2023-19806: Upholding Civil Service Protections and Merit System Principles

Summary

The Office of Personnel Management (OPM) is proposing a rule to reinforce and clarify longstanding civil service protections and merit system principles, codified in law, as they relate to the movement of Federal employees and positions from the competitive service to the excepted service, or from one excepted service schedule to another. First, it clarifies that, upon such a move, an employee retains the status and civil service protections they had already accrued by law, unless the employee relinquishes such rights or status by voluntarily encumbering a position that explicitly results in a loss of, or different, rights. Second, it interprets "confidential, policy- determining, policy-making, or policy-advocating" and "confidential or policy-determining" to describe positions, generally excepted from civil service protections, in accordance with statutory text, legislative history for that text, and congressional intent, to reinforce the interpretation that this term was intended to mean noncareer, political appointments. Third, it provides specific additional procedures that apply when moving positions from the competitive service to the excepted service, or from one excepted service schedule to another, for the purposes of good administration, to add transparency, and to provide employees with a right of appeal to the Merit Systems Protection Board (MSPB or Board) to the extent any such move purportedly strips employees of their civil service status and protections.

The agency’s own summary, as published.

What this changes

Amends 7 parts of the Code of Federal Regulations — the standing rules this notice rewrites.

• 5 CFR 210 Basic Concepts and Definitions (General)
• 5 CFR 212 Competitive Service and Competitive Status
• 5 CFR 213 Excepted Service
• 5 CFR 302 Employment in the Excepted Service
• 5 CFR 432 Performance Based Reduction in Grade and Removal Actions
• 5 CFR 451 Awards
• 5 CFR 752 Adverse Actions