OPM's Final RIF Rules: Performance Points Before Seniority, and Appeals That Go to OPM Instead of the MSPB

Bottom line

In OPM’s own worked example, an employee named Harper goes from last on a retention register to first ^[1]. That one table shows the change. Under the final RIF rule published August 3, performance points decide who stays, and tenure and length of service break ties ^[1]. A companion rule moves RIF appeals from the Merit Systems Protection Board to OPM itself, with no route to court afterward ^[2]. Both take effect September 2 and reach only RIF notices issued on or after that date ^{[1, 2]}.

What happened: two final rules, effective September 2

OPM issued four final rules on Friday, July 31, and they were published in the Federal Register on Monday ^{[3, 4]}. Two concern RIFs. FR Doc. 2026-15665 rewrites 5 CFR part 351, the regulations that decide retention in a RIF ^[1]. FR Doc. 2026-15666 rewrites how employees appeal a RIF separation, a demotion or a furlough of more than 30 days ^[2]. The other two rules cover probationary-period appeals and suitability appeals ^{[3, 4]}.

How we got here. The governing statute, 5 U.S.C. 3502, tells OPM to give “due effect” to four factors: tenure, military preference, length of service and performance ratings ^[1]. It does not rank them ^[1]. Under the current regulations, employees are sorted by tenure group, then by veterans’ preference subgroup, then by a service date that performance can push back: 20 years for Level 5 ratings, 16 for Level 4 and 12 for Level 3 ^[1]. OPM argues that a long-serving employee with three Fully Successful ratings can outrank a recent hire with three Outstanding ratings, and calls the current system “a service-date adjustment applied at the end of a categorical ranking system” ^[1]. OPM relies on a 1987 D.C. Circuit decision holding that the weight given to performance is “a policy decision” ^[1]. OPM received 721 unique comments on the proposed RIF rule ^[1].

The new retention order ^[1]:

• Separate registers for competitive and excepted service, each with two tenure subgroups replacing the old groups I, II and III.
• Performance credit from the three most recent ratings of record in the four years before the notice: 7 points for Level 5, 5 for Level 4, 3 for Level 3, zero for Level 2 or Level 1.
• Veterans’ preference as added points: 5 for a compensable service-connected disability of 30 percent or more, 3 for other preference eligibles.
• Tenure subgroup, then service computation date, only to break ties.
• “Bump and retreat” replaced by assignment rights to a position held by someone with lower retention standing in the same tenure group, generally within three grades, or five for certain veterans with a 30 percent disability.
• Retention standing fixed on the date the employee receives the specific RIF notice, not the date the RIF takes effect.

The appeals rule. OPM received 1,252 comments on its proposal to take over RIF appeals, and 99 percent opposed it ^[2]. The final text keeps the plan. An employee must show, by a preponderance of the evidence, that the agency broke an applicable statute or OPM regulation and that the error caused the action or cost a “materially more favorable outcome” ^[2]. Review is on the written record, with a hearing only when OPM finds it “necessary and efficient” ^[2]. Then comes the sentence most readers should read twice: “A party cannot obtain judicial review of a decision under this subpart” ^[2]. A final MSPB decision can now be taken to the U.S. Court of Appeals for the Federal Circuit, Government Executive notes ^[3].

OPM Director Scott Kupor wrote that the MSPB backlog “stretches to many months and, in some cases, years,” according to Government Executive ^[3]. Former MSPB member Raymond Limon told the outlet the new process is “a paper exercise” ^[3].

What it means for you: retention math and a 30-day appeal clock

Career employees with long service and Fully Successful ratings. You lose the most ground. Length of service now matters only if your point total ties someone else’s ^[1]. Three Level 3 ratings yield 9 points; a colleague with three Level 4 ratings has 15 ^[1]. Readers should pull their last three ratings of record now. The July 8 memo on the rating rule explains why those ratings may be harder to earn at the top.

Veterans. Preference no longer places you in a subgroup ahead of non-veterans; it adds 3 or 5 points ^[1]. In another OPM example, Kai ranks first under current rules and fourth under the new ones ^[1]. AFGE, criticizing the proposed rule, said it “would weaponize those ratings, making performance the dominant RIF factor,” FEDweek reports ^[5].

Employees missing ratings. Two ratings: the agency averages them to supply a third. One rating: it counts three times. None in four years: the modal rating for your pattern ^[1].

Probationary, trial-period and short-term employees. You are no longer competing employees, and an agency can release you without RIF procedures ^[1]. You still get a modified notice if released for lack of work, reorganization or similar reasons, unless your appointment simply expires ^[1].

Employees facing a shutdown furlough. An emergency furlough caused by a lapse in appropriations, with no known end date, no longer counts as a RIF furlough ^[1]. Cost-saving furloughs by an agency remain covered ^[5]. OPM also dropped a proposed change that would have made long unpaid RIF furloughs easier ^[1].

Employees who are separated or demoted. File with OPM within 30 calendar days of the action’s effective date, through OPM’s e-filing system ^[2]. The agency answers within 30 days and must produce its complete record; you may reply within 15 days ^[2]. Either side may ask OPM to reconsider within 30 days of the initial decision, and the OPM Director may reopen it ^[2]. RIF actions can no longer be grieved or taken to arbitration under a union contract ^[2]. Discrimination, whistleblower and veterans’ claims can still go to the EEOC, OSC, DOL VETS, an inspector general or the MSPB under their own jurisdiction, and a RIF appeal may follow within 30 days of a final decision there ^[2].

Contractors. Neither rule governs contractor staff ^{[1, 2]}.

Questions you’re probably asking

Does the new OPM RIF rule apply to a RIF notice I already received?

No. A RIF notice issued before September 2, 2026 is processed under the rules in effect when it was issued ^[1]. The new OPM appeal process likewise applies only to specific RIF notices issued on or after September 2 ^[2].

How is RIF performance credit calculated under the new rule?

Agencies add up points for your three most recent ratings of record from the four years before the notice: 7 for Level 5, 5 for Level 4, 3 for Level 3 and 0 for Level 2 or Level 1 ^[1]. Veterans then get 3 added points, or 5 with a compensable service-connected disability of 30 percent or more ^[1].

What if I don’t have three ratings of record?

With two ratings, the agency averages them to fill the third. With one, it counts that rating three times. With none in the four-year window, it uses the modal rating for your summary level pattern ^[1].

Can I still appeal a RIF separation to the MSPB or to court?

Not for RIF notices issued on or after September 2. Appeals go to OPM within 30 calendar days of the action’s effective date, and the rule bars judicial review of OPM’s decision ^[2]. Discrimination, whistleblower and veterans’ claims can still go to the EEOC, OSC, DOL VETS, inspectors general or the MSPB under their own jurisdiction ^[2].

Are probationary employees part of RIF competition under the new rule?

No. Employees in an initial probationary or trial period, temporary appointees of one year or less, and Schedule C and Schedule G employees are not competing employees and can be released without RIF procedures ^[1]. A release for reasons such as lack of work or reorganization still requires a modified RIF notice, unless the appointment simply expires ^[1].

What I’m watching

• September 2, 2026: both rules take effect. Notices issued before then stay under the current rules, and the OPM appeal process does not reach them ^{[1, 2]}.
• Before September 2 (no date given): OPM’s e-filing system and instructions, which the rule says will be identified on its website ^[2].
• No date set: the first RIF registers built on the new formula, and whether any agency uses its discretion to credit awards for employees in pass/fail appraisal programs ^[1].