Public comment: Suitability and fitness

Charles Ezell, Acting Director
Office of Personnel Management

Re: RIN 3206-AO84, Suitability and Fitness

Dear Acting Director Ezell,

On behalf of the Niskanen Center, I am pleased to share comments on the Office of Personnel Management’s (OPM) proposed rule regarding “Suitability and Fitness” posted on June 3, 2025. Enclosed with this letter we have also included a detailed description of our concerns and recommendations for OPM to consider in revising its approach to this topic.

The Niskanen Center is a nonprofit public policy organization that advocates for a government that provides social insurance and essential public goods, fosters market competition and innovation, invests in state capacity, and does not impede productive enterprise. We are committed to the principles of liberal democracy and an open society that encourages engagement, cooperation, discussion, and learning.

An agile, accountable, and high-performing federal workforce is essential to our vision of a stronger government and better governing outcomes for all Americans. Our reform agenda for the federal workforce revolves around several core design principles:
● Fewer, Simpler Personnel Systems – Reduce the complexity of federal personnel systems to make them easier to understand, simpler to administer, and more flexible.
● Fast & Fair Accountability – Streamline and speed up the process for removing poor performers and those who engage in misconduct while maintaining constitutional guardrails against arbitrary partisan dismissals and unlawful discrimination.
● Market-Sensitivity – Prioritize the federal government’s ability to compete in the labor market through its approaches to compensation, hiring, and benefits administration, so the federal government can attract and retain the best talent on offer.
● Minimized HR Touches, Maximized Manager Flexibility – Devolve as much authority to agencies—and then on to line managers—as possible, recognizing that centralized HR functions are not accountable for mission outcomes and are generally unable to weigh tradeoffs in pursuit of those outcomes.
● Internal Capacity First -Invest in internal agency capacity before augmenting agency workforces with vendors which may have misaligned incentives and are more difficult to manage in the long-term, especially for core agency work not otherwise happening in the private sector.

Underpinning each of these principles is also a commitment to uphold nonpartisanship and observable merit as the foundation for all policy choices related to the federal workforce—without a bedrock commitment to administration free from partisan meddling and to the merit system,¹ meaningful reform that addresses the root causes of state incapacity is impossible.

Accordingly, while we support OPM’s stated goal in this proposed rule (i.e., speeding up the process for removing employees who commit clear misconduct), we write to express our opposition to implementation of OPM’s proposed rule without revisions that address serious gaps in the accountability regime that it seeks to establish.

In our view, one of the highest-impact, most durable reform efforts that OPM could undertake would be addressing some of the structural issues in the removal processes that cause unnecessary delays. Instead, in this proposed rule—as with the recent Schedule Policy/Career rulemaking—OPM seeks to evade statutory requirements. By doing so, OPM is missing an opportunity to work with Congress and civil society on a reform package that actually fixes these issues, instead pouring its intellectual energy into shortcuts that a future President could easily undo and that create significant due‐process and separation‐of‐powers concerns.

Specifically, we are concerned with the following elements of OPM’s approach:

1. Expands the Role of OPM at the Expense of Agency Flexibility & Creates New Bottlenecks –
   OPM is poorly suited to make routine human capital decisions on behalf of agencies, and this proposed rule puts OPM in the middle of the employer-employee relationship in ways that create more bureaucratic red tape and bottlenecks rather than less.
2. Lacks Clarity about How Pre-Appointment Conduct Will Be Considered – OPM’s proposed rule lacks clarity on how pre-appointment misconduct can be later considered for post-appointment suitability action, opening the door for OPM to reevaluate suitability determinations made by agencies at entry on duty after the fact and endlessly.
3. Does Not Distinguish Adequately Between Poor Performance and “Misconduct” – OPM’s proposed rule adds additional suitability factors like “negligent loss of material government resources and equipment during employment” that blur the lines between poor performance and misconduct, and open the door to inconsistent and partisan application of standards (e.g., by re-categorizing improper payments as negligence-related losses). Additionally, it includes a new factor for “[r]efusal to certify compliance with any applicable non-disclosure obligations” but does not provide guidance about how to distinguish between unacceptable disclosures and legally-protected whistleblowing.
4. Circumvents Rather Than Fixes Chapter 43 & Chapter 75 Removals – OPM’s proposed rule creates a fast-track dismissal mechanism that circumvents congressional intent in establishing removal procedures rather than actually fixing the root causes of dysfunction in the current system. Additionally, under OPM’s proposed rule, the Merit Systems Protection Board (MSPB) cannot review and mitigate penalties associated with a given suitability action, making it impossible for the MSPB to ensure that all employees receive equal treatment in similar cases across government. This raises significant concerns about the sufficiency of due process under OPM’s proposed rule.

We are also concerned that, because the President has already sought to weaponize the personnel security function² against political rivals, this proposed rule represents another step towards dangerously politicizing what is supposed to be an impartial, independent part of the human capital enterprise. If decisions about who is suitable for federal employment become based on partisan loyalty or political considerations, the federal government is likely to drive away the top talent that agencies need in order to effectively carry out their missions—good people are not willing to invest their time in public service careers if they expect to be fired for partisan reasons whenever the White House changes hands. Taking action to revoke decisions of suitability or about security clearance based on partisan political considerations erodes public trust in the federal government’s ability to handle sensitive programs, data, and topics with impartiality.

In order to improve the proposed rule and better achieve OPM’s goals of “assessing whether incumbent employees remain suitable for Federal employment” and taking removal action where appropriate, OPM should revise its approach. We have five main recommendations as to how OPM should do so:

1. Continue to Delegate Authority to Make Final Suitability Decisions to Agencies In the Case of Employees -If OPM wishes to enable suitability action against employees, it should continue to delegate that authority to agencies rather than centralizing it at OPM. Agencies are and should continue to be accountable for executing human capital policy for their own workforces.
2. Clarify That Pre-Appointment Conduct Alone Cannot Be the Basis for Action Against Employees – If OPM elects to proceed with finalizing this rule, the proposed language should be clarified to specify that pre-appointment conduct may not be the sole basis for new suitability action against employees, so as to prevent endless reexamination of the pre-appointment conduct of existing employees.
3. Define a Clear Difference Between Poor Performance and Misconduct – OPM should more clearly delineate the distinction between poor performance and misconduct so that agencies cannot invoke the latter to remove employees only accused of the former.
4. Work with Congress to Streamline Chapter 43 & Chapter 75 Removals & Invest in Agency Personnel Offices; Grant MSPB the Right to Review Proposed Suitability Actions Against Employees – In general, OPM should ensure that agencies are still using Chapter 43 and Chapter 75 removals in cases where managers seek to remove employees that are underperforming but are nonetheless suitable for the roles in which they occupy. If OPM believes that these processes are too onerous, it should work with Congress to streamline them and invest in agencies’ capacity to quickly execute them rather than circumvent them. Additionally, to ensure equal treatment of employees and protection from arbitrary partisan application of suitability requirements, MSPB should be granted the ability to not just substantiate the rationale for a suitability action but also to review the proposed penalty so that the suitability process more closely mirrors the statutory removal processes.

If OPM makes the changes that we’ve outlined above and in detail throughout this letter, we could support an updated version of this rule: one that provides agencies with a mechanism to take suitability action against current employees while preserving agency delegations that ensure that OPM does not place itself at the center of every routine personnel decision. Additionally, we would be more likely to support OPM’s proposed rule if it were tweaked to preserve guardrails against arbitrary partisan firings through weaponization of the personnel security function. However, absent those changes, we cannot support this rule in its current form.

Regardless of OPM’s eventual final rule on this topic, however, ultimate responsibility to structure the federal personnel system rests with Congress, and we continue to believe that durable reform is only possible through congressional action. In parallel, we continue to advocate for the Executive Branch to thoughtfully engage their counterparts on the Hill and in civil society to re-think the performance management and accountability processes. We would welcome the opportunity to work with all interested parties on such an effort.

Sincerely,
Gabe Menchaca
Senior Policy Analyst, State Capacity Initiative
Niskanen Center

Concern 1: Expands the Role of OPM at the Expense of Agency Flexibility & Creates New Bottlenecks

In general, the employer-employee relationship for federal workers is between an employing agency and an individual employee.³ This is intuitive: agencies and agency heads have ultimate accountability for delivering their statutorily-authorized missions and need the flexibility to employ (or not employ) staff towards those ends. Historically, OPM has delegated the authority to make most suitability determinations to agencies for precisely this reason–agencies are best equipped to determine whether a given suitability action is appropriate when weighing factors like “[t]he nature of the position for which the individual is applying or in which the individual is employed” or “[t]he circumstances surrounding the conduct” that are outlined in 5 CFR 731.202(c). In particular, the relationship between the conduct and the nature of the positions are perhaps the single most critical factor that agencies should use in making determinations. The determination of “fitness” has to be measured against the role an individual hopes to “fit,” and one size does not “fit” all.

Currently, OPM has a role in suitability actions that is limited only to cases that have government-wide implications (i.e., fraud in examination and efforts to overthrow the federal government) but this proposed regulation would extend OPM’s reach into more routine misconduct cases where OPM is poorly equipped to make thoughtful decisions. We are concerned that this proposal excessively empowers OPM at the expense of agencies by putting OPM in the middle of the employee-employer relationship rather than in the government-wide policy and support role envisioned for OPM by the Civil Services Reform Act (CSRA). OPM does not direct hiring of staff and shouldn’t similarly direct firing–it is an independent agency that is co-equal with peers but does not and should not possess the authority to direct other agencies to take routine HR actions.

Additionally, the federal government’s track record with centralized personnel systems points to obvious challenges with implementing such a proposed regulation: the US has had centralized federal HR in the past and the function was devolved to agencies for good reason.

For much of the 20th century, decisions about who the government could hire and fire were made centrally by OPM and its predecessor organization, the Civil Service Commission (CSC). For example, when they wanted to hire, agency managers were allowed to select from prescreened lists of candidates that had been “examined” or assessed by the central hiring authority and deemed qualified for the role. When they wanted to fire employees, agencies and then the CSC had to fight in many different external forums and appeal bodies, often more than once. This model had the advantage of ensuring careful consistency and expertise in application of civil service rules by the central personnel office but, as the government became more complex, became unwieldy and created bottlenecks in the process that were thought to actively hinder the government’s ability to deliver.

A 1977 report by the President’s Reorganization Project,⁴ a Carter Administration effort that led to the passage of the Civil Service Reform Act in 1978, described the problem of consolidation succinctly: “[w]ithout greater decentralization and delegation, the Federal personnel system is in danger of becoming immobilized in its own regulations, processes, and controls.” President Carter himself put it even more sharply, calling the pre-1978 status quo “a bureaucratic maze which neglects merit, tolerates poor performance, permits abuse of legitimate employee rights, and mires every personnel action in red tape, delay, and confusion.”⁵

Starting in 1978 when the CSC became OPM and accelerating in the late 1990s when Congress granted additional delegation authority, reformers have sought to decentralize management over the civil service⁶ as a path to a better, more responsive government. This process has been slow—first, OPM delegated authority to agencies in limited instances and then began to delegate it more broadly. Today, many agencies have their own personnel systems that are not managed by OPM at all (e.g., the Defense Civilian Intelligence Personnel System)⁷ and wide latitude to make decisions that impact their own workforce. These efforts have improved the ability of agencies to manage and shape their own workforces and allowed OPM to focus on supporting agencies and positioning the federal government as an attractive employer in an ever-more-competitive labor market.

Where OPM has remained in a whole-of-government service provision role, the results have also continued to be rocky: it has been a poor steward of government-wide personnel security⁸ responsibility and caused a massive backlog of security clearances through the late 2010s⁹ before having the program taken away from them by the first Trump Administration to nonpartisan fanfare across the government. Re-assigning them a new set of roles in the personnel security space by directing them to make all final suitability decisions is a step backwards in this direction. Indeed, while there is more work to be done, personnel security timelines improved¹⁰ when OPM transitioned to a role it was best suited to play: providing advice, setting general standards, and thinking strategically about the federal government’s role as an employer, not as a single back-office function for the largest employer in the nation.

In the case of this proposed regulation and the suitability determination process, this re-centralization is a recipe for inefficiency and insufficient attentiveness to mission needs that would return the government to the early 20th century status quo. Because OPM is not accountable for agency mission outcomes, it does not have aligned incentives to process these suitability cases quickly or with attention to agency mission needs. Rather, this proposed regulation adds a new bureaucratic process to OPM’s to-do list where lack of attention from agency leadership may allow backlogs to languish for many months. OPM envisions hiring several adjudicators to handle these referrals, but it’s also true that we have decades of experience with centralized decision-making grinding agency business to a halt. This seems likely to create significant bottlenecks in the process that may actually make the system perform worse than it does today.

Recommendation 1: Continue to Delegate Authority to Suitability Actions to Agencies In the Case of Employees Today, agencies are empowered to take suitability action against both applicants and appointees (i.e., those who have not completed probationary or trial periods) except in the limited cases described above where OPM has jurisdiction. Similarly, agencies are vested with the authority to dismiss employees under both Chapter 43 and Chapter 75, with virtually no role for OPM in either process.

We see no reason why OPM should revise this state of affairs in the context of any new guidance on suitability action for current employees. Regardless of whether they are considering a prospective or a current employee, agencies continue to be the ones best equipped to make decisions about their own workforces and the degree to which specific (mis)conduct makes individuals (un)suitable for a given role.

Concern 2: Lacks Clarity about How Pre-Appointment Conduct Will Be Considered

In the preamble to the proposed regulation, OPM clearly states that it intends to “rectify this irrational gap in the part 731 regulations”¹¹ by enabling agencies “to implement appropriate rules and procedures regarding suitability determinations and suitability actions based on post-appointment conduct.”¹²

However, in the proposed regulation, it is not clear how pre-appointment conduct factors into decisions for current employees. For example, the proposed regulation says:

“(d) Only OPM may take a suitability action under this part against an employee in the competitive service or career Senior Executive Service based on the criteria of § 731.202. When the basis for the action is post-appointment conduct, OPM may take a suitability action against an employee only when there is a proper and sufficient referral by the head of the employee’s employing agency.”¹³ (emphasis added)

This implies that there could be cases where OPM could take action against an employee solely for pre-appointment conduct that wasn’t of concern to an employing agency at the time of appointment but that became of concern to OPM after the fact. In some cases, this is warranted: in the case of an employee who lied, omitted, or otherwise defrauded the government during the examination process, it makes sense that OPM could take suitability action against an employee solely for pre-appointment conduct.

However, it is not clear from the text of the proposed regulation whether OPM also envisions taking suitability actions against employees for other types of pre-appointment conduct that might have been properly disclosed to the employing agency at the time of appointment. If this is the case, the door would be open to OPM endlessly reconsidering the suitability for existing employees based not on any newly-surfaced information but based purely on a reexamination of conduct in the past.

This would cause significant challenges for agencies and for employees themselves–if employees could be found unsuitable and then removed based on readjudication of pre-appointment conduct, employees can be arbitrarily targeted despite having not raised new concerns. Such a system creates obvious opportunities for abuse by bad actors in the personnel system. Consider the following example:

Employee A applies for a job at Agency B and, in the course of the hiring process, discloses a teenage conviction for shoplifting. Agency B, after considering all the factors outlined in 5 CFR 731.202, determines that Employee A is nonetheless suitable for their role and extends an offer of employment. Years pass while Employee A has not had any further conduct issues. Following a change in Administration, Agency B leadership decides it would like to fire Employee A for partisan reasons (e.g., donating to a political opponent or membership in a union during an adversarial CBA renegotiation) and seeks to have Employee A deemed unsuitable for their role based on their prior conviction for shoplifting and then subsequently removes that employee.

In this case, without clarity in the regulation about how to treat pre-appointment conduct, such a removal might be permissible or seem permissible. We are concerned that lack of clarity in OPM’s proposed regulation may encourage agencies, future Administrations, or OPM itself to try this type of partisan removal scheme in direct violation of Merit System Principle 8, “Employees should be protected against arbitrary action, personal favoritism, or coercion for partisan political purposes…”¹⁴

For reasons discussed elsewhere, this type of weaponization of the suitability process would undermine employee, leadership, and public faith in the impartiality of the personnel security function across government.

Recommendation 2: Clarify That Pre-Appointment Conduct Alone Cannot Be the Basis for Action Against Employees

To provide needed clarity to agencies, employees, and OPM’s own staff, OPM should clarify the regulation to articulate how pre-appointment conduct should be treated in employee cases. Specifically, we recommend adding guidance that adheres to the following principles:

• In employee cases, neither OPM nor agencies may take suitability action based solely on pre-appointment conduct unless such conduct was undisclosed at the time of appointment, in which case it would fall squarely under the current suitability factor 3, “Material, intentional false statement, or deception or fraud, in examination or appointment.”¹⁵
• OPM and agencies may however consider pre-appointment conduct in connection with post-appointment conduct for the purposes of evaluating an employee’s continued fitness for a given role.

This would clarify that agencies and OPM may only reexamine suitability determinations in cases where new conduct has given them a reason to do so, preventing the possibility of endless arbitrary suitability decisions and re-decisions as in the example described above.

Concern 3: Does Not Distinguish Adequately Between Poor Performance and “Misconduct”

OPM’s proposed regulation adds additional suitability factors, including two that further define an existing factor:

OPM proposes to incorporate additional criteria as directed by the President in E.O. 14210 of February 11, 2025, Implementing the President’s “Department of Government Efficiency” Workforce Optimization Initiative,90 FR 9669. Two of these criteria—theft, misuse, or negligent loss of government resources and equipment, and refusal to certify compliance with, and/or adhere to, applicable non-disclosure obligations—are examples of misconduct or negligence in employment, a current suitability factor. OPM therefore is proposing to add these criteria as examples that fall under OPM’s existing factor at 5 CFR 731.202(b)(1)¹⁶

These factors are not, on their face, objectionable but they are vague enough to warrant concern on our part that “misconduct or negligence” could grow to encompass all types of poor performance. It’s not clear from OPM’s proposed regulation where it intends to draw the line between these suitability factors and forms of routine poor performance that are more appropriately addressed through Chapter 43 and 75 removal procedures or how agencies are expected to evaluate statutorily-protected disclosure of misconduct. This is problematic because it could create a climate of intense risk aversion and fear across the federal government that actually reduces the efficiency and effectiveness of the civil service.

For example, in a case where an agency issues and then is forced to retract a sole source solicitation–as OPM was, for example, in the case of a recent Workday procurement¹⁷–because it had disregarded normal procurement practices and run afoul of sole-source rules, does that constitute misconduct and/or negligence or just general bad management? In a case where an employee could be removed unilaterally for executing such an action, this matters.

Similarly, President Trump recently issued an Executive Order entitled “Modernizing Defense Acquisitions and Spurring Innovation In The Defense Industrial Base” that directed the Department of Defense, among other things, to “develop[] and implement[] policies, procedures, and tools to incentivize acquisition officials to, in good faith, utilize innovative acquisition authorities and take measured and calculated risks.”¹⁸ We agree that this type of test-and-learn approach to thoughtful risk-taking is important if the US is going to stay ahead of its adversaries. Sometimes those “calculated risks” will fail to pan out–money will be spent chasing a scientific dead-end or a vendor that overpromises. If these suitability regulations can be weaponized to go after program managers executing this direction when their ideas don’t work, they may not be willing to take risks at all and prefer to default to the same stale status quo. Particularly given the recent intense focus on fraud, waste, and abuse, recasting the realization of downside risk in a given program as removable “misconduct” seems likely to chill exactly the exact type of innovation that President Trump seeks to encourage.

Put simply, without appropriate guardrails, employees may be so scared of having their agency take action against them for good-faith experiments that go awry that they will cease experimenting at all without mummifying themselves in process and red tape. Recently, my colleague Jen Pahlka wrote a thoughtful article about how this culture of risk aversion snarls program delivery while breaking down a GAO memo required for an Army command to buy water:

My point is actually this: an enormous amount of the waste in government (and what some might call abuse) comes from people trying very hard to avoid the perception of waste and abuse. We’ve made it a first order thing. Most people who work in government (and make less money than they could) do so because it means something to them to serve the public. But serving the public turns out to involve catering to a deeply ingrained mistrust, which distorts the work, leaves soldiers thirsty, and drives further mistrust.¹⁹

We believe OPM would agree with us that these negative incentives needlessly slow down government and lead to frustrating governing outcomes for those in power. However, we believe there is good reason to be concerned that OPM’s proposed regulation might have this type of chilling effect on the efficiency of the civil service.

On June 17th, after this proposed rulemaking was posted for public comment, OPM issued a memorandum entitled “Performance Management for Federal Employees” that purports to reform the government-wide employee performance management process “to establish a high-performance Federal workplace culture where excellent performance is celebrated and rewarded, and low performance is swiftly addressed by appropriate actions up through and including termination.”²⁰

In Section II of the memo, titled “Available Tools for Preventing and Addressing Unacceptable Job Performance,” “OPM lists some available tools for supervisors to identify and address poor performance.” Many of these tools are common and well-established strategies for managers to deal with poor performing employees: counseling, performance check-ins, setting clear expectations, removal under Chapter 43 or 75, etc. However, included in this list is a reference to this proposed regulation:

E. Post-Appointment Suitability

President Trump has also directed OPM to amend its regulations to allow for suitability and fitness actions to be taken, based on the employing agency’s referral to OPM, against current Federal employees based on grounds including post-appointment misconduct or negligence in Federal employment, criminal conduct, and dishonest conduct. [Footnote: President Trump, Presidential Memorandum to the OPM Director, Strengthening the Suitability and Fitness of the Federal Workforce (March 20, 2025); 5 C.F.R. § 731.202.]

This mixing of suitability policy with performance management, whether deliberate or accidental, creates the perception that these new suitability factors are going to be used in lieu of the regular performance management process rather than in concert with them.

Recommendation 3: Define a Clear Difference Between Poor Performance and Misconduct

To avoid the situation described above, OPM should thoughtfully update its proposed regulation to provide agencies explicit limits on the use of suitability action against employees accused only of poor performance. It is in the interests of OPM, agencies, employees, managers, and the public to be clear about this ahead of time instead of letting MSPB and the courts slowly tease out where the line is.

At a minimum, OPM should:

• Amend its proposed regulation to clarify that agencies may not utilize suitability actions to take action for routine performance management issues or for legally-protected whistleblowing, even when such whistleblowing would violate an applicable nondisclosure agreement;
• Provide additional examples in the proposed regulation of misconduct that should be mitigated via the regular performance management process versus the suitability function;
• Provide additional examples for agencies of the sorts of violations of non-disclosure agreements that continue to be legally protected by statute and guidance reinforcing that agencies may not take retaliatory action against employees for disclosures made pursuant to those statutes; and
• Revise its recent memorandum on “Performance Management for Federal Employees” to clarify that suitability action is not intended to supplant regular performance-related adverse actions/removals.

Concern 4: Circumvents Rather Than Fixes Chapter 43 & Chapter 75 Removals

Traditionally, both Chapter 43 and Chapter 75 have been used to address poor performance and misconduct by federal employees, with different advantages and disadvantages in each process. As the MSPB notes, “the decision by management regarding which section of the law to use for a performance-based action tends to vary greatly by agency and by the nature of the work being performed. Some officials may opt for chapter 75 because they prefer not to have a formal performance improvement period (a requirement in chapter 43), while others may opt for chapter 43 because of its lower standard of proof or the ability to impose a penalty that is not subject to outside review once the agency has proven the performance failure.”²¹

We have written extensively about the ways in which the Chapter 75 and 43 removal processes are too slow and cumbersome to enable agencies to move quickly when necessary.²² Inattention on the part of Presidents of both parties, Congress, and others over years have allowed these muscles to atrophy. We would support thoughtful efforts by OPM to streamline these processes and have been glad to see OPM’s renewed attention on this topic.

However, it’s also true that Congress designed these processes in specific ways and with attention to a specific theory of due process and many of the challenges with the current state are downstream of these design choices. Congress, not the Administration, has ultimate responsibility for getting these right and has clearly articulated an interest in tinkering with these processes over the last hundred years since the passage of Lloyd-LaFollete²³ in 1912. Since then, Congress has repeatedly acted to strengthen and tweak these procedures under the assumption that they would remain the primary mechanism for removing federal employees–including in the Veterans Preference Act of 1944,²⁴ the Civil Service Reform Act of 1978,²⁵ and the aptly-titled Civil Service Due Process Amendments of 1990.²⁶ They have clear due process requirements, remedies, and mechanisms for ensuring that bad actors do not abuse them.

In our view, one of the most high-impact, durable reform efforts that OPM could undertake would be addressing some of the structural issues inherent in these processes to speed them up. Instead, in these proposed regulations–as with the recent rulemaking on Schedule Policy/Career–OPM continues to look for alternative routes around the statutory requirements. We are disappointed because we believe OPM is missing an opportunity to work with Congress and civil society on a reform package that actually fixes these issues and is instead pouring its intellectual energy into shortcuts that can be easily undone by a future President.

Additionally, by removing these Congressionally-envisioned guardrails, each newly-opened process becomes more susceptible to abuse by partisan bad actors. We believe that efforts to weaken or remove appealability to the MSPB seem purpose-designed to avoid scrutiny for removals that are motivated by partisan concerns rather than a genuine interest in the efficiency and effectiveness of the civil service. In the case of this proposed regulation, OPM argues that it has retained procedural guardrails and “anticipates the impact to MSPB to be neutral. Any removal action on an employee for post-appointment conduct currently processed under Chapter 75 that results in an appeal to MSPB and might be processed instead as a suitability action will still likely result in an appeal to MSPB. OPM assumes an individual willing to appeal a Chapter 75 action to MSPB would be equally willing to appeal a suitability action to MSPB.”²⁷

However, this statement elides the fact that the MSPB has the ability to review and mitigate the penalty in Chapter 75 cases²⁸ but not in suitability cases.²⁹ Indeed, OPM does not discuss at all in its proposed regulation that it seeks to remove a significant due process right for federal employees–the right to challenge whether their removal was a reasonable response to misconduct–and petition for relief in cases where minor misconduct was used as a pretext to execute firings that would otherwise be in violation of the Merit Systems Principles.

Federal employees have a well-established Constitutional right to due process when their employer seeks to remove them from a tenured role under the Supreme Court’s 1985 opinion in Loudermill.³⁰ Congress has provided a framework for meeting the government’s obligation to due process via Chapter 75. If OPM is correct that ~50% of annual removals will be moved into this streamlined process based on suitability, we believe this is a much more significant change to the federal personnel system than OPM states in its preamble, taken without any input from Congress. Indeed, it would seem that OPM is unilaterally stripping employees of some of their due process rights via this proposed regulation in direct violation of clearly expressed Congressional intent. OPM could remedy this by expanding MSPB’s ability to review and mitigate the penalties imposed by agencies based on suitability determinations, better mirroring the existing process for Chapter 75 actions.

Much like the removal of MSPB appeal rights in OPM’s proposed Schedule Policy/Career regulation, we believe such an action creates significant concerns with separation of powers. We find it implausible that Congress intended to allow the President to establish alternative fast-track removal procedures without Congressional input and we are concerned OPM is exceeding its statutory authority in issuing it. Given the Supreme Court’s recent ruling in Loper Bright³¹ reducing the degree of deference agencies are owed in rulemaking, it seems plausible that (absent changes to this regulation) courts will find OPM’s proposal impermissible on statutory due process grounds.

Recommendation 4: Work with Congress to Streamline Chapter 43 & Chapter 75 Removals & Invest in Agency Personnel Offices; Grant MSPB the Right to Review Proposed Suitability Actions Against Employees

If OPM and the Administration were interested in actually fixing the performance management, accountability, and removal process in the federal government in a way that is consistent with separation of powers, Congressional intent, and sound management practices, there are several actions it could take, including:

• Pushing to get quorum on the MSPB, which is one of the major bottlenecks in the removal process that was created by the dismissal of Cathy Harris earlier this year.³² The President has nominated a second member but should work to pressure the Senate to act expeditiously to confirm both that nominee and a third Democratic member to allow the board to decide cases.
• Satisfying due process concerns by granting the MSPB the ability to review and mitigate the penalties imposed by agencies in employee cases, better aligning this new suitability process with the existing Chapter 75 process which already satisfy due process obligations under Loudermill.
• Working with Congress to appropriate enough money for agency HR offices to hire, train, and retain the type of expertise they need to support managers in taking adverse actions against employees who are not meeting performance expectations.
• Providing training and support to managers that enables them to ask questions and receive support from trained HR experts to take action against problematic employees. There are examples of this working at agencies already–the State Department recently launched a “Manager Support Unit”³³ to help arm their managers with what they needed to be effective.
• Streamline the MSPB/EEOC appeals process by removing the ability for federal employees to file “mixed” appeals to both bodies simultaneously. OPM should work with Congress to unify appeals under the MSPB for all federal employees to limit venue shopping by employees looking to appeal adverse actions–they should get a fair hearing, but only in one venue.
• Work with Congress to pass a federal employee code of conduct that specifically articulates examples of misconduct that should lead to mandatory dismissal after a finding of fact–this could include offenses like failure to file taxes, assault of a coworker/member of the public, conviction for fraud, overt displays of partisanship in the workplace, etc. Such a code would eliminate many disputes by clearly mandating dismissal in statutorily defined cases and enable managers to more easily fire employees accused of such misconduct.

These are all reforms that OPM, Congress, and civil society groups could and should debate in the open. They are also the only way to durably solve many of these issues across Administrations that may have political incentives to successively do/undo executive actions.

1. Gabe Menchaca, “You Can’t Fire Your Way to a High-Performing Government,” Niskanen Center, April 25, 2025, https://www.niskanencenter.org/you-cant-fire-your-way-to-a-high-performing-government/. ↩︎
2. Miranda Devine, “Trump Stripping the Security Clearances from a New Hit List of Antagonists Including NY AG Letitia James, DA Alvin Bragg,” New York Post, February 8, 2025, https://nypost.com/2025/02/08/us-news/trump-stripping-the-security-clearances-from-a-new-hit-list-of-antagonis ts-including-ny-ag-letitia-james-da-alvin-bragg/.letitia-james-da-alvin-bragg/. ↩︎
3. 5 U.S.C. § 3101, which provides the “General authority to employ” federal workers situates this authority clearly
   with “[e]ach Executive agency, military department, and the government of the District of Columbia” ↩︎
4. President’s Reorganization Project, Personnel Management Project (Washington, DC: Executive Office of the President, 1977), https://books.google.com/booksid=PwM9AAAAMAAJ&printsec=frontcover&source=gbs_ge_summary_r&cad=0#v=onepage&q&f=false. ↩︎
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