OPM replaces the MSPB on reduction-in-force appeals and bars judicial review

An Office of Personnel Management final rule published on 3 August 2026 took effect on 2 September, providing that “OPM will replace the Merit Systems Protection Board (MSPB) as the adjudicative agency” for appeals by employees furloughed more than 30 days, separated or demoted by a reduction in force.¹ It applies “only to a RIF action for which an agency issues the employee a specific RIF notice under 5 CFR 351.802 on or after September 2, 2026”; an action noticed earlier, “including an appeal pending before the MSPB, remains subject to adjudication by the MSPB under the procedures applicable when the action was taken.”¹ A companion rule of the same date rewrites the retention rules themselves (see OPM’s reduction-in-force rule puts performance first and takes probationers out of competition).² OPM received 1,252 comments during a 30-day period from “current and former civil servants, members of Congress, as well as organizations, including local and national unions and Federal agencies,” and records that “[l]ess than 1 percent of the overall comments were supportive, neutral, or mixed, and 99 percent opposed the proposed regulation.”¹

1. The rule bars judicial review of its own decisions in terms. New 5 CFR 351.901(c)(4) provides that “[a] party cannot obtain judicial review of a decision under this subpart.”¹ Review of Board decisions runs under 5 U.S.C. 7703(a)(1), which attaches to “a final order or decision of the Merit Systems Protection Board,” with the petition filed in the Federal Circuit within 60 days under section 7703(b)(1)(A).³ OPM’s position is that the provision changes nothing, because “[o]nce OPM withdraws the regulatory delegation that made non-SES RIF actions appealable to MSPB, there is no MSPB decision for judicial review under section 7703.”¹ Commenters argued that OPM “cannot eliminate judicial review by regulation, that judicial review is constitutionally required, that APA review should remain available, and that Federal Circuit review of MSPB decisions has long served as an important external check on RIF adjudication.”¹ The same subsection closes the other routes out. The subpart’s procedures are “the sole and exclusive means of appealing a reduction-in-force action taken under this part,” and such an action, “and any matter relating to an appeal of such an action, may not be raised under a negotiated grievance procedure or contested through grievance arbitration.”¹ What survives is narrow and specific: those two paragraphs “do not preclude an employee from filing a complaint, appeal, or other matter within the independent jurisdiction of the Equal Employment Opportunity Commission, an Inspector General, the Merit Systems Protection Board, the Department of Labor Veterans’ Employment and Training Service, or the Office of Special Counsel.”¹ The Board is named there, but only for matters within its own independent jurisdiction — not for the RIF appeal, which is what the rule moves.¹ Those channels have a route back. Under § 351.902(b)(3) an employee who timely filed a collateral matter with one of the named entities may file a RIF appeal “within 30 calendar days after the date on which the decision on that matter becomes final and is no longer subject to further administrative review,” where that decision “materially affects the employee’s retention standing, order of release, assignment rights, or other rights under this part” — a materiality question OPM decides “in its sole and exclusive discretion.”¹ OPM adds that the revised section “does not restrict employees from pursuing claims that an agency’s RIF was pretext for improper retaliation, discrimination, or other unlawful rationales,” but that “those claims must be pursued in alternative forums.”¹

2. The jurisdictional argument is that the Board’s authority was OPM’s to withdraw. OPM reasons that subchapter II of chapter 75 “does not apply to … a reduction-in-force action under section 3502,” so the appeal right at 5 U.S.C. 7513(d) does not reach RIFs; that chapter 77 “does not itself create an independent statutory MSPB appeal right for non-SES RIF actions” because section 7701(a) supplies procedures only for matters “appealable to the Board under any law, rule, or regulation”; and that “[t]he MSPB has long acknowledged that it derives its authority to review agency RIF actions from OPM regulations at 5 CFR 351.901, not from the CSRA itself,” citing Kohfield v. Department of the Navy, 75 M.S.P.R. 1, 4 (1997), which in turn cites Grubb v. Department of the Interior, 73 M.S.P.R. 296, 299 (1997), and citing separately Gaxiola v. U.S. Department of the Air Force, 6 M.S.P.R. 515, 519 (1981).¹⁴⁵ Where Congress wanted an MSPB appeal right for a RIF-related action “it did so expressly, as it did for certain SES RIF actions” — 5 U.S.C. 3595(c) entitles a career appointee to appeal “whether the reduction in force complies with the competitive procedures required under subsection (a)” — and “[t]he absence of comparable language for non-SES RIF actions is therefore significant.”¹⁶

3. The objections OPM records are structural and contractual, not only about review. Commenters argued that the Civil Service Reform Act requires separation of policymaking from adjudication, citing its legislative history “to support the proposition that the CSRA was designed to decouple the adjudication function from the policymaking function under the Civil Service Commission,” and that the transfer creates a risk of structural bias.¹ OPM answers that combining “policy, guidance, and adjudication within the same agency is a familiar feature of Federal administration,” notes that “[l]ike MSPB, OPM is an independent agency,” and points to insulation of adjudicators from officials involved in the challenged action, a bar on material ex parte communications, and a two-year bar on assigning any OPM employee who was lately employed by the party agency.¹ The administrative law judge is optional in one class of case and mandatory in the other: for an appeal by another agency’s employee, “OPM may assign an administrative law judge to preside over the adjudication”; for an appeal by an OPM employee, OPM “will assign an administrative law judge to adjudicate” it and “will not disturb the initial decision in those cases unless a party shows a harmful procedural irregularity before the administrative law judge, a clear error of law, or a material factual error that affected the outcome of the appeal.”¹ OPM identifies its Office of Merit Systems Accountability and Compliance as the office it “expects … to administer the appeal process.”¹ Its answer to the independence objection rests on the Board’s own changed position: “Because MSPB members now serve at will, the MSPB possesses no greater structural independence from the President than does OPM,” a conclusion OPM draws from a premise it footnotes to Harris v. Bessent, 160 F.4th 1235 (D.C. Cir. 2025), and, “see also,” Trump v. Slaughter, No. 25-332 (June 29, 2026) — the decision that overruled Humphrey’s Executor (see Supreme Court overrules Humphrey’s Executor in Trump v. Slaughter).¹ The argument is that removal protection lost at the Board cannot be a reason to keep appeals there. On the due-process question OPM says “[t]he relevant question is whether the adjudicatory structure creates a constitutionally intolerable risk of actual bias or prejudgment—not whether the agency head is politically accountable,” citing Withrow v. Larkin, 421 U.S. 35, 47, 58 (1975), for the presumption that administrative adjudicators act “with honesty and integrity” and that combining investigative, policymaking and adjudicative functions does not without more violate due process, and citing FTC v. Cement Institute, 333 U.S. 683, 700–03 (1948), for the further proposition that decisionmakers are not disqualified “merely because they previously investigated, reported on, or expressed policy views concerning related issues.”¹ Separately, commenters argued that the Federal Service Labor-Management Relations Statute protects negotiated grievance and arbitration procedures and that RIF matters are not among those excluded from negotiated grievance procedures under 5 U.S.C. 7121(c). OPM relies on section 7117(a)(1), under which the duty to bargain “shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation”⁷ — so that a matter which is the subject of a Government-wide rule falls outside the duty to bargain. OPM states that “[t]his final rule is a governmentwide regulation: it applies across agencies to appeals of covered RIF actions under part 351”; commenters argued that OPM “may not use a governmentwide regulation to eliminate existing collective-bargaining rights or union representation.”¹ OPM relies further on United States Department of the Treasury, Internal Revenue Service v. FLRA, 996 F.2d 1246, 1250 (D.C. Cir. 1993), quoted for the proposition that the provision “permits the government to pull a subject out of the bargaining process by issuing a governmentwide rule that creates a regime inconsistent with bargaining.”¹⁷

4. What replaces the Board is a record review with no hearing as of right. An appeal is filed electronically within 30 calendar days of the effective date of the action, timely if filed by 11:59 p.m. eastern time on the thirtieth day.¹ The appellant bears the burden “by a preponderance of the evidence” on four elements: timeliness, OPM’s jurisdiction, “[t]hat the agency failed to comply with an applicable statute or OPM regulation governing reduction-in-force actions under this part,” and “[t]hat the failure prejudiced the appellant by causing the appellant to be subjected to the appealed action or to lose a materially more favorable outcome.”¹ The agency must produce the complete record. “The review of an agency action must be based solely on the developed written record unless OPM determines that a hearing is necessary and efficient in resolving an appeal,” and assigning an administrative law judge “does not make 5 U.S.C. 554, 556, or 557 applicable to an appeal under this subpart except to the extent those provisions are independently required by law or expressly incorporated in this part.”¹ Section 7701(a), by contrast, gives an appellant before the Board “the right— (1) to a hearing for which a transcript will be kept.”⁵ The right to a representative survives, but what one costs changes: § 351.904(a) lets an appellant “select a representative of his or her choice,” while § 351.904(b) provides that a Federal-employee representative “may not perform such representational functions while in a duty status (including while on official time under 5 U.S.C. 7131), nor may the representative claim agency reimbursement for any expenses incurred,” and § 351.904(c) lets “OPM or the agency whose action is under appeal” in “its sole and exclusive discretion, disallow an employee’s choice of representative” where that representative is an employee of that agency or OPM and the activities “would cause a conflict of interest or position.”¹⁸ The right to ask and the power to grant are separate. A party “may request reconsideration of an initial decision within 30 calendar days from issuance of the initial decision,” but OPM “may, in its sole and exclusive discretion, reopen and reconsider” it, on four grounds on which OPM “may grant a request for reconsideration,” of which the last is simply that “OPM finds good cause to reconsider an appeal”; there is “no further right of administrative appeal” from the resulting decision.¹ Above that sits the Director, who “may, on the Director’s own initiative and before a decision becomes final,” reopen any decision, weighing among other things whether it “contains clear legal error” or “involves an issue of exceptional importance” — a section that “does not create a right to request Director review.”¹ An initial decision becomes OPM’s final decision 30 calendar days after issuance unless a timely reconsideration request or a Director reopening intervenes, and a Director decision disposing of an appeal “is OPM’s final decision and is effective upon issuance.”¹ An appellant who wins gets make-whole relief within limits: “If the employee is the prevailing party, OPM will order relief including correction of the personnel action and any back pay, interest, and reasonable attorney fees consistent with subpart H of part 550 of this chapter,” but “is not entitled to compensatory damages or other relief not authorized under 5 U.S.C. 5596(b).”¹