Regulations & Advocacy

Office of Personnel Management’s Proposed Rule, “Reductions in Force”

Submitted via Federal eRulemaking Portal: https://www.regulations.gov

Scott Kupor, Director
U.S. Office of Personnel Management
1900 E Street, NW
Washington, DC 20415

Subject: Office of Personnel Management’s Proposed Rule, “Reductions in Force,” 91 Fed. Reg. 10904 (Mar. 5, 2026), Docket ID: OPM–2025–0107, RIN 3206–AO86

Dear Director Kupor:

Civil Service Strong (“CSS”), a project of Democracy Forward Foundation, is a national coalition committed to defending and strengthening a nonpartisan, professional civil service. CSS brings together labor organizations, civil society groups, former public servants, and good government advocates under the core principle that the federal workforce must be governed by merit, not politics. CSS urges the Office of Personnel Management to withdraw the proposed rule, Reduction in Force, 91 Fed. Reg. 10904 (Mar. 5, 2026).

RIFs are among the most consequential personnel actions the federal government can take. When lawfully used, a RIF is an administrative mechanism to eliminate positions because of lack of work, shortage of funds, or a bona fide reorganization. It is not a vehicle for politically expedient downsizing. Congress therefore required RIFs to operate through objective procedures that help constrain favoritism, arbitrariness, and pretext, by giving “due effect” to tenure, veterans’ preference, length of service, and performance. Those features are what distinguish a lawful RIF from a purge.

OPM’s proposal would fundamentally change RIF procedures. It would:

elevate recent performance ratings over tenure and length of service in determining retention standing,
convert veterans’ preference into a small numerical add-on within a performance-driven scheme,
exclude employees serving an initial probationary period from RIF competition altogether, and
narrow transfer-of-function protections that currently prevent agencies from using internal reorganizations to sidestep retention rights.

OPM presents these changes as a modernization intended to make RIFs more streamlined, efficient, and merit based. But OPM has not shown with reasoned analysis and adequate evidence that these changes would produce fairer, objective, or lawful outcomes.

This proposal must also be evaluated in context. Since the inauguration, the Trump-Vance administration and OPM have acted to cull the civil service through RIFs in ways that numerous courts have already found to be illegal and to increase the role of political control over career personnel. The practical effect of this proposal—when viewed alongside other proposed rulemakings designed to make ratings more subjective and less reviewable—is to further weaken guardrails that Congress and OPM built into the RIF system. While a regular re-evaluation of the effectiveness of guardrails may be reasonable, any effort to change them undertaken by this administration must be scrutinized within the context of the kinds of abuses that become possible when large-scale terminations are driven by illegitimate objectives.

CSS urges OPM to withdraw the proposal. As explained below, the proposed rule: (1) departs from longstanding RIF processes which are designed to shape workforce reductions largely through objective ordering rules; (2) must be evaluated in light of the administration’s broader effort to make performance ratings more subjective, more forced, and less contestable; (3) fails to justify elevating performance over tenure, length of service, and veterans’ preference; (4) fails to justify categorically excluding probationary employees from RIF competition; (5) weakens transfer-of-function protections in ways that invite circumvention of retention rights; and (6) fails to address reliance interests.

I. RIFs Are Consequential Personnel Actions and Safeguards Are Critical

A. The Existing RIF Framework Relies on Objective Criteria and Strict Regulatory Procedures

RIFs are among the most consequential personnel actions the federal government can take because they often result in the mass terminations of civil servants. When lawfully used, a RIF is an administrative mechanism to eliminate positions for legitimate reasons articulated in regulations, including lack of work, shortage of funds, or a reorganization.¹ Through RIF procedures, agencies can reassign, downgrade, or separate employees if their position is abolished. Crucially, the RIF processes cannot be used as a substitute for an individualized adverse action targeted at a particular employee.²

The stake for an individual employee is high, as is the potential for manipulation. Congress therefore has long required that reductions in force be governed by structured retention rules, not by ad hoc agency judgments about which employees to keep or release. It has also long prioritized veterans during RIFs, a practice that OPM acknowledges dates back to the Civil War.³ And since the Veterans’ Preference Act of 1944, Congress has directed the civil-service regulator, originally the Civil Service Commission and now OPM, to prescribe RIF regulations that give “due effect” to tenure of employment, veterans’ preference, length of service, and performance ratings when determining retention.⁴ Those statutory factors are the backbone of the RIF process.

The Civil Service Commission began issuing regulations implementing that mandate shortly after Congress enacted the Veterans’ Preference Act. The Commission approved initial RIF regulations in November 1944⁵ and revised them the following year as “Retention Preference Regulations for Use in Reductions in Force.”⁶ Those regulations evolved over time—from the original Part 12 framework, later to Part 20, and ultimately into the modern Part 351 structure.

Today, 5 C.F.R. Part 351 requires agencies to complete several steps before releasing any employee via a RIF. First, an agency must establish competitive areas, defined in terms of organizational units and geographic locations.⁷ Within each competitive area, the agency must establish competitive levels consisting of positions in the same grade and classification series with sufficiently similar duties such that any employee in the level can qualify for reassignment to any other position in the level.⁸ The agency must then determine each employee’s standing based on the retention factors of tenure group, veterans’ preference, length of service, and performance ratings, and it must compile a retention register that orders employees within each competitive level by retention standing, so releases occur in inverse order.⁹ A release from a competitive level may result in separation from federal service, but it can also trigger reassignment, demotion, or displacement rights.

Because RIFs implicate core retention rights, an agency’s failure to comply with applicable RIF procedures is often fatal. The Merit Systems Protection Board (MSPB) has explained that an employee’s entitlement under the RIF regulations is a substantive right, not a mere procedural formality subject to the “harmful error” standard.¹⁰ It is also “the agency’s burden to prove by a preponderance of the evidence that it afforded the appellant those rights.”¹¹

The current RIF system reflects a longstanding judgment that objectivity matters when agencies are reducing staff. That structure tempers subjectivity by ensuring that retention turns principally on criteria that are knowable in advance, uniformly administrable, and resistant to favoritism. It recognizes that performance matters, but it does so within a framework that also values experience, continuity, and the congressional choice to protect veterans in periods of retrenchment.

B. The Proposed Rule Would Significantly Restructure RIFs

OPM’s proposal would substantially rework the RIF framework. Most importantly, it would reorder the retention factors so that, within each tenure group, employees would be ranked primarily by subjective performance credit rather than by veterans’ preference and length of service, with tenure subgroup and service computation date functioning largely as tie-breakers.¹² The proposal would make the employee’s recent ratings of record the primary determinant of retention standing.¹³ OPM would calculate that performance credit using the employee’s three most recent ratings of record during the prior four years, then augment that score with additional points for veterans’ preference.¹⁴

The rule also narrows who gets the protection of RIF procedures in the first place. It would exclude from RIF competition several categories of employees, namely employees serving an initial probationary or trial period and employees in the competitive or excepted service who are serving temporary or time-limited appointments of one year or less.¹⁵ As proposed, those employees could be retained, furloughed, separated, demoted, or reassigned without the protections otherwise provided by Part 351.

Beyond retention standing, the proposal would loosen or revise several related protections that have long operated alongside the RIF rules. OPM proposes to redefine “transfer of function” so that the procedures would apply only to transfers between agencies, not to movements of work within a single agency.¹⁶

In sum, the proposal is a significant rewrite of the rules governing how retention standing is determined, who competes in a RIF, and when agencies must use the procedural safeguards that have historically constrained workforce reductions.

C. The Proposal Must Be Evaluated in the Context of Executive-Directed Workforce Rollbacks and OPM’s Broader Workforce Agenda

The proposed rule arises amid an unprecedented series of governmentwide workforce actions in which OPM has not merely issued neutral regulatory guidance, but has actively directed, structured, and coordinated mass terminations and RIFs across the Executive Branch.

i. OPM is Directing and Organizing Governmentwide Purges

Historically, OPM’s role has been to promulgate governmentwide RIF regulations while agencies independently determine whether bona fide reorganizations require position abolishment and then potentially defend those determinations before the MSPB if challenged. That framework assumes agency-initiated action, individualized justification, and independent adjudicatory review. The present moment is different.

In early 2025, OPM directed agencies across the federal government to identify and terminate recently hired probationary employees on a sweeping, governmentwide basis.¹⁷ The directive did not arise from individualized agency determinations of performance or misconduct. Rather, it operated as a centralized instruction to eliminate broad categories of employees based primarily on tenure status.¹⁸ Litigation followed, with unions and employee advocates alleging that the terminations were unlawful.¹⁹ A federal court held that the government’s mass probationary terminations violated federal law because OPM exceeded its authority by instructing agencies to fire employees.²⁰

Soon thereafter, OPM conducted and oversaw a different mass action—RIFs targeting employees associated with diversity, equity, and inclusion (DEI) offices and roles. But some of these RIFs targeted employees who were no longer working in a DEI office or role at the time of separation, which runs counter to the bedrock requirement that RIFs target positions, not individuals.²¹ These DEI-related RIFs, including those OPM conducted on its own workforce, are currently the subject of challenges at the MSPB²² and in federal court²³ on the bases that they were conducted in violation of the RIF regulations, were discriminatory, and violated the First Amendment.

Following the issuance of an Executive Order calling for large-scale governmentwide RIFs and “workforce optimization,” OPM and the Office of Management and Budget (OMB) jointly directed agencies to develop RIF and reorganization plans consistent with the Trump-Vance administration’s priorities.²⁴ Multiple unions, employee organizations, local governments, and other groups challenged those actions in federal court, alleging that the directives exceed constitutional and statutory authority.²⁵ Courts have, in multiple instances, blocked or scrutinized aspects of the mass RIF efforts.²⁶ Rather than merely regulating RIF processes, OPM has assumed an operational role in driving and coordinating workforce reductions across agencies in a manner not previously seen before.

OPM also played an active role in RIFs planned for execution during the 2025 government shutdown. Litigation concerning those RIFs alleged that mass separations during that period would be inconsistent with the law.²⁷ A court found that those efforts were “both illegal and in excess of authority,” and granted a temporary restraining order blocking most agencies from proceeding with layoffs during the shutdown.²⁸

Still, over the past year, this administration has succeeded in using RIFs and related layoff maneuvers on an unprecedented scale.²⁹ In December 2025, the Administration announced that it had terminated 17,000 federal employees through RIFs in 2025 alone.³⁰ And that figure did not include the roughly 4,000 shutdown-related RIF notices issued earlier in the fall, most of which were blocked by a federal court.³¹

OPM is acting not as a neutral regulator but as a central operational driver of RIFs and removals. The wave of litigation and judicial intervention underscores the continued necessity of trusted procedures and objective factors in RIF retention.

ii. Broader Administration Efforts Also Seek to Undermine the Merit System and Dismantle Civil Service Guardrails

The proposal must also be understood within the broader context of the Trump-Vance administration’s open hostility toward the career civil service and its efforts to weaken the civil service guardrails Congress enacted in the Civil Service Reform Act.

Senior administration officials have repeatedly characterized career civil servants as corrupt, disloyal, or obstructive. President Trump has publicly disparaged federal workers and declared that agencies should fire “all” bureaucrats.³² Vice President J.D. Vance has stated that the President should “fire every single mid-level bureaucrat” and replace them with “our people.”³³ OMB Director Russell Vought has stated that bureaucrats should be placed “in trauma” so they do not want to go to work.³⁴

These statements have been operationalized through policy. The Administration has:

Reinstated and expanded Schedule Policy/Career to strip career civil service protections from broad categories of employees who purportedly work on or touch agency policy.³⁵
Created the excepted service Schedule G to expand political hiring authorities and political personnel.³⁶
Issued a “Merit Hiring Plan” that imposes a loyalty question, asking applicants for career civil service positions to identify which of the President’s Executive Orders are significant to them.³⁷

At the same time, the Administration has targeted independent institutions designed to enforce civil service protections:

Taken together, these actions reflect a coordinated expansion of executive control over hiring and firing to change the makeup of federal personnel, while weakening the independent institutions Congress created to enforce merit system principles.

iii. The Proposal Must be Viewed as Part of OPM’s Broader Workforce Agenda

OPM asks the public to treat this proposal as a technical refinement to RIF procedures. It is not. This proposal must be evaluated in context, described above, and alongside OPM’s related workforce rulemakings because the legality and real-world effect of elevating performance ratings in RIF retention depends on how those ratings are produced and how RIF actions may later be challenged. OPM instead analyzes this proposal in isolation, obscuring the cumulative effect of its broader workforce agenda.

Notably, OPM is simultaneously pursuing separate rulemakings that would make ratings distributions more forced, more centrally shaped, and less contestable. In its governmentwide performance appraisal proposed rule,⁴² OPM would remove the prohibition on forced distributions of performance ratings, eliminate negotiated grievance challenges to ratings, and remove mandatory higher-level review of low ratings. Notably, OPM states that ‘[r]emoving the categorical prohibition would allow OPM to require and enforce a pre-established agency-wide and government-wide distribution of performance ratings among all non-SES employees, for covered agencies and personnel.”⁴³ In its related managing senior professional performance proposed rule,⁴⁴ OPM and OMB would likewise authorize forced distributions for covered senior professionals and expand centralized review over ratings. Those proposals would alter the conditions under which ratings are generated and reviewed, and thus impact the reliability of the very ratings this proposal seeks to elevate.

The interaction between those proposals and this RIF proposal is direct and substantial. Here, OPM proposes to rank employees for retention largely by the numerical value assigned to their three most recent ratings of record, thereby making ratings far more important in deciding who is separated, demoted, or retained during a RIF. At the same time, OPM is separately proposing to make those ratings more distribution-sensitive and harder to challenge. Yet OPM does not meaningfully analyze that combined effect.

Nor is that the full picture. OPM is also separately proposing to remake the back-end review for RIFs themselves. In another proposed rule regarding RIF appeals,⁴⁵ OPM would remove RIF appeals from the MSPB, place adjudication of RIF appeals inside OPM, rely primarily on a paper record, curtail discovery and hearings, shift the burden toward the employee, and eliminate Federal Circuit review.⁴⁶ OPM states that it is also foreclosing grievance arbitration regarding RIFs asserting that this is to the benefit of agencies and employees alike.

Read together, the interlocking set of proposals would make RIFs more subjective, less contestable before independent and neutral adjudicators, and easier to use for targeting individuals rather than positions. OPM cannot justify this proposal by treating it as a standalone modernization while ignoring the way its related rulemakings work together to expand discretion on the front end and constrict review on the back end.

II. OPM Has Not Adequately Justified Making Performance Ratings the Dominant Factor in RIF Retention

The central premise of OPM’s proposal is that RIF outcomes will become more “merit-based” if performance ratings play a much larger role in determining who is retained. But performance already has a place in the current RIF framework. The real question is whether OPM has justified redesigning retention standing so that recent ratings become the principal determinant, while tenure and length of service are reduced to secondary considerations and veterans’ preference is converted into a limited numerical add-on within a performance-centered system.

Congress did not direct OPM to maximize the role of performance ratings in RIFs. It directed OPM to give “due effect” to tenure of employment, military preference, length of service, and efficiency or performance ratings in RIF regulations.⁴⁷ That language reflects a balancing judgment. Under the current regulations, retention standing is tilted toward objective ordering rules, with performance incorporated within a framework that gives substantial effect to tenure, veterans’ preference, and service.⁴⁸ OPM’s proposal flips that. It explicitly seeks to “prioritize[e] performance over tenure and length of service.”⁴⁹ Yet OPM does not adequately explain why the longstanding prioritization of experience, continuity, and service should now yield so sharply to appraisal outcomes.

That omission is particularly serious because ratings are not objective in the same way that tenure and service are objective. Service computation dates, veterans’ preference status, and tenure-group placement are knowable and comparatively resistant to manipulation. Performance ratings are not. Their usefulness depends on the quality of the appraisal system, the supervisors’ consistency in accurately rating employee performance, the availability of meaningful review, and the absence of pressure to generate predetermined distributions or outcomes. That concern is heightened here because the administration is separately seeking to make personnel decisions turn on alignment with the President’s policy priorities, including through actions like the Merit Hiring Plan and Schedule Policy/Career. OPM nonetheless proposes to treat recent ratings of record as comparable proxies for merit to dominate the layoff process. The proposal does not support that conclusion.

To the contrary, the proposal assumes reliability of performance appraisals while simultaneously pursuing changes that would make ratings more subjective, more centrally shaped, and less contestable. As described above, through separate rulemakings, OPM is seeking to allow forced distributions of ratings and impose caps or quota-like limits on top ratings. Federal personnel policy research cautions against the use of such forced distributions. In its study on designing effective pay-for-performance systems, the MSPB warned that forced distribution may undermine rating accuracy where the prescribed distribution does not match actual performance and may also pit employees against one another as they compete for scarce rewards, potentially reducing organizational performance where teamwork is valued.⁵⁰

Academic studies point in the same direction. Research shows that forced distribution rating systems can reduce team collaboration and knowledge sharing where work is interdependent.⁵¹ Other studies concluded that although forced distribution may in some circumstances improve short-term task performance, it may also reduce citizenship behavior and increase counterproductive behavior through perceptions of injustice and dysfunctional competition.⁵²

Another problem with the proposed move toward forced distribution is that it will inevitably require supervisors to distinguish among employees whose performance is quite similar. In many offices, multiple employees may be performing at a high level, meeting or exceeding expectations in ways that are difficult to differentiate cleanly. If a supervisor must nonetheless distribute top ratings more sparsely, then pressure would build to identify distinctions that may not reflect meaningful differences in performance. In that setting, forced distributions risk introducing subjective judgments about style, personality, or managerial preference.

EEOC guidance cautions against such unmoored appraisals. The Commission’s best-practices guidance for employers advises the use of “neutral and objective criteria” to avoid subjective employment decisions based on stereotypes or hidden bias.⁵³ When employers rely on subjective decision-making in appraisal systems, the risk of unfairness, hidden bias, retaliation, and discrimination complaints increases.

In these related rulemakings, OPM does not explain how supervisors are expected to rate similarly situated employees fairly and consistently if and when the available performance evidence does not naturally support a broad distribution of ratings. And in a RIF context, where the consequence is separation or demotion rather than a lesser personnel action, that failure is glaring.

These changes will produce inevitable consequences. For instance, OPM’s workforce data show that veterans make up a substantial share of the federal civilian workforce.⁵⁴ As of September 2024, more than 620,000 veterans worked in various federal departments and agencies, making up nearly a quarter of the federal government’s entire civilian workforce.⁵⁵ By comparison, veterans account for just 5% of all employed Americans.⁵⁶ As explained above, veterans’ preference is a statutory entitlement enacted by Congress to recognize the sacrifices of servicemembers and, in some circumstances, their family members. It is also a central reason retention factors were created in the first place. While the proposal retains veterans’ preference as a factor, it would dilute the preference in the RIF context. Current law gives veterans’ preference an independent place in the retention order. The proposal would demote it to a limited point add-on within the performance-driven ranking system. That is a significant change.

OPM has not adequately justified making performance the dominant factor in RIF retention, particularly within the context of their multitude of actions to corrupt performance ratings, nor has it shown that the redesign gives “due effect” to the statutory factors Congress identified.

III. OPM Has Not Adequately Justified Excluding Probationary Employees from RIF Competition

The proposed rule would categorically exclude employees serving an initial probationary or trial period from RIF competition. OPM offers several reasons for the change, including that probationary employees often lack ratings of record, their appointments have not yet been finalized, and agencies should have flexibility to retain or separate them outside formal RIF procedures.⁵⁷ Those rationales are insufficient.

Start with OPM’s primary explanation, that probationary employees will typically not have a sufficient ratings history and therefore do not fit well in a more performance-centered RIF scheme.⁵⁸ Employees who recently changed agencies, moved positions, entered new appraisal systems, or had interrupted service may also have incomplete histories. And the proposal already contains rules for handling missing ratings. Proposed § 351.503(f) would assign a modal value when an employee has no rating during the relevant period, provide a proxy value when an employee has only two ratings, and multiply a single rating when that is all that exists.⁵⁹ Those provisions reflect OPM’s recognition that incomplete rating histories do not automatically require exclusion from the retention system. Yet OPM never adequately explains why probationary employees uniquely require categorical exclusion rather than treatment through the same or a similar method.

OPM’s secondary rationale, that probationary employees have not yet completed the assessment period necessary to finalize their appointments, also falls short. It is generally true that the probationary period is designed to allow agencies to assess fitness and performance before an appointment becomes final.⁶⁰ MSPB has described probation as a “critical assessment opportunity,” and OPM has likewise advised supervisors to use the probationary period to evaluate whether a new employee has demonstrated fitness for continued employment.⁶¹ But that general proposition does not explain why probationary employees are excluded from RIF procedures altogether, especially since they have long been included.

OPM does not explain why any of the other features of probationary employees described in the proposal require excluding them from RIF procedures. In fact, its explanations point the other way. OPM says the exclusion would allow agencies to retain or separate probationary employees “without regard to RIF procedures” but suggests that this may make it “more likely” that some probationary employees could remain in federal service because agencies could keep them outside formal retention ordering.⁶² That acknowledges the value of these employees but the proposal replaces a rule-governed process with unstructured discretion and without the ordering principles that otherwise constrain RIF decisions.

This move appears driven by little more than the Trump-Vance administration’s demonstrated view that probationary employees should have no employment rights, even during RIFs. The administration’s assault on the civil service has extended to probationary employees, virtually all of whom had been hired or promoted by the previous administration. Shortly after the inauguration, OPM issued guidance on probationary periods, advising agencies that probationary periods are “an essential tool for agencies to assess employee performance and manage staffing levels,” and directing agencies to provide OPM with a list of all probationary employees, and instructing agencies to “promptly determine” whether probationary employees should be retained.⁶³ On February 11, 2025, the President issued an Executive Order directing agency heads to “promptly undertake preparations to initiate large-scale reductions in force…” and to develop “[r]eorganization [p]lans.”⁶⁴

OPM then directed agencies across the federal government to terminate their probationary employees en masse, apart from the highest performers in ‘mission critical’ roles and those within the scope of an OPM-approved exception.⁶⁵ Between February 12 and 14, 2025, the Trump-Vance administration initiated a sweeping governmentwide effort to terminate thousands of probationary federal employees.⁶⁶ At the time of the firings, there were approximately 200,000 probationary employees in the federal workforce.⁶⁷ The governmentwide terminations were reportedly executed without any individualized assessment of performance, conduct, or fitness for continued employment and many of the termination notices were riddled with errors. In subsequent litigation, a federal court held that the government’s mass probationary terminations violated federal law because OPM exceeded its authority by instructing agencies to fire employees.⁶⁸

Alternatively, the administration may be seeking to protect the probationary employees it hired under its corrupted hiring rules, allowing it to retain unrated, less senior new hires over longer tenured employees hired during prior administrations. Either approach is a departure from long standing merit principles.

In short, at the moment the administration is seeking to dismantle and reshape the career civil service along partisan lines and OPM is directing the termination of scores of probationary employees while hiring others under hiring rules that inject loyalty and partisanship into the hiring process, OPM now proposes to remove probationary employees from RIF retention altogether without sufficiently explaining its rationale.

IV. The Proposed Transfer-of-Function Changes Would Weaken Existing Retention Rights and Invite Evasion

OPM also proposes to narrow transfer-of-function protections in a way that would materially weaken employee rights during reorganizations. Under current regulations, transfer-of-function procedures apply when work is moved from one competitive area to another, including within a single agency.⁶⁹ OPM now proposes to revise those rules to apply only when a function moves from one agency to another, contending that 5 U.S.C. § 3503 speaks in terms of transfers “from one agency to another” and that current regulations therefore go beyond the statute’s text.⁷⁰ Even if that interpretation is correct, OPM must still adequately justify why changing this longtime regulatory process is appropriate now, especially in light of the administration’s expansive use of RIF authorities. It has not done so.

The current regulations serve an important function. They recognize that, as a practical matter, movement of work from one competitive area to another can threaten employee rights even when it occurs inside a single department rather than across agency boundaries.⁷¹ In large agencies, like the Department of Defense, Department of Homeland Security, or Department of Veterans Affairs, an internal transfer of function can be indistinguishable from an inter-agency transfer. Work may move from one component to another, from one region to another, or from one city to another, while the employees who had been performing that work lose relevant RIF procedures. The current regulations address that reality by preventing agencies from using internal organizational line-drawing to sidestep the RIF procedures and protections attached to a transfer of function. Narrowing transfer-of-function protections creates a substantial risk that internal realignments will be used not simply to improve agency missions but to avoid ordinary retention rights. OPM does not meaningfully address that danger.

V. OPM Has Not Seriously Engaged with Reliance Interests

In the proposed rule, OPM largely dismisses reliance interests. OPM’s entire treatment consists of requesting comments on reliance interests and stating that such comments would be addressed in any final rule.⁷² Administrative law requires an agency changing a longstanding regulatory structure to account for serious reliance interests created by the existing regime. OPM does not provide a reasoned analysis of reliance interests. It merely provides a placeholder.

The reliance interests here are substantial. Federal employees have long organized their careers around a settled RIF structure that gives meaningful weight to tenure, veterans’ preference, and length of service. Agencies, unions, employee representatives, and human-resources professionals have likewise built expectations and systems around that framework. When OPM proposes to change longtime RIF processes and to exclude whole categories of employees from formal RIF procedures, it must confront those reliance interests head on. It did not.

The Supreme Court has made clear that when an agency changes policy, it must provide a reasoned explanation and, where relevant, “assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.”⁷³ Reliance interests are not optional – they are an “important aspect of the problem” an agency must consider under arbitrary-and-capricious review.⁷⁴ And where, as here, the prior policy has structured expectations over a long period, the agency must offer a fuller justification than would be required in a blank-slate rulemaking.⁷⁵ OPM’s cursory treatment in the proposed rule does not begin to satisfy that standard.

That omission is compounded by the interaction, as explained above, between this proposal and OPM’s other workforce proposals. Before making ratings more consequential in RIFs, OPM should have considered whether it was appropriate to proceed first with changes to the underlying performance appraisal system, whether it should wait to assess the effects of those changes, or whether stronger service-based protections should be preserved unless and until the performance appraisal regime demonstrates sufficient consistency and fairness. Instead, OPM presses forward on multiple fronts at once and evaluates each proposal largely in isolation without providing a reliance analysis. That obscures the cumulative effect of OPM’s workforce changes. In a rulemaking of this significance, a plain statement seeking comment is not enough.

VI. The Proposal Would Harm Recruitment, Retention, and Confidence in Career Service and the Effective Provision of Government Services

The proposed rule, as presented, is also unsound as a matter of workforce policy. A professional civil service depends not only on formal legal protections, but on the perception and reality that career public servants are governed by stable rules rather than shifting political or managerial priorities. This proposal would undermine that confidence.

The federal government competes for talent in a labor market where many workers have alternatives outside government. For that reason, predictable retention rights and career protections are part of what makes federal service viable, especially for employees asked to commit to long careers in public service. A rule that weakens the predictability of retention rights during layoffs risks harming both retention and recruitment.

This proposal endangers those dynamics in several ways. The proposal sends a message that settled career protections matter less during restructurings and managerial discretion matters more. That message is likely to be heard by current employees and prospective applicants deciding whether federal service offers a stable and principled career path.

The effect on veterans is particularly important. Veterans’ preference has long reflected Congress’s judgment that military service should carry real weight in federal employment, including in RIF retention. A system that reduces that protection risks diminishing a substantive congressional safeguard.

The proposal also risks weakening agency capacity. Long-serving employees carry institutional knowledge, technical expertise, historical memory, and mission continuity that are not easily replaced. Tenure and service are imperfect proxies for those forms of value, but they are real proxies. OPM’s proposal gives insufficient regard to that reality. By treating service largely as an afterthought, the rule reflects a narrow conception of merit, one that privileges recent appraisal outputs over the accumulated experience that allows agencies to function effectively during periods of stress and change.

This concern is especially acute in the current environment of widespread reorganization and workforce instability under this administration. Whatever OPM’s stated intent, this is how the proposal is likely to be experienced by many employees. Once that confidence erodes, it is not easily rebuilt.

VII. Conclusion

For all these reasons, CSS urges OPM to withdraw the proposed rule.

Respectfully submitted,

/s/ Robert H. Shriver, III

Robert H. Shriver, III
Managing Director
Civil Service Strong and Good Government Initiatives
Democracy Forward Foundation

Endnotes

1
5 U.S.C. § 3502; 5 C.F.R. § 351.201(a)(2).
2
See James v. Von Zemenszky, 284 F.3d 1310, 1314 (Fed. Cir. 2002) (citing Huber v. Merit Sys. Prot. Bd., 793 F.2d 284, 286 (Fed. Cir.1986)). Whether an action must follow RIF procedures turns on the nature of the action, not the label an agency applies. The Federal Circuit has defined a RIF as “an administrative procedure by which agencies eliminate jobs and reassign or separate employees who occupied the abolished positions,” emphasizing that “[a] RIF is not an adverse action against a particular employee, but is directed solely at a position within an agency.” Id.
3
See Off. of Pers. Mgmt, Proposed Rule, Reduction in Force Appeals, 91 Fed. Reg. 5861, 5863 (Feb. 10, 2026) (explaining that “Congress establish[ed] the first retention system in 1876, which prioritized veterans of the Civil War above others when RIFs occur.”); U.S. Senate Committee on Post Office and Civil Service, ‘Reduction-in Force System in the Federal Government,’ (July 4, 1952), p. 61, https://babel.hathitrust.org/cgi/pt?id=uc1.31210024942615&seq=31 (“The first retention system for Federal employees was established when Congress in 1876 mandated that each department retain discharged veterans over non-veterans in a reduction-in-force. This established veterans preference as the first RIF retention factor. With the passage of the Civil Service Act in 1883, the principle of veterans preference, as well as that of competitive appointment, was established by law.”).
4
Congress first enacted the RIF-retention mandate in section 12 of the Veterans’ Preference Act of 1944, Pub. L. No. 78-359, ch. 287, § 12, 58 Stat. 387, 390, which required reductions in personnel to be made under Civil Service Commission regulations giving “due effect” to “tenure of employment, military preference, length of service, and efficiency ratings.” The provision was later codified at former 5 U.S.C. § 861 and recodified as 5 U.S.C. § 3502 in the 1966 positive-law codification of Title 5. See 5 U.S.C. § 3502 hist. & rev. notes.
5
See 9 Fed. Reg. 13699 (Nov. 16, 1944).
6
See 10 Fed. Reg. 12181 (Sept. 28, 1945).
7
5 C.F.R. § 351.402.
8
5 C.F.R. § 351.403.
9
5 C.F.R. §§ 351.501–351.504.
10
See Hill v. Dep’t of Commerce, 25 M.S.P.R. 205 (1984) (holding that proper application of the RIF procedures “is a substantive right, rather than a procedural requirement.”).
11
Id. It must be noted, though, that OPM is attempting to change these burdens in agencies’ favor via a separate rulemaking targeting RIF appeals. See Off. of Pers. Mgmt., Proposed Rule, Reduction in Force Appeals, 91 Fed. Reg. 5861, 5867 (Feb. 10, 2026) (“The proposed revision also places the burden of proving, by a preponderance of the evidence, the timeliness and proper venue for the appeal on the employee. The rule would provide that the employee, also by preponderance of the evidence, has the burden of proving that the RIF action subject to appeal was conducted inconsistent with either statute or OPM regulations such that the employee would not have suffered the same or another RIF action if properly conducted.”).
12
91 Fed. Reg. at 10919 (describing tenure and length of service as “tiebreakers”).
13
Id. at 10911-15, 10928-30.
14
Id. at 10919 (“Specifically, when determining the order in which employees are placed on a RIF retention register, agencies will do so on the basis of whether the employee is in the competitive service tenure group or excepted service tenure group. Within each group, employees will be ranked based on performance, as augmented by additional points for veterans’ preference.”).
15
Id. at 10922 (“These rules exclude individuals serving probationary and trial periods from the coverage of RIF procedures, along with competitive service tenure group and the excepted service tenure group, plus two tenure subgroups, which OPM believes will simplify and streamline RIF procedures.”).
16
Id. at 10909 (“Finally, proposed § 351.203 modifies the definition of transfer of function to adhere to the text of the applicable statute enacted by Congress to govern transfers of function, 5 U.S.C. 3503. That statute only applies to a situation ‘[w]hen a function is transferred from one agency to another….’”).
17
See Economic Policy Inst., OPM Directs Federal Agencies to Fire Recently Hired Probationary Employees (Sept. 18, 2025), https://www.epi.org/policywatch/opm-directs-federal-agencies-to-fire-recently-hired-probationaryemployees/.
18
See Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, 799 F.Supp.3d 967, 994 (N.D. Cal. 2025). The court explained that: The OPM directive was arbitrary and capricious: It directed the termination of over 25,000 probationers across the federal government “based on [their] performance” pursuant to Sections 315.803 and 315.804 without any consideration of actual performance or conduct, or any “rational connection between the facts found and the choice made.” The record contains repeated, unequivocal direction to agencies that “agencies must identify performance or conduct deficiencies in the notice terminating a probationer”. The record does not contain a single mention of any performance deficiency on the part of any probationer terminated pursuant to OPM’s directive. Even where OPM granted agencies’ pleas for exemptions, it provided “no explanation at all” for doing so. (internal citations omitted).
19
See Am. Fed’n of Gov’t Emps., AFL-CIO v. Trump, No. 3:25-cv-03698 (N.D. Cal. filed Apr. 28, 2025).
20
See Am. Fed’n of Gov’t Emps, Judge Rules Mass Termination of Probationary Federal Workers Illegal (Sept. 15, 2025), https://www.afge.org/publication/judge-rules-mass-termination-of-probationary-federal-workers-illegal/.
21
Jory Heckman, Federal Employees Who Left DEI Roles Still Fired Under Trump Administration Purge, Lawsuit Claims, Fed. News Network (Dec. 2025), https://federalnewsnetwork.com/federal-report/2025/12/federal-employees-who-left-dei-roles-still-fired-under-trump-administration-purge-lawsuit-claims/.
22
Andrea Hsu, They had left their DEI roles. Trump still fired them, NPR (Apr. 7, 2025), https://www.npr.org/2025/04/07/nx-s1-5348922/trump-dei-federal-employees-firing; Adam Bartow, Maine federal worker leading class-action lawsuit against the Trump administration, WMTW (May 27, 2025), https://www.wmtw.com/article/maine-federal-worker-class-action-lawsuit-trump-dei/64299775.
23
ACLU of DC, Former Federal Employees Sue Trump Administration for First Amendment Violations and Discrimination (Dec. 3, 2025), https://www.acludc.org/press-releases/former-federal-employees-sue-trump-administration-for-first-amendment-violations-and-discrimination/.
24
Memo. from Russell Vought, Dir., Off. of Mgmt. & Budget, & Charles Ezell, Acting Dir., Off. of Pers. Mgmt., to Heads of Executive Departments and Agencies, Guidance on Agency RIF and Reorganization Plans (Feb. 26, 2025), https://www.opm.gov/chcoc/transmittals/2025/OPM_OMB%20- %20guidance%20on%20DOGE%20workforce%20EO%202.26.25%20FINAL.pdf.
25
AFGE, Summary of AFGE Lawsuits Against Trump — How Litigation Works (2025), https://www.afge.org/article/summary-of-afge-lawsuits-against-trump–how-litigation-works-2/.
26
Nick Bednar, Reductions in Force Challenges in the Federal Courts, Lawfare (July 17, 2025), https://www.lawfaremedia.org/article/reductions-in-force-challenges-in-the-federal-courts (identifying, to date, “every case where the district court considered a temporary restraining order (TRO), a preliminary injunction (PI), or a motion for summary judgment (SJ) involving RIF-related claims.”).
27
Faith Wardwell, Labor unions sue OMB, OPM for ‘unlawful’ threats of mass layoffs ahead of shutdown, Politico (Sept. 30, 2025), https://www.politico.com/news/2025/09/30/labor-unions-sue-omb-opm-00589170.
28
Jory Heckman, Court Blocks Trump Administration’s Latest Mass Layoffs for Federal Employees, Fed. News Network (Oct. 2025), https://federalnewsnetwork.com/government-shutdown/2025/10/court-blocks-trump-administrations-latest-mass-layoffs-for-federal-employees/.
29
See Jacob Leibenluft , Devin O’Connor and Sam Berger, Administration’s Abuse of Layoff Powers Shows Need for Congressional Action, Ctr. on Budget & Policy Priorities (Dec. 15, 2025), https://www.cbpp.org/research/federal-budget/administrations-abuse-of-layoff-powers-shows-need-for-congressional-action.
30
Id.
31
Jory Heckman, Most, but not all shutdown RIFs blocked by injunction, agencies tell court, Fed. News Network (Nov. 5, 2025), https://federalnewsnetwork.com/government-shutdown/2025/11/most-but-not-all-shutdown-rifs-blocked-by-injunction-agencies-tell-court/; Eric Katz, Shutdown layoffs indefinitely blocked following new court injunction, Gov. Exec. (Oct. 28, 2025), https://www.govexec.com/workforce/2025/10/shutdown-layoffs-indefinitely-blocked-following-new-court-injunction/409120/.
32
Erich Wagner, Trump: Agencies Should Fire “All” Bureaucrats, Gov’t Exec. (Jan. 20, 2025), https://www.govexec.com/workforce/2025/01/trump-agencies-should-fire-all-bureaucrats/402353/?oref=ge-related article.
33
Joe Davidson, Trump’s Second-Term Agenda Plans a Purge of the Federal Workforce, Wash. Post (July 26, 2024), https://www.washingtonpost.com/politics/2024/07/26/trump-agenda-project-2025-federal-workers-schedule-f/.
34
Molly Redden, Andy Kroll & Nick Surgey, “Put Them in Trauma”: Inside a Key MAGA Leader’s Plans for a New Trump Agenda, ProPublica (Oct. 28, 2024), https://www.propublica.org/article/video-donald-trump-russ-vought-center-renewing-america-maga.
35
Exec. Order No. 14171, 90 Fed. Reg. 8625 (Jan. 20, 2025); Alan Rappeport, Federal Employees Union Sues Trump Over Worker Protections, N.Y. Times (Jan. 21, 2025), https://www.nytimes.com/2025/01/21/us/politics/trump-schedule-f-federal-workers.html.
36
Exec. Order No. 14317, 90 Fed. Reg. 34753 (July 17, 2025); Eric Katz, Trump Creates ‘Schedule G’ to Add More Political Appointees to Agencies’ Top Ranks, Gov’t Exec. (July 18, 2025), https://www.govexec.com/management/2025/07/trump-creates-schedule-g-add-more-political-appointees-agencies-top-ranks/406833/.
37
Off. of Pers. Mgmt., Merit Hiring Plan (May 29, 2025), https://www.opm.gov/chcoc/latest-memos/merit-hiring-plan.pdf; Ellen Nakashima & Warren Strobel, U.S. Intelligence, Law Enforcement Candidates Face Trump Loyalty Test, Wash. Post (Feb. 9, 2025), https://www.washingtonpost.com/national-security/2025/02/08/trump-administration-job-candidates-loyalty-screening/.
38
Michele Sandiford, White House Fires Head of Merit Systems Protection Board, Fed. News Network (Feb. 12, 2025), https://federalnewsnetwork.com/workforce/2025/02/white-house-fires-head-of-merit-systems-protection-board/.
39
Jacob Rosen & Melissa Quinn, Head of Federal Whistleblower Office Drops Legal Battle Challenging His Firing, CBS News (Mar. 7, 2025), https://www.cbsnews.com/news/special-counsel-whistleblower-office-trump-firing-hampton-dellinger/.
40
Erich Wagner, Trump Apparently Fires FLRA Chairwoman, Gov’t Exec. (Feb. 11, 2025), https://www.govexec.com/workforce/2025/02/trump-apparently-fires-flra-chairwoman/402933/.
41
Michael Kunzelman, Judge Blocks Trump Administration from Nixing Collective Bargaining for Most Federal Employees, Associated Press (Apr. 25, 2025), https://federalnewsnetwork.com/congress/2025/04/judge-blocks-trump-administration-from-nixing-collective-bargaining-for-most-federal-employees.
42
Off. of Pers. Mgmt., Proposed Rule, Performance Appraisal for General Schedule, Prevailing Rate, and Certain Other Employees, 91 Fed. Reg. 8780 (Feb. 24, 2026).
43
Id. at 8787.
44
Off. of Pers. Mgmt., Proposed Rule, Managing Senior Professional Performance, 91 Fed. Reg. 8763 (Feb. 24, 2026).
45
Off. of Pers. Mgmt., Proposed Rule, Reduction in Force Appeals, 91 Fed. Reg. 5861 (Feb. 10, 2026).
46
See id.
47
5 U.S.C. § 3502.
48
5 C.F.R. §§ 351.501–.504.
49
91 Fed. Reg. at 10904, 10905-06, 10913-14, 10922-23.
50
U.S. Merit Sys. Protection Bd., Designing an Effective Pay for Performance Compensation System, pp. 22-25 (Jan. 2006), https://www.mspb.gov/studies/studies/Designing_an_Effective_Pay_for_Performance_Compensation_System_2241 04.pdf.
51
See Linda Loberg Forced Distribution Rating Systems and Team Collaboration, 192 J. Econ. Behav. & Org., (2021), https://www.sciencedirect.com/science/article/pii/S0167268121001827.
52
Sue H. Moon, Stephen E. Scullen & Gary P. Latham, Precarious Curve Ahead: The Effects of Forced Distribution Rating Systems on Job Performance, 26 Hum. Res. Mgmt. Rev. 166 (2016), https://www.sciencedirect.com/science/article/abs/pii/S1053482215300024.
53
U.S. E.E.O.C, Best Practices for Employers and Human Resources/EEO Professionals, https://www.eeoc.gov/initiatives/e-race/best-practices-employers-and-human-resourceseeo-professionals. EEOC advises employers to “[e]stablish neutral and objective criteria” to avoid subjective employment decisions based on personal stereotypes or hidden biases.” MSPB has also recognized that favoritism is contrary to the ideals of the federal merit systems and that employee perceptions of favoritism can damage trust in the fairness of government personnel practices. Merit Sys. Protection Bd., Preserving the Integrity of the Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism (Dec. 2013), https://www.mspb.gov/studies/studies/Preserving_the_Integrity_of_the_Federal_Merit_Systems_Understanding_an d_Addressing_Perceptions_of_Favoritism_945850.pdf.
54
Off. of Pers. Mgmt., FY 2024 Employment of Veterans and Military-Connected Spouses and Survivors in the Federal Executive Branch Report (Jan. 2026), https://www.opm.gov/fedshirevets/hiring-officials/veteran-employment-data/fy-2024-employment-of-veterans-and-military-connected-spouses-and-survivors-in-the-federal-executive-branch-report.pdf.
55
Id.
56
Drew Desilver, What we know about veterans who work for the federal government (Apr. 10, 2025), Pew Research Ctr., https://www.pewresearch.org/short-reads/2025/04/10/what-we-know-about-veterans-who-work-for-the-federal-government/#:~:text=How%20many%20federal%20workers%20are,t%20typically%20considered%20%E2%80%9Cemployees.%E2%80%9D.
57
91 Fed. Reg. at 10908-09.
58
Id. at 10908.
59
Id. at 10915-18, 10930.
60
See 5 U.S.C. § 3321.
61
Merit Sys. Protection Bd., The Probationary Period: A Critical Assessment Opportunity (Aug. 2005), https://www.mspb.gov/studies/studies/The_Probationary_Period_A_Critical_Assessment_Opportunity_(2005)_224555.pdf; Off. of Pers. Mgmt. Practical Tips for Supervisors of Probationers, https://www.opm.gov/policy-data-oversight/hiring-information/practical-tips-for-supervisors-of-probationers/.
62
91 Fed. Reg. at 10908–09.
63
See Exec. Order 14,158, Establishing and Implementing the President’s “Department of Government Efficiency, 90 Fed. Reg. 8441 (Jan. 20, 2025); Off. of Pers. Mgmt., Guidance on Probationary Periods, Administrative Leave and Details (Jan. 20, 2025).
64
Exec. Order 14,210, Implementing The President’s “Department of Government Efficiency” Workforce Optimization Initiative, 90 Fed. Reg. 9669 (Feb. 11, 2025); see White House, Fact Sheet: President Donald J. Trump Works to Remake America’s Federal Workforce (Feb. 11, 2025) (explaining that DOGE will assist with “shrink[ing] the size of the federal workforce,” “large-scale reductions in force,” “reducing the size and scope of the federal government,” and “shrink[ing] the administrative state.”).
65
AFGE v. OPM, 799 F. Supp. 3d 967 (N.D. Cal. 2025), appeal docketed No. 25-5875 (9th Cir. Sept. 18, 2025).
66
Michael Embrich, Trump and Musk’s Valentine’s Day Massacre of Military Veterans, Rolling Stone (Feb. 14, 2025), https://www.rollingstone.com/politics/political-commentary/trump-musk-lay-off-veterans-affaris-staffers-1235268532/.
67
Tami Luhby et al., Thousands of probationary employees fired as Trump administration directs agencies to carry out widespread layoffs, CNN (Feb. 14, 2025), https://www.cnn.com/2025/02/14/politics/probationary-federal-employees-agencies-firings-doge.
68
See AFGE, Judge Rules Mass Termination of Probationary Federal Workers Illegal, (Sept. 15, 2025), at https://www.afge.org/publication/judge-rules-mass-termination-of-probationary-federal-workers-illegal/.
69
See 5 C.F.R. § 351.301.
70
See 91 Fed. Reg. at 10909, 10927.
71
See 5 C.F.R. §§ 351.301–.302.
72
Id. at 10922.
73
Dep’t of Homeland Sec. v. Regents of the Univ. of Calif., 591 U.S. 1, 30, 33 (2020) (“When an agency changes course, as DHS did here, it must be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.”) (citations and internal quotation marks omitted).
74
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (explaining that an agency’s failure to consider an “important aspect of the problem” makes that agency action arbitrary and capricious); see Regents of the Univ. of Calif., 591 U.S. at 33 (holding that failure to consider reliance interests was arbitrary and capricious).
75
FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (changing policies means an agency must provide a more detailed justification “than what would suffice for a new policy created on a blank slate” if “for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account.”), see also Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 222 (2016) (agency must provide a reasoned explanation when changing longstanding policy in a way that disrupts serious reliance interests).

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