In two recent guidance memoranda, one on February 4, 2025, and one on February 5, 2025, the Office of Personnel Management (OPM) took steps to reduce the number of SES positions reserved for career employees. OPM asserted that these actions were taken in further implementation on the recent executive order concerning SES employees, which was previously analyzed in this blog.
Both memoranda address the application of 5 U.S.C. § 3132. That statute draws a distinction between SES “career reserved positions” and SES “general positions.” Under the statute, the head of a given agency is supposed to designate specific SES positions as “career reserved positions” “if […] necessary to ensure impartiality, or the public’s confidence in the impartiality, of the Government.” “Career reserved positions” can only be filled by SES employees who are or have been in an SES position “based on approval by the Office of Personnel Management of the executive qualifications of such individual”—referred to as ‘career appointees;’ such approvals are based on a review by OPM Qualification Review Boards (QRBs). “General positions” in the SES, in contrast, are not limited to just ‘career appointees,’ and can also be filled either by permanent appointees who have not received OPM approval of their executive qualifications (‘noncareer appointees’), or by ‘limited emergency appointees’ or ‘limited term appointees.’ A ‘limited emergency appointment’ is limited to a single 18-month nonrenewable term, and a ‘limited term appointment’ is limited to 3 years for a position which will expire after the term ends. Different categories of appointees have differences in their Merit Systems Protection Board appeal rights in the event of discipline: ‘career appointees’ who are non-probationary or who had MSPB appeal rights in their position immediately before joining the SES have SES MSPB appeal rights for adverse actions and have certain statutory protections from disciplinary actions during the first 120 days after certain change in agency management, ‘noncareer appointees’ have no MSPB appeal rights for performance or conduct adverse actions and can be terminated at any time (and thus OPM in earlier policy guidance states that ‘noncareer appointees’ “serve at the pleasure of the appointing authority”), and ‘limited emergency appointees’ and ‘limited term appointees’ only have MSPB appeal rights if their position immediately before joining the SES have SES MSPB appeal rights for adverse actions and if certain conditions are met.
Current OPM regulations provide further detail concerning the sort of SES positions which are supposed to be designated as “career reserved positions,” as well as setting a required minimum number of ‘career reserved positions’ within the Senior Executive Service. The type of appointment used carries certain other ramifications. For example, current statute caps the total percentage of ‘noncareer appointments,’ either at a given agency or across the federal service. Different rules apply to reassignment or transfer of the different varieties of SES appointees. Under present OPM regulations, an SES employee in a ‘career appointment’ cannot be involuntarily converted into a limited or noncareer appointment. SES employees other than ‘career appointees’ are also prohibited from receiving certain categories of awards in the roughly 8-month period leading up to a presidential election and inauguration under present statute.
In its February 4, 2025, memorandum, OPM directed agencies to initiate the process for redesignating Chief Information Officer (CIO) SES positions from “career reserved positions” to “general positions” no later than February 14, 2025. OPM asserted that “The modern CIO role is not the sort of ‘impartial’ or ‘technical’ position that is fit for career reserved SES positions,” instead characterizing it as a “policy-determining and policy advocating” position. OPM also cited an alleged shortage of SES staff who had received OPM approval of their executive qualifications available to fill CIO positions at federal agencies.
OPM’s February 5, 2025, memorandum directed agencies to review the SES staff to identify any positions which had been converted from “general positions” to “career reserved positions” during the Biden Administration, and review to determine if such SES positions should either be retained as “career reserved positions” or instead converted back to “general positions.” In the memorandum, OPM questioned the overall constitutionality of any restrictions on presidential appointment discretion for SES-level positions in which the employee “exercises important policymaking, policy-determining, or other executive functions.”
In sum, these actions will likely expand the number of SES positions designated as “general positions,” and thus open to being filled by limited emergency appointees, limited term appointees or by noncareer appointees—many of whom serve only at the pleasure of the appointing authority.
If you are an SES employee and wish to seek advice regarding your rights based on these OPM guidance memoranda, consider contacting Gilbert Employment Law, P.C. to request an initial consultation.