OPM Reduction-in-Force Appeals Plan Would Fail in Supreme Court

The US Supreme Court’s decision in Learning Resources, Inc. v. Trump is notable in that a confluence of situation, statute, and interpretation produced four concurring opinions (six if including the bifurcated opinion of the court) agreeing that the International Emergency Economic Powers Act doesn’t vest the President with authority to impose tariffs.

The Office of Personnel Management’s effort to unwind the Civil Service Reform Act’s separation of powers should elicit a similar confluence.

In a proposed rule called Reduction in Force Appeals, the OPM claims their seizure of exclusive authority over reduction-in-force appeals would be “honoring congressional intent and historical practice.” The American Federation of Government Employees has signaled willingness to file a lawsuit against the rule if finalized.

If a final rule comes before the Supreme Court in Hypothetical v. OPM, we can expect a repeat of Learning Resources’ 6–3 split.

The Proposed Rule

One footnote of the proposed rule neatly captures the OPM’s rejection of the Civil Service Reform Act’s separation of powers: The OPM’s director is best equipped to supervise rule adjudication because he supervises rulemaking, whereas the Merit Systems Protection Board “lack[s] such a perspective.” But this was by design—Congress created the Merit Systems Protection Board to house adjudication because it designated the OPM with rulemaking.

OPM’s proposed rule stands on two unsound assumptions. One is that there is ambiguity in the Civil Service Reform Act about who Congress intended to oversee such appeals. The other is that such ambiguity indicates Congress intended the President, via OPM, to determine reduction-in-force appeal procedures.

Both assumptions are necessary to bolster the OPM’s argument. However, given how the Supreme Court handled congressional intent and major questions doctrines in Learning Resources, neither would hold water with the majority of the justices.

Legislative History

Legislative history’s interpretive value varies among the Supreme Court justices. Justice Elena Kagan once described Justice Antonin Scalia as “allergic” to legislative history. This is where Justice Ketanji Brown Jackson’s Learning Resources concurrence diverted course, deploying legislative history “to give effect to Congress’s intent, not our own instincts.”

As with the International Emergency Economic Powers Act, the Civil Service Reform Act’s legislative history can address the ambiguity the OPM alleges. To echo Jackson, “[W]hy would it matter which interpretation we think is ‘best’ when Congress has already told us?”

The findings and statement of purpose prefacing the Civil Service Reform Act’s includes “increasing the authority and powers of the Merit Systems Protection Board in processing hearings and appeals.” The Special Counsel also is empowered, but the OPM isn’t. Title I of the statute—merit system principles—reinforces this stated intent. Legislative history here is, to quote Kagan, “icing on a cake already frosted.”

Civil Service Reform Act floor debates over appeals hinged on balancing fairness and efficiency without sacrificing merit principles. Representatives privileging one over the other appreciated the need for both. Not only is it clear they intended to provide due process, they believed it should be required under statute: “[employees] are entitled to their day in court under the bill.”

Congressman Andy Harris (R-Md.) pushed to restrict the conditions under which the President could remove Merit Systems Protection Board councilmembers. His amendment aimed to prevent any president from “putting a fox in charge of the chicken house” by further distinguishing the board from the OPM, which is “directly under the hand of the President.”

Harris’ amendment didn’t pass. Legislative history tells us it wasn’t because the board’s independence wasn’t critical. It was to curb redundancy: The board was “already effectively insulated from Presidential pressure.”

Whether Congress was correct in that belief doesn’t change that the Civil Service Reform Act intended to protect federal employees with meaningful due process independent of presidential influence.

Major Questions Doctrine

In writing Learning Resources’ opinion, Chief Justice John Roberts characterized the major questions doctrine as the “reluctance to read into ambiguous statutory text extraordinary delegations of Congress’s powers.”

The proposed rule repeats the failed argument that a lack of explicit statutory direction to the contrary grants the President authority. Whether deployed substantively (Justice Neil Gorsuch) or semantically (Justice Amy Coney Barrett), both approaches to the major questions doctrine would inform Hypothetical v. OPM.

OPM’s vaunted “efficiency” doesn’t override due process or the people’s constitutionally guaranteed sovereignty. For Gorsuch, that sovereignty is at stake in the separation of powers principle underlying his major questions doctrine approach. OPM’s unraveling of the merit-based civil service would compromise both employee rights and the rights of the people as sovereign. Subjecting the people to an administrative state wholly dictated by the executive would threaten that sovereignty.

Deliberation is neither streamlined nor efficient, which may be why OPM wants to do away with the Act. Such a rewrite of the Civil Service Reform Act would require an act of Congress—again, neither streamlined nor efficient.

But deliberation is also what prevents governance from “becoming nothing more than the will of the current President,” according to Gorsuch. The notion that efficiency is worth the cost of due process and separation of powers principles is unlikely to sway the justice who emphasizes that “the framers went to great lengths to make lawmaking difficult.”

OPM arguments fare no better when considered semantically through Barrett’s “context-based approach” to the major questions doctrine. Consider that Congress split adjudicatory and rulemaking functions to the Merit Systems Protection Board and OPM, respectively. Why would Congress create two agencies only to grant one the authority to strip the other of its core function?

Outlook

Whether calling on congressional intent, congressional responsibility, or common-sense statutory interpretation, the justices who concurred in Learning Resources may be hard pressed to rule in favor of the government in Hypothetical v. OPM.

As Roberts notes in Learning Resources, “There is no major questions exception to the major questions doctrine.” Even if an exception on “emergency” grounds were feasible, an absence of statutory prohibition doesn’t grant the OPM authority. The blank spaces between the lines of the Civil Service Reform Act “cannot bear such weight.”

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Michael C. Fallings is a managing partner at Tully Rinckey and chair of the firm’s federal labor and employment practice group.

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