July 3, 2025

Charles Ezell

Acting Director, U.S. Office of Personnel Management 1900 E Street, N.W.

Washington, DC 20415

Re: “Suitability and Fitness,” Proposed Rule, 90 Fed. Reg. 23467, Docket ID: OPM-2025-0007

Dear Acting Director Ezell:

We, the undersigned whistleblower organizations, submit the following comments in opposition to the Office of Personnel Management’s (OPM) proposed rule, “Suitability and Fitness.”

We oppose this proposed rule because it would:

• authorize the government to subvert longstanding civil service protections by taking suitability actions against career civil servants based on post-appointment conduct;
• consolidate authority to take suitability actions within OPM, enabling an administration to further politicize the civil service; and
• expand the criteria for negative suitability determinations, including in ways that escalate whistleblower retaliation and chill protected speech.

OPM estimates it would convert half of all Chapter 75 termination actions into suitability actions, stripping career employees of due process rights and preventing the Merit Systems Protection Board (MSPB) from overturning unlawful or unreasonable suitability actions. These unnecessary changes would fundamentally threaten the integrity of the professional civil service and the government’s ability to fairly and effectively serve the needs of the public.

Introduction

OPM relies on sections 3301 and 7301 as authorizing this proposed rule. However, under 5 U.S.C. 3301, Congress authorized the President to only “prescribe such regulations for the admission of individuals into the civil service in the executive branch.” The Merit Systems Protection Board has held that this statute governs only the fitness of applicants, except potentially where OPM later finds an employee was unfit at the time they applied. Congress has also authorized the President to “prescribe regulations for the conduct of employees in the executive branch.” This does not, however, allow the President to dictate the process for taking action against an employee for misconduct.

That is because Congress legislated a separate process to address employee misconduct when it enacted

Chapter 75 protections while passing the Civil Service Reform Act. The process ensures that agencies can fairly terminate employees while also protecting employees from being fired for political, retaliatory, or other unlawful reasons.

Expanding Suitability Actions for Current Employees

The proposed rule would authorize OPM to take suitability actions against current civil servants based on post-appointment conduct. This would strip employees of statutory due process protections that Congress has provided, allowing the government to fire them more easily and arbitrarily. Critically, converting substantial numbers of Chapter 75 removals would severely narrow the MSPB’s jurisdiction to hear appeals of terminations. MSPB’s ability to review suitability removals is much more limited than it is for Chapter 75 removals. While employees could still appeal these actions, the Board may only issue findings and cannot overturn OPM’s actions, leaving OPM as the final decision-maker. There is simply no justifiable rationale to remove MSPB’s authority to decide the merits of these appeals. This rule would diminish independent enforcement of merit system principles, thereby making employees more vulnerable to biased and unwarranted actions and threatening the fairness and integrity of the entire civil service.

Consolidating Authority Within OPM

The proposed rule would take agencies’ authority to determine their own employees’ suitability and further consolidate it within OPM. Agencies looking to address post-appointment conduct of employees would be required to refer suitability questions to OPM, who would determine whether to take action. This would remove both critical personnel decisions from agencies and restrictions that protect against an administration attempting to further politicize the civil service.

Increasing Negative Suitability Factors

The proposed rule would also establish additional factors for OPM to use to determine suitability. One factor would be “theft or misuse of government resources and equipment, or negligent loss of material government resources and equipment.” Vague rationales such as “misuse of government resources” could easily include innocuous behavior, such as losing a pen or misplacing an office stapler, enforced selectively against employees for political reasons. More importantly, this would immediately implicate whistleblowers who use government documents to show evidence of wrongdoing while making lawful disclosures. This would result in further risk of whistleblowers not just losing their jobs and being defenseless against retaliation, but also in them facing serious criminal charges.

Another criterion would be “refusal to certify compliance with, and/or adhere to, applicable nondisclosure obligations.” Agencies are prohibited from enforcing nondisclosure agreements that do not contain statutorily required language specifying that provisions do not supersede whistleblower protections. Intimidating employees into adhering to potentially unlawful nondisclosure agreements as a means of demonstrating continued suitability for employment can cause those employees to willfully concede their whistleblower protections to avoid risking their job security. This would chill federal workers’ free speech and curtail the ability of employees to speak out against abuses of power and other wrongdoing.

Conclusion

This proposed rule seeks to undermine one of the foundational components of our federal government: the professional, nonpartisan civil service. While we recognize the importance of determining applicants’ suitability for federal employment, the government’s authority to make these determinations cannot justify the evasion of the rule of law, especially where it governs career employees’ conduct. The government already has a statutory mechanism for terminating employees — one that protects employees from unlawful actions and protects the public from a fully politicized civil service.

OPM has not demonstrated a need to create an entire parallel process that would allow the government to pick and choose which employees should receive due process protections. Nor does this proposed rule establish new procedures for employees to challenge suitability determinations. This would result in inconsistent standards and arbitrary actions against employees for vague, political, or other unwarranted reasons.

While the civil service exists to uphold the law and serve the people faithfully, this rule would pressure civil servants into prioritizing loyalty to a president’s political agenda or else risk being deemed unsuitable for continued employment. When the administration has free range to oust employees for political reasons under the auspices of “suitability” for government service, those most at risk of harm are not employees themselves but people across this country.

For the foregoing reasons, we oppose this proposed rule. Thank you for your consideration of these comments.

Sincerely,

Project On Government Oversight

Government Accountability Project

Public Employees for Environmental Responsibility (PEER)

Whistleblowers of America