Schedule Policy/Career Lawsuit: The Three Comments Problem

Federal employees following the controversy around Schedule Policy/Career already understand the stakes. The rule allows agencies to reclassify certain career positions into a new category that removes traditional civil service protections—meaning the employee could be terminated without MSPB appeal rights and without the procedural safeguards normally required for discipline or removal.

What many employees do not realize is that one of the central legal challenges to the rule focuses not just on the policy itself, but on how the Office of Personnel Management justified it. The lawsuit Public Employees for Environmental Responsibility v. Trump highlights an unusual problem in the rulemaking record: OPM appears to have reversed a prior, research-based position with minimal supporting evidence.

That issue goes directly to the heart of administrative law.

OPM’s Earlier Finding on At-Will Reforms

In 2024, OPM conducted a formal rulemaking process examining whether shifting public employees to at-will status improves government performance. The agency reviewed empirical research and examined experiences in states such as Georgia and Florida, which had implemented similar reforms.

OPM’s conclusion at the time was clear: those reforms “have not delivered the benefits they promised.” That finding appeared in the Federal Register and was based on a record that included studies, analysis, and public comment.

Under normal administrative practice, a conclusion like that becomes part of the agency’s regulatory record. If the agency later takes a different position, it must acknowledge the earlier finding and explain—based on evidence—why the change is justified.

The Three Comments Cited in the Final Rule

When OPM issued the 2026 Final Rule creating Schedule Policy/Career, the agency adopted the opposite conclusion. The rule suggests that state at-will reforms demonstrate positive outcomes and raise little risk of political abuse.

According to the complaint in PEER v. Trump, OPM identified three public comments as part of the reason it reconsidered its earlier position: comments 17824, 19350, and 19352.

Those comments contain identical language stating that states such as Georgia, Florida, and Arizona adopted at-will models “with no evidence of political abuse.” They do not cite studies, provide data, or include methodological support.

The plaintiffs argue that relying on these comments—particularly where they are identical—does not adequately explain why the agency abandoned its earlier, research-supported conclusion.

Why the Administrative Procedure Act Matters

This is where Administrative Procedure Act (APA) doctrine becomes critical. The Supreme Court has repeatedly held that when an agency changes course, it must provide a “reasoned explanation.” Two cases often cited in this context are Motor Vehicle Manufacturers Association v. State Farm and FCC v. Fox Television Stations.

The principle is straightforward: agencies are allowed to change policy, but they cannot ignore prior findings or reverse themselves without explaining why the evidence now supports a different result.

In the Schedule Policy/Career litigation, the plaintiffs argue that OPM failed to meet that standard.

What Federal Employees Should Take Away

For federal employees concerned about Schedule Policy/Career, the lawsuit illustrates an important point: rulemaking records matter. Courts reviewing agency actions do not simply evaluate whether a policy is controversial—they examine whether the agency followed the legal procedures Congress required.

That means the details of the administrative record—including how the agency addressed public comments and prior findings—can become decisive.

Understanding those mechanics can make the process feel less opaque. Legal challenges to major regulatory changes often turn not just on policy arguments, but on whether the government followed the rules that govern how those policies are created.

Legal Disclaimer: The information provided in this article is for informational purposes only and should not be construed as legal advice. While I am a federal employment attorney, this post does not create an attorney-client relationship. Every situation is unique, and legal outcomes depend on specific facts and circumstances.