OPM finalises Schedule Policy/Career rule

On 6 February 2026 the Office of Personnel Management published the final rule “Improving Performance, Accountability and Responsiveness in the Civil Service” (RIN 3206-AO80; FR Doc. 2026-02375) in the Federal Register — the rule having been placed on public inspection at the Office of the Federal Register on 5 February 2026 — finalising the Schedule Policy/Career framework in 5 CFR Part 213 (Excepted Service authorities) and 5 CFR Part 302 (Employment in the Excepted Service) and rescinding the April 2024 Office of Personnel Management final rule “Upholding Civil Service Protections and Merit System Principles,” 89 Fed. Reg. 24982 (9 April 2024), which had been held inoperative by section 3 of Executive Order 14171 of 20 January 2025 pending OPM rescission through notice-and-comment rulemaking under the Administrative Procedure Act.¹²³ The final rule follows the Office of Personnel Management notice of proposed rulemaking of the same title published 23 April 2025 at 90 Fed. Reg. 17182 (FR Doc. 2025-06904), with the public-comment period administered through the regulations.gov docket OPM-2025-0004.⁴⁵ OPM set the final rule’s effective date thirty days after Federal Register publication, producing a 9 March 2026 effective date for the rescission of the April 2024 rule and the codification of the Schedule Policy/Career framework in the Code of Federal Regulations; the thirty-day deferral satisfies the Administrative Procedure Act statutory floor at 5 U.S.C. § 553(d), which requires that publication of a substantive rule “shall be made not less than 30 days before its effective date” subject to specified exceptions.⁶

1. The statutory authority for the final rule rests on 5 U.S.C. § 1103 (functions of the OPM Director), § 1104 (delegation of authority by the President to OPM and agency heads), § 3301 (civil service rules), § 3302 (rules for the competitive service) and the definition architecture of chapter 75 at § 7511; the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111, is the foundational statute. The final rule operationalises the policy-confidential exclusion at 5 U.S.C. § 7511(a)(1)(B) from the chapter 75 “employee” definition, preserving the preference-eligible carve-back at § 7511(a)(1)(B)(ii) read through the preference-eligible definition at 5 U.S.C. § 2108.⁷⁸

2. The rule’s substantive provisions establish Schedule Policy/Career as a category within the excepted service under 5 CFR Part 213; specify the criteria for agency identification of “confidential, policy-determining, policy-making, or policy-advocating” positions under EO 14171 section 4 and the OPM-issued implementing guidance; and set out the administrative procedures for transferring positions from the competitive service and from other excepted-service categories into Schedule Policy/Career. The rule does not specify a numerical ceiling on reclassifications; agency-by-agency identifications are bounded only by the EO 14171 section 4 criteria and the final rule’s procedural requirements.⁹¹⁰

3. The April 2024 rescission reverses the regulatory protections that the Biden-era rule had codified at 5 CFR Part 302 subpart F and at 5 CFR 210.102(b)(3)-(4): the 2024 rule had narrowed the practical scope of the policy-confidential exclusion and had provided procedural protections before transfer of an employee from the competitive service into an excepted-service category that removed chapter 75 adverse-action procedures. The February 2026 final rule reasons in its preamble that the 2024 rule’s interpretation is inconsistent with the statutory text of 5 U.S.C. § 7511(a)(1)(B) and that the procedural protections were not authorised by statute.¹¹¹² The protections that survive reclassification — independent of chapter 75 procedures — include the whistleblower-protection prohibited personnel practice at 5 U.S.C. § 2302(b)(8); the anti-discrimination duties of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.), the Age Discrimination in Employment Act of 1967 (29 U.S.C. § 621 et seq.) and the Rehabilitation Act of 1973 (29 U.S.C. § 701 et seq.); constitutional protections under the First and Fifth Amendments; and the preference-eligible carve-back at § 7511(a)(1)(B)(ii) for preference-eligible excepted-service employees.¹³

4. Litigation challenges to the final rule are expected under the Administrative Procedure Act, 5 U.S.C. § 553 (notice-and-comment requirements), § 704 (final agency action subject to judicial review) and § 706(2) (judicial review standard). The federal employee unions — including the American Federation of Government Employees and the National Treasury Employees Union — and public-interest organisations represented in the 2025-2026 Schedule Policy/Career litigation have framed the operative merits theories. The six-year statute of limitations under 28 U.S.C. § 2401(a) for the APA challenge runs from the date the plaintiff is first injured by the final rule per the Supreme Court’s holding in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, 603 U.S. ___ (2024), that “an APA claim does not accrue for purposes of § 2401(a)‘s 6-year statute of limitations until the plaintiff is injured by final agency action.” The relationship between APA § 706(2) vacatur of the final rule (a remedy directed to the agency action) and the limit on universal injunctions articulated in Trump v. CASA, Inc., 606 U.S. ___ (2025), 145 S. Ct. 2540 (a limit on remedies directed to non-parties) is the principal post-CASA doctrinal question for any nationwide-scope remedy sought by challengers.¹⁴¹⁵¹⁶