Trump's HR Department Now Hears Its Own Appeals
NEWS & RESEARCH
In July 2026, the Trump administration expanded its power to remove federal employees by rewriting the rules governing how those firings can be challenged. For decades, workers who believed they had been wrongfully terminated could bring their case to the Merit Systems Protection Board (MSPB), where an administrative judge heard evidence and a bipartisan, three-member board reviewed the ruling. If the employee still lost, they could file an appeal in US federal court. The new rules dismantle much of that arrangement, instead sending appeals over layoffs, probationary firings, and workers' "suitability" to the Office of Personnel Management (OPM), which is essentially the federal government's HR department, and one whose director reports directly to the president. Making matters worse, OPM's decisions will be final and cannot be appealed to any court. The rules also narrow what workers can argue in the first place, stating that employees fired during their probationary period will no longer be able to raise discrimination claims handled by the Equal Employment Opportunity Commission. And when carrying out layoffs under the new rules, agencies will be instructed to prioritize performance over seniority—but performance is subjective, and can be used to push out individuals without justification. Trump has already dismissed tens of thousands of federal workers since returning to office—and the Supreme Court has expanded his firing authority, ruling that Congress cannot prevent the president from discharging federal appointees without cause.
SOURCES: Bloomberg Law | Federal News Network | Government Executive
ANALYSIS & OPINION
Prior to finalizing a rule, the federal government is required to hold a public comment period, in which the American public can weigh in on the proposed regulation. Of the roughly 1,250 comments submitted on the layoff appeals rule, 99% opposed it, with many arguing that the change would undermine the civil service and erode merit system principles. Raymond Limon, a former MSPB member, says, "Under the new process, you won't have the benefit of an adversarial litigation process in which you have an attorney and can draw and cross-examine witnesses and you have an independent, trained judge to hear your case and hold both parties accountable…. It's a paper exercise, and it's really up to some person inside OPM to decide how much due process you get." Limon also argues that the transfer betrays Congress's intent in passing the 1978 Civil Service Reform Act (CSRA), which deliberately split the government's personnel functions in two: OPM would set policy, and an independent MSPB would judge appeals. The rules may prove vulnerable in court as "arbitrary and capricious" under the Administrative Procedure Act (APA). OPM Director Scott Kupor tried to validate the need for the move by saying that the MSPB is too slow to handle its current workload. While this is true, he failed to acknowledge the reason behind the delays: the board has lacked the quorum it needs to issue decisions ever since Trump fired its Democratic chair, Cathy Harris, and left the seat empty. Commenters also questioned OPM's own capacity to handle employee appeals. As Jenny Mattingley of the Partnership for Public Service said, "MSPB has an entire roster of administrative judges. It's got a board that oversees it. It's got a lot of support staff. It would require a lot of resources for OPM to offer the same quality and independent services."
SOURCES: Bloomberg Law | Federal News Network | Government Executive
HOW TO FIX IT
Federal action:
Write MSPB's jurisdiction into law. The 1978 law that created the MSPB directly put some appeals in its hands—firings for misconduct, whistleblower cases—but it didn't explicitly mention layoffs, probationary firings, or suitability, which is why OPM was able to transfer those types of cases to its own domain. The administration then used this to its advantage, arguing that if Congress truly wanted the MSPB to have those functions, it would have granted them by statute. Congress can do exactly that: amend 5 U.S.C. § 7701, the provision governing MSPB appeals, to name all three categories as within the board's jurisdiction—putting them beyond the reach of any future rule change.
However, returning these cases to the MSPB only works if Congress also keeps the board functioning, because the delays are real. One option is to make sure an empty board doesn't stall anyone's case. Below the three political appointees sits a body of career administrative judges who actually hear the evidence and issue the initial rulings. Congress could let those decisions become final automatically when the board lacks the members it needs, subject to appeal in court. This would keep cases moving, preventing an administration from manufacturing a backlog and then citing it as grounds for taking the board's work away.
Create a civil service court to move these appeals out of the executive branch entirely. No "independent" official inside the executive branch is truly insulated anymore. MSPB members could once be removed only for misconduct, neglect of duty, or malfeasance—the protection that made the board independent in the first place—until the Supreme Court held that Congress cannot limit the president's power to remove such officials. So if an agency in the executive branch cannot be protected, perhaps create a court outside the president’s reach. Congress has done this before: In 1988 it created a separate court to handle veterans' benefit appeals, because until then a veteran denied benefits by the Department of Veterans Affairs (VA) could only appeal to the VA itself. A civil service court on that model would put these cases before judges who sit outside the executive branch, and whom no president could simply fire.
Guarantee an appeal to a real court. Under the new rules, OPM has the last word—no judge outside the executive branch ever sees the case. Congress should guarantee that any final decision on a firing can be appealed to federal court, no matter which agency issued it. Federal judges are appointed for life and can't be removed by the president which, after the latest Supreme Court ruling, makes them the only adjudicators genuinely out of his reach.
Litigation:
Challenge the rules in court. The fastest available response doesn't require Congress at all. Federal employee unions can sue to block the rules before they take effect, on two grounds: that the new rules are "arbitrary and capricious" under the APA, and that OPM exceeded its authority, since Congress gave employees the right to appeal MSPB rulings to federal court under 5 U.S.C. § 7703, and a personnel agency cannot erase that right by rewriting its own regulations.
