On September 2, federal layoff appeals move from the Merit Systems Protection Board to OPM

On September 2, the Office of Personnel Management replaces the Merit Systems Protection Board as the body that decides whether a federal worker was lawfully laid off. The change is set out in a final rule OPM published on August 3, which rewrites 5 CFR part 351 so that appeals of a furlough of more than 30 days, a separation or a demotion carried out through a reduction in force go to OPM rather than to the board that has heard them for decades. Companion rules move suitability appeals and probationary termination appeals to OPM on the same date.

OPM’s own rule records how the public responded. The agency received 1,252 comments during a 30-day comment period from current and former civil servants, members of Congress, unions and federal agencies. “Less than 1 percent of the overall comments were supportive, neutral, or mixed, and 99 percent opposed the proposed regulation,” the rule states. One comment was withheld from the public docket because it contained vulgar language unrelated to the rulemaking.

The new process is built on the written record. Under the rule, the appellant carries the burden of proving timely filing, OPM’s jurisdiction, a failure to comply with a statute or OPM regulation governing reductions in force, and prejudice caused by that failure. The employing agency must produce the complete agency record, including the specific RIF notice, retention registers and competitive-area definitions, subject to disclosure limits. Hearings are not automatic. OPM says it “disagrees that a hearing is required in every case” and will hold one only where the written record is insufficiently developed to determine material facts or where witness credibility is material to the outcome.

Appeals of reduction-in-force and probationary actions will be handled by OPM’s Merit System Accountability and Compliance office, and suitability appeals by OPM’s suitability office, according to Federal News Network. An initial decision becomes final 30 days after it is issued unless a party asks for reconsideration. The OPM director may reopen a nonfinal decision on the director’s own initiative, and the rule states that it “does not create a party right to request Director review.”

Employees also lose access to the courts at the end of that process. Government Executive reported that the OPM director provides final review in place of the MSPB’s three-member board and that employees can no longer appeal a final decision in federal court. OPM argues in the rule that no such right existed by statute, writing that in the nearly 50 years since the Civil Service Reform Act was enacted, Congress “has not amended the statute to provide for such a right, nor has it provided for an appeal process for RIFs that includes judicial review.”

The MSPB has already amended its regulations to match. In a rule published August 12, the board struck the references in 5 CFR 1201.3 to its jurisdiction over probationary terminations, suitability actions and reductions in force, describing the change as reflecting “OPM’s rescission of the MSPB’s jurisdiction to hear these types of appeals.” The board retains one reduction-in-force category that Congress gave it directly by statute: appeals by career and career candidate appointees in the Foreign Service under 22 U.S.C. 4010a. Cases already pending, and appeals of actions taken before September 2, stay with the MSPB.

OPM director Scott Kupor said the internal process is designed to be independent of the officials who order the cuts. “Our proposed internal appeal processes are designed to be faster, more efficient, and, critically, structurally independent, with separate staff handling determinations and appeals,” Kupor wrote in a blog post quoted by Federal News Network. “If our internal process does not deliver genuine independence and a fair opportunity to be heard, it will fail.” Kupor added, “We are committed to building something that works, not just something that is faster.” He said the rules are meant to let agencies manage their workforces “without a multi-year odyssey through an appeals process that often resolves nothing other than to rack up attorneys’ fees at the expense of the American taxpayer.”

Raymond Limon, a former MSPB member whose term ended in 2025, called the change “an existential threat to due process” and said Congress intended an independent body to hear these cases when it passed the Civil Service Reform Act in 1978, Government Executive reported.

Commenters questioned whether OPM has the staff to absorb the caseload, noting that the agency has lost more than a third of its own workforce and that the office designated to hear the appeals has not historically done that kind of work. “MSPB has an entire roster of administrative judges. It’s got a board that oversees it. It’s got a lot of support staff. It would require a lot of resources for OPM to offer the same quality and independent services,” said Jenny Mattingley, vice president of public policy and stakeholder engagement at the Partnership for Public Service, in an interview with Federal News Network. OPM spokesperson Kiki Nyoh told Federal News Network, “At this time, we believe we have sufficient staffing and resources in place to effectively manage all three categories of appeals.” The rule says OPM may adjust internal staffing “as necessary.”

In comments filed on the proposed rules, Democracy Forward wrote that “read together, the interlocking set of proposals would make RIFs more subjective, less contestable before independent and neutral adjudicators and easier to use for targeting individuals rather than positions.” Everett Kelley, national president of the American Federation of Government Employees, said of the proposals that “on their own, and taken together, these actions unlawfully concentrate removal authority in OPM and directly undermine the statutory framework Congress established to ensure an independent, professional and nonpartisan civil service.” Kelley said removing outside review of layoffs “would essentially give the administration free rein to terminate huge swaths of the federal workforce without meaningful independent oversight,” Government Executive reported in February.

A separate OPM rule taking effect the same day changes who is cut first. Agencies had been directed to weigh tenure and length of service before performance ratings when building retention registers. Under the new rule, performance comes first, followed by veterans’ preference, with tenure and seniority used only as tiebreakers. The rule also ends the longstanding “bump and retreat” practice, replacing it with assignment rights to a qualifying position held by an employee with lower retention standing in the same tenure group.

The board taking on a smaller role has also changed how it describes itself. On June 29, the Supreme Court held in Trump v. Slaughter that Congress cannot shield Federal Trade Commission members from removal at will, and overruled its 1935 decision in Humphrey’s Executor. Chief Justice John Roberts wrote the opinion, joined by Justices Alito, Gorsuch, Kavanaugh and Barrett, and by Justice Thomas except as to one part. Justice Sotomayor dissented, joined by Justices Kagan and Jackson. After that ruling the MSPB removed the word “independent” from public descriptions of itself, FedWeek reported. The board had previously called itself an independent, quasi-judicial agency.

OPM put the recurring cost of the new process at roughly $1.09 million a year in agency litigation costs, plus about $73,600 a year in equal employment opportunity complaints from employees it estimates will file discrimination claims instead of RIF appeals. The rule applies only to reductions in force for which an agency issues a specific RIF notice on or after September 2.