Improving Performance, Accountability and Responsiveness in the Civil Service

OPM also amends 5 CFR part 212, subpart D, and part 302, subpart F, to modify the procedures for moving positions into or between excepted service schedules. Specifically, this rule removes subpart F of part 302, which was created by the April 2024 final rule. OPM also amends part 212, subpart D, to remove provisions inconsistent with the policies of E.O. 14171, as well as to clarify that competitive service employees reclassified or transferred into an excepted service schedule do not remain in the competitive service but retain their competitive status. Part 212--Competitive Service and Competitive Status, Subpart D Section 212.401 Effect of Competitive Status on Position

OPM revises 5 CFR part 212, subpart D, which governs the effect of an employee's competitive status on the employee's position. This final rule removes from 5 CFR 212.401(b) the provision that “[a]n employee who was in the competitive service and had competitive status . . . at the time: (1) the employee's position was first listed under Schedule A, B, or C, or whose position was otherwise moved from the competitive service and listed under a schedule created after May 9, 2024; (2) or [t]he employee was moved involuntarily to a position in the excepted service, remains in the competitive service for the purposes of status and any accrued adverse action protections, while the employee occupies that position or any other position to which the employee is moved involuntarily.” \258\

\258\ 5 CFR 212.401(b) (2024).

OPM proposed replacing this language in Sec. 212.401 with a new paragraph (b) that provides that an employee who has competitive status at the time their position is first listed in an excepted service schedule, or who is moved to a position in the excepted service, is not in the competitive service for any purpose but shall retain competitive status for as long as they continue to occupy such position.

Commenter 30426 argues that, in attempting to revise the language of the half-century-old regulation, OPM has preserved language that is inconsistent with the rest of its revision. Specifically, the phrase “shall retain competitive status as long as he or she continues to occupy such position” in OPM's proposed amendment would no longer be accurate. According to the Commenter, OPM's proposed language purports to limit competitive status to the period that the employee holds the new or modified position, but competitive status is not limited to that period.

We agree and revise the final rule to “an employee who has competitive status at the time his or her position is first listed in an excepted service schedule, or who is moved to a position in the excepted service, shall retain competitive status.”

Commenter 0629 expressed confusion over the operation of the revised Sec. 212.401(b). The revised Sec. 212.401(b) would provide that employees with competitive status whose positions are listed in or who are moved into the excepted service retain their competitive status. This would allow them to retain their basic eligibility for noncompetitive assignment to a competitive position. This proposal recognizes that employees who were hired after competitive examination and

have completed their probationary period have met the standards necessary for appointment to competitive positions, and that the President's decision to move their position into the excepted service does not void their earned competitive status.

Allowing employees in excepted service positions to retain their competitive status is consistent with OPM's statutory authorities. Title 5 provides that an individual may be appointed in the competitive service only if he or she has passed an examination or is specifically exempted from examination by the civil service rules. Employees with competitive status have met this standard. OPM can allow them to keep their competitive status while they encumber an excepted service position, and the Civil Service Rules currently provide for some excepted service employees to accrue competitive status.

Commenter 13602 argues that the proposed regulation causes confusion by using “competitive status” and “competitive service” at the same time, without explicitly explaining the distinction. We acknowledge how the two terms could be confused by the average reader; however, these are terms with clear, consistent, and well-defined meanings. “Competitive service” refers to all civil service positions in the executive branch except positions which are specifically excepted from the competitive service, PAS positions, or positions placed in the Senior Executive Service.\259\ “Competitive status” is “an individual's basic eligibility for noncompetitive assignment to a competitive position” that “is acquired by completion of a probationary period under a career-conditional or career appointment . . . following open competitive examination.” \260\ This distinction is why, as discussed above, the proposed regulation must be modified to accurately reflect how competitive status functions when an employee occupies a position in the excepted service.

\259\ 5 U.S.C. 2102(a).

\260\ 5 CFR 212.301 (2025).

Commenter 30426 argues that it is irrational for OPM to change 5 CFR 212.401(b) to take away provisions saying employees remain in the competitive service and keep any accrued adverse action protections if their positions are newly listed in an excepted service schedule and they stay in the same position. In this regard, the Commenter argues that “OPM's proffered justification for this change is only that it believes it is legally capable of making this change, but it offers no reason not to preserve the accrued rights of current career Federal employees other than that the administration finds it inconvenient to wait for attrition to result naturally in broadening the coverage of Schedule Policy/Career.”

The regulation at issue was first enacted in 1968, when the Lloyd- La Follette Act expressly provided procedures that had to be followed to remove an employee from the competitive service. The 1968 version of 5 CFR 212.401(b) provided: “An employee in the competitive service at the time his position is first listed under Schedule A, B, or C remains in the competitive service while he occupies that position.” \261\ In 2024, 5 CFR 212.401(b) was revised, providing: “An employee who was in the competitive service and had competitive status as defined in 212.301 of this chapter at the time: (1) The employee's position was first listed under Schedule A, B, or C, or whose position was otherwise moved from the competitive service and listed under a schedule created subsequent to May 9, 2024; or (2) The employee was moved involuntarily to a position in the excepted service; remains in the competitive service for the purposes of status and any accrued adverse action protections, while the employee occupies that position or any other position to which the employee is moved involuntarily.” \262\ While the language was modified, the principle effect remained--employees remained in the competitive service if they occupied a position when it was first moved to the excepted service. OPM did not modify this principle in the regulation, because there was never a need to do so even with intervening exceptions of competitive service positions to excepted service positions. This lack of need was because the reclassifications ordered by Congress and the President explicitly allowed for employees in positions that were removed from the competitive service to remain in the competitive service while they continued to occupy said position.\263\ Therefore, the regulation was still accurate and not contrary to any legal authority. However, that changed with the issuance of E.O. 13957, as amended, which does not include any explicit exception for employees moved to Schedule Policy/ Career to remain in the competitive service.\264\ There is now legal authority that conflicts with 5 CFR 212.401(b). As such, OPM must revise that regulation to make it consistent with existing legal authority.

\261\ 5 CFR 212.401(b) (1968); 33 FR 12402, 12408 (Sep. 4, 1968).

\262\ 5 CFR 212.401(b) (2024); 89 FR 24982, 25046 (Apr. 9, 2024).

\263\ See E.O. 13843, 83 FR 32755, 32757 (July 13, 2018); Intelligence Authorization Act for Fiscal Year 2012, Public Law 112- 87, 125 Stat. 1876, 1881 (2012).

\264\ See generally E.O. 13957, 85 FR 67631, as amended by E.O. 14171, 90 FR 8625.

Similarly, multiple commenters, including but not limited to Commenters 0230, 11707, and 31616 expressed concern with moving current employees to Schedule Policy/Career, requesting that OPM allow employees to keep their current classification and switch the position to Policy/Career when it becomes vacant. Waiting for attrition to realize the benefits of Schedule Policy/Career would reduce the President's ability to hold employees accountable for misconduct, remove poor performers, effectively address policy resistance, and otherwise realize the benefits of this rule. Additionally, OPM--as discussed above--lacks the authority to delay the reclassification of occupied positions to Schedule Policy/Career because it is a decision made by the President that OPM must implement. Nothing in subchapter II allows incumbent employees to remain covered by adverse action proceedings after the President or an agency head, as applicable, determines their position is policy-influencing. Unlike other exceptions in section 7511(b) to subchapter II's coverage, the 7511(b)(2)(A) exception is not contingent on the personal status or history of incumbent employees. As a matter of law, OPM has no authority to extend subchapter II to cover employees in excepted service positions the President has determined are policy-influencing.

In this regard, Commenter 30426 argues 5 U.S.C. 7511(c) gives OPM authority to extend chapter 75 procedures to covered employees in Schedule Policy/Career. Section 7511(c) provides that OPM “may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of the Office which is not otherwise covered by this subchapter.” In the proposed rule OPM explained that this exception was inapplicable for two reasons. First, policy-influencing positions are “otherwise covered” by subchapter II and expressly excluded. And second, this authority does not extend to positions the President excludes from the competitive service.\265\

\265\ 90 FR at 17199.

Commenter 30426 takes issue with both points. On the first, Commenter argues that OPM misconstrues what

“otherwise covered by this subchapter” means. Commenter argues 7511(b) provides “this subchapter does not apply to an employee” meeting various criteria, while 7511(c) then expressly authorizes OPM to nonetheless “provide for the application” of subchapter II to those not covered by it (emphasis' in original). Commenter, pointing to this textual analysis and caselaw, argues that “not otherwise covered” in this context has the “obvious” meaning of “not otherwise covered by the protections at issue” rather than “not otherwise referenced in this subchapter.” Upon further review, OPM accepts Commenter's point, and concludes 5 U.S.C. 7511(c) authorizes OPM to extend chapter 75 adverse action procedures to positions that OPM has placed in the excepted service that would otherwise be excluded under section 7511(b).

However, this conclusion has no relevance to Schedule Policy/Career or this rulemaking, as the President--not OPM--will be placing positions in Schedule Policy/Career. On this point, Commenter 30426 argues section 7511(c) also allows extending adverse actions procedures to positions excluded from the competitive service by the President. Commenter argues section 7511(c) was meant to allow OPM to include under subchapter II procedures positions that the executive branch excepted from the competitive service, as opposed to legislative exclusions. Commenter contends that Schedules A and B, which were created by the President, existed at the time the CSRA passed. OPM subsequently covered Schedule B employees under subchapter II procedures, and no-one thought this was improper. Ergo, OPM extending subchapter II to employees excluded from the competitive service by the President under Schedule Policy/Career is not improper.

This argument has no foundation in the text of chapter 75, and it misunderstands the scope of OPM's authority to extend chapter 75 protections to excepted positions. Section 7511(c) provides that OPM “may provide for the application of this subchapter to any position or group of positions excepted from the competitive service by regulation of [OPM] which is not otherwise covered by this subchapter.” \266\

\266\ 5 U.S.C. 7511(c).

Under 5 U.S.C. 3302(1), the President has primary authority for excepting positions from the competitive service. The President has, on occasion, delegated that authority to OPM, but it principally rests with the President. Section 7511(c) straightforwardly allows OPM to extend subchapter II to cover positions where it has used its delegated Presidential authority to except from the competitive service, such as the Schedule A positions, listed in 5 CFR 213.3102. But it does not allow OPM to extend coverage to any positions the President directly excepted from the competitive service. OPM cannot find, and the Commenter did not provide, any legal authority that section 7511(c) means anything other than its plain language. So, while the Commenter is correct that OPM can extend subchapter II to employees OPM excepted from the competitive service, the Commenter fails to acknowledge such extensions hinge on whether OPM has been delegated the authority to determine which positions are excepted. The President has provided he will directly move positions into Schedule Policy/Career; OPM does not control those determinations.\267\ Therefore, section 7511(c) does not give OPM authority to extend subchapter II to positions directly excepted by the President.

\267\ See E.O. 14171, 90 FR at 8626 (“The Director shall promptly recommend to the President which positions should be placed in Schedule Policy/Career.”).

OPM acknowledges, as Commenter 30426 points out, that Schedules A and B were created by E.O. However, the creation of a schedule does not by itself put specific positions into that schedule. The act of creating an excepted service schedule is legally distinct from the act of putting positions in that schedule. In fact, E.O.s 9830 and 10577, creating the modern Schedules A and B, explicitly delegated authority to the CSC to place positions into those schedules.\268\ So it is simply not the case that most Schedule A or B positions were excepted from the competitive service by the President. The President created those schedules, but individual positions were often put in it by the CSC, and then OPM. For example, an OPM rulemaking following the CSRA's passage regulates the positions currently in Schedule A.

\268\ See, e.g., E.O. 10577, 19 FR 7521, 7524 (“The Commission is authorized to except positions from the competitive service whenever it determines that appointments thereto through competitive examination are not practicable.”); id. (“Positions excepted by the Commission shall be listed in Schedule A, B, or C as provided in section 6.2 of this Rule . . .”).

Section 7511(c) gives OPM authority to extend subchapter II to otherwise excluded Schedule A and B positions that it has regulatorily excepted from the competitive service. Those schedules were created by executive order, but specific positions were placed in those Schedules through OPM regulations.\269\

\269\ See 5 CFR 213.3102 and 47 FR 28901, 28902-04 (July 2, 1982).

Schedules A and B stand in contrast to E.O. 13957, as amended, which not only created Schedule Policy/Career but maintained that the President would place individual positions in it.\270\ This is similar to E.O. 13843, which created Schedule E and excepted all subsequently hired administrative law judges (ALJs) from the competitive service placing them in Schedule E.\271\ OPM has no role in placing positions in Schedule E. Additionally, in that situation, the President--not OPM--explicitly provided that ALJs “who are, on July 10, 2018, in the competitive service shall remain in the competitive service as long as they remain in their current positions.” \272\

\270\ See generally E.O. 13957, 85 FR 67631, as amended by, E.O. 14171, 90 FR. 8625.

\271\ E.O. 13843, 83 FR at 32756 (“Conditions of good administration warrant that the position of administrative law judge be placed in the excepted service.”).

\272\ Id. at 32757.

Commenter 30426's misunderstanding of the distinction between how excepted service schedules are created and how individual positions get placed in those schedules leads him to conclude 7511(c) authorizes OPM to extend subchapter II to positions the President has placed in the excepted service. Commenter believes that, since 7511(c) was drafted to allow OPM to extend subchapter II to schedule A and B positions, and those schedules were created by executive order, OPM can also extend subchapter II to positions the President has directly placed in the excepted service.

This is a non sequitur. For the reasons discussed above, OPM has no such authority. Section 7511(b)(2) categorically excludes from subchapter II's coverage any excepted service positions an appropriate authority has determined are policy-influencing. Section 7511(c) only permits OPM to extend subchapter II to cover positions it--but not the President--has placed in the excepted service. Section 7511(c) thus does not extend to positions that the President, at a future date, places in Schedule Policy/Career. As such, the proposed changes are necessary to align regulations with OPM's statutory authority--i.e., OPM cannot extend subchapter II to cover positions Congress or the President excluded from the competitive service. The revised regulation instead reflects the reality that employees Presidentially converted from the competitive service to the excepted service, in positions the

President has determined are policy-influencing, are statutorily excluded from subchapter II.

Additionally, even if Title 5 did not compel this result--and OPM believes it does--OPM would use its discretion to exclude incumbents in positions converted to Schedule Policy/Career from coverage under subchapter II. Doing so supports the policies of the President and the administration, for the reasons discussed throughout the proposed rule and this rulemaking.

Lastly, Commenter 31616 asserts the revised Sec. 212.401 violates Loudermill. As discussed in greater detail below, Loudermill does not apply as there is no statutory basis for conveying property rights for employees appointed to Schedule Policy/Career positions. Part 302--Employment in the Excepted Service, Subpart F

Implemented as part of the April 2024 final rule, Subpart F to part 302 prescribed procedures for moving positions into or between excepted service schedules. In this final rule, OPM removes subpart F in its entirety because E.O. 14171 has rendered subpart F unenforceable and without effect.

OPM issued subpart F using delegated Presidential authority. In E.O. 14171, the President used this authority to render subpart F unenforceable and without effect. This Presidential directive is self- executing, taking precedence over OPM's subpart F regulations. While OPM can modify the civil service regulations using delegated Presidential authority, the President can directly use his constitutionally and statutorily vested authority to override those regulations. OPM and MSPB are now lawfully prohibited from giving effect to subpart F. Consistent with this self-executing Presidential directive, E.O. 14171 terminated MSPB appeal rights under subpart F. Both OPM and MSPB's regulations providing for appeals under subpart F are now obsolete. OPM therefore removes these regulations to avoid confusing Federal employees about applicable legal requirements. OPM has determined that it would not be beneficial to retain obsolete and unenforceable regulations. OPM notes that MSPB will need to make conforming amendments to its regulations at 5 CFR 1201.3(a)(12).

Commenter 30426 argues that “[a]lthough the president might arguably have had authority to issue a regulation of his own, he cannot circumvent the APA merely by purporting to suspend enforcement of a regulation that OPM issued through notice-and-comment rulemaking.” OPM does not have direct statutory authority to regulate employment in the excepted service. OPM's part 302 regulations were issued using delegated Presidential authority under 5 U.S.C. 3301 and 3302, as OPM acknowledged both in the April 2024 final rule and the proposed rule. The President can directly undo agency actions taken using delegated Presidential authority. There is no requirement that the President act through OPM when regulating the excepted service. The President can and often chooses to do so, but nothing in the law requires him to do so. If the President wishes to directly order agencies to give “no force or effect” to regulations issued under his authority he may do so. When he issues such an order, that directive supersedes the prior regulations. OPM is accordingly prohibited from giving effect to the prior subpart F regulations.

Commenter 0656 argues that E.O. 14171 violates the doctrine of separation of powers by terminating MSPB appeal rights under subpart F without having undergone the processes defined in the Administrative Procedure Act. OPM rejects this conclusion. It is well established, that when the President acts directly he is not bound to follow APA procedures.\273\ Regulations under part 302 were only enacted using delegated Presidential authority under sections 3301 and 3302 of 5 U.S.C. OPM acknowledged this when enacting the April 2024 final rule. The President may undo actions that OPM has previously enacted under his delegations. Regardless, OPM is following APA notice and comment procedures when following the President's directive to remove now legally obsolete language from the CFR.

\273\ Franklin v. Mass., 505 U.S. 788, 800-01 (1992).

Commenter 30426 also argues that E.O. 14171 left OPM discretion as to the action it should take. Commenter 30426 misreads the operative language in the E.O. By its very terms--“[u]ntil such rescissions are effectuated”--E.O. 14171 asserts that no rescission has occurred. The order expressly leaves it to OPM to rescind regulations. But the order qualifies that directive to rescind regulations by providing OPM the discretion to do so only to the extent that OPM determines, in its discretion, that its existing regulations “impede the purposes of or would otherwise affect the implementation of Executive Order 13957.” This qualification of the president's directive to OPM grants OPM discretion to determine which parts of its regulations pose an impediment and to determine how best to address that perceived impediment.

OPM does not have discretion to retain subpart F. Subpart F was part of a rulemaking whose express purpose was, and was openly acknowledged as, frustrating a future administration's ability to reinstate E.O. 13957 without affected employees retaining adverse action appeal rights. Subpart F imposes procedural hurdles to moving positions into Schedule Policy/Career and requires agency attestations that employees so moved would retain adverse action appeals. It plainly impedes the purposes and would affect the implementation of E.O. 13957. Accordingly, OPM has been directed to rescind subpart F, which was issued under delegated Presidential authority. Until such rescission is completed neither OPM nor any other agency can give subpart F force and effect.

The White House has confirmed this interpretation. The text of E.O. 14171 includes the provision--“impede the purposes of or would otherwise affect the implementation of [E.O.] 13957”--that allows OPM to retain language the 2024 Final rule made to subpart B of part 752 to conform to Federal Circuit decisions in Van Wersch v. Department of Health & Human Services \274\ and McCormick v. Department of the Air Force.\275\ It does not authorize OPM to retain provisions like subpart F designed to frustrate the purposes of E.O. 13957.

\274\ 197 F.3d 1144, 1151 (Fed. Cir. 1999).

\275\ 307 F.3d 1339, 1341-42 (Fed. Cir. 2002).

Even if OPM had discretion to keep subpart F in effect, OPM has determined several factors justify its rescission. First, subpart F was expressly adopted as part of the prior administration's policy of preventing the reinstatement of E.O. 13957. Commenter 30426 argues that the mere change in administration is not a sufficient justification for changing course. This is misguided. Elections have consequences, and Federal policy has changed with the election of a new President. OPM is removing subpart F to prevent the prior administration from impeding the current administration's priorities. The President is head of the executive branch and is constitutionally and statutorily vested with primary authority over the Federal workforce. OPM exists to support the President in performing those duties. A change in Presidential policy directives fully justifies OPM changing course.

Second, 5 U.S.C. 3302 gives the President primary responsibility for placing positions in the excepted or competitive services. OPM only excepts

positions using delegated Presidential authority. E.O. 14171 set up a process for the President to place positions in Schedule Policy/Career based upon recommendations from OPM and agency heads. Even if that order had not directly overridden subpart F, it would be inconsistent with this hierarchy of authority for OPM to use delegated Presidential authority to purport to limit the President's direct exercise of section 3302 authority. Commenter 30426 also argues that this inconsistency does not actually provide a rationale for rescinding subpart F, as nothing in subpart F “impede[s] Presidential authority.” Commenter argues that subpart F and the executive orders can co-exist. This is misguided. Subpart F establishes procedural requirements for Presidential movements of positions into excepted service schedules, such as obtaining certification from the Chief Human Capital Officer (CHCO) that the movement of positions is consistent with merit system principles, submitting the CHCO certification to OPM for review, and initiating any hiring actions under the excepted service authority after OPM publishes any such authorizations in the Federal Register. 5 CFR 602.602(b). The President can directly effectuate transfers into the excepted service. OPM regulates here with delegated Presidential authority. It is not OPM's place to limit or restrict how such direct Presidential transfers are effectuated.

Third, OPM regulations cannot create an entitlement to adverse action procedures that are denied by statute. Subpart F requires agencies to notify employees who are moved or otherwise involuntarily transferred into Schedule F (now Schedule Policy/Career) that they remain covered by chapter 43 and 75 procedures and appeals. Subpart F also authorizes MSPB to order agencies to continue to apply such procedures, and to order agencies to correct any deficient notifications. However, as discussed above, employees that the President reclassifies or transfers into a policy-influencing excepted service position do not fall within the scope of chapter 75 as a matter of law. Section 7511(b)(2)(A) of Title 5, U.S. Code, precludes chapter 75 coverage and subsequent MSPB appeals for employees in Schedule Policy/Career, regardless of how they were notified of their reclassification. OPM cannot extend MSPB jurisdiction to appeals that are prohibited by statute. Nor can MSPB require agencies to apply chapter 75 procedures to employees who are statutorily excluded from that chapter's coverage.

Commenter 30426 also contends that subpart F does not transfer decisional authority from the President to subordinate officers, since Sec. 302.602(b)(3) requires only that CHCOs certify that “movement is consistent with the standards set forth by the directive, as applicable, and with merit systems principles.” Commenter argues that OPM provides no support for its contention that some CHCOs may be unwilling to issue certifications necessary to transfer positions into Schedule Policy/Career upon direction from the President. However, under the current regulations, a Presidential transfer into Schedule Policy/Career cannot go into effect unless the CHCO certifies that it complies with Merit System Principles. Many CHCOs are career employees who can only be dismissed for cause. It is not clear that refusing to sign a certification the CHCO did not believe was accurate would constitute cause. The point has not been tested--and will not be because the rules are currently without effect--but it is reasonable to be concerned that some CHCOs would decline to make the relevant certifications.

Section 302.603 similarly authorizes MSPB appeals over movements or transfers into Schedule Policy/Career. Subpart F noted “that an individual may choose to assert in any appeal to the MSPB that the agency committed procedural error, if applicable, by failing to act in accordance with the procedural requirements of Sec. 302.602 while effecting any placement from the competitive service into the excepted service or from the excepted service to a different schedule of the excepted service.” These procedures would allow MSPB to overturn a Presidential decision to place positions into Schedule Policy/Career. Commenter 30426 denies that this amounts to a transfer of decisional authority from the President to subordinate officers at MSPB, arguing the litigation would only concern whether employees retain their accrued status and adverse action procedures--not which positions go in Schedule Policy/Career. However, allowing MSPB litigation over whether Schedule Policy/Career employees retain adverse action appeals would give MSPB decisional authority over which positions can be functionally classified as Schedule Policy/Career. An employee can be technically in a Schedule Policy/Career position, but if the employee retains adverse action appeals, the benefits are neutralized. The regulations thus give MSPB control over where Schedule Policy/Career takes effect, possibly in contradiction of a Presidential directive.

In the April 2024 rule, subpart F was added as part of the prior administration's effort to stymie the reintroduction of anything like Schedule F without the retention of adverse action appeal procedures. OPM now believes that, with the change in administration and administration policy, control over the Federal workforce should remain with the official constitutionally and statutorily vested with that authority--the President. OPM does not believe its regulations should give subordinate agency officials the functional ability to countermand a Presidential directive to place positions in Schedule Policy/Career. Even if the President had not directly rendered subpart F inoperative, OPM would propose these changes to restore authority to the official constitutionally vested with it and democratically accountable to the American people. The purpose of Schedule Policy/Career is to remove adverse action appeals and facilitate greater accountability to the President.

Commenter 30426 argues that OPM has provided no support for its contention that these procedural steps and MSPB appeals would produce protracted litigation or confusion, and that OPM has not adequately weighed the benefits of such procedural steps and appeals for impacted employees against the benefits of “certainty and dispatch.” As explained above, the appeal process afforded most Federal employees is protracted and can take years for full resolution. Further, the “benefits” that commenter discusses are delaying the effective implementation of Schedule Policy/Career. OPM considers this a cost, not a benefit.

Commenter 34928 argues the removal of subpart F could lead to the politicization of Federal employment and result in a high turnover rate. As explained above and in the proposed rule, E.O. 14171 and this final rule flatly reject the notion that Schedule Policy/Career will politicize the Federal service or lead to high turnover. Regarding the issue of turnover, OPM notes that the positions placed in Schedule Policy/Career will likely be among the more senior positions available throughout the Federal Government. Civil servants called to serve in these positions will be able to work closely with the most senior members of a presidential administration and make decisions or influence policy affecting the United States and abroad. OPM believes this call to service will invigorate a workforce dedicated to protecting and promoting the well-being of the

American people. If the cost is rooting out those employees bound to impede this objective, then the final rule had its intended effect-- removing undemocratic resistance and restoring faith in the civil service. Authority Citations

OPM is revising the authority citations for parts 210, 212, 213, 302, and 752 to comply with 1 CFR part 21, subpart B. This rule also updates the citations by adding current authorities and removing obsolete citations.

E.O. 13957, as amended, directs OPM to provide for the application of Civil Service Rule 6.3(a) to Schedule Policy/Career positions.\276\ Consistent with Rule 6.3(a), this final rule modifies 5 CFR part 302, subpart A (Employment in the Excepted Service) to clarify that appointments to Schedule Policy/Career positions will be made using the hiring procedures that would have otherwise been used had the position not been moved into Policy/Career. Positions moved into Schedule Policy/Career from the competitive service will continue to be filled using merit-based competitive hiring procedures, and positions moved from the excepted service will continue to be filled using excepted service procedures. Under this provision, a position's movement into Schedule Policy/Career will not affect how it is filled.

\276\ E.O. 13957, 85 FR at 67633; E.O. 14171, 90 FR at 8625.

Sec. 302.101 Positions Covered by Regulations

Part 302 prescribes procedures governing excepted service hiring, and 5 CFR 302.101(c) lists exemptions from these procedures. These exemptions include certain positions included in Schedule A for which OPM agrees with the agency that the positions should be excluded.\277\ OPM notes that it cannot legally extend competitive hiring procedures to some excepted service positions in Schedule A. For example, all Federal attorney positions are listed in Schedule A because a longstanding appropriations rider prohibits spending money to competitively examine lawyers.\278\ That rider will continue to prohibit competitive examinations for any attorney positions moved into Schedule Policy/Career.

\277\ 5 CFR 302.101(c)(6).

\278\ Admin. Conf. of the U.S., Recruiting and Hiring Agency Attorneys, at 3, (Dec. 12, 2019), https://www.acus.gov/sites/default/files/documents/Proposed%20Recommendation%20for%20Plenary%20CLEAN%20.pdf (citing Memorandum Op. for the Assoc. Attorney General, 2 Op. O.L.C. 179 (1978)).

Sec. 302.102 Method of Filling Positions and Status of Incumbent

In the proposed rule, OPM added a paragraph (d) to 5 CFR 302.102 that will provide that a position's movement into Schedule Policy/ Career will not affect how it is filled. More specifically, the regulations will provide that agencies shall make appointments to positions in Schedule Policy/Career in the same manner as positions in the competitive service, unless such positions would, but for their placement in Schedule Policy/Career, be listed in another excepted service schedule. In this final rule, OPM incorporated these changes into 5 CFR 213.3601 to better streamline the regulations specific to Schedule Policy/Career. Therefore, the final rule will not include a paragraph (d) in 302.102.

Under these regulations, Schedule Policy/Career positions will by default be filled using the procedures applicable to the competitive service. Excepted service procedures will only be used if the position would have otherwise been placed in the excepted service. So, for example, agencies can still use excepted service procedures to hire applicants with severe disabilities into Policy/Career positions. Such positions would otherwise be placed in Schedule A, so agencies may continue to use excepted service procedures. But agencies will continue to apply merit-based competitive hiring procedures to positions moved into Schedule Policy/Career from the competitive service.

Commenter 30426 argues that as a practical matter, nothing in OPM's proposed regulations would restrain the administration from hiring Schedule Policy/Career appointees based on their political affiliation. Merit-based competitive hiring procedures generally forbid consideration of political affiliation. So does E.O. 13957, as amended. If the administration wanted to hire based on political affiliation the President could have turned these into political appointments and expressly authorized filling these positions based on political affiliation. He instead did the opposite, directing his subordinates to hire the candidates best equipped to help him carry out the law and execute his agenda, regardless of their political affiliation.

Commenter 30426 also argues that OPM does not explain how it will track the determination as to which procedures apply after an initial incumbent leaves a Schedule Policy/Career position or in the event of a subsequent reorganization in an agency, and that OPM does not explain how it will determine whether a newly created position would have been in the excepted service but for its inclusion in Schedule Policy/ Career. Such determinations will be based on the nature of the position and whether other similar positions are in the excepted service. For example, all attorney positions will be treated as positions that would otherwise be in the excepted service because they would otherwise go in Schedule A. OPM will handle these through post-implementation guidance; these procedures do not need to be written into regulation.

Commenter 30426 also argues that if these positions are not too sensitive for ordinary recruitment procedures, they are not too sensitive for ordinary retention procedures. This is a non-sequitur. Different considerations motivate hiring procedures and removal restrictions. Removal restrictions facilitate accountability for the use of government power, while merit-based hiring procedures help the government hire the best applicants.

Several commenters predict “mass” or political dismissals of career staff under Schedule Policy/Career. Commenters 14213, 16152, 23876, 26587, 26893, 30166, 30426, and others, argued that Schedule/ Policy Career personnel will be effectively made political appointees. Commenters argued that this rule is an attempt to “abolish the professional civil service and convert it to a patronage system,” in reference to resurrecting the patronage or spoils system of the past,

whereby the President would replace qualified career employees en masse with unqualified political loyalists. They further argue that replacement of career employees with political loyalists would reduce or eliminate expertise within the Federal bureaucracy and degrade agencies' capacity to deliver on their missions and effective government operations. They also argued that would hurt agency recruitment and retention, as experienced professionals would be less likely to seek or remain in jobs where political affiliation was perceived to be a condition of employment. Some commenters argues that the rule ignores Merit System Principles codified at 5 U.S.C. 2301(b). Commenter 30426 speculates that the President will fire Schedule Policy/Career employees regardless of performance or conduct as he supposedly did to probationary employees. After considering these comments, OPM concludes that these fears are misplaced.

There is nothing in the final rule that suggests, and in fact the rule flatly rejects the notion, that positions in Schedule Policy/ Career are “political appointments.” Under E.O. 14171, President Trump established a policy of restoring accountability to the executive branch, where Federal employees who occupy policy-influencing positions have in some cases previously demonstrated resistance to directives of their executive leadership, in other cases engaged in serious misconduct or corrupt behavior, and in other cases underperformed. In the proposed rule, OPM estimated that approximately 50,000 employees, or approximately 2 percent of the Federal workforce, could be impacted by the rule. This small percentage of positions contrasts with the early days of the Pendleton Act which reduced the patronage labor force in the Federal Government to 50 percent in 1904.\279\ If the President truly wanted to return the Federal workforce to a patronage system, he could simply move the Federal workforce to positions in Schedules C or G en masse, with no need for Schedule Policy/Career. The President did not do so because that is not his policy objective. Executive Order 13957, as amended, rejects the spoils system, which is now a part of distant past and essentially beyond living memory.

\279\ Johnson & Libecap at 12.

Additionally, dismissing career employees holding positions under Schedule Policy/Career who perform their duties with efficiency and integrity, of whom there are many, would render vacant key positions necessary to implement the President's agenda and deprive the President of the assistance of these key employees. The President and members of his administration rely crucially on such experienced and effective career employees to implement his agenda. E.O. 13957 recognizes this expressly in noting that “[t]he Federal Government benefits from career professionals in positions that are not normally subject to change as a result of a Presidential transition but who discharge significant duties and exercise significant discretion in formulating and implementing executive branch policy and programs under the laws of the United States.” Both E.O.s 13957 and 14171 recognize the value of a career civil service whose members are selected and retained based on merit, not political affiliation. They simply seek to ensure heightened accountability for employees in key policy-influencing roles.

To provide this accountability, and in light of longstanding, well- documented concerns about the accountability of career employees holding these crucial roles, both the President and OPM believe that additional leeway is needed to allow agencies to swiftly remove employees holding policy-influencing positions--even at the cost of removing some procedural protections against removal that these employees would otherwise enjoy. Congress expressly allowed the President and OPM to make this choice by allowing the President and OPM to except policy-influencing employees from the adverse action procedures in chapter 75 and similarly exempting these employees from the provisions of 5 U.S.C. 2302.

Further, it would be inappropriate for an agency to use the authority under this final rule as a tool to broadly reconstruct its workforce or as a reduction in force (RIF) avoidance tool. Congress explicitly provided agencies with RIF authority in Title 5, Chapter 35. OPM's RIF regulations and procedures will continue to apply to, and protect, Schedule Policy/Career employees, requiring that RIFs affecting these employees be carried out fairly and providing for appeal rights.\280\ OPM additionally has broad powers under those rules to review an agency's RIF plans “at any stage” and take corrective action regarding reduction-in-force actions that violate the “spirit and intent” of its RIF regulations or violate “employee rights or equities.” \281\ This final rule is intended to provide agencies with authority to address individual instances of unacceptable performance or misconduct by individual Schedule Policy/Career employees whose duties and responsibilities are policy-influencing. When an agency intends to release or terminate an employee, or many employees, under conditions that may be described in 5 CFR part 351, the agency should follow those procedures, or similar procedures under similar authorities.

\280\ See 5 CFR 351.202.

\281\ 5 CFR 351.205.

Additionally, this rule does not dilute or negate merit as a basis for appointment into the civil service. Schedule Policy/Career will continue to use merit-based, competitive hiring procedures when appointing personnel in positions subject to this rule. Unlike the patronage system that operated based on political affiliation, this rule does not authorize agencies to consider political affiliation during any part in the appointment process for these positions, nor could they, as merit-based assessments of candidates without regard to political considerations will be the only basis for ratings, rankings, and appointment. OPM added a new section 5 CFR 213.3501 to subpart C of 5 CFR, covering appointments to Schedule Policy/Career within 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.” Since 5 CFR 213.101 specifically defines “career position” to exclude noncareer appointments, it is abundantly clear that political appointees cannot be placed in positions under Schedule Policy/Career. This language, as well as the schedule's name, clearly articulates that this rule is not to be used for patronage purposes and applies only to career employees hired on the basis of merit. E.O. 13957 also definitionally prohibits the White House office that selects political appointees from having any role in filling Schedule Policy/Career positions.

Moreover, a return to the spoils system would frustrate the purpose of the rule and of E.O. 14171. Improving the accountability of policy- influencing employees within the executive branch facilitates effective Presidential management of, and reduces insubordination, poor performance, and corruption in the Federal civil service. That purpose is not served by, and in fact would be undermined by, a return to patronage practices that undermine agency capacity. As established by E.O. 14171 and incorporated into the rule, employees appointed to positions in Schedule Policy/Career are not required to take a pledge of personal loyalty to the President or his policies. Rather, employees are required to diligently

implement and advance, to the best of their ability, the policies of the President and his administration. This is the opposite of the patronage system, which subjected employees to dismissal upon a Presidential transition based on political affiliation alone, irrespective of their performance. Section 6 of Executive Order 13957, as amended, further requires agencies to establish and enforce internal policies prohibiting hiring or firing based on political affiliation (or any other grounds for a PPP such as whistleblower reprisal).

OPM notes that the President has strong motivation to enforce the prohibition of loyalty pledges or terminations based upon political affiliation. As OPM and commenters previously noted, hiring less qualified personnel reduces Federal administrative capacity and efficiency. Replacing experienced career employees who are faithfully implementing Presidential directives with inexperienced political appointees would make it significantly more difficult for him to carry out his agenda. If some officials nonetheless treat Schedule Policy/ Career positions as noncareer positions, OPM can help the President address that problem, if and when it arises. OPM will be heavily involved in the implementation of Schedule Policy/Career. If necessary, OPM can recommend additional measures to prevent abuse. But currently hypothetical concerns that agency personnel will ignore a Presidential directive are not grounds for failing to implement an executive order. ii. Experiences of State Governments Reforming Their Civil Service Refute Fears of Politicization and Mass Firings

Commenters 17824, 19350, 19352, 26673, 32359, and many others, noted that Schedule Policy/Career follows the practices of a number of state government that have converted much of their career workforce into “at-will” employees. These commenters point out that evidence shows these reforms have been beneficial and concerns about a return to the spoils system have not materialized. For example, surveys of state personnel directors show generally positive evaluations of at-will employment in state government without reports of states returning to patronage practices.

OPM appreciates these comments. As the commenters noted, the literature indicates that more than 20 states have converted all or a part of their workforce into “at will” employees.\282\ The results experienced so far have been largely successful. States such as Arizona, Florida, Georgia, Indiana, Mississippi, Missouri, Texas, and Utah have instituted Schedule Policy/Career type reforms and concluded that their evaluations of results have been generally quite positive. There has been no indication of any return to a patronage type of appointment system in these states. Upon consideration of these comments OPM concludes the experiences of states with at-will workforces provides another reason to reject concerns this rule will lead to a return to the spoils system, reduce administrative capacity, hurt recruitment and retention, or otherwise impair government operations. Many states have adopted similar reforms at the state level. Not only have these concerns not materialized, these states have seen beneficial effects. OPM concludes these states' experiences demonstrate that at-will employment is fully compatible with an effective and highly functioning career government workforce. OPM believes that bringing at-will employment to a small portion of the Federal workforce will be similarly beneficial.

\282\ See Judge Glock and Renu Mukherjee, Radical Civil Service Reform is Not Radical: Lessons for the Federal Government from the States, Manhattan Inst. (Mar. 4, 2025), https://manhattan.institute/article/radical-civil-service-reform-is-not-radical-lessons-for-the-federal-government-from-the-states, at 1, 21 n.2.

Moreover, states that have adopted so-called “at will” employment practices for their public employees have noted improved employee responsiveness to agency initiatives and service delivery. For example, in Mississippi, a state that partially adopted “at will” employment, human resources directors reported that at-will employment improved employee responsiveness to the goals and priorities of agency administrators (60% agree/17% disagree), provided motivation for employee performance (56% agree/20% disagree), improved agency efficiency (53% agree/27% disagree), ensured managerial flexibility (54% agree/19% disagree), and represented an essential piece of modern government management (58% agree/15% disagree).\283\

\283\ James Sherk and Jacob Sagert, At-Will Employment in the Career Service Would Improve Mississippi State Government, Am. First Pol'y Inst. (Nov. 3, 2022), https://www.americafirstpolicy.com/issues/20221101-at-will-employment-in-the-career-service-would-improve-mississippi-state-government.

Regarding removals, human resources directors also overwhelmingly agreed that at-will terminations were for good cause (86% agree/5% disagree), and a large majority indicated that at-will employees were terminated due to poor performance (82% agree/5% disagree).\284\ Terminations were not arbitrary.

\284\ Id.

OPM also finds it notable that commenters did not produce evidence from the specific experiences of state governments that shifted to at- will employment for their state workforces that they returned to a system of patronage, or that they experienced reduced administrative capacity, or similar harmful effects. For example, Commenter 26673 cited to a journal article highlighting the changes in Georgia and Florida but relied upon generic criticisms of removing civil service protections. Commenter 26673, like many others, failed to point to empirical evidence of harms specific states experienced with a move to at-will employment. Given the strong opposition this rule has engendered in some quarters, OPM takes opponents' silence on this point as suggestive there is little evidence at-will state employment has produced negative effects or produced a return to patronage practices. The available evidence instead affirmatively indicates it has not had this effect. This again suggests the same policy would not produce such effects at the Federal level.

In OPM's analysis of comments related to state personnel reforms as part of the 2024 rulemaking, OPM chose to give greater credibility than OPM now believes was warranted to a comment that asserted that a survey of one state's civil service reforms had engendered dissatisfaction among some employees rather than the considered assessments of human resource directors in the states that have implemented reforms. It is not surprising that individual employees will see such reforms differently than state personnel directors. Individual employees are focused on their own benefits and do not see the enterprise-wide effect of policy reforms. In contrast, state personnel directors, who have responsibility for service delivery across a broad array of governmental functions, take a more enterprise-wide view of the benefits of managing a nimbler and more responsive workforce. Upon reconsideration, and reviewing comments 17824, 19350, 19352, OPM believes it was too quick to seize upon this one survey in the prior rulemaking. OPM now recognizes that it severely discounted the conclusions of state human resources directors who support the flexibility and modern management practices reflected in this rule. OPM erred in giving greater weight to the

alleged viewpoints of employees who were made “at-will” rather than the more strategic assessments of state authorities responsible for managing their respective workforces. iii. OPM Will Monitor Compliance

Commenters 0210 and 30426 argue that E.O. 13957's provisions that require agencies to administratively protect Schedule Policy/Career employees from the same PPPs covered by 5 U.S.C. 2302 provide no enforcement mechanism to protect employees from whistleblowing. They argue that forcing employees to bring concerns about violations of merit systems principles by Trump appointees to Trump appointees in the same agency, in the absence of enforceable whistleblower protections and other safeguards, would leave them entirely dependent on the administration's good will toward career employees.

Commenters do not consider that the President relies on Schedule Policy/Career employees to provide guidance on highly sensitive matters, implement Presidential policies and prerogatives, and otherwise carry out executive functions on behalf of the President. The President has determined that creation of Schedule Policy/Career will ensure a high level of accountability to effectively supervise the executive branch. As OPM noted in the proposed rule and discussed extensively above, the President has strong incentives to keep and protect talented, experienced Federal employees in policy-influencing positions as long as these employees do not inhibit Presidential policy administration. The President has ample constitutional tools to address political appointees who ignore written directives and in so doing undermine their agencies' abilities to carry out the President's policies. Further, OPM will monitor agencies' compliance with E.O. 13957, as amended, and these regulations, and take appropriate action if necessary. OPM will detail in supplementary guidance to agencies when implementing this final rule on how it plans to oversee compliance.

As explained throughout this final rule, one of the core problems this rule addresses is resistance from career bureaucrats to the implementation of the President's agenda. The proposed rule cited to several sources documenting resistance the President Trump's first term. Commenters 29987, 30426, 35543, 35478 and others argue that the proposed rule's reliance on the America First Policy Institute's Tales from the Swamp report referenced in the proposed rule undermines the basis for this rulemaking. They argue that the reports of resistance and obstruction are meritless and debunked, and its analysis is unreliable. These commenters argue that a small number of anecdotes within a few agencies, and dating as far back as the Reagan administration, do not provide sufficient evidentiary support to assert that the Federal Government suffers from a widespread problem of Federal employees resisting Presidential policy changes.

OPM explained in the proposed rule that it was not persuaded by these criticisms of the report, as much of the “debunking” addressed ancillary and unrelated issues to those raised in the report.\285\ For example, commenters 30426 and 35543 criticized the report in highlighting an instance at the General Services Administration (GSA) in which career staff leaked a copy of a draft executive order concerning promotion of classical architecture during the first Trump administration. The so-called debunking of this report centered on several unrelated arguments. First, Commenter 30426 argued the executive order was bad policy and therefore appropriately controversial, necessitating leaking to the public. While the GSA career staff was free to disagree with the policy, disagreement over policy is not an appropriate excuse for career employees to subvert or otherwise undermine the agenda of a democratically elected President. Second, commenters contended that there is a lack of direct evidence that a career employee leaked the draft executive order. However, commenters fail to offer any evidence rebutting the report that the career employee leaked the draft executive order from his personal email account. OPM has also discussed this report with an official from the first Trump Administration who was familiar with the situation. That official verified the accuracy of the America First Policy Institute's reporting of the incident.

\285\ OPM also notes that commenters appear to be referencing an earlier version of this report. Some of commenter's criticisms are not relevant to the January 8, 2025, version of the report that OPM discussed in the proposed rule.

The same America First Policy Institute report included other examples of Federal career employees who resisted changes instituted by the first Trump Administration. For example, the report documented how career staff in the Department of Justice Civil Rights Division opposed, and stonewalled, an investigation into Governor Andrew Cuomo's requirement that New York nursing homes admit patients infected with COVID-19, and, later, covered up the resulting surge of deaths occurring in nursing homes in the state. Commenters criticizing the America First Policy Institute report claimed career staff appropriately questioned the investigation requests, asserting that the investigation itself was conducted for partisan political reasons, and that it was improper and a violation of Department policies to publicize the existence of the investigation in an election year.

Again, the America First Policy Institute rebuts these criticisms, to which commenters fail to provide adequate rebutting argument. The report explains that the Department of Justice investigated states that had a policy of requiring nursing homes to admit residents infected with COVID-19. These states were primarily, but not exclusively, run by Democrat governors. In fact, the Department of Justice also investigated Massachusetts, which implemented a similar policy under the direction of a Republican governor. That the Justice Department made a policy decision to investigate these states, many of which so happened to have Democrat governors, does not mean the investigations were political. Rather, the Department of Justice was focused on the consequences of policies that put the elderly at risk, and its investigation covered states run by both parties. The report also noted that the Department of Justice followed standard protocol in announcing the investigation.

The report further argued that career employees in the Civil Rights Division's Educational Opportunity Section (EOS) would not assist with litigation challenging Yale University's use of racial preferences. As OPM explained in the proposed rule, it is a publicly verifiable fact that no EOS career attorneys participated in the Yale litigation, despite this being the section of the Civil Rights Division with responsibility for litigating against racial discrimination in educational institutions. OPM takes this evidence as supporting the accuracy of the report that, at least in this case, career EOS attorneys would not help advance litigation they personally opposed. Commenters do not offer a persuasive alternative explanation for why, if career EOS attorneys performed their duties in an impartial manner, none of them participated in this case.

The America First Policy Institute report also highlighted other instances of Federal employees attempting to resist and undermine the policy directives of President Trump in his first administration. The report documented that career staff at the Department of Education intentionally

delayed priority rulemakings and produced drafts that did not reflect the policy directives they were given. As a result, administration priority rules such as Title IX regulations had to be drafted primarily by political appointees, an example confirmed by the Department in its comment (2025-0004-29882) on the proposed rule. Consequently, OPM does not accept commenters' characterization of the America First Policy Institute report as discredited. Instead, OPM views many of the examples to be clear cases of career staff engaging in policy resistance and seeking to advance their personally preferred policies over and against those of the democratically-elected President.\286\

\286\ OPM reiterates that this rulemaking is not primarily motivated by the America First Policy Institute study, but OPM does believe this report provides informative case-studies documenting policy resistance that unfortunately does occur within the Federal Government.

Commenters 30426 and 35543 also object to OPM's citation of the report as argument by anecdote. Commenters believe that these anecdotes are not enough to show policy resistance is a pervasive problem amongst the Federal workforce. Both Commenters, however, miss the point. These examples are case studies used to evaluate the systematic problem of Federal workers inappropriately resisting Presidential policy changes. As discussed above and below, considerable additional evidence of widespread policy resistance exists including an academic study of the EPA during the Reagan administration. This indicates Chapter 75 procedures are inadequate and insufficient to address the problem. Such misconduct is just that--misconduct, meaning it should be easily able to be addressed under current procedures, resulting in relatively minor, if any, presence. Yet, the demonstrated difficulty of using of Chapter 75 renders its procedures inadequate for the task Congress provided.

OPM has previously noted in the proposed rule, and reiterates here, academic analysis of agency performance and career voting registration data show that when career staff are ideologically opposed to agency leadership, there is a lower standard of agency performance, indicating Chapter 75 procedures are insufficient to address the problem.\287\ This analysis is supported by multiple additional sources. An MSPB survey showed that only two-fifths of agency supervisors are confident they would be able to remove an employee who engaged in serious misconduct while a plurality thought they could not remove them.\288\ The lack of belief in these procedures by the practitioners of those who would initiate their use is proof positive that they are insufficient. External commenters, such as Comment 32359, provided additional examples of policy resistance occurring under the current administration. Some Federal employees also commented on the rule and told OPM that policy-resistance “is a real thing” and they “have seen it happen.” \289\ Agencies, including the Department of Transportation, Department of Education, and HHS, among others, also independently reported in comments to the proposed rule that chapter 75 procedures make it difficult for them to remove employees who engage in policy resistance (or misconduct more broadly). They provided comments of support for this rulemaking based on their belief that the revised regulations would give them the tools necessary to effectively manage their workforces. OPM credits these statements and the agencies' first- hand expertise and experience in the field regarding which they provide comment. In lay terms, if agencies believe Schedule Policy/Career would help improve the management of the Federal workforce, it is strong evidence that it will. The President--the constitutionally responsible official--supports this supposition. He concluded that Schedule Policy/ Career is necessary for good administration. OPM credits the President's determination as the judgment of the individual singularly responsible for overseeing the effective operations of the executive branch. OPM would accept the President's determination even if it had not independently come to the same conclusion.

\287\ J[ouml]rg L. Spenkuch, Edoardo Teso & Guo Xu, Ideology and Performance in Public Organizations, 91 Econometrica 1171, 1198-1200 (July 2023), https://doi.org/10.3982/ecta20355.

\288\ See Remedying Unacceptable Employee Performance, at 6.

\289\ See, e.g., Comment 23567.

OPM also explained in the proposed rule that statistically representative polling in 2025 shows that a plurality of senior Federal employees in the Washington, DC area would “do what [they] thought was best,” rather than follow lawful orders from President Trump that they thought were bad policy.\290\ Commenters 4772, 8209, 16846, 32573, 35546, and many others, critiqued OPM's use of this poll. Some Commenters criticized the survey as politically biased in favor of Republicans. Others also criticized the quality of the polling data, survey questions, and conclusions drawn from the results of the poll. OPM respectfully disagrees with these criticisms. The poll provides information about the respondents, dates of the poll, sample size, method of the survey, polling firm, and weighting based on respondents' choices for President in the previous election. Moreover, the conclusion of the poll is supported by the polling data: 46% of Federal managers, as defined by the poll, would do what they thought best when given a lawful order by President Trump. Only 45% would follow the directive. OPM finds that a plurality of highly paid Federal employees in the Washington, DC metro area reporting they would defy a Presidential directive they believed was lawful but disagreed with on policy grounds highly disturbing and indicative of serious problems within the Federal workforce. And despite criticisms of the polling firm responsible for conducting the survey, Commenters present no evidence that any such political bias impacted the results.\291\

\290\ Federal Managers Are Evenly Divided As To Whether They Would Follow A Legal Order From President Trump, Napolitan News Serv. (Jan. 21, 2025), https://napolitannews.org/posts/federal-managers-are-evenly-divided-as-to-whether-they-would-follow-a-legal-order-from-president-trump.

\291\ OPM notes that the firm responsible for this polling came within three percentage points of the actual margin of victory in the popular vote in the 2024 Presidential election, projecting Vice President Harris would win the popular vote by 1 percentage point instead of President Trump's 1.5 percentage point margin of victory. OPM takes this as evidence the polling firm produces reliable results and is not biased in favor of conservative positions. See Napolitan News Service, Poll: Harris 50% Trump 49% (Oct. 18, 2024), at https://napolitannews.org/posts/national-poll-harris-50-trump-49.

Commenter 32573 argued that better polling data exists, suggesting that a Washington Post-Ipsos poll conducted from February 28 to March 10, 2025, is a better indicator of Federal employee attitudes. Commenter specifically cites data that 95% of Federal employees feel pride in their work and that their agencies effectively use funds. OPM respectfully rejects the notion that this poll including these two data points refutes the poll cited in the proposed rule. An employee's intrinsic feeling of pride is not incompatible with political bias and resistance to the President's policy agenda. Nor is an employee's view on their agency's proper execution of taxpayer funds directly relevant to the question of policy resistance. What is more troubling about the Washington Post-Ipsos poll is that one-quarter of Federal employees believe agencies waste taxpayers' money.

Relatedly, Commenter 27647 criticized the proposed rule's

characterization of comments submitted during the April 2024 rulemaking claiming that career Federal employees resisted the previous Trump Administration. Because OPM cited only two of these comments, according to the Commenter OPM either grossly exaggerated the extent of the comments or failed to properly document multiple comments. While the Commenter is correct that the proposed rule only cites two sources, the extent to which those sources document policy resistance by career employees sufficiently lays the foundation for this final rule.

In short, OPM has drawn on many sources to conclude that policy resistance is a significant problem in the Federal workforce, and chapter 75 procedures have proven ineffective in addressing the problem. This creates deleterious effects and measures to address these challenges are not pretextual for creating ideological litmus tests, as Commenters suggest.

OPM received several comments that the proposed rule violated the Administrative Procedure Act (APA). Commenter 35379 argued that the comment period following the proposed rule, which extended to June 7, 2025, was unlawfully short, in violation of the APA. The Commenter based this argument on multiple sources--first, the APA's mandate that an “opportunity to participate” on proposed rules be provided following a notice of proposed rulemaking; second, E.O.s 12866 and 13563, which specify that comment periods should “generally” be at least 60 days; and, third, the Supreme Court's holding in Perez v. Mortgage Bankers Association, 575 U.S. 92 (2015), and related caselaw, which generally stipulate that the same procedures be used to amend a rule as were used to enact that rule.

Respectfully, OPM rejects the argument that the comment period was inadequate as a matter of law or policy. As multiple appellate courts have held, a 30-day comment period is generally the minimum needed to comply with the APA.\292\ In Chamber of Commerce of United States v. U.S. Securities and Exchange Commission, the Fifth Circuit upheld an identical 45-day comment period against the charge that it was legally insufficient.\293\ It simply is not the case that the APA requires longer than 45 days to comment.

\292\ See Nat'l Ass'n of Indep. Television Producers and Distribs. v. Fed. Commc'ns Comm'n, 502 F.2d 249, 254 (2d Cir. 1974) (noting that the APA provides a 30-day minimum notice period); see also United States v. Gould, 568 F.3d 459, 469 (4th Cir. 2009) (noting the APA provides for a minimum 30-day notice and comment period absent good cause shown); Chamber of Com. of the U.S. v. U.S. Sec. & Exch. Comm'n, 85 F.4th 760, 779 (5th Cir. 2023) (“. . . the APA generally requires only a minimum thirty-day comment period.”); Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479, 1484 (9th Cir. 1992) (“Although the APA mandates no minimum comment period, some window of time, usually thirty days or more, is . . . allowed for interested parties to comment.”); Nat'l Lifeline Ass'n v. Fed. Commc'ns Comm'n, 921 F.3d 1102, 1117 (D.C. Cir. 2019) (“When substantial rule changes are proposed, a 30-day comment period is generally the shortest time period sufficient for interested persons to meaningfully review a proposed rule and provide informed comment.”).

\293\ 85 F.4th at 779-80.

The Commenter's reliance on E.O.s 12866 and 13563 is similarly misplaced. E.O. 14171, which prompted the current rulemaking, directs OPM to “promptly” amend its regulations to undo the April 9, 2024, rulemaking insofar as necessary to implement E.O. 13957. Implicit in President Trump's directive to act “promptly” is that the rulemaking process, including the comment period, not be needlessly long. In its proposed rule, OPM decided that a 30-day comment period would be adequate. However, at the request of Commenter 0687 and others, the comment period was extended for an additional fifteen days.\294\

\294\ OPM notes that the proposed rule was released for public inspection on April 18, 2025, but was not formally published in the Federal Register until April 23, 2025. So, the effective comment period from public inspection to the close of the comment period was 50 days, not 45 days.

E.O.s 12866 and 13563 only mandate that comment periods should “generally” be at least 60 days. The policy rationale for that mandate is that stakeholders should have adequate opportunity to meaningfully participate in the notice-and-comment process. Concerning the present rulemaking, OPM received over thirty-five thousand distinct comments, offering nuanced perspectives on virtually every aspect of the proposed rule. Factually, it cannot be said that the comment period was insufficient to allow for meaningful feedback on the proposed rule given the voluminous feedback that OPM did receive.\295\

\295\ OPM additionally notes that the present rulemaking largely repeals policies implemented in the 2024 rulemaking and implements an executive order initially promulgated in 2020. The relevant policies and concepts are not new, as the volume of comments indicates. Consequently, OPM does not believe shortening the effective comment period by 10 days meaningfully impairs the public's ability to comment on the proposed rule.

Further, in the years since those executive orders were issued, comment periods have not infrequently been shorter, often 30 or 45 days. This is, in part, because agencies, working with the White House, have a great deal of discretion in shortening the comment period based on the facts of the situation. As courts have repeatedly held, “executive orders are not judicially enforceable.” \296\ That is, as a general matter, executive orders and other White House guidance on the regulatory process bind executive agencies only as a matter of the internal management of the executive branch. Thus, several Federal courts have specifically held that there is no legal requirement that agencies comply with the requirements specified in E.O.s 12866 and 13563.\297\

\296\ Sierra Club v. U.S. Dep't of Energy, 134 F.4th 568, 573 (D.C. Cir. 2025) (citing Marin Audubon Soc'y v. Fed. Aviation Admin., 121 F.4th 902, 913 (D.C. Cir. 2024)); see also Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338-39 (4th Cir. 1995) (no private right of action to enforce executive order unless issued pursuant to a statutory mandate or delegation by Congress).

\297\ Nat'l Mining Ass'n v. United Steel Workers, 985 F.3d 1309, 1326-27 (11th Cir. 2021) (holding that E.O. 12866 and E.O. 13563 specifically are not judicially enforceable); Miller v. Garland, 674 F.Supp.3d 296, 307 (E.D. Va. 2023), appeal dismissed, No. 23-1604, 2024 WL 4973474 (4th Cir. July 30, 2024) (holding that E.O. 12866 is not judicial enforceable).

Additionally, Commenter 35379's citation to Perez is also misplaced. That case involved the revocation of a Department of Labor interpretive rule. Interpretive rules, unlike legislative rules, do not have the force of law. They merely advise interested parties of the agency's interpretation of the laws that the agency does administer, and they therefore are generally exempt from the APA's notice and comment requirement. The D.C. Circuit had previously held, under a line of its own cases, that in some circumstances the APA's notice and comment requirements must be complied with for interpretive rules; specifically, where those rules deviate sufficiently from the agency's previous interpretation. The Supreme Court stepped in to hold that APA notice and comment procedures need not be complied with to eliminate an interpretive rule, precisely because notice and comment procedures need not be followed to enact it. The Court held that the APA sets forth the full extent of judicial authority to review the procedures behind agency action, and no such requirement was found anywhere in the APA. It was thus in this context, to limit judicially imposed requirements on agencies not derived from the APA, that the Supreme Court stated that the same procedural requirements bind both enacting and repealing a rule. As just discussed, the requirement regarding duration of the comment period is generally 30 days. Perez did not say, and obviously did not

intend to say, that the comment period for a procedure used to repeal a rule must be identical to the comment period used to enact it. Commenter 35379's citation to FCC v. Prometheus Radio,\298\ is equally unavailing. In Prometheus, the comment period lasted only 28 days, below the 30-day minimum that, as we have seen, is recognized by multiple Federal appellate courts as the lower limit needed to comply with the APA.

\298\ See Comment 35379 at 3 (citing 652 F.3d 431, 453 (3d Cir. 2011).

Moreover, Federal appellate courts have already, at least implicitly, rejected this reading of Perez. In the Sixth Circuit's opinion in Chamber of Commerce of the United States v. Securities and Exchange Commission,\299\ at issue was the repeal of a rule concerning business advice to institutional investors regarding proxy voting in shareholder meetings. The initial rule, passed under the first Trump Administration, was enacted under a 60-day comment period. Upon taking office, the Biden Administration moved quickly to repeal the rule, providing only a 30-day comment period and receiving less than a tenth of the number of comments as were received for the initial rule; it did this despite numerous complaints that the new comment period was inadequate. The court nonetheless rejected the argument that the comment period was too short.\300\

\299\ 115 F.4th 740 (6th Cir. 2024).

\300\ Id. at 755-56.

Accordingly, the 45-day comment period provided by OPM, which included a 15-day extension from the usual APA-required minimum at commenters' request, was not “truncated” but was instead well within the APA's procedural requirements and the period that should be considered reasonable in light of the President's executive order compelling agency action.

Another challenge to the proposed rule concerns guidance published by OPM to assist agencies in determining which positions should be placed in Schedule Policy/Career. Commenter 30426 argued that OPM violated the APA's notice and comment requirements when it issued the January 2025 Memorandum. Commenter argued this guidance effectively defined the scope of the policy-influencing terms as used in 5 U.S.C. 7511(b)(2), and such a definition required notice and comment rulemaking.

This analysis is wrong on many levels. First, as previously discussed, OPM's guidance contained in the Memorandum does not establish a new definition of the policy-influencing terms. Respectfully, Commenter 30426 misconstrues the January 2025 Memorandum. It highlights positions that are more likely to be policy-influencing, but this likelihood is not determinative or definitional. The guideposts help agencies focus their analysis; reviewing every Federal position would be extremely burdensome and inefficient when most have no connection to policy. But Commenter 30426 is wrong that agencies must apply these criteria. The language of E.O. 14171 is precatory (“should give particular consideration”), not mandatory (must/shall include) and so is the guidance (“should consider”). The executive order and guidance in the Memorandum provide considerations to help focus agency analysis, not requirements or determinations. But, as the Memorandum noted, OPM may recommend that positions that fall within those guideposts be excluded from Schedule Policy/Career and that positions that fall outside those guideposts may be included. Similarly, agencies are not required to request that positions that meet these criteria go into Schedule Policy/Career. OPM will be making recommendations to the President based on case-by-case analysis of the underlying positions. OPM expects that it will recommend against transferring some positions that agencies have identified that meet the criteria set forth in the memo. The memo expressly does not provide a determinative construction of the policy-influencing terms or the scope of Schedule Policy/Career.\301\ Its guideposts are not definitional, effectively or otherwise.

\301\ Office of Personnel Management Memorandum, “Guidance on Implementing President Trump's Executive Order titled, `Restoring Accountability To Policy-Influencing Positions Within the Federal Workforce,' ” Jan. 27, 2025, p. 4, available at https://www.opm.gov/policy-data-oversight/latest-memos/guidance-on-implementing-president-trump-s-executive-order-titled-restoring-accountability-to-policy-influencing-positions-within-the-federal-workforce.pdf (“The position attributes described in section 5(c) [of E.O. 14171] and this memorandum are guideposts; they are not determinative.”).

Second, OPM's January 2025 Memorandum does not constitute final agency action that triggers notice and comment requirements. It gives guidance to agencies about categories of positions they should consider including in recommendations to the President. The underlying action will be taken by the President, based on his own determinations. The January 2025 Memorandum by itself has no legal force. Nothing happens to anyone unless and until the President acts. The January 2025 Memorandum is guidance about how to formulate internal executive branch recommendations to the President. At most this is a general statement of policy, and such general statements are exempt from APA notice and comment requirements. See 5 U.S.C. 553(b)(A). If the final Presidential action is not subject to APA procedures, it makes no sense to construe the APA to apply to the process of formulating non-binding recommendations to the President concerning that action.

Lastly, suggesting that notice and comment procedures are required to formulate recommendations to the President, and failure to follow such notice and comment can be enforced by judicial review, would raise grave constitutional concerns. Under the Opinion Clause the President may require Department heads to give their opinions on subjects within their jurisdiction. President Trump did exactly that when he requested OPM and agencies' opinions on positions that should be placed in Schedule Policy/Career. Congress has no authority to regulate how Department heads provide such opinions, much less subject their recommendations to notice and comment followed by Article III judicial review. The President's ability to demand Department heads' unvarnished opinions is inherent Article II authority. Construing OPM providing--at the President's direction--guideposts for agencies to consider in the process of formulating recommendations to the President as final agency action subject to APA notice and comment procedures would raise serious constitutional concerns. Commenter 30426 cites no authority for the proposition that APA notice and comment procedures apply to agencies when making recommendations to the President about how he should exercise Presidentially-vested authority, and OPM is aware of none. Construing such non-final non-binding internal executive branch recommendations to the President as final agency action subject to APA procedures and judicial review would seriously tread on Presidential authority. Under Franklin v. Massachusetts it would at least take an express congressional statement of intent to intrude on Presidential authority to construe the APA to do so.\302\ No such express statement exists. So, respect for separation of powers indicates that courts will not construe OPM guideposts about how to focus analysis when making

recommendations to the President as being subject to APA review.

\302\ 505 U.S. at 800-01.

Commenter 30426 also argues that the rule is unlawful because the January 2025 Memorandum supplies criteria that form part of the definition of the policy-influencing terms, and this rule is tied into that memo, but did not go through notice and comment. This is addressed above. The criteria set forth in the Memorandum are non-binding guideposts to help focus analysis on positions the President is more likely to consider policy-influencing. They are expressly not a definition and do not constrain Presidential discretion in either direction.

Nor do the criteria in the January 2025 Memorandum “effectively supplant” the prior definitions because they do not limit Presidential discretion in making section 7511(b)(2)(A) determinations. Those criteria do not bind or limit the President in any way; they are guideposts to consider when making recommendations that the President can reject or accept as he sees fits. OPM has not been given authority to cabin or limit how the President will make section 7511(b)(2) determinations. Notwithstanding commenters' protests, E.O. 14171 rendered the new 5 CFR 210.102(b)(3) and (b)(4) definitions unenforceable and without effect. Agencies are prohibited from giving effect to these definitions. OPM is simply proposing to bring its regulations into accordance with the governing legal rules.

Commenter 35379 expressed the position that OPM's implementation of Schedule Policy/Career departs from APA principles in reversing a position expressed in its April 2024 rulemaking sub silentio. As discussed below, the Supreme Court has held that when an agency announces a change in policy, a proper justification must at least acknowledge its change of course and present an argument that the agency feels its new policy to be better than the discarded one. In essence, the commenter's argument is that OPM's April 2024 rulemaking expressed the position that a future rulemaking would be needed to reimplement Schedule F, with any factual or legal conclusions in a future rulemaking inconsistent with those of the April 2024 rulemaking requiring extensive justification to comply with APA requirements.\303\ This supposedly contradicts OPM's current position that, even prior to this rulemaking, “several provisions of the 2024 final rule [are already] inoperative and without effect.” \304\ However, OPM certainly is not changing its position sub silentio, as both the proposed rule and the present rulemaking discuss the Biden-era executive order and OPM rulemaking and its present change of course at length. Further, the reason for OPM's current position is well-justified in its notice of proposed rulemaking.

\303\ See Comment 35379 (citing 89 FR at 24999).

\304\ 90 FR at 17218.

With respect, the commenter misleadingly truncated its quotation to the April 2025 proposed rule. OPM stated that “Executive Order 14171 rendered several provisions of the 2024 final rule inoperative and without effect.” \305\ The proposed rule simply recognized the fact that President Trump directly invoked Presidential authority to override changes to part 210 and 302 made through the April 2024 rulemaking which were themselves enacted pursuant to Presidential authority delegated to OPM.\306\ As U.S. courts have long understood, the President is not an agency for purposes of the Administrative Procedure Act,\307\ and President Trump did not need to undertake notice and comment procedures to directly invoke Presidential power through executive order. OPM's position is that it was his direct exercise of presidential authority which rendered inoperative the relevant provisions of the April 2024 final rule. In the alternative, OPM's position is that the present rulemaking is independently adequate to repeal and replace relevant provisions of the April 2024 rulemaking even if E.O. 14171 had not already done so.\308\ This appears to have been a common misunderstanding of OPM's position in the proposed rule.

\305\ Id. (emphasis added).

\306\ 90 FR at 17187-88.

\307\ See, e.g., Motions Sys. Corp. v. Bush, 437 F.3d 1356, 1359 (Fed. Cir. 2006) (acknowledging that review of direct presidential action is unavailable under the Administrative Procedure Act).

\308\ OPM would independently remove 5 CFR 210.102(b)(3) and (4) and subpart F of part 302 on policy grounds, even if E.O. 14171 had not already rendered them legally inoperative and without effect.

Commenter 35379 also disagrees with the proposition that “Executive Order 14171 has changed the underlying legal authorities under which OPM operates.” The Commenter expressed the view that the April 2024 final rule must be valid and in effect until repealed by another OPM rulemaking. Another commenter, Commenter 30005, stated that the proposed rule proposes to use Trump's authority to “make inoperative the April 2024 final rule.” Again, OPM's position is that E.O. 14171 directly overrode several provisions in the April 2024 final rule.\309\ Commenter 35379's argument that agencies must use the same procedures for invoking and invalidating a final rule, citing the authority of Perez and 5 U.S.C. 1103(b)(1), which requires notice and comment rulemaking for OPM regulations which bind beyond OPM and its employees, is therefore inapposite.

\309\ See 90 FR 8626 (directing OPM to rescind regulations that “impede the purposes of or would otherwise affect the implementation of [E.O.] 13957,” and holding 5 CFR 210.102(b)(3) and (4) and subpart F of part 302 inoperative until such recissions).

Commenter 35379 additionally relied on the authority of Nebraska v. Su (Su) \310\ for the proposition that an agency cannot be exempted from notice-and-comment rulemaking on the grounds that the agency was merely implementing an executive order. In Su, however, the Ninth Circuit was faced with the argument, accepted by the district court below, that notice-and-comment rulemaking was completely insulated from APA review where it was implementing an executive order. OPM is not taking that position here. Further, in Su, the Ninth Circuit took issue with the fact that the Department of Labor had completely failed to take account of any regulatory alternatives to its rulemaking. The Department did so because it viewed itself as having no discretion to take any course of action other than to directly implement the Biden executive order at issue, rendering consideration of alternatives unnecessary and beside the point. The agency's position in Su was that it did not need to comply with the minimum requirements for defending the agency's position in notice and comment rulemaking because of the executive order issued. In contrast, here, OPM has considered regulatory alternatives, notably including the alternative of not issuing regulations to create Schedule Policy/Career and to instead enhance training on how to use chapter 43 and 75 procedures more effectively.\311\ In the proposed rule, OPM discussed both the inadequacy of training procedures as a substitute for issuing Schedule Policy/Career and the risk of confusion created where, as here, (a) the President has a direct right of action under delegated congressional authority without action by an Executive Agency, and (b) the President has exercised that authority in a way which would render OPM regulations misleading without conforming regulatory changes.

\310\ 121 F.4th 1 (9th Cir. 2024).

\311\ 90 FR at 17218-17219.

Su is also distinguishable insofar as the court found that President Biden's relevant executive order had exceeded the authority granted to him by the Federal Property and Administrative

Services Act of 1949, inter alia, because it relied on the statute's statement of purpose for the substantive delegation from Congress to the President.\312\ As discussed immediately below, the President's statutory and constitutional authority to manage the executive branch is explicit, not merely implied by non-substantive statutory language. Further, as discussed above in response to other commenters' APA concerns, OPM's present course of action is fully justified in accordance with APA principles even without relying on President Trump's exercise of Presidential authority.

\312\ 121 F.4th at 7-8.

While OPM's April 2025 proposed rule details its justification and authority for issuing the present regulations, 5 U.S.C. 3301 and 3302 delegate to the President direct authority to prescribe rules for the management of the civil service. Presidents have long exercised authority under the CSRA and predecessor statutes to define the boundaries between the competitive and executive services directly through executive order.\313\ Much of this authority has been delegated to OPM (or, in earlier delegations, to its predecessor agency, the CSC).\314\ However, where the President directly exercises authority delegated to him by statute, this exercise cannot be overridden by an agency regulation issued under Presidential authority subdelegated to that agency.\315\ Aside from basic logic, this result is compelled in the present case by at least three general principles of legal interpretation. First, when two legal authorities conflict (here, E.O. 14171's direct invocation of presidential authority and prior delegations of the same authority to OPM), the later authority should control the earlier.\316\ Second, when a more specific legal authority (here, the substantive provisions of E.O. 14171 with direct legal effect) is in tension with a more general legal authority (here, broad, comparatively nonspecific delegations of Presidential authority to OPM), the specific controls the general.\317\ And, third, where a higher legal authority (here, executive order) conflicts with a lower legal authority (a regulation issued under authority delegated by executive order), the higher authority must control.

\313\ See, e.g., E.O. 10577, 19 FR 7521; Kagan, Presidential Administration, at 2292.

\314\ See, e.g., E.O. 12107, 44 FR 1055 (Dec. 28, 1978).

\315\ At the least, OPM declines to take the constitutionally dubious position that it has the power to restrain future Presidential authority through this rulemaking or the April 2024 rulemaking. Further, to the extent the exercise of authority is fully discretionary on the President's part, “judicial review of the President's decision is not available.” Dalton v. Specter, 511 U.S. 462, 477 (1994).

\316\ See Everytown for Gun Safety Support Fund v. Bureau of Alcohol, Tobacco, Firearms & Explosives, 984 F.3d 30, 37 (2d Cir. 2020) (“The `established rule' is that `a later adopted provision takes precedence over an earlier, conflicting provision of equal stature.' ”) (quoting Tenn. Wine & Spirits Retailers Ass'n v. Thomas, 588 U.S. 504, 518-19 (2019)).

\317\ See Kaweah Delta Health Care Dist. v. Becerra, 123 F.4th 939, 951 (9th Cir. 2024).

It is the inconsistency between E.O. 14171 and the 2024 final rule which invalidated several provisions of that rule and changed the effective scope of OPM's legal authority. Commenter 30005 asked whether there would be a subsequent OPM regulation to fully rescind the April 2024 final rule, expressing concern that an executive order cannot override an agency regulation. This final rule repeals the April 2024 rule as discussed herein.

Simply put, this line of commenters misconstrues the basic factual and legal situation prior to E.O. 14171 and the current rulemaking. Here, the Biden Administration candidly attempted to block the longstanding Presidential practice of directly exercising executive branch personnel management power through constitutionally and statutorily vested authority. The Biden Administration did this by, first, invoking a delegation of statutory power \318\ from the President to OPM, and then, second having OPM exercise that power so as to serve as a roadblock against an ideologically misaligned future President from invoking that authority directly in the future.\319\ It did this in a domain where, as Justice Jackson explained in one of the Supreme Court's most highly cited passages, Presidential authority is at its constitutional peak.\320\ Again, OPM rejects the highly dubious claim that it holds such power over the Presidency, and that such OPM regulations using delegated Presidential authority can restrict the President's direct exercise of his authority.

\318\ OPM notes that while the April 2024 rule cites to statutory authorization under the CSRA for legal support, the President is not so limited in his authority to act. Consistent with this final rule, OPM recognizes that the inherent authority vested in the President under Article II grants him the authority to supervise the executive branch including acting as he did here in issuing E.O. 14171.

\319\ See 89 FR 24999.

\320\ Youngstown Sheet, 343 U.S. at 635-36 (Concurring Op. of Justice Jackson) (“When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth), to personify the federal sovereignty.”).

Further, this line of commentary fails to account for the fact that OPM has justified the present rule based on a standard APA regulatory analysis. As discussed throughout the rule, OPM did not rely solely on E.O. 14171 to justify the present rulemaking. OPM has exercised independent judgment that the present rule is both necessary and conducive to good government.\321\ Thus, even if OPM had such vast authority over the President, the present rulemaking is sufficient to independently render inoperative the April 2024 rulemaking.

\321\ See, e.g., 90 FR 17198 fn. 199 (“OPM would independently propose changing the final rule to advance the policies described in this proposed rule, even if E.O. 14171 had not been issued and modified the Civil Service Rules.”), 17218, 17189, 17191.

ii. Schedule Policy/Career Does Not Raise Due Process Concerns

In the April 2024 final rule, OPM stated that tenured Federal employees are constitutionally entitled to due process before any dismissals and any new policies affecting them must still provide constitutional due process.\322\ Under this view, E.O. 13957 was unlawful because it permitted agencies to remove currently tenured employees without due process. Many commenters echoed this concern.

\322\ 88 FR 63866-63867.

As discussed in the proposed rule, OPM has reconsidered its prior view and concludes in this final rule that Schedule Policy/Career satisfies constitutional due process requirements.\323\ For-cause removal restrictions may create a property interest in continued employment. Some caselaw suggests tenured employees may also have a property interest in their tenured status as such.\324\ However, this caselaw does not address whether Congress can give Officers of the United States subject to the Appointments Clause a property interest in their office or in tenure status for such office. Numerous judicial decisions hold that officers have no property right to hold office. See, e.g., Crenshaw v. United States, 134 U.S. 99 (1890) (An officer has “no [ ] interest or right” to hold office). See also Taylor v. Beckham, 178 U.S. 548 (1900) (“the nature of the relation of a public officer

to the public is inconsistent with either a property or a contract right”).

\323\ 90 FR 17210.

\324\ See, e.g., Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-431 (1982) (“a cause of action is a species of property protected by the Fourteenth Amendment's Due Process Clause”). See also Savage v. City of Pontiac, 743 F.Supp.2d 678, 688 (E.D. Mich. 2010) (“The protected property right was the interest in the tenured nature of the employment itself.”).

Further, the Supreme Court has also made it clear that government can constitutionally “eliminate its statutorily created causes of action altogether” as “the legislative determination provides all the process that is due.” \325\ Removing adverse action appeals extinguishes the underlying property interest they create. OPM explained that Federal courts have, following these constitutional principles, repeatedly rejected challenges to laws excluding positions from state civil service systems and held that due process is satisfied by the applicable governmental body going through the necessary procedures to modify the scope of the civil service.\326\ Employees are not entitled to an individual adjudication before the government makes a policy decision to exclude them from adverse action procedures, and any subsequent dismissals are not governed by constitutional due process.\327\

\325\ Logan, 455 U.S. at 432-433.

\326\ See, e.g., Gattis v. Gravett, 806 F.2d 778 (8th Cir. 1986); Pittman v. Chi. Bd. of Educ., 64 F.3d 1098 (7th Cir. 1985); Rea v. Matteucci, 121 F.3d 483 (9th Cir. 1997); McMurtray v. Holladay, 11 F.3d 499 (5th Cir. 1993).

\327\ See, e.g., Gattis, 806 F.2d at 781 (citing Atkins v. Parker, 472 U.S. 115, 116 (1985)) (“While the legislative alteration or elimination of a previously conferred property interest may be a `deprivation,' the legislative process itself provides citizens with all of the `process' they are `due.' ”); Rea, 121 F.3d at 485, (quoting Bi-Metallic, 239 U.S. at 445) (“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.' ”).

In the April 2024 final rule OPM distinguished these cases on the basis that they involved state legislation, not administrative action.\328\ Some commenters, including Commenter 32647, on this rulemaking reiterated those objections. For example, Commenter 30426 argues that “an executive action does not necessarily entail the sort of legislative process that could satisfy due process requirements.” In the proposed rule, OPM explained these objections take too narrow a view of the term “legislative” as it is used in due process case law. It is settled precedent that individualized due process is not required when the government makes general policy (“legislative actions”). The distinction between whether “legislative” or “adjudicative” due process applies depends on the character of the action--not which branch of government formally undertakes it.\329\

\328\ 89 FR at 25012-13.

\329\ Halverson v. Skagit Cnty., 42 F.3d 1257, 1260-1261 (9th Cir. 1994). (“In seeking to define when a particular governmental action is `legislative in nature' [courts] have eschewed the `formalistic distinctions between `legislative' and `adjudicatory' or `administrative' government actions' and instead focused on the `character of the action, rather than its label.' ” (quoting Harris v. County of Riverside, 904 F.2d 497, 501 (9th Cir. 1990)).

Courts follow a three-part test for determining whether a governmental action is legislative or adjudicative for due process purposes: (1) does it apply to specific individuals or to unnamed and unspecified persons; (2) does the promulgating agency consider general facts or adjudicate a particular set of disputed facts; and (3) does the action determine policy issues or resolve specific disputes between particular parties? \330\ Whether the action is formally designated legislative, adjudicatory, or administrative is irrelevant. The proposed rule explained that, under this framework, reclassifications into Schedule Policy/Career are “legislative” actions, not “adjudicative”, for purposes of constitutional due process. The future executive order reclassifying positions into Schedule Policy/ Career will apply to a large number of positions, without reference to specific employees encumbering those positions. It will consider general facts regarding known position duties rather than adjudicate disputed facts concerning individual conduct. It will also set policy-- namely the scope of adverse actions procedures in the executive branch. Consequently, legislative due process applies.

\330\ Gallo v. U.S. Dist. Court for Dist. of Ariz., 349 F.3d 1169, 1181-1183 (9th Cir. 2003).

That process is satisfied by the President following statutory requirements to effectuate reclassifications into Schedule Policy/ Career and providing general notice of the change by publicizing the executive order. The President is not required to provide tens of thousands of employees individualized hearings to contest his policy determination before reclassifying their positions, especially when such hearings would be futile and would not impact that ultimate policy decision. As the Supreme Court explained in Bi-Metallic Investment Co. v. State Board of Equalization (Bi-Metallic) where a rule “applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption.” \331\ Moreover, even if legislative action were required, Congress unambiguously vested authority in the President to effectuate these reclassifications.

\331\ 239 U.S. at 445.

Commenter 30426 takes issue with this analysis. Commenter points to the Supreme Court's decision in Londoner v. City and County of Denver that covers when adjudicative due process (which requires at a minimum notice and an opportunity to be heard) applies.\332\ Commenter explains that cases implicating due process are evaluated on a spectrum between Londoner and Bi-Metallic, with courts looking for factors that make them more like one or the other. Commenter raises several arguments that reclassifications into Schedule Policy/Career are more like adjudicative actions governed by Londoner and individualized due process than legislative actions governed by Bi-Metallic. OPM responds to the argument commenter makes below.

\332\ 210 U.S. 373 (1908).

Presidential Determinations Under 7511(b)(2) Do Not Require Individualized Determinations

Commenter 30426 argues that “the size of the affected class [is] relevant” to determining whether a government action is legislative or adjudicative. Commenter cites judicial decisions holding that “when a rule adopted for general application applies only to a small number of persons, its characterization as legislation becomes suspect.” \333\ This especially applies “where a small, identifiable group of individuals are singled-out by a legislative act.” \334\ Commenter cites several judicial decisions where courts overturned actions removing adverse action procedures for individual employees, or a small numbers of similarly situated employees.\335\ Commenter asserts that individual 5 U.S.C. 7511(b)(2) determinations will apply to a only single position description covering a single grade level because the statute authorizes making a determination as to “a position.” However, many position descriptions cover just a single individual or small handful of employees. Commenter concludes that most 7511(b)(2) determinations would affect small numbers of identifiable employees, making these reclassifications more akin to Londoner, and consequently individualized due process applies.

\333\ Richardson v. Town of Eastover, 922 F.2d 1152, 1158 (4th Cir. 1991).

\334\ Marino v. New York, 629 F.Supp. 912, 919 (E.D.N.Y. 1986).

\335\ See, e.g., Darling v. Kan. Water Office, 774 P.2d 941, 942 (Kan. 1989) (Kansas legislation removed tenure for 17 identifiable employees in a single state office); Perry v. City of New Orleans, 104 So.3d 453, 457 (La. App. 4 Cir. 2012) (a single employee unilaterally reclassified from classified to unclassified status).

Commenter is correct that the size of the affected class is a quite relevant consideration when assessing whether

legislative or adjudicative due process applies. Individualized adjudicative due process generally applies to actions covering a small number of individuals, or a single individual, while legislative due process generally applies to actions that affect a large number of differently situated individuals. However, Commenter is mistaken to argue that 7511(b)(2) determinations must be issued separately for individual position descriptions. Nothing in the CSRA requires this, and this assertion is contrary to both long established practice and judicial caselaw governing Presidential determinations under the CSRA. The President can, if he so chooses, make a single 7511(b)(2) determination covering thousands of positions and employees. Such a determination would be a policy of general applicability that does not implicate individualized due process. Reviewing the cases Commenter cites reinforces OPM's conclusion that legislative due process applies to such an action.

Commenter reads far too much into 7511(b)(2) reference to “a position.” Section 7511(b) excludes subchapter II's application to “an employee” who meets various criteria, and “an employee” generally only occupies a single position at a time. It would make little sense to use the plural “positions” to describe the characteristics of a single employee. “An employee whose positions are determined . . .” would be nonsensical. Congress' use of correct grammar implies little about how the President issues 7511(b)(2) determinations.\336\

\336\ Commenter 30426 is correct that OPM's practice has been to limit 7511(b)(2) determinations for Schedule C positions to a single employee. This has been done purely as a policy choice, to facilitate White House control over political appointments across the executive branch. Nothing in the CSRA requires OPM to limit Schedule C determinations in this manner.

Moreover, historical practice refutes the claim a 7511(b)(2) determination must be made only with respect to a single position description and grade level. The first direct Presidential use of this authority occurred not long after the CSRA took effect and declared multiple distinct positions in the Department of Agriculture policy- influencing. These were “Agricultural Stabilization and Conservation Service State Executive Directors, and positions in the Farmers Home Administration the incumbents of which serve as State Directors or State Directors-at-Large.” \337\ President Clinton subsequently modified this determination to provide that “positions the incumbents of which serve as State Executive Directors of the Consolidated Farm Service Agency and positions the incumbents of which serve as State Directors or State Directors-at-Large for Rural Economic and Community Development shall be listed in Schedule C for all grades of the General Schedule.” \338\ President Clinton's determination covered multiple positions and applied to all General Schedule grades. Nothing in the CSRA's text requires limiting 7511(b)(2) exemptions to a single position description covering a single grade. The President can issue a single determination covering multiple distinct positions of different grades; this has been the historical practice.

\337\ E.O. 12300, 46 FR 18683 (Mar. 26, 1981).

\338\ E.O. 12940, 59 FR 61519 (Nov. 30, 1994).

Historical practice and judicial precedent regarding other Presidential determinations under the CSRA confirms this reading. Section 7103(b)(1) of Title 5, U.S. Code, which was part of the CSRA, allows the President to except “any agency or agency subdivision” from collective bargaining obligations if he determines certain conditions are met. As with 5 U.S.C. 7511(b)(2) the phrasing is in the singular, “agency” and not “agencies.” Nonetheless the first executive order making such a determination covered 45 agencies or agency subdivisions.\339\ President Carter did not issue 45 separate executive orders making separate determinations for each agency or agency subdivision. Subsequent executive orders making 5 U.S.C. 7103(b)(1) determinations followed this practice and exempted multiple agency components in a single determination.\340\ Some unions sued over these orders, contending they were procedurally defective because they did not list the ground(s) for the Presidential determination. The D.C. Circuit Court of Appeals rejected these claims, holding “Section 7103(b)(1) makes clear that the President may exclude an agency from the Act's coverage whenever he `determines' that the conditions statutorily specified exist. That section does not expressly call upon the President to insert written findings into an exempting order, or indeed to utilize any particular format for such an order. The District Court, by mandating a presidential demonstration of compliance with the section, engrafted just such a demand onto the statute.” \341\ Section 7511(b)(2) likewise does not require the President to utilize any particular format for making policy-influencing determinations.

\339\ E.O. 12171, 44 FR 66565 (Nov. 20, 1979).

\340\ See, e.g., E.O. 12559, 51 FR 18761 (May 22, 1986).

\341\ Am. Fed'n of Gov't Emps. v. Reagan, 870 F.2d 723 (D.C. Cir. 1989).

In sum, OPM sees nothing in the text or historical practice of section 7511(b)(2) to indicate the President must limit policy- influencing determinations to a single position and grade level. Caselaw from other CSRA provisions that authorize Presidential determinations indicates that no particular format is required. OPM believes Commenter 30426 is mistaken and that Presidential policy- influencing determinations following finalization of this rule will likely encompass hundreds or thousands of positions across dozens of agencies.

The caselaw Commenter 30426 references reinforces OPM's conclusion that such a mass reclassification of thousands of disparately situated employees across many agencies is a policy of general applicability that is governed by the requirements of legislative due process, namely following the appropriate official procedures and providing public notice of the change.\342\ Commenter cites to a number of cases where courts overturned on due process grounds actions removing adverse action procedures from state or local government employees. OPM has reviewed these cases. In every case commenter cites the relevant action applied to only a single employee or a small number of similarly situated employees, or the agency did not adequately inform the employee of their change in status. For example, Commenter cites a case where “a Louisiana state court reversed an employee's termination when she was removed summarily from her position after a unilateral status change from classified (protected) to unclassified (unprotected) status.” \343\ This case involved a single employee whose tenure status was altered, allegedly without prior notice. Commenter similarly cites a judicial decision holding the Kansas Legislature could not legislatively remove civil service protections from 17 employees in a single state office.\344\ In this case the

legislation applied to a small number of identifiable and similarly situated employees. OPM agrees that adjudicative due process may apply to executive (or legislative) measures that remove adverse action procedures from a single employee or a small number of similarly situated employees, or where employees are not informed of their change in status prior to dismissal. However, this caselaw has little application to a public Presidential 7511(b)(2) determination covering potentially tens of thousands of employees in agencies spanning the Federal Government. Such an action is a rule of general applicability for due process purposes.

\342\ See United States v. Locke, 471 U.S. 84 (1985) (“In altering substantive rights through enactment of rules of general applicability, a legislature generally provides constitutionally adequate process simply by enacting the statute, publishing it, and, to the extent the statute regulates private conduct, affording those within the statute's reach a reasonable opportunity both to familiarize themselves with the general requirements imposed and to comply with those requirements.”)

\343\ Perry v. City of New Orleans, 104 So.3d 453, 457 (La. App. 4 Cir. 2012).

\344\ Darling v. Kan. Water Office, 774 P.2d 941, 942 (Kan. 1989).

Commenter references a number of cases where legislatures enacted mass reclassifications covering many differently situated employees. Courts upheld every such reclassification. For example, the Fifth Circuit Court of Appeals upheld legislation exempting the Mississippi State Department of Economic Development from civil service procedures for one year.\345\ The Seventh Circuit Court of Appeals upheld legislation ending tenure for all principals in Chicago Public Schools.\346\ The Eighth Circuit Court of Appeals upheld Arkansas legislation removing all persons holding the rank of major or above in county sheriff offices from the civil service system.\347\ The Ninth Circuit Court of Appeals upheld Nevada's legislative reclassification of state civil service provisions applicable to hearing officers, which was one of 294 sections in a larger law revising the state's industrial insurance system.\348\

\345\ McMurtray v. Holladay, 11 F.3d 499 (5th Cir. 1993).

\346\ Pittman v. Chi. Bd. of Educ., 64 F.3d 1098 (7th Cir. 1995).

\347\ Gattis v. Gravett, 806 F.2d 778 (8th Cir. 1986).

\348\ Rea v. Matteucci, 121 F.3d 483 (9th Cir. 1997).

Commenter does not cite a single case where courts struck down a reclassification that applied to more than a few dozen employees and where those employees were notified of their change in status. Instead, the cases Commenter references show just the opposite. In Marino v. New York,\349\ a Federal judge considered the constitutionality of legislation that broadly modified civil service procedures for employees of New York state courts. The judge rejected due process challenges to exclusions from the civil service, explaining that the “instant case, however, is not the case where a relatively small number of persons were exceptionally affected, in each case upon individual grounds . . . [i]t concerns, instead, a broad policy affecting hundreds of provisional as well as permanent civil servants and the entire court system serving the citizens of eight judicial districts of the state.” \350\ If a state reclassification affecting hundreds of employees across eight judicial districts affects enough employees to be a policy of general applicability governed by legislative due process, then it follows a fortiori that a Federal reclassification of several orders of magnitude more employees (none of whom are personally identified) across dozens of agencies does as well.

\349\ 629 F.Supp. 912 (E.D.N.Y. 1986).

\350\ Id. at 919 (cleaned up).

In sum, OPM's review of Commenter's arguments and evidence reinforces its conclusion that a Presidential 7511(b)(2) determination covering many disparate positions is a policy of general applicability that is considered a “legislative” action for due process purposes.

Several commenters raised a variety of other due process concerns in response to the proposed rule. OPM addresses the unique issues as follows. The President Is Not Restricted by Position Descriptions

Comment 30426 argues that 7511(b)(2) determinations must be based on position descriptions, and because those descriptions are often inaccurate or out of date these determinations require adjudicating disputed facts, namely the true duties of the positions in question. Determinations that require adjudicating disputed facts are more akin to Londoner-type actions, and the Commenter thus concludes that 7511(b)(2) determinations are “adjudicative” actions governed by individualized due process.

This argument fails for several reasons. First, the CSRA does not require the President to base 7511(b)(2) determinations on the strict text of a position description or any particular factor or set of facts. The decision is left wholly to Presidential discretion. The President may rely on such factors as he deems relevant. In particular, the President may require his agency heads and the OPM director to provide their opinions as to which positions are policy-influencing and appropriate candidates for Schedule Policy/Career, and to use that advice in making a determination. If an agency tells the President that they have employees who are substantively involved in drafting regulations, and those employees' work meaningfully affects agency policymaking, then the President can base a 7511(b)(2) determination on that information. Nothing in the CSRA requires the President to review individual position descriptions before making a 7511(b)(2) determination, much less hold hearings on the accuracy of those position descriptions.

Consequently, while the President may at his discretion conduct further inquiry after receiving agencies' and OPM's recommendations, and may well do so, the CSRA does not require adjudicating any disputed facts before making a 7511(b)(2) determination.\351\ The President is not required to conduct public hearings to double check his agency heads' analysis.

\351\ OPM notes that it will be undisputed within the executive branch what positions OPM and agencies have recommended--or not--for Schedule Policy/Career.

Second, in the vast majority of cases the factual basis for OPM and agency recommendations will be undisputed and undisputable. Whether a position leads an organizational unit, has been vested with authority to make decisions committed by law to the discretion of the agency head, or is involved in drafting regulations is straightforwardly apparent. These are not facts that require adjudication to ascertain. For example, a Presidential determination that a Field Office or Regional Director belongs in Schedule Policy/Career does not involve adjudication of disputed facts. The duties of the positions are well established.

Third, the administration can in any event ensure position descriptions and employee responsibilities align with the basis of the Schedule Policy/Career recommendation. Position duties are not external facts outside of agency control that must be independently ascertained. They are, instead, administration policy choices about how to allocate work in the executive branch. Agencies can modify them as they see fit. If an employee's actual job entails substantive responsibility for agency policy, but that is not reflected in their position description, the agency can simply update the position description to reflect their actual duties. Conversely, if a position description entails policy responsibilities but particular employees are no longer performing those roles, the administration can simply require those employees to begin performing those tasks. Consequently, the administration can ensure any employees transferred to Schedule Policy/Career have policy- influencing responsibilities. If an employee were to contend their position description inaccurately states they perform substantive policy work, but in fact they do not, the President or Presidential subordinates could functionally tell that employee “be that as it may, these tasks

are now part of your ongoing responsibilities.” The administration can consequently modify the facts under “adjudication” to conform to the President's policy decision. Under these circumstances it is not clear what the point of a pre-decisional hearing would be.

As a result, OPM concludes that 7511(b)(2) determinations do not require adjudicating a particular set of disputed facts and, thus, are rules of general applicability that constitute legislative action and do not require individualized due process. 7511(b)(2) Determinations Are Not Adjudicative Actions Requiring Individualized Due Process Subject to Judicial Review

Comment 30426 argues that 7511(b)(2) determinations are adjudicative actions because OPM's discretion is strictly limited to applying an established statutory standard to the facts in a given case. Commenter contends that “Congress gave the President and OPM no discretion at all to make a policy choice in connection with the section 7511(b)(2) determination. Section 7511(b)(2) authorizes only the ascertainment of facts and the application of an established legal standard to them.” Commenter further argues these determinations are subject to judicial review because “section 7511(b)(2)(A) establishes a legal standard that a hearing officer or court could apply to OPM's determination regarding a position . . . [whether] the position [is] of a `confidential, policy-determining, policy-making or policy- advocating' character.” Commenter reasons that actions applying a legal standard to the facts of a given case that a court or administrative body could review are adjudicative actions, not legislative actions, for due process purposes.\352\

\352\ OPM notes that if Commenter's argument that the policy- influencing terms are a term of art that exclusively means “political appointee” is correct, this argument fails completely, as there would be no standards to evaluate. The policy-influencing terms would simply mean “the Presidents wants this to be a political appointment” with nothing to cabin Presidential discretion.

Commenter is wrong on both counts. The policy-influencing terms provide an intelligible principle governing the Presidential exercise of statutory authority, but they are not a definite legal standard that courts could apply when reviewing a 7511(b)(2) determination--as every appeals court to consider this issue has concluded. Further, the President has broad policy discretion over which positions to exclude from subchapter II of chapter 75.

On the first point, the terms “confidential,” “policy- determining,” “policy-making,” and “policy-advocating” are indefinite and subjective. They require a nexus to confidential duties, or determining, making, or advocating for policy, and thus provide an intelligible principle to guide Presidential decisions. But they do not define how much responsibility or what level of duties are necessary to meet this standard.

The fact that the policy-influencing terms were indefinite and left considerable executive branch discretion as a standard was known when Congress passed the CSRA. As OPM explained in the proposed rule, as early as the 1950s the Second Hoover Commission objected that the term “policy-determining” did not provide clear guidance: “[t]he term `policy-determining' has continued to be employed without much refinement . . . . This criterion is all right as far as it goes, but it is so great an oversimplification that it does not give adequate guidance . . . . [w]hen the departments began to apply [the Schedule C criteria] in 1938, some decided that only the secretary and assistant secretaries determined policy. Others avowed that minor officials at the sub-bureau level were policy determiners. In departmental recommendations in 1953 and 1954 regarding schedule C, there has been an even greater diversity . . . . No decision was made as to where the lines between the political high command and the permanent civil service of the Government should be drawn.” \353\ Nonetheless, Congress used this indefinite language in drafting section 7511(b)(2).

\353\ Citing Comm'n on the Org. of the Exec. Branch of the Gov't, Task Force on Pers. and Civil Serv., Report on Personnel and Civil Service, at 6-7, 35 (Feb. 1955), https://www.google.com/books/edition/Report_on_Personnel_and_Civil_Service/ytR9zYFWVtwC.

Commenter asserts that 7511(b)(2) is an established legal standard that courts or administrative bodies could apply in reviewing 7511(b)(2) determinations, but does not attempt to describe that standard or explain how courts would decide when a position is policy- influencing enough to justify Presidential inclusion or exclusion. The mere assertion that 7511(b)(2) is an established judicially reviewable standard does not make it so. Notably, every appeals court that has examined this question has concluded 7511(b)(2) determinations are “inherently discretionary judgement call[s]” not conducive to judicial review.\354\

\354\ See Stanley v. Dep't of Justice, 423 F.3d 1271, 1272 (Fed. Cir. 2005) (“Here, it is undisputed that Attorney General Reno's Order in 1996 determined that the position of Trustee was of a `confidential, policy-determining, policy-making or policy- advocating character.' This designation of the Trustee position is unreviewable by the courts because it is an `inherently discretionary judgment call' committed to the Attorney General.”); see also Stanley v. Gonzales, 476 F.3d 653, 658 (9th Cir. 2007) (“We also agree with the Federal Circuit that the decision to classify a given position as confidential or policy-making is not reviewable in federal court as a violation of the separation of powers doctrine.”).

On the second point, Commenter's contention that Congress gave the President “no discretion at all to make a policy choice in connection with the section 7511(b)(2) determination” fails for the same reason. Exclusion from subchapter II under section 7511(b)(2)(A) requires two elements: that the President directly place a particular position in the excepted service, and the President determine the position is policy-influencing. Both elements are discretionary policy choices.

Direct Presidential exception from the competitive service under 5 U.S.C. 3302 is straightforwardly a discretionary policy call. The President is not required to directly except any positions from the competitive service, and since the CSRA became law has only done so for a few positions.\355\ The ordinary practice is for OPM to make such exceptions. And, as discussed above, 7511(b)(2) policy-influencing determinations are also an “inherently discretionary judgement call” committed to the President's discretion.\356\ Nothing in the CSRA requires the President to exclude every position he believes is policy- influencing from subchapter II. So, contrary to commenter's assertion, a Presidential decision to exclude positions from adverse action appeals is a discretionary policy judgement about the appropriate scope of adverse action appeals in the executive branch, not a route application of the law to facts.

\355\ See 5 CFR 6.8.

\356\ See Stanley v. Dep't of Justice, 423 F.3d at 1272; see also Stanley v. Gonzales, 476 F.3d at 658.

OPM does agree with Commenter's point that “[c]ourts have held that `The absence of definite standards is more characteristic of purely political or legislative activity than of adjudication,” \357\ and that judicial analysis of due process requirements “have turned partly on the lack of criteria against which courts could

evaluate pure policy questions.” \358\ In this case the absence of definite standards that courts or adjudicators could apply to, and the discretionary nature of, 7511(b)(2) determinations is characteristic of policies of general applicability, not adjudication, and legislative due process consequently applies.

\357\ Mercatus Grp., LLC v. Lake Forest Hosp., 641 F.3d 834, 846 (7th Cir. 2011).

\358\ Comment 30426.