by Martin H. Malin

Historical Background

President Andrew Jackson’s election in 1828 ushered in the “spoils system” whereby hiring and retention of government employees was dependent on their loyalty to the President. Support for civil service reform began to build after the Civil War; and in 1881, a disappointed job seeker assassinated President James A. Garfield.  This led Congress to enact the Pendleton Act in 1883.

The Pendleton Act established a three-member Civil Service Commission, charged with developing and implementing competitive examinations for filling vacancies in “classified” positions. “Classified positions” are jobs in government agencies that are protected from political influence, and applicants for these roles must pass a competitive examination process to demonstrate their competence and qualifications. The goal was to ensure a professional, efficient, and unbiased government workforce. The Act also prohibited discharging classified employees for refusing to engage in political activity. When the Act was passed, approximately 10% of the federal workforce were classified but by 1919, over 70% of federal government positions were. In 1912, Congress amended the Pendleton Act to require government agencies to have cause “related to the efficiency of the service” to terminate classified employees.

Over time, the Civil Service Commission developed dual functions: it was the primary human resources manager for the federal government, and it was the adjudicator of federal employees’ appeals of terminations and other adverse employment actions.

Recognizing the inherent tension in these dual functions, Congress enacted the Civil Service Reform Act of 1978 (CSRA). The CSRA replaced the Civil Service Commission with the Office of Personnel Management (OPM) to serve as the primary HR manager and the Merit Systems Protection Board (MSPB) to adjudicate appeals from adverse employment actions. The CSRA also created the Office of Special Counsel (OSC) within the MSPB to, among other things, investigate and prosecute prohibited personnel practices. In 1989, OSC became a separate independent agency, headed by the Special Counsel who is appointed by the President and confirmed by the Senate.

Current Structure and Administrative Procedures

OPM is headed by a director who is appointed by the President and confirmed by the Senate. The Director is responsible for overseeing traditional human resource management functions, such as hiring, performance management, and separation from employment.

The Merit Service Protection Board has three members appointed by the President and confirmed by the Senate, who serve staggered seven-year terms. No more than two MSPB members may be from the same political party. Unlike most agencies where the President is empowered to name one member as the Chair and the chairmanship generally changes with a change in Administration, the MSPB Chair is separately nominated by the President and confirmed by the Senate for a seven-year term.

When an employee has an adverse employment action, such as a suspension, demotion, or discharge, the employee can file an adverse action appeal in an MSPB regional office. The appeal is heard by an MSPB Administrative Judge (AJ) whose decision may be appealed to the three-member Board. Board decisions may be appealed to the U.S. Court of Appeals for the Federal Circuit.

OPM and MSPB are responsible for the functions of those departments which fall under the purview of the Executive Branch. With a few exceptions, executive branch employees fall into one of three categories: (1) competitive service, (2) senior executive service and (3) excepted service.

Competitive Service

The Competitive Service gets its name from competitive examinations that OPM used to administer to candidates for hire. Prior to 2010, when an agency wished to fill a position, OPM would issue a certificate containing the top-rated individuals from the civil service examination in the relevant category, providing three names for each vacancy. A 2010 Presidential Memorandum required agencies to cease using this “rule of three” approach and to move to a system using category ratings that ranked individuals for the hiring official’s consideration. Some agencies still use written exams to identify candidates, but most use occupational questionnaires and structured interviews conducted by OPM-certified examiners.

Federal employees who are members of the Competitive Service serve a one-year probationary period. After that, they are protected against “adverse actions,” which may be imposed only “for such cause as will promote the efficiency of the service.”

An agency that intends to carry out an adverse action must give the employee at least 30 days’ written notice, stating the specific reasons for the action unless there is reasonable cause to believe that the employee committed a crime punishable by imprisonment. The agency must provide the employee with a reasonable amount of time – at least seven days – to answer the charges orally or in writing and must permit the employee to have representation by counsel or other representative. The agency must provide the employee with a written decision with specific rationale for the adverse action. The employee may appeal the decision to the MSPB within 30 days.

Before the MSPB AJ, the agency must prove the charges by a preponderance of the evidence; must prove a nexus between the alleged misconduct and the efficiency of the service; and must show that the penalty imposed was reasonable.

Under a statute enacted in 2017, Veterans’ Administration (VA) employees have fewer protections. VA employees have only ten days to appeal an adverse action and the MSPB AJ must complete the appeal process within 180 days. Most significantly, the agency is not required to prove the charges by a preponderance of the evidence; instead, it need only show that the charges are supported by substantial evidence. The statute also prohibits the MSPB from reducing the penalty that the VA imposed.

Competitive Service employees who are covered by collective bargaining agreements (CBAs) may bypass the MSPB appeal process and grieve and arbitrate adverse actions imposed on them in accordance with the terms of the CBA. The arbitrator is required to apply the same legal standard as an MSPB AJ would. Federal employees represented by unions may choose to grieve and arbitrate adverse actions or may appeal them to the MSPB. They may not pursue both.

Senior Executive Service

Senior Executive Service (SES) are employees above pay grade GS-15 who direct the work of an organizational unit, are held accountable for the success of a program or project, monitor progress toward organizational goals and make necessary adjustments, supervise the work of employees other than personal assistants, or otherwise exercise executive functions. OPM administers peer Qualification Review Boards who certify individuals as SES eligible. Agencies establish Executive Resources Boards which review and rank candidates and recommend the best qualified candidates from which the hiring official makes a selection.

SES employees serve a one-year probationary period. An agency may remove an SES employee to a non-SES position by giving the employee 30 days’ notice. The employee may request an informal hearing before an MSPB AJ. The AJ conducts the hearing and refers the record to OPM, the Special Counsel and the agency. The employee is not entitled to any further review.

An SES employee who may be removed from the federal service entirely has procedural and appeal rights comparable to those of Competitive Service employees. Under the 2017 statute, SES employees in the VA must file responses to notice of proposed adverse action within seven days and the VA must make a final decision within 15 days. The SES employee may appeal the decision to an internal grievance process established by the VA. The results of the grievance appeal may be appealed to court and are subject to being overturned if they are arbitrary or capricious or not supported by substantial evidence.

The Excepted Service

Excepted Service are non-SES positions for which a competitive exam is not practical. Most attorney positions, teachers and administrators at Defense Department schools, and patent examiners are Excepted Service. Employees in Excepted Service positions have a two-year probationary period after which they have MSPB appeal rights.

Certain Excepted Service positions are classified as Schedule C. These are political appointees. Occupants of these positions do not have MSPB appeal rights.

On October 21, 2020, President Trump issued an Executive Order creating a new Schedule F, consisting of positions of a confidential, policymaking, policy-determining or policy-advocating nature. He gave the agency heads 90 days to identify positions to be moved to Schedule F, and another four months to finalize reclassifications. Employees in Schedule F positions may be hired and fired at will. On January 21, 2021, President Biden revoked the Executive Order. However, on January 20, 2025, President Trump issued a new Executive Order reviving Schedule F.

What About Probationary Employees?

Probationary employees do not have MSPB appeal rights. They are, however, protected against adverse actions imposed on them because of their protected characteristics (such as race, sex, national origin, religion, disability, age,) or protected activity (such as military service, whistleblowing and union activity). They may also complain to the Special Counsel if they believe they have been victims of prohibited personnel practices.

 On February 13, 2025, OPM directed all federal agencies to terminate their probationary employees. The directive included a standard notice the agencies were to send each terminated employee stating that the termination was for performance reasons. Several unions have sued in U.S. District Court for the Northern District of California to overturn the action. The Unions contend that the directive exceeded OPM’s authority because each agency is responsible for evaluating and otherwise managing its employees. On February 27, 2025, the judge orally granted a temporary restraining order directing OPM to rescind its orders and to advise the agencies that it (OPM) has no authority to order agencies to terminate anyone. The judge did not order the terminated employees to be reinstated because the plaintiffs sued only OPM, not the agencies for whom the employees had worked.  The judge followed up with a written order on February 28. A further hearing is scheduled for March 13.

Some terminated probationary employees also filed complaints with the Special Counsel, alleging that their terminations resulted from prohibited personnel practices. On February 21, 2025, the Special Counsel petitioned the MSPB to order the terminations delayed for 45 days to enable the Special Counsel to investigate the complaints. The Special Counsel urged that he had reasonable cause to believe that the agencies engaged in prohibited personnel practices by disguising a reduction in force as performance-based dismissals and thereby evading the statutes and regulations governing reductions in force. On February 25, 2025, the MSPB granted the Special Counsel’s request.