UPDATE: This post was updated on April 24, 2025, to include a link to comment on OPM’s proposed rule.
In a long-anticipated development, OPM published its proposed rule to implement Schedule Policy/Career, formerly known as Schedule F, and to rescind regulations issued by the Biden administration to protect civil servants. What does this mean for federal workers?
Background
On Friday, April 18, the Office of Personnel Management announced that it would soon be publishing a proposed rule in the federal register titled “Improving Performance, Accountability and Responsiveness in the Civil Service.” The rule was published on April 23, 2025, and the public has 30 days from that date to provide comments on the rule. Comments can be made online at: https://www.regulations.gov/commenton/OPM-2025-0004-0001
The proposed rule closely follows an executive order issued by President Trump on inauguration day, which we discuss here.
The main goal of the rule is to deny job protections to a much larger number of federal employees than at any other time since 1883. Under the rule, at least tens of thousands more federal employees will likely be designated “at will,” meaning that they can be fired for no reason at all, without any right to appeal.
However, the proposed rule does not provide any specific guidance on who will be placed in that category. On that question, the most detailed information is still a memo published by OPM in January. The proposed rule also does not make any immediate change to any employee’s status.
The proposed rule has two major components: (1) rescinding regulations issued by the Biden administration to protect civil servants and (2) codifying Schedule Policy/Career. We discuss each in turn, along with other changes previewed by the rule, before broadly describing the notice-and-comment process.
The Proposed Rule would Rescind the Biden administration’s civil service regulations
In April 2024, OPM finalized regulations that provided important protections for federal employees. On inauguration day, President Trump declared these regulations inoperative via an executive order. But generally speaking, executive orders cannot supersede regulations. Thus, the Trump administration now seeks to eliminate the Biden regulations through its new proposed rule.
In explaining these regulations, we will use the term “Chapter 75 protections” to refer to protections for federal employees under 5 U.S.C. Chapter 75. Under that chapter, most federal employees cannot be fired without cause, and agencies must follow certain procedures before attempting to terminate them, such as providing advance notice of potential termination. These crucial protections have existed since the passage of the Civil Service Reform Act in 1978.
The Biden administration’s regulations did three things to clarify and solidify these protections.
First, the regulations reaffirmed that employees retain their Chapter 75 protections when they are involuntarily moved into a new job category such as Schedule Policy/Career. While this has been the law in the D.C. Circuit since at least 1954, and has been codified in regulations since at least 1968, the 2024 regulations made clear that this principle would apply to newly created excepted service categories, such as Schedule Policy/Career.
Second, the 2024 regulation reaffirmed the limited nature of an exception to Chapter 75 protections. Specifically, Chapter 75 does not apply to individuals “whose position has been determined to be of a confidential, policy-determining, policy-making, or policy-advocating character.” 5 U.S.C. § 7511(b)(2). The Biden regulations clarified that the phrase “confidential, policy-determining, policy-making, or policy-advocating” refers specifically to non-career political appointees. In other words, career employees cannot be denied Chapter 75 protections under this exception.
Finally, the 2024 regulations created procedures that apply when moving individuals or positions from the competitive service to the excepted service, or from one excepted service schedule to another, including, importantly, a right of appeal to the Merit Systems Protection Board (MSPB).
While Executive Order 14171 purported to render most of these regulations “inoperative,” OPM’s newly proposed rule seeks to formally rescind all of this.
The Proposed Rule Would Codify Schedule Policy/Career in the Code of Federal Regulations
While careful to say that Schedule Policy/Career exists by virtue of Executive Order 14171, OPM’s proposed rule would incorporate it into the code of federal regulations, which would make it harder for a future administration to eliminate the new job category.
In addition, the new regulations would do various things to implement Schedule Policy/Career, including:
- Provide a definition of “excepted service” that would allow for employees with competitive status to still be located within the excepted service. This appears designed to ensure that employees could be hired using competitive procedures, and retain other advantages associated with competitive status, but still denied all adverse action protections – i.e. they could still be fired for any reason or no reason and without any appeal rights.
- Provide a new definition of “noncareer position,” to mean one that carries no expectation of continued employment beyond the presidential administration. In contrast, “career” would mean any position that is not “noncareer.” These definitions would be used to clarify which positions belong in Schedule C, and which belong in Schedule Policy/Career.
- State that career employees are
- 1) not required to pledge personal loyalty to to the President or his policies, but;
- 2) must diligently implement the President’s policies, and that failure to do so is grounds for dismissal.
- Exclude Schedule Policy/Career positions from Chapter 43 performance-based removal procedures.
The Rule Previews Changes for Administrative Judges, Including MSPB AJs
In its defense of the legality of this rule, OPM argues that the government must be allowed to fire administrative judges (AJs) without cause, at least if they work under a commission whose members also have removal protections, such as the Merit Systems Protection Board or National Labor Relations Board. According to OPM, it would be unconstitutional to permit “double layers of for-cause removal protection.” Thus, at-will removal must be applied to the administrative judges or the commission members at these agencies, if not both.
If accepted by the courts, OPM’s assertion would represent a sea-change in numerous agencies that employ AJs. Especially notable, this would apply to the Merit Systems Protection Board itself. In other words, OPM is arguing that the the very same AJs charged with enforcing job protections for federal employees should themselves be fireable without cause.
OPM is not proposing to implement this view in the current rule, and it notes that this issue is entangled with ongoing litigation over the President’s ability to fire the heads of multi-member independent commissions without cause. This includes a lawsuit concerning Trump’s attempt to fire MSPB Board Member Cathy Harris. Nonetheless, this statement all but guarantees that, if the Supreme Court holds that the statutory limits on the President’s ability to remove heads of these commissions is constitutional, then OPM will take the position that AJs within those commissions can be fired at will.
This would apply to not only MSPB AJs, but hundreds of other AJs at other independent commissions. These include the FLRA, the NLRB, and the Nuclear Regulatory Commission, an agency charged with ensuring the safe use of radioactive materials.
Rulemaking Process
OPM is required to follow a process called notice-and-comment rulemaking when it issues rules that apply to agencies other than OPM itself. The Administrative Procedure Act governs the process for notice-and-comment, and provides avenues for challenging proposed rules.
Any interested person can submit comments about the proposed rule. Such persons may be directly affected by the rule, such as federal employees, but need not be. Experts on the issue area, concerned citizens or taxpayers, or anyone else with something to say about the rule can submit a comment.
Pursuant to the APA, OPM will be required to review every comment and either incorporate the changes proposed by the comments, or sufficiently explain why it will not do so.
Additional hurdles apply when an agency is seeking to rescind a rule it previously promulgated through notice-and-comment. The agency has to weigh the reliance interests engendered by the rule it seeks to rescind, and has to consider alternatives.
An agency’s failure to sufficiently consider comments it receives, including its failure to reasonably weigh reliance interests or alternatives outlined in such comments, can be grounds for setting the new rule aside.
You can submit comments about OPM’s rule here: https://www.regulations.gov/commenton/OPM-2025-0004-0001
This post does not constitute legal advice. For advice specific to your situation, consider consulting an attorney. If you are represented by a union, consider discussing the issue with someone from the union.
-Charlotte Schwartz, attorney at James & Hoffman.