There is a rule in the Federal Register that could completely change what it means to be a federal worker who is about to be fired. It’s 17 pages long, came out in February, and is written in the careful language of administrative law. Not many people outside of the government have read it. A lot of people inside are still catch up. But the Office of Personnel Management’s proposal is important to pay close attention to because it spells out a big change in who has power when a government worker’s job is suddenly in danger.
The plan aims for a “reduction in force,” or RIF, which is the official way for the federal government to lay off a lot of people. The Merit Systems Protection Board is an independent body that was created to keep the executive branch from making too many decisions about personnel. An employee who is furloughed for more than 30 days, demoted, or separated through a RIF can appeal these decisions. It is now OPM’s plan to move the appeals process from MSPB to an office inside OPM called the Merit Systems Audit and Compliance division.
We should think about what that means in real life. The RIF rules are written by OPM. OPM is in charge of how agencies carry out RIFs. This plan also says that OPM would check to see if those RIFs were done right. The agency would make the rules, make sure they are followed, and be the judge all at the same time.
The proposal contains a lot of information about OPM’s case, which is based on law and history. The agency says that the MSPB’s power to hear RIF appeals was never written into law. Since it was given by OPM regulation in 1983, OPM has always had the power to take it away. The agency points to the Civil Service Reform Act of 1978 and says that Congress purposely left RIFs out of the list of actions that could be reviewed by the MSPB. They say that this was done on purpose to show that Congress wanted OPM to have as much control over the process as possible.
It’s not clear that that argument is wrong. Most courts agree that RIF appeals do not legally give the MSPB the right to review the case. That being said, just because something is legal doesn’t mean it’s a good idea. This proposal has a real tension at its core that OPM doesn’t fully resolve. An independent appellate body is different from the executive officials who did the action being questioned because it doesn’t have to answer to them. That independence takes away some of the appeal, making it more like an internal audit—useful, but not quite the same thing.
At least in a roundabout way, OPM does acknowledge this worry. It is written in the proposal that the deciding part would be in MSAC, not the WPI office that makes RIF policies. It’s harder to say for sure if that internal separation will hold up under pressure, especially during a time of aggressive layoffs.
The time is important here. About 317,000 federal workers left their jobs during the Trump administration, which OPM calls the biggest reduction in the number of workers in peacetime ever. Most of them quit on their own, thanks to buyout and early retirement programs. But RIFs are being used more than they have in decades, and the government has made it clear that it wants to use them even more. Because of this, a plan to simplify and internalize the appeals process doesn’t sound the same as it did five years ago.
Reading through the document makes it seem like OPM really thinks the current system is broken. In the past few years, the MSPB has been short-staffed twice, and from 2017 to 2022, it was short-staffed for five years in a row. Case backlogs are getting worse. The appeals process is said to be slow and cost a lot of money. I think those are real issues. The question is whether putting everything under one roof to fix them is the right thing to do or if it just swaps one problem for a bigger one. That’s not a vague question for about two million federal workers.
