Why don't you leave a Comment on the proposed Civil Service Rule on or before June 7? You still have time to affect the outcome. Go ahead, affect the outcome.
Here is a Comment I left yesterday. It may be different from yours. That's okay. Go ahead and affect the outcome in your own words with your own thoughts.
Agency: Office of Personnel Management.
Docket ID: OPM-2025-0004.
RIN 3206-AO80.
This proposed rulemaking is titled "Improving Performance, Accountability and Responsiveness in the Civil Service," but it should not survive judicial review because it violates at least sections 706(2)A), (D), and (F) of the Administrative Procedure Act (APA):
The reviewing court shall--
* * *
(2) hold unlawful and set aside agency action, findings, and conclusions found to be--
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
* * *
(D) without observance of procedure required by law;
* * *
or
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
5 U.S.C.A. § 706(2)(A), (D) & (F).
When reviewing agency action under the "arbitrary and capricious" standard under the Administrative Procedure Act (APA), reviewing courts should not always substitute their judgment for the agency's judgment. However, reviewing courts should always instead determine whether (1) the agency in question has actually considered the relevant data and (2) stated a satisfactory explanation for its action, including whether the agency has made a legally sufficient showing in its explanation of a rational connection between the facts found by the agency and the choice made by the agency.
In any case, the agency may not proffer "conclusory statements or unsubstantiated claims in defense of its decisions. Yet OPM has done precisely that here." OPM must offer more by way of evidence to support its decision than its own 'say so' in support. "Reviewing courts are not obliged, in the name of judicial deference, to uphold agency action on the basis of purely self-serving statements." Nat'l Treasury Ees. U. v. Horner, 654 F. Supp. 1159, 1163 (D.D.C. 1987), aff'd in part, remanded with directions, 854 F.2d 490 (D.C. Cir. 1988).
OPM's proposed rule-making here would make thousands of federal employees who currently enjoy protections from adverse actions, "at-will" employees without protection from adverse actions of their superiors who temporarily occupy the federal government. See 90 FR at 17182, in the first paragraph of OPM's "Summary" Section:
Yet they will be at-will positions excepted from adverse action procedures or appeals.
OPM's proposed removal of protections from adverse action in federal employment is supported in this rule-making only by polls (which OPM denominates as "surveys"), anecdotes, and speculation. It is not supported by evidence, as required.
Instead of providing evidence and a record, OPM has provided the supposed opinions of unknown, unidentified persons in the federal government who apparently have complained about how hard they find it to fire their subordinates. After pages of polls, anecdotes, and speculation, OPM then offers its conclusion which simply does not follow from all or any of these polls, anecdotes, and speculation:
OPM now recognizes that the weight of evidence shows that chapter 43 and 75 procedures [defined by the OPM as "adverse action procedures or appeals," 90 FR 17182] make effectively addressing poor performance, misconduct, and corruption difficult.
90 FR at 17191.
It is tempting to say that if OPM supervisors find it "difficult" to address poor performance, misconduct, and corruption unless they are permitted to take away other people's protections from adverse employment actions, then they should find a job that is not so "difficult" for them.
Yet that observation is actually not snide, it seems. It is at the heart of the defect in this attempted rule-making.
OPM is tasked with finding a way of dealing with employee discipline that is supported by the record, and is not arbitrary, capricious, or illegal but is instead rational and related to the evidence it has provided in support of its decision.
OPM has not provided evidence in support of its decision, and its decision is not rational or related to the "record," such as it is. There is actually no legally sufficient record for this rule-making.
Further, OPM offers no proof at all that chapter 43 and 75 procedures are the cause of OPM's concerns with removing unperforming federal employees, or for that matter, that the current procedures cannot be changed or supplemented.
This is indicative of OPM's overall approach to this rule-making. OPM has ignored alternatives at every step it has taken along the way toward its conclusion, alternatives that OPM was required to address and which OPM did not address at any point.
For all these reasons, whether taken separately or together, this proposed rule should not be finalized. It should instead be withdrawn. If it is not withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.
Thank you for your consideration.
Please read the disclaimer. ©2025 Dennis J. Wall. All rights reserved. Interested in many things including Claims and Bad Faith Law? Sign up for a free subscription to my Substack newsletter.
One Last Time ... (Today is the Deadline to Comment.)
As I wrote before, so one last time it's worth the asking for sure: Why don't you leave a Comment on the proposed Civil Service Rule on or before today, June 7? You still have time to affect the outcome. Go ahead, affect the outcome.
And here is a Comment I left yesterday. It may be different from the one you will leave today. That's okay. Go ahead and affect the outcome in your own words with your own thoughts.
Agency: Office of Personnel Management.
Docket ID: OPM-2025-0004.
RIN 3206-AO80.
This proposed rulemaking by the Office of Personnel Management is titled "Improving Performance, Accountability and Responsiveness in the Civil Service." OPM is not authorized to issue this proposed rule-making. To the contrary, OPM is prohibited by the governing statutes enacted by Congress from promulgating this proposed rule-making.
OPM's instant rule-making is at once both unauthorized, and contrary to OPM's rule-making authorization extended by Congress.
OPM is the creature of an Act of Congress. From its inception in 1978, OPM was required by Congress to abide by Congressionally required protections afforded by the laws enacted by Congress. See, e.g., 5 U.S.C.A. § 1103(a)(5)(A), providing that the Director of OPM's functions include "executing, administering, and enforcing (A) the civil service rules and regulations of the President and the Office and the laws governing the civil service" (emphasis added); and id., § 1103(b), which requires OPM when promulgating rules to follow notice and comment procedures established by Congress in the Administrative Procedure Act (APA).
In recognition of the obvious fact that from its inception, OPM has been required by Congress to promulgate rules governing the civil service which are subject to laws enacted by Congress, OPM seems to have followed the APA's notice and comment procedures here, in the instant proposed rule-making, for example.
The focus of OPM's instant proposed rule-making is on efficiency of the civil service. OPM has been authorized by Congressional statute to prescribe rules for agencies to take action "against an employee only for such cause as will promote the efficiency of the service." 5 U.S.C.A. § 7513(a). OPM acknowledges that this is the source of what OPM calls "[m]odern adverse action procedures for most Federal employees[.]" See 90 FR at 17199.
In addition, agencies have been authorized by Congress to "reduce in grade or remove an employee for unacceptable performance," subject to the provisions of Section 4303, 5 U.S.C.A. § 4303(a), which of course include its remaining subsections, id., § 4303(b)-(d).
But the rules which Congress has authorized OPM to prescribe must include notice and opportunity to be heard, standard Constitutional protections of Due Process, prescribed by Congress. See, e.g., 5 U.S.C.A. § 7513(b)-(e); 5 U.S.C.A. § 4303(b)-(d).
OPM's proposed rule-making does not afford Due Process protections of any kind. OPM does not follow either Section 7513 or Section 4303 in this regard. To the contrary, a clear result of finalizing OPM's Proposed Rule would be to circumvent the Due Process protections enacted by Congress in those Sections of the United States Code.
OPM's proposed rule-making does not offer any substitute for the Due Process protections afforded by Section 4303 or by Section 7513. To the contrary, in this Proposed Rule OPM would remove or eliminate those protections for the thousands of workers that would be covered by this rule-making should it be finalized.
For these reasons, whether they are taken separately or together, OPM's proposed rule should not be finalized and, if finalized, it should instead be rewritten or totally withdrawn, but if it is not rewritten or withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.
OPM's instant rule-making is arbitrary and capricious for at least two reasons as a result: (1) failure to offer an alternative and (2) failure to tailor rules to address the narrowest possible focus without adversely affecting employee rights.
As noted, OPM's rule-making does not provide any substitutes of any kind for the notice and opportunity to be heard, i.e., Due Process, provisions extended by Congress to federal workers. See, e.g., 5 U.S.C.A. § 4303(b)-(d); 5 U.S.C.A. § 7513(b)-(e). This failure alone dooms the proposed rule-making. If the law is followed by OPM, then this proposed rule-making should not be finalized. If for some reason this proposed OPM rule-making is made final, the reviewing courts must declare it invalid and unauthorized.
Second, OPM's proposed rule-making for the same reasons does not address the narrowest possible focus of the concerns OPM expresses in it, without adversely affecting employee rights by its proposed rule-making. In this case, OPM ultimately states its apparently foregone conclusion that efficiency of the federal civil service can only be improved by removing the Due Process protections established by Congress. This failure, too, dooms the proposed rule-making. If the law is followed by OPM, then this proposed rule-making should not be finalized. If for some reason this proposed OPM rule-making is made final, the reviewing courts must declare it invalid and unauthorized.
For all of the reasons expressed in this Comment, whether taken separately or together, OPM's proposed rule should not be finalized. It should instead be rewritten or simply withdrawn. If it is not rewritten or withdrawn, it should be declared arbitrary and capricious by every reviewing court and its enforcement should be enjoined.
Thank you for your consideration.
Please read the disclaimer. ©2025 Dennis J. Wall. All rights reserved. Interested in many things including Claims and Bad Faith Law? Sign up for a free subscription to my Substack newsletter.
Posted by Dennis Wall on June 07, 2025 at 09:25 AM in "By What Authority?", Comments to Proposed Rules Changes, Rules and regulations | Permalink | Comments (0)
Tags: #ArbitraryAndCapricious, #CivilService, #DueProcess, #OPM, #Protections, #Rule-Making