OPM finalizes rules expanding its power over RIFs, employee appeals

The Office of Personnel Management moved Friday to finalize regulations that collectively seize jurisdiction over thousands of employee appeals, as the federal government’s dedicated HR agency moves to centralize power over the federal workforce.

Across three final rules slated for publication in the Federal Register Monday, OPM implemented plans to take over adjudication of federal workers’ appeals of reduction-in-force decisions and suitability actions, as well as cases involving employees still serving in a probationary period. A fourth rule overhauls RIF procedures more broadly, primarily by emphasizing recent performance reviews over tenure.

Currently, a federal employee seeking to appeal an adverse personnel action stemming from a RIF, suitability decision or action that happened while they in their first probationary year of service does so by petitioning the Merit Systems Protection Board. Under the quasi-judicial agency’s jurisdiction, the employee’s case is heard by an administrative judge, with final review by the MSPB’s three-member board. Following a final decision by the agency, the employee—or their employing agency—can appeal to the U.S. Court of Appeals for the Federal Circuit.

But under the new process, appeals would primarily be handled by OPM’s Office of Merit System Accountability and Compliance and ultimately reviewable by the OPM director. Employees would no longer be able to appeal final agency decisions in federal courts.

In a blog post Friday, OPM Director Scott Kupor said the MSPB is too slow to handle its current workload.

“The current MSPB backlog stretches to many months and, in some cases, years,” Kupor wrote. “That is not good for employees who deserve timely resolution of their appeals and it is not good for agencies, which are left in management limbo while cases wind through a slow and costly adjudicatory process. Our proposed internal appeal processes are designed to be faster, more efficient, and, critically, structurally independent, with separate staff handling determinations and appeals.”

MSPB’s backlog in both Trump’s first and second terms stemmed from a lack of a quorum of presidential appointees atop the agency that until last week referred to itself as independent. The 2025 dearth of a quorum began after Trump fired Democratic appointee Cathy Harris in February of that year.

In the case of the regulation turning RIF appeals over to OPM, the HR agency said fully 99% of the around 1,250 public comments were opposed to the measure. Though OPM declined to publish the breakdown of comments submitted in regard to the other regulations, each produced “some” supporters and “many” opponents.

‘An existential threat to due process’

Raymond Limon, a former MSPB member who retired at the end of his term in February 2025, described OPM’s taking jurisdiction of federal employee appeals as a violation of Congress’ intent in enacting the 1978 Civil Service Reform Act. Prior to that law, federal personnel policy and appeal adjudication both were held within the Civil Service Commission; the CSRA bifurcated those roles into two separate agencies—OPM would handle policy, while MSPB would handle appeals.

“It was very clear that an independent adjudicative body was to hear those cases,” Limon said. “’Good fences make good neighbors,’ and that creates due process, organizational discipline and consistency throughout the federal government. What we’re seeing here is an existential threat to due process by going against Congress’ words and intent and moving those due process protections to the personnel office.”

In its regulations, OPM argued that if these adjudicative functions were truly meant for MSPB to handle, Congress would have done so via statute. Instead, the duties were granted via OPM regulation.

“By carving out RIFs conducted under [Title 5 of the U.S. Code] from the MSPB’s jurisdiction, Congress distinguished this type of reorganization activity from the individually targeted personnel actions for which employees have traditionally been accorded formal procedural protections,” OPM wrote. “In the CSRA, Congress did not direct that the MSPB have jurisdiction over RIF appeals.”

But Limon said it’s not that simple, and noted Congress elsewhere has directed RIF appeals to the MSPB for review.

“Two years [after the Civil Service Reform Act], Congress passed the updated Foreign Service Act, in which it allowed foreign service officers to go to MSPB in cases of a RIF,” he said. “Congress knew that employees could go to the Merit Systems Protections Board for a RIF, and so they gave foreign service officers the option: you can appeal to the Foreign Service Grievance Board or to the MSPB.”

While the inability for an employee to appeal OPM’s final decision in federal court is the most noteworthy change as part of the move away from the MSPB, Limon said he was also troubled by the reduction of these cases to a “paper exercise.”

“Under the new process, you won’t have the benefit of an adversarial litigation process in which you have an attorney and can draw and cross-examine witnesses and you have an independent, trained judge to hear your case and hold both parties accountable,” he said. “None of that happens when you appeal one of these matters to OPM. It’s a paper exercise, and it’s really up to some person inside OPM to decide how much due process you get.”