments 24540, 30426, 31616, and 34546, object to amending Sec. 752.401's coverage for many of the same reasons that have been addressed above. These commenters argue that excluding employees who involuntarily converted to Schedule Policy/ Career positions from subpart D or chapter 75's coverage may result in removals for political reasons, quash candidness among Federal employees, remove valuable Federal employees for the “wrong” reasons, and discourage qualified candidates from considering Federal employment. Commenters 30426 and 31616 maintain that the amendment to Sec. 752.401 is invalid because it “misapplies” the Schedule Policy/ Career exclusion, violates the due process rights of employees who are involuntarily converted to Schedule Policy/Career, and potentially subjects Federal employees to political discrimination. Commenter 24540 also claims that the amendment violates the merit systems principles in the CSRA. However, for the same reasons stated above, these arguments are baseless. This rule modifies paragraph (c)(7) to read “employee who was in the competitive service at the time his or her position was first listed under Schedule A or B of the excepted service and who still occupies that position.” This change reflects the fact that, as explained above, employees whose positions are reclassified into a policy-influencing schedule do not retain chapter 75 adverse action procedures or MSPB appeals. However, employees moved into non- policymaking positions (i.e., Schedules A or B) are generally covered by these provisions. Section 752.405 Appeal and Grievance Rights

Section 752.405 covers MSPB appeals of actions taken under subpart D. OPM amends Sec. 752.405(a) to expressly state that employees in policy-influencing excepted service positions are categorically exempt from subpart D's coverage and concomitant MSPB appeals.

Some commenters, including Commenters 6205, 26433, 27258, 30426, and 35350, argue that the amendment to Sec. 752.405 violates the long- established due process rights of Federal employees by involuntarily converting them to a career Schedule Policy/Career position and, therefore, excluding them from coverage under subpart D of part 752. For the reasons explained in Section V.C.ii., this final rule satisfies all constitutional due process rights.

Further, Commenter 35523 objects to the amendment to Sec. 752.405 because it does not provide a mechanism for employees to challenge an involuntarily conversion to a Schedule Policy/Career position and will, consequently, dissuade Federal employees from being forthright in the execution of their duties. However, Commenter 35523 does not identify any legal authority that permits a Federal employee to challenge the President's decision to reclassify an employee to a Schedule Policy/ Career position. Further, once the President has reclassified a position to Schedule Policy/Career, OPM lacks the authority to delay the reclassification of said positions because it is a decision made by the President that OPM must implement. Also, as noted above, the President has strong incentives to keep experienced Federal employees in policy-influencing positions who do not obstruct the President's policy objectives. It also does not benefit the President to remove career employees who provide reasoned, candid advice.

Commenter 14387 also claims that OPM is acting ultra vires by amending Sec. 752.405 to exclude Schedule/Policy Career positions from having MSPB appeal rights under subpart D of part 752. However, as explained in further detail in other parts of this rulemaking, the President is acting under a specific statutory authorization: 5 U.S.C. 7511(b)(2)(A). The President and OPM are thus acting intra vires, not ultra vires.