OPM Expands Civil Service Firing Grounds and Overhauls Appeals Process
In a major escalation of the Trump administration's efforts to dismantle traditional civil service protections, the Office of Personnel Management (OPM) has expanded the grounds for firing federal employees under new "suitability and fitness" rules and, in a joint proposal with the Merit Systems Protection Board (MSPB), moved to abandon the 45-year-old "Douglas factors" that have long protected workers from arbitrary discipline.
The final "suitability and fitness" rule, scheduled for publication in the Federal Register, allows agencies to apply the same character and conduct standards used for job applicants to current federal employees. Under this framework, OPM holds centralized authority to order an agency to remove an employee within five workdays if they are deemed "unsuitable." This includes failure to comply with "any applicable nondisclosure obligations" or failure to file taxes on time.
Additionally, a joint OPM-MSPB proposed rule seeks to streamline removals by limiting Performance Improvement Plans (PIPs) to 30 calendar days, banning pre-PIPs, and replacing the 12 "Douglas factors" with a "totality of the circumstances" test for reviewing the reasonableness of agency penalties.
Critics warn that these combined changes represent a profound shift in the balance of power, stripping employees of due process rights and undermining the independent oversight role of the MSPB.
"OPM’s change would allow for expedited firings of federal employees if they are deemed to no longer meet the government’s suitability and fitness standards1... Kevin Owen, a partner at Gilbert Employment Law, called the combination of OPM’s new regulations on suitability and fitness, along with the recently proposed governmentwide NDA, 'a significant overreach.'"
"Raymond Limon, a former MSPB vice chairman, said the fact that OPM and MSPB issued the rule jointly calls into question the independence of the board. 'That’s a fundamental shift in the balance Congress struck between agency management and independent review. Congress created the MSPB to provide independent appellate review of personnel actions. When the adjudicative body jointly develops regulations with the executive agency whose policies it’s supposed to review, observers will naturally ask whether that separation of roles is still functioning...'"
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An instance of Excepted service schedules replace career civil service protections with at-will political obedience. — New administrative rules and the abandonment of historic protections allow agencies to fire federal employees without standard civil service appeals. ↩︎