Reduction in Force Appeals

The Office of Personnel Management (OPM) issued a Notice of Proposed Rulemaking (NPRM) regarding the appeal process for Reductions in Force (RIFs). Under OPM's existing regulations, employees could appeal being laid off as a result of a RIF to the Merit Systems Protection Board (MSPB), which provided an independent review of an administration's staffing cuts. RIF procedures were complex and, for example, required agencies to calculate an employee's "retention standing" and create a register listing the order in which employees would be separated based on that standing. The MSPB's review provided accountability and oversight for this process, and employees could seek further review in federal court if they chose.

This proposed regulation would shift responsibility for reviewing the administration's RIFs from the MSPB to OPM itself, which often has a hand in originating or overseeing RIFs. That change would eliminate the right to seek an independent review by the MSPB and the right to further appeal the MSPB's decision to a court. It also would place the burden of proof on the employee who filed the appeal. OPM's proposed regulation would limit its consideration of the appeal to the existing written record, instead of allowing employees to call witnesses or proffer other evidence. OPM's proposed rule would allow an employee to seek review of OPM's decision on an appeal by OPM, but not by any outside body. On appeal, the employee would bear the burden of proving that OPM's decision was wrong and affected the outcome. OPM's regulation would impose a duty of "due diligence" on an employee in seeking new evidence to support any claim that OPM's decision was wrong, but the proposed regulation threatens employees and their representatives with sanctions whenever OPM deemed their requests for evidence "harassing." The regulation would also allow OPM to impose sanctions when it concluded that an employee's requests were not harassing if OPM feared that the requests could "lead to" harassment. OPM's proposed regulation would allow OPM's director, a presidential appointee, to overrule OPM officials' decisions.