Federal employees are on the verge of major changes to their options for challenging agencies’ adverse personnel actions, such as reductions in force.

The Trump administration has issued three recent proposals, all aiming to transfer more authority to the Office of Personnel Management. Combined, the proposed changes would put OPM in charge of deciding on cases where federal employees appeal an agency’s RIF decision, probationary firing or suitability action.

Currently, the Merit Systems Protection Board is the deciding entity for employee appeals in all three categories. The independent agency was created as part of the Civil Service Reform Act, a 1978 law that replaced the former Civil Service Commission with three separate entities for setting personnel policies, adjudicating employee appeals and overseeing labor-management relations. Those agencies are OPM, MSPB and the Federal Labor Relations Authority, respectively.

Officials at the Partnership for Public Service said OPM’s new proposed transfer of authority will create a conflict of interest, erode due process, and remove transparency from what happens to career federal employees in appeal proceedings. The non-partisan organization, which advocates for improvements to federal government operations, also raised concerns that OPM does not have the capacity or independence to effectively adjudicate employees’ disputes.

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Jenny Mattingley, the Partnership’s vice president for public policy and stakeholder engagement, called OPM’s proposed regulations a “complete reversal” from the intentions of the Civil Service Reform Act.

“We are going from a system of independent checks and independent decisions and now centralizing it in OPM. It’s blurring the lines between the agency that’s making policy and then deciding whether or not other agencies are following its policy,” Mattingley told reporters during a press conference Monday. “It begs the question: How fair will that be for the employees?”

Altering the RIF appeal process

In proposed regulations scheduled to publish Tuesday to the Federal Register, OPM detailed its plan for giving itself the exclusive authority to decide employee appeals over RIF actions.

For decades, federal employees who believe they were wrongfully furloughed, separated or demoted due to a RIF action have had the option to appeal their case to MSPB. But OPM said it believes taking that authority away from MSPB and giving itself the power instead will speed up RIF actions, reduce costs and ease burdens on agencies. It described the current RIF appeal process as “unnecessarily lengthy and expensive.”

If the regulations are finalized, OPM’s office of Merit System Accountability and Compliance (MSAC) would be given the authority to hear and decide on employee RIF appeals.

MSAC, a small entity within OPM, is currently responsible for auditing agency HR programs to ensure they comply with merit system principles. The office does some adjudicatory work relating to employee disputes over compensation, leave and other benefits. It also reviews requests from agencies who want to convert political appointees into a career civil service position.

Kevin Owen, a partner at Gilbert Employment Law, expressed concerns about a loss of transparency in the adjudicatory process, if more authority is transferred over to OPM.

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“We don’t really know who these people are — they don’t have their own rulemaking processes,” Owen said. “I have little faith that this is going to actually be set up in a manner that’s fair for the employees and also provide the American people with an efficient federal service.”

Mattingley also questioned whether MSAC has the capacity or the skillsets to handle much larger and more complicated processes that for decades have been handled by MSPB.

“Historically, MSAC is not a large office with a lot of resources — particularly judicial resources,” Mattingley said. “There are a lot of questions about whether MSAC can do this work, whether it should do this work, and whether it can do it independently.”

Overhauling suitability actions, probationary firings

Along with the proposed changes for RIF appeals, the Trump administration is planning to move the process for deciding appeals on “suitability” actions over to OPM’s MSAC office as well.

Proposed regulations from Feb. 6 aim to remove employees’ ability to appeal a suitability action, such as a termination, to the MSPB. Instead, federal employees who believe they are wrongfully disciplined or fired for “suitability” reasons would instead have to go to OPM to challenge any personnel action their agency takes against them.

The regulations would apply to both career federal employees and career Senior Executive Service members. OPM said it believes removing suitability appeals from MSPB “will result in faster resolution for individuals and agencies.”

In December, OPM similarly proposed regulations to move the authority to itself on decisions for employees who appeal a probationary termination. Employees in that situation would again have to rely on OPM to determine the outcome of an appeal, rather than MSPB.

Probationary employees would also lose the right to a hearing, as well as lose the opportunity for a “discovery” phase to collect more information on the case — steps of the current MSPB process that OPM called costly and unnecessary.

Owen said the proposed change will close doors for probationary federal employees who are seeking to challenge their agencies. He said he expects OPM’s forthcoming process to be a “rubber stamp,” rather than a full and independent adjudication process.

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“It’s clear that OPM is not going to actually provide hearings for people who were removed at the end of the probationary period,” Owen said.

OPM proposals an authority “overreach”

The proposed changes would further strengthen the Trump administration’s authority over the federal workforce. The administration last week cemented Schedule Policy/Career, a new employment classification that could lead to tens of thousands of career civil servants being made easier to fire.

Everett Kelley, national president of the American Federation of Government Employees, said eliminating MSPB’s role in the adjudicatory process will make it more difficult for employees to challenge adverse actions, while also giving the administration “free rein” to fire employees, with no oversight.

“First they went after employees on probation, then it was those deemed unsuitable for their jobs, and now they want to deny third-party review of any proposed reductions-in-force,” Kelley said Monday. “This is all part of a deliberate attempt to dismantle the nonpartisan civil service.”

If OPM’s regulations are finalized, MSPB would still have many other functions, such as adjudicating cases on performance improvement plans or denials of disability retirement benefit applications. But Owen said the Trump administration’s changes would render MSPB “meaningless on some of the most important issues.”

“The administration is asserting that OPM has a much bigger role in adjudication than Congress intended when it passed the Civil Service Reform Act,” Owen said. “I would argue that it is an overreach that’s not authorized by statute, and I think that’s a prime area for litigation.”

AFGE already said it plans to file public comments on OPM’s proposed regulations on the RIF appeal process. And if those regulations are finalized, the federal union said it will be “reviewing our legal options.”

If you would like to contact this reporter about recent changes in the federal government, please email drew.friedman@federalnewsnetwork.com or reach out on Signal at drewfriedman.11

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