On May 13, the Partnership for Public Service hosted a FedSupport webinar featuring two former Merit Systems Protection Board leaders to discuss the current role of the MSPB and to help federal employees better understand how to navigate the appeals process.
Attendees submitted significantly more questions than we could address during our webinar. To answer them, we sat down with Ray Limon, former vice chairman of the MSPB and founder of Merit Service Advocates.
The second installment of our series on the MSPB delves into reduction-in-force procedures and employee appeal rights, outlining documentation that employees should be aware of. Other blogs in this series can be viewed here.
What rights do federal employees have to appeal a reduction-in-force decision if they believe retention rules or competitive procedures were applied incorrectly?
A competitive service employee who is separated, demoted or furloughed for more than 30 days as a result of a RIF may appeal to the MSPB. The appeal must be filed within 30 calendar days of the later of the effective date of the action or the date you received the agency’s written RIF notice.
A RIF appeal requires agencies to carry the burden of proof on two fronts, while the appellant must demonstrate a third, which can stand on its own.
- Bona fides of the RIF: The agency must demonstrate a genuine, legitimate reason for conducting the RIF (e.g., reorganization, shortage of funds, lack of work). If the RIF is a pretext to remove a specific employee, the board can invalidate it.
- Proper administration: The agency must prove by a preponderance of the evidence that it properly applied Office of Personnel Management regulations in 5 CFR Part 351: proper competitive area, correct competitive levels, accurate retention registers, correct application of veterans’ preference and proper bump-and-retreat rights.
- Harmful error: Even if the agency proves the RIF was legitimate and properly administered, appellants can still prevail by showing a procedural error that caused substantial harm or prejudice to their rights. The burden of proving harmful error is on the appellant. (5 CFR 1201.13)
- Note: Union bargaining unit members face an additional threshold decision: If your collective bargaining agreement (CBA) covers RIF appeals, you must generally choose between filing a grievance under the CBA or an MSPB appeal—not both. Filing the wrong one first can permanently foreclose the other. Check your CBA and consult your union representative or an attorney before filing anything.
How are retention registers and veterans’ preference used during a RIF?
For each competitive level, the agency must create a retention register—a ranked list of all employees competing for retention. Ranking follows four criteria applied in sequence:
- Tenure of employment (e.g., career/permanent, career-conditional, term/temporary)
- Veterans’ preference (preference for a RIF is different than preference for hiring)
- Length of service (service computation date or total creditable federal civilian and military service)
- Performance (this is the factor the proposed March 5, 2026, rule would move ahead of tenure and length of service—see more below).
If your agency used supplemental criteria beyond the four standard factors (such as points for awards or language proficiency), check whether those criteria were actually authorized by your agency’s own RIF-implementing regulations. Unauthorized criteria can support a successful challenge.
What documentation should employees review to ensure the process was conducted fairly?
Employees who are subject to a RIF—or believe they may be—should request the following documentation as early as possible, since some documents may become more difficult to obtain after separation:
- Their position on the retention register and the register itself for their competitive level
- The agency’s competitive area determination and competitive level definitions
- Service computation dates used for all employees on the register
- Performance ratings used in calculating retention standing
- The RIF notice and any communications about bump-and-retreat rights
Federal employees may have heard about recently proposed policies that would alter certain appeals processes and change how RIF retention registers are created. What should they know about the status of those rights now and in the future?
Two significant proposed rules are currently in the pipeline—neither is final as of this writing:
- RIF Appeals Redirect (proposed Feb. 10, 2026): The Office of Personnel Management proposed amending 5 CFR § 351.901 to require that RIF appeals be filed exclusively with OPM’s Merit Systems Accountability and Compliance Office—not the MSPB. Under the proposal, appeals to OPM would be decided on the written record only, with no independent administrative judge, no discovery and no further right of review at the Federal Circuit.
- Performance Over Seniority (proposed March 5, 2026): OPM proposed restructuring the retention register to elevate performance ratings above tenure and length of service as the primary retention factor. The proposal would also expand the categories of employees excluded from RIF protections, including many career employees in the excepted service and certain probationary employees.
The public comment periods for these rules closed in the spring of 2026, so a final version of either rule could be issued at any time. Until that happens, your rights under the current rules remain fully intact, and any final rule is widely expected to be challenged in court.
For a deeper dive into RIF rights and appeal procedures, Merit Service Advocates provides a thorough RIF FAQ resource.
This blog post is part of our FedSupport series, bringing you tailored information from experts on an array of topics affecting federal employees—from policy analysis to career and benefits support.
Please note: This content offers general informational and educational purposes only and does not constitute legal advice. This transcript was lightly edited for clarity.
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