Inside the Unions' Lawsuit Against OPM: Can One Agency Fire You and Hear Your Appeal?
The unions’ lawsuit against OPM over the new suitability and performance rules is being covered as a fight about making it easier to fire federal employees. After reading the entire twenty-six-page complaint, we think the sharper fight is a different one: can one agency write the firing rule, take the firing action, and then judge its own decision?
What the Suitability Rule Changes
Chapter 75 of Title 5 is the removal process Congress wrote for career federal employees: advance notice, an opportunity to respond, and an appeal to the Merit Systems Protection Board (MSPB) — an independent adjudicator outside your agency. The Suitability Rule pulls conduct-based firings out of that system. Under the new framework, OPM decides, your agency executes the removal within five business days, and — under a separate rule finalized in August — your appeal goes back to OPM itself. By OPM’s own math, half of all federal removals move into this new lane.
Round One: A Loophole or Earned Tenure?
OPM’s justification for the change is that — in its word — it is “illogically” the case that the government can bar someone from federal jobs for past misconduct but cannot remove a current employee who does the same thing. The unions’ answer: that is not a loophole, that is tenure. Congress deliberately gave earned careers more protection than applicants. And Chapter 75 already handles misconduct — including an expedited track when an employee is reasonably suspected of a crime. If removal for serious misconduct has always been available, the unions argue, the rule’s stated justification does not hold up — and what remains looks like a run around the civil service protections.
The statistic OPM cited to justify the overhaul: only 41 percent of supervisors are confident they could remove an employee who committed serious misconduct (91 Fed. Reg. at 39369). The unions’ response is that OPM never showed Chapter 75’s procedures caused that number.
Round Two: The Fight Over Appeal Rights
During the comment period, commenters warned that federal employees would lose appeal rights under the rule. OPM called that a “fundamental misunderstanding.” But almost five months earlier, OPM had already proposed moving those very appeals from the MSPB to itself — and that rule is now final. The complaint calls OPM’s response an “attempt to mislead,” and adds: “it is hard to imagine a scheme that is more contrary to Congress’ design.”
A Regulation Cannot Take Away What a Statute Gives
Congress decided, in 5 U.S.C. § 7513, that a removed federal employee gets an outside appeal to the Merit Systems Protection Board. A regulation cannot take away what a statute gives — and that principle is why we think the unions have the better of this argument. There is no ruling yet, and litigation takes time. But the concerns driving this case are valid ones.
What Federal Employees Should Do Now
These rules are in effect while the litigation plays out. If a suitability action or a proposed removal lands on you, save everything — the notice, the evidence file, every deadline — and get advice before you respond. The response window is short, and what you say early in the process shapes everything that follows. The attorneys for federal employees at Southworth PC offer free consultations.
Legal Disclaimer: This content is for general informational purposes only and does not constitute legal advice. Federal employment situations are fact-specific and time-sensitive. Please consult a qualified federal employment attorney about your specific situation.