The Office of Personnel Management (OPM) has issued a proposed rule to significantly change how federal employees appeal reduction‑in‑Force (RIF) actions.
Published in the Federal Register on February 10, 2026, the rule would transfer RIF appeal authority away from the Merit Systems Protection Board (MSPB) and revert to OPM. This rule change, if finalized as it is currently written, would reverse more than four decades of practice.
If finalized, this would be a consequential structural change to federal workforce procedures that have been in place since the Civil Service Reform Act (CSRA) was passed and regulations to implement the CSRA were finalized in the 1980’s.
What the Proposed Rule Would Do
Under current regulations (5 CFR 351.901), federal employees who are furloughed for more than 30 days, separated, or demoted by a RIF action may appeal to the MSPB.
OPM proposes to eliminate MSPB’s role and instead handle RIF appeals internally, as was the case under the Civil Service Commission prior to 1983. OPM argues:
- MSPB’s involvement is regulatory, through an OPM regulation, and it does not have statutory authorization to handle these RIF appeals.
- Congress never mandated MSPB review of RIF actions and,
- Returning appeals to OPM is consistent with historical practice and congressional intent.
The proposed rule notes Congress carefully designed the MSPB review scheme and determined there was no right of appeal to MSPB under the Civil Service Reform Act (CSRA) of 1978. OPM notes that MSPB’s authority to hear RIF appeals was only created in an OPM regulation (5 CFR 351.901) and was not created in a statute. It also notes that MSPB has specifically acknowledged the limitation on its authority in this MSPB decision.
Why OPM Says the Change Is Needed
OPM’s justification centers on efficiency, cost reduction, and consistency.
1. The Current System Is Cumbersome and Inefficient
OPM argues that MSPB’s RIF appeal procedures have evolved into lengthy litigation processes, with broad rights to hearings and significant burdens on agencies.
The agency cites decades of criticism—from the GAO, NAPA, and other agencies, as well as former MSPB officials—calling MSPB’s RIF appeals inefficient, expensive, demoralizing, and time‑consuming.
2. RIFs Are Not Adverse Actions
OPM emphasizes that:
- RIFs are not adverse actions under 5 U.S.C. 7512.
- They are directed at positions, not individuals.
- Employees affected by RIFs receive unique statutory benefits (priority reemployment, bump/retreat rights, career transition assistance) that distinguish them from misconduct or performance‑based removals.
Because RIFs are not adverse actions, OPM argues that MSPB’s hearing‑heavy process is inappropriate, unnecessary, expensive, and time-consuming.
3. Congress Never Created a Statutory Right to MSPB Review
OPM stresses that:
- RIF appeal rights exist only because OPM created them by regulation.
- Congress has repeatedly chosen not to legislate MSPB review of RIFs.
- Under the Civil Service Reform Act (CSRA), the absence of statutory review is intentional.
OPM contends it has full authority to reclaim the appeals process.
The proposed rule also cites historical precedent for the changes it proposes. Citing Keim v. United States, 177 U.S. 290, 296 (1900), and Hargett v. Summerfield, 243 F.2d 29, 32 (D.C. Cir. 1957) OPM argues it has been the case for a long time that RIFs “are matters peculiarly within the province of those who are in charge of and superintending the departments, and, until Congress by some special and direct legislation makes provision to the contrary, we are clear that they must be settled by those administrative officers.”
How RIF Appeals Would Work Under the New System
OPM proposes a return to a more streamlined, administrative‑record‑based process. In addition to the appeals process shifting from MSPB to OPM, a presiding OPM official could review the administrative record, investigate, or audit the RIF action.
Hearings would not be automatic; discretion would lie with OPM. The focus would shift back to whether the agency correctly applied RIF regulations—not broad litigation.
OPM argues that this would expedite decisions, reduce the burden on other agencies, and ensure consistent interpretation of RIF rules.
Here is how the process would work:
1. Filing an Appeal
- Employees who are furloughed for more than 30 days, separated, or demoted due to a RIF can appeal directly to OPM.
- Appeals must be filed using OPM’s electronic filing (e-filing) system within 30 calendar days of the effective date of the RIF action.
- Late appeals will be dismissed unless the employee shows good cause, which OPM decides in its sole discretion.
2. Burden of Proof
- The employee (appellant) must prove, by a preponderance of the evidence:
- The appeal was timely filed.
- OPM has jurisdiction.
- The RIF action was carried out in a way that violated statute or OPM regulations, and the employee would not have suffered the same or another RIF action if properly conducted.
3. Exclusive Process
- OPM’s process would be the sole and exclusive means for appealing a RIF.
- Internal agency grievance procedures or collective bargaining agreement grievance routes cannot be used for RIF appeals.
- Employees may still pursue unrelated claims with other bodies like the EEOC, FLRA, OSC, or Veterans’ Employment and Training Service, but judicial review of OPM’s RIF appeal decisions is foreclosed.
4. Appeal Procedure
- After filing, the agency must respond within 30 calendar days with documentation and the reasons for the RIF action.
- The employee may reply within 15 days, limited to issues raised in the agency’s response.
- All documents are filed and served electronically, and OPM maintains the official appellate record.
5. Adjudication
- OPM adjudicators (from its Merit System Accountability and Compliance unit) will decide cases based primarily on the written record.
- OPM may conduct an audit or investigation and, if necessary, order a hearing, but hearings will occur only when essential for efficiency and fact-finding.
- Appeals by OPM employees are handled by an administrative law judge (ALJ), and initial decisions in those cases are disturbed only in instances of harmful procedural irregularity or clear legal error.
6. Remedies
- If the employee prevails, OPM can order correction of the personnel action, award back pay with interest, and grant reasonable attorney’s fees.
- Compensatory damages are not available.
- Relief must be implemented immediately, even if the agency seeks reconsideration, unless OPM stays the order.
7. Protective Orders and Sanctions
- OPM may issue cease-and-desist directives to prevent harassment or misuse of appeal-related information.
- Noncompliance can result in adverse inferences, exclusion of evidence, or disregarding the noncompliant party’s filings.
8. Reconsideration and Finality
- Either party may request OPM to reopen and reconsider an initial decision within 30 days, based on specified grounds (material factual or legal errors, new evidence, or good cause).
- The OPM Director retains sole discretion to reopen cases sua sponte before a decision becomes final.
- Final OPM decisions are not appealable to MSPB or the courts.
9. Transparency
- OPM will maintain a public website with select final decisions, and all final decisions will be available on request to concerned parties.
Overall, the new process is designed to be faster, more cost-efficient, and centralized under OPM, with appeals decided primarily on the written record, limited hearing availability, and no judicial review.
What Happens Next
The proposed rule is open for public comment on Regulations.gov until March 12, 2026.
After reviewing comments, OPM may:
- finalize the rule as written,
- modify it,
- or withdraw it.
OPM’s proposed rule would fundamentally reshape the RIF appeals landscape. Supporters will view these changes as a long‑overdue modernization that reduces costs and delays. Critics will argue it weakens employee protections by eliminating independent review.
There is no doubt federal employee unions will quickly take this into court, which means it will take months, and perhaps a year or more, for a final decision. AFGE has already said in a press release that it will be “reviewing our legal options if a final rule is issued.” The union made clear that it vehemently opposes the proposed change.
The matter is likely to return to the Supreme Court, perhaps for a ruling on whether it was correct in a 1900 decision, when the federal government was much smaller and less a product of extensive rules and regulations.
The new proposal marks a significant shift in federal workforce policy intended to reshape how agencies manage restructuring by streamlining RIF procedures, reducing costs, and enhancing OPM’s administrative authority as part of the administration’s broader effort to reorganize federal workforce governance.
